Kelly James Emery v R

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 21 May 2021
• Neutral Citation: [2021] NZCA 158
• Court: Court of Appeal
• Docket Number: CA601/2019
• Date: 21 May 2021

Between

Kelly James Emery

Appellant

and

The Queen

Respondent

Between

Lance Waka Williams

Appellant

and

The Queen

Respondent

[2021] NZCA 158

Court:

Miller, Brewer and Dunningham JJ

CA601/2019

CA49/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeals against convictions and sentences for aggravated robbery — judge's obligation to put the defence case — cultural reports — Criminal Procedure Act 2011 — Sentencing Act 2002

Counsel:

S L McColgan for Appellant CA601/2019

D S Niven for Appellant CA49/2020

E J Hoskin for Respondent

• A The conviction appeals are dismissed.

• B The sentence appeals are allowed. The sentences are quashed and the sentences remitted to the High Court for re-sentencing in light of this judgment. The appellants are remanded in custody to appear in the High Court at Auckland on 9 June 2021 at 9.00 am.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J)

1 Messrs Emery and Williams are two of five men who faced trial on charges relating to two aggravated robberies and conspiring to commit another during a spree that began on 5 March 2018 and ended with their arrests 23 days later. The robbers targeted a MoneyShop and an ACM security van using stolen cars and a firearm, obtaining a total of approximately $109,779.10 in cash.

2 The principal trial issue on the completed offences was identity. On the conspiracy charge the appellants denied that what was being planned was a robbery, or that they were parties to it. The appellants were found guilty of the two charges of aggravated robbery, and Mr Williams was also found guilty of one charge of unlawful use of a motor vehicle and one charge of conspiracy to commit an aggravated robbery. 1 Messrs Williams and Emery were sentenced to 12 and 11 years' imprisonment respectively, both with a minimum period of imprisonment (MPI) of 50 per cent. 2

3 They appeal their convictions, alleging overreach by the Crown and errors by the trial Judge, and their sentences, saying the starting points were too high, the Judge wrongly refused to adjourn sentencing for cultural reports, and it was wrong to impose MPIs. The Crown contests all grounds of appeal except the issue relating to the cultural reports, inviting us to remit the appellants for resentencing or call for reports and sentence the appellants ourselves.

Narrative facts

4 The Crown case was that sometime before 5 March 2018, the appellants entered a conspiracy with Kavae Teina (allegedly the ringleader), Benny Muraahi and Adrian Tepania to commit aggravated robberies using a firearm. They acquired a double-barelled shotgun, blue overalls, balaclavas and latex gloves.

5 The offending began on 5 March 2018 when a Subaru car was stolen. It is not in dispute that Mr Emery and Mr Tepania stole it. The car was driven to a MoneyShop in Takanini and reversed into a car park. Two men got out, wearing disguises, while a third, the driver, remained in the car. One of the robbers carried what is said to be the double-barrelled shotgun. They held up the staff and took all the cash on the premises, $454.10, and the handbags of two of the staff members. The robbery was recorded on CCTV, which the men disabled before leaving the scene. They abandoned the Subaru nearby. Police found Mr Williams's fingerprints on the back of the rear vision mirror and the driver's seatbelt buckle.

6 On 6 March another Subaru was stolen, again by Messrs Emery and Tepania. The following morning that car was filmed following a marked ACM cash transit van in Takanini as the van serviced automatic teller machines in the area. It is not in dispute that a white Honda Accord, registered to Mr Williams, was also observed following the van. Earlier that morning Mr Emery was filmed driving the Honda into a service station and refuelling it. He was wearing a white T-shirt. He was seen talking there to Mr Tepania, who was driving another car.

7 When the van stopped at a bank at the Southgate shopping centre, the Subaru pulled alongside as the two ACM staff members were loading cash from the automatic teller machine. Two masked men got out of the car, one carrying what is said to be the same double-barelled shotgun, and the driver remained inside. A total of $109,325 was stolen. The offenders fled, allegedly followed by the Honda. The Honda's movements after the robbery were not recorded on CCTV but it was recorded being driven into the car park at the shopping centre at the time of the robbery. The Crown maintained that Mr Emery was the driver of the Honda, purporting to identify him by what a Police officer who viewed the footage considered was a white T-shirt. The Subaru was abandoned nearby, and the Crown alleged that the offenders fled in the Honda.

8 The Police quickly identified the five defendants as likely suspects. They were watched, their telecommunications data was analysed and their cellular devices tracked. The Crown alleged that the data evidenced the involvement of all the men. They used coded language such as “movie” meaning, the Crown alleged, an aggravated robbery, and “birthday present”, meaning a firearm.

9 The Crown alleged that the intercepted communications disclosed that the men were planning another aggravated robbery. On 27 and 28 March 2018 their addresses were searched and evidence seized, including cash. The Crown alleged that their recent spending showed they had come into possession of large sums of cash. In Mr Williams's Honda they found a black beanie and a black balaclava. He was also in possession of several shotgun cartridges. Hidden in Mr Emery's wardrobe and chest of drawers they found a total of seven shotgun cartridges.

The trial

10 The men were all charged with the two aggravated robberies and conspiracy to commit a third. Messrs Teina, Muraahi and Williams were described at trial as the “A team” who actually committed the robberies. They were further charged with using the two cars dishonestly and without claim of right during the robberies. Mr Williams was said to have been the driver. Messrs Emery and Tepania, the “B team”, were charged with theft of the cars. Mr Emery was further charged with unlawful possession of an explosive, being the shotgun cartridges.

11 The trial began on 5 August 2019 in Auckland. On 14 August 2019, Peters J delivered a ruling which is important for reasons we explain later. 3 She allowed the Crown to adduce hearsay statements as evidence against the defendants under s 22A of the Evidence Act of the 2006, reasoning that there was sufficient evidence of a joint enterprise to commit aggravated robberies, that the enterprise encompassed both aggravated robberies and the subsequent specific conspiracy, and that the defendants were members of the conspiracy. She rejected a defence submission that there were two joint enterprises, the first culminating after the ACM security van. She also rejected the submission that there was insufficient evidence that the criminal offending being planned subsequently was aggravated robbery. Citing the judgment of this Court in R v Messenger, she accepted the Crown argument that it would be artificial to sever

the period. 4 She was also satisfied that there was reasonable evidence that what was under discussion after 16 March 2018 was another robbery. 5 This ruling is not challenged on appeal

12 Mr Williams accepted that he knew the other defendants and was in communication with them throughout the period of the alleged conspiracy. He admitted that his fingerprints were in the first Subaru but maintained that was consistent with him getting into the car without realising it was later to be used for an offence. It was his case that the balaclava in his car could not be the one seen in the CCTV footage and described by the MoneyShop staff; that there was no evidence connecting him with the Honda Accord on the day of the second robbery; that he is much older than the estimate of the driver's age given by an eyewitness at the MoneyShop; that around $10,000 in cash he and his partner had spent (buying a car for her and new wheels for the Honda) did not come from the robberies and the Police had returned the cars rather than forfeit them as proceeds of crime; and that the jury could not be certain that what the men were planning before 28 March 2018 was another aggravated robbery.

13 Mr Emery accepted that he knew the other defendants and was in communication with them throughout the period. He pleaded guilty during trial to stealing the two Subarus but maintained he had no idea what the others planned to use the cars for. He pleaded guilty also to possession of the shotgun cartridges. He admitted that it was he who refuelled Mr Williams's Honda Accord before the second robbery, but he denied driving it at the Southgate shopping centre. He pointed out that $2,600 cash found in his possession and property purchased had not been forfeited but rather had been returned by the Police. His case on the conspiracy charge was that the Crown had not proved he was party to a conspiracy to commit an aggravated robbery and what they were discussing was some other criminal activity, likely drug dealing.

14 Crown counsel delivered a detailed closing address which marshalled the circumstantial evidence against the defendants. The address took much of the day of

Friday 16 August 2019. Defence counsel delivered their closing addresses on 19 and 20 August and the Judge summed up for a little over an hour on 21 August 2019

15 The jury found three of the five defendants, including the appellants, guilty of both the aggravated robbery charges. 6 The “A team” were convicted on the conspiracy charge but Mr Emery was not. Mr Williams was also found guilty of unlawfully using the first Subaru but acquitted of using the second.

The conviction appeals

16 The appellants engaged new counsel for these appeals but there is no allegation of...