GEMMELL v NEW ZEALAND POLICE [2021] NZHC 1292

GEMMELL v NEW ZEALAND POLICE [2021] NZHC 1292 [3 June 2021]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2021-425-000004CRI-2021-425-000005[2021] NZHC 1292BETWEEN HORI IRIMANA GEMMELLAppellantAND NEW ZEALAND POLICERespondentHearing: 31 May 2021Appearances: G S Williamson for AppellantM B Brownlie for RespondentJudgment: 3 June 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 3 June 2021 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, Hori Gemmell, pleaded guilty to charges of theft of two Glock17 pistols (2),1 unlawful possession of a pistol (2),2 unlawful possession ofammunition,3 unlawfully taking a motor vehicle,4 and reckless driving.5 He also faced1 Crimes Act 1961, ss 219 and 223(b).2 Arms Act 1983, s 50(1)(a).3 Section 51.4 Crimes Act, s 226(1).5 Land Transport Act 1988, s 35(1)(a).an unrelated charge of breaching his release conditions. On 10 March 2020 he wassentenced to three years and one months' imprisonment by Judge Farnan in the DistrictCourt at Invercargill.6 He appeals that sentence on the ground it is manifestlyexcessive.Leave to appeal[2] The statutory timeframe for filing an appeal against sentence is 20 workingdays from the date of judgment appealed against.7 Mr Gemmell filed his appeal on13 January 2021, approximately 10 months out of time, so requires leave to appeal.[3] In explanation for the delay in filing the appeal he stated that his formersolicitor gave him "negligent advice" that he could appeal "whenever". He says hehas always wanted to appeal as he believes his sentence was manifestly excessive.While no evidence has been filed from his previous counsel to support that contention,the Crown concedes there is no prejudice to it in the appeal being filed late and it iscontent to deal with the appeal on its merits.[4] The touchstone in determining an application for an extension of time is theinterests of justice in the circumstances of the case.8 The relevant factors weresummarised in R v Lee as follows:9 factors of relevance to the balancing test include the wider interests ofsociety in the finality of decisions, the strength of the proposed appeal,whether the liberty of the subject is involved, the practical utility of anyremedy sought, the extent of the impact on others affected and on theadministration of justice, and any prejudice to the Crown.The merits of the appeal and the reasons for the delay are highly relevantconsiderations.10[5] Although the reasons for the delay are not satisfactorily explained, I acceptthere is more utility in allowing the appeal to proceed and to address it on its merits6 Police v Gemmell [2020] NZDC 4401.7 Criminal Procedure Act 2011, s 248(2).8 R v Knight [1998] 1 NZLR 583 (CA).9 R v Lee [2006] 3 NZLR 42 at [99], cited in Smith v R [2021] NZCA 169 at [5].10 R v Lee, above n 9, at [108]. See also Mikus v R [2011] NZCA 298 at [26], citing R v Slavich[2008] NZCA 116 at [14].given this would need to be done to consider the question of leave in any event.Accordingly, leave to appeal out of time is granted.Background[6] On 14 August 2019 a warrant was issued for Mr Gemmell's arrest by the GoreDistrict Court. Around 11.50 pm that day, a police patrol observed a vehicle beingdriven with headlights of unequal intensity and a front bumper missing. Policefollowed the vehicle with flashing lights engaged. The vehicle was driven at speedand turned into a no-exit street. Mr Gemmell was later identified as the driver.[7] The vehicle crossed the road, drove up the kerb and stopped on a grass verge.The police positioned the patrol car in an attempt to stop the vehicle. Mr Gemmellreversed the vehicle at speed ramming into the front of the patrol car. The force of theimpact shunted the patrol car backwards, causing the bonnet to buckle upwards.[8] Mr Gemmell got out of his vehicle and ran up a driveway. Both officers chasedMr Gemmell. He went around the back of a house, crawled through a hole in the gateand ran back down to the street where he got into the patrol car and locked the doors.When Mr Gemmell refused to get out of the patrol car one of the officers smashed thedrivers door window and the other officer fired a taser through the broken window atMr Gemmell, with no effect.[9] Mr Gemmell drove off in the patrol car at speed with lights and siren activated.One of the police officers had to step back quickly to avoid being hit.[10] Another police patrol car saw Mr Gemmell stop at an intersection and followedhim. Mr Gemmell drove the stolen patrol car across a road and stopped in the southbound lane facing north. The chasing patrol car stopped in front of the stolen vehicle.Mr Gemmell then accelerated aggressively towards the patrol car, ramming into thedriver's side door and shunting the car sideways towards the curb. The chasing patrolcar took evasive action and accelerated forward. Mr Gemmell drove off, stopping nearan intersection.[11] Mr Gemmell stopped near an intersection and initially ran off. He returned tothe vehicle, unlocked the firearms safe and removed two Glock 17 pistols. The pistolswere in holsters, each fitted with magazines containing 17 rounds of 9 mmammunition. Mr Gemmell ran away and evaded police.[12] More than 50 police officers were utilised to locate Mr Gemmell. The searchcontinued for two days and included the Armed Offenders Squads from both Dunedinand Invercargill being utilised to execute multiple search warrants at addresses wherePolice believed Mr Gemmell was hiding.[13] On 16 August 2019 Mr Gemmell was located at an address in the Te Tipuaarea. One of the Glock pistols was located in a back pack, along with 8 rounds of9 mm ammunition. Also located was a further 18 rounds of 9 mm ammunition.[14] Mr Gemmell sold one of the Glock pistols to an associate for $1,500.Mr Gemmell attempted to contact that associate while in the presence of the police,however the associate was uncooperative. This pistol was recovered following apolice investigation.[15] The charge of breaching release conditions arose because Mr Gemmell failedto report to the Community Probation Service on 14 June 2019, contrary to his releaseconditions from an earlier sentence of imprisonment.District Court decision[16] Judge Farnan adopted a global starting point of three and a half years'imprisonment for the charges of theft of the two Glock pistols and unlawful possessionof firearms. An uplift of two months' imprisonment was applied for the recklessdriving offending. Taking into consideration the extensive damage caused to thestolen police patrol car and the fact it was used, in effect, as a weapon, an uplift of12 months' imprisonment was applied for the charge of unlawfully taking a vehicle.An uplift of four months' imprisonment was applied in respect of Mr Gemmell'ssignificant criminal record. An uplift of one month was added for the unrelated breachof release conditions. This brought the overall starting point to 61 months'imprisonment.[17] The Judge considered an adjustment for totality was required. The Judgereduced the starting point by three months to four years and 10 months' imprisonment(58 months).[18] A discount of 15 per cent was applied for personal mitigating factors, includingthose identified in the pre-sentence report, the report of a clinical psychologist and thecultural report. This brought the sentence to 49 months' imprisonment. A 25 per centdiscount for guilty pleas was applied. This resulted in an end sentence of 37 months'imprisonment.[19] Mr Gemmell was disqualified from holding or obtaining a driver licence fortwo years and three months, effective from the date of release from prison. The Judgethen remitted all existing fines, but ordered Mr Gemmell to pay reparation in the sumof $2,000.Principles on appeal[20] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.11 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".12 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.1311 Criminal Procedure Act, ss 250(2) and 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[21] The key ground of Mr Gemmell's appeal is that the starting point of 42 months'in relation to the theft and possession of firearms charges was manifestly excessive.[22] Mr Williamson, on behalf of Mr Gemmell, submits a starting sentence of nomore than two years' imprisonment should have been adopted by the District Courtfor the lead offending. It is submitted this starting point would take into account thenature of the goods taken, the potential harm to the community, the fact that policewere victims, and that the firearms were loaded.[23] In support of this submission, Mr Williamson referred to cases involvingburglary of firearms where lesser sentences were imposed. For example, in Dawsonv Police, the defendant went twice to the same property in the same day and took itemsworth just under $35,000 including a .22 calibre semi-automatic rifle.14 On appeal, astarting point of two and a half years was upheld as not manifestly excessive. InHarraway v Police, a starting point of 24 months was found to be within range onappeal, where Mr Harraway was found in possession of the rifle and ammunition, afterhaving stolen them during a burglary.15 Finally, in Otter v Police, the defendantcommitted two burglaries at his ex-employer's rural property, taking 10 firearms anda large quantity of ammunition, plus other items worth between $40,000 to $60,000.16Six of the 10 firearms were not recovered and the District Court imposed a startingpoint of three years' imprisonment for the burglaries.[24] In comparison with these cases, Mr Williamson submitted that there was lesspremeditation in Mr Gemmell's offending and furthermore, one firearm was recoveredreasonably quickly and Mr Gemmell assisted with the recovery of the other.14 Dawson v Police [2020] NZHC 2296.15 Harraway v Police [2018] NZHC 761.16 Otter v Police [2015] NZHC 2857.[25] No challenge is made to the uplift of two months for the reckless drivingcharge,17 nor the 12 month uplift for the unlawful taking of a motor vehicle, and theone month uplift for breach of release conditions. However, Mr Williamson submitsthe uplift in relation to Mr Gemmell's prior criminal history should have beenthree months. Taking into consideration these uplifts, Mr Williamson submits anoverall starting point of 42 months' imprisonment should have been adopted.[26] Mr Gemmell does not challenge the discount of 15 per cent for personalmitigating factors nor the 25 per cent discount for guilty pleas. Mr Williamson submitswhen these discounts are applied a final sentence of 24 months' imprisonment isreached.Respondent's submissions[27] The respondent submits that offending of this nature requires a stern responsefrom the Court. It is paramount to denounce the unlawful taking of the police vehicleand of police firearms, and to deter others from committing similar offences.[28] Mr Brownlie submits unlawful possession of a single Glock pistol would havewarranted a starting point in the region of two years to two years and six months'imprisonment, referring to a number of cases in which charges of unlawful possessionof a firearm alone have attracted a starting point of up to two years and six months'imprisonment.18 The fact Mr Gemmell was in possession of two pistols and had stolenthem from police was a significant aggravating factor. A further aggravating factor isthe sale of one of the pistols to a third party. Mr Brownlie says the starting pointadopted by the District Court Judge may be considered stern, however it was withinthe available range.[29] Mr Brownlie submits the 12 month uplift applied for the unlawful taking of amotor vehicle was at the lower end of the available range.19 In his submission an upliftof 18 months' imprisonment could have been adopted.17 Indeed Mr Williamson accepts Mr Gemmell could have received the maximum sentence of threemonths' imprisonment given the seriousness of the driving offending.18 Rowell v Police [2019] NZHC 471; Byles v R [2013] NZCA 18; Torea v R [2011] NZCA 96.19 Referring to Pitihira v Police [2012] NZHC 1690.[30] It is submitted Mr Gemmell's relevant convictions, including for burglary andfurther dishonesty offending, justify the four month uplift for prior offending.Mr Brownlie submits the discount for personal factors was generous.[31] On balance, any harshness in the starting point adopted for the pistol offendingis mitigated by the modest uplifts and generous discounts, and the end sentence waswell within the range available for the serious offending perpetrated by the appellant.AnalysisWas the starting point adopted for the theft and possession of firearms chargesmanifestly excessive?[32] I consider the lead offending is the theft of the two Glock 17 pistols valued at$1,200 and the associated charges of unlawful possession of a pistol and ammunition.The maximum penalty for the charges of theft of the Glock 17 pistols is seven years'imprisonment.20 The maximum penalty for possession of a pistol is three years'imprisonment,21 and the maximum penalty for possession of ammunition is alsothree years' imprisonment.22 There are no tariff cases for these offences as thecircumstances and culpability differ greatly.[33] I consider the circumstances of the present offending are unique. Theoffending involves a number of aggravating factors. While any charge of theft orpossession of firearms by unlicensed persons has the potential for harm to thecommunity, there were reasons why, in this case, the risk was exacerbated. Theseinclude that the firearms were loaded, and that they were readily concealable andportable weapons. There was an element of premeditation here because Mr Gemmellreturned to the vehicle, unlocked the firearms safe and removed the pistols. A furtheraggravating factor is that one of the pistols was sold to a third party. However, perhapsthe most distinguishing aggravating feature is the fact the firearms were taken fromthe police and I concur with the respondent that this requires a strongly deterrentresponse in sentencing. In all the circumstances, I consider the offending was seriousand Mr Gemmell's culpability was high.20 Crimes Act, ss 219 and 223(b).21 Arms Act, s 50(1).22 Section 51(1).[34] Although I have reviewed all the cases referred to, I do not consider they areof much assistance in the present case. None involved a statutory aggravating factorof the victims being police officers acting in the course of their duty.23 Given thisfactor, the sentence clearly needed to be higher than both the burglary cases cited bythe appellant and the possession cases cited by the respondent. Having regard to themaximum penalties for the three firearms related charges, I do not consider the startingpoint of three and a half years was out of range.[35] While I acknowledge the Judge did not explicitly take into account the factMr Gemmell assisted the police by telling them who he sold one of the firearms to(which could have warranted a discount on the starting point), the ultimate question,which I go on to consider, is whether the end sentence is within range.Other offending[36] No challenge is made to the 12 month uplift applied for the unlawful taking ofthe police patrol car. The maximum penalty for this charge is seven years'imprisonment.24 The aggravating factors include the fact the victims were policeofficers acting in the course of their duty and the extensive damage caused to thevehicle. I consider the respondent is correct to say this was at the lower end of therange available to the Judge. In Pitihira v Police, Woolford J adopted a starting pointon appeal of 12 months' imprisonment for the opportunistic theft of a $2,000 scooter.25It is clear this is more serious offending and a significantly higher starting point couldhave been adopted.[37] The uplift of two months' imprisonment to reflect the reckless driving chargewas clearly appropriate. This could have attracted the maximum of three months givenMr Gemmell rammed into a police car on two occasions that night with sufficientforce, in both cases, to shunt the patrol cars and cause extensive damage.[38] The uplifts of one month for breach of release conditions and three months forrelevant criminal history (including burglary convictions, driving offences and23 Sentencing Act 2002, s 9(1)(fa).24 Crimes Act, s 226(1).25 Pitihira v Police. above n 19.violence related offences including assault on a police officer in 2016), areunremarkable. In my view an uplift of four months (approximately 6.5 per cent) toreflect this history was appropriate.[39] No challenge is made by Mr Gemmell to the discounts applied for mitigatingfactors and I also see no reason to disturb those discounts on appeal.[40] Overall, although the Judge could have given some discount for assistance topolice, aspects of the sentencing favoured Mr Gemmell and I consider the end sentencereached by the District Court Judge was within range.Result[41] Accordingly, the appeal is dismissed.Solicitors:Hewat Galt, InvercargillPreston Russell Law, Invercargill