R v Henry

[2021] NZHC 3379

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-019-2064

2021 NZHC 3379

THE QUEEN

v

SHANNON JOSEPH HENRY

Hearing:

9 December 2021

Appearances:

J N Hamilton for the Crown

K W Burroughs for the defendant

Judgment:

9 December 2021

SENTENCING NOTES OF HARLAND J

Counsel/Solicitors:

Hamilton Legal, Crown Solicitor at Hamilton K Burroughs, Hamilton

R v HENRY 2021 NZHC 3379 [9 December 2021]

Introduction

[1]    Mr Henry, you have pleaded guilty to one charge of wounding with intent to cause grievous bodily harm,1 one charge of converting a motor vehicle,2 and one charge of unlawfully carrying a firearm.3 The lead charge is the charge of wounding with intent to cause grievous bodily harm, which carries a  maximum penalty of     14 years’ imprisonment.

[2]    The incident which led to these charges arose from a routine traffic stop during which you presented a shotgun and fired it at close range at a lone and unarmed police officer. As we have heard, he was seriously injured as a result.

[3]    You are a young man of only 23 years of age, but because of what occurred, it is inevitable that a lengthy period of imprisonment must be imposed. The issues for me to address are what the starting point for the term of imprisonment should be, what the deductions from it for mitigating matters personal to you should be, and whether I should impose a minimum period of imprisonment that you must serve before parole can be considered.

[4]    As I have said, there is a process I must follow in sentencing you. I first address your offending before dealing with your personal circumstances.

The offending

[5]    The officer concerned, a police sergeant, was travelling alone in a marked patrol vehicle shortly before midnight on 9 July 2021, when he observed the vehicle in which you were a passenger and conducted a routine traffic stop.

[6]    He approached the stopped vehicle and spoke with the driver who provided false details. The officer noticed that there was also a front seat passenger in the car who was attempting to obscure his face with a scarf. That person was you. He walked

1 Crimes Act 1960, s 188(1).

2 Crimes Act 1960, s 226(1).

3      Arms Act 1983, s 45(1)(a).

around to the passenger side of the vehicle where he spoke with you. He identified you because he had dealt with you before.

[7]    The officer knew that there was a warrant for your arrest, so he moved out of earshot where he used his police radio to request assistance from other police units. He then returned to the vehicle you were in to remove the keys from the ignition. As he did so, the driver of the vehicle held onto the officer’s hand attempting to wrestle the keys back from him. While this was happening, you got out of the front passenger seat.

[8]    Concerned by your sudden movement, the officer dropped the keys inside the vehicle and looked up in your direction. He saw you standing about two metres away from him on the opposite side of the vehicle. You were aiming a firearm at his head and you shouted at him in an aggressive, abusive and threatening manner. It would have been very clear to him from how you were acting and what you were saying that his life was in danger.

[9]    Despite facing this terrifying situation, the officer displayed immense presence of mind and did not panic. He turned quickly and began to run, ducking his head as he did so. That saved his life, in my view. It would have been obvious to you that he was retreating, however you carried through with your threat and discharged the firearm. The shot hit the officer in the right shoulder and arm. It could very easily have killed him.

[10]   Despite the pain he was experiencing the officer managed to take shelter and radio for help.

[11]   The driver of the vehicle left the scene while you remained. You then decamped in the police vehicle. You were subsequently observed by members of the public driving the police vehicle dangerously on a rural road outside Hamilton.

[12]   Several hours later you were located at an address in Ngāruawāhia. You were found inside the dwelling as you were attempting to conceal yourself under bedding. You were holding a sawn-off shotgun in your hand and the safety was off.

[13]   When the firearm inspected, a spent shell was found in the chamber. As a result of the location of the spent shell, the firearm was fortunately jammed, effectively preventing the discharge of the remaining shots. I have said that was fortunate because I accept that your behaviour when the police attended could have meant that if the firearm was not jammed, there would have been injuries to other members of the police.

[14]   As a result of the shot fired by you, more than one hundred shotgun pellets were deeply embedded in the officer’s upper right arm and shoulder. Further pellets were lodged in the armour vest he was wearing at the time of the offending.

[15]   The officer underwent emergency surgery on 10 July 2021 at Waikato Hospital to surgically remove some of the pellets from his right shoulder. But as I have heard today, the bulk of the pellets could not be safely removed.

Victim impact statements

[16]   Your offending has had a profound impact on the officer, his family and his colleagues. I acknowledge their presence here today.

[17]   While appreciating the inherent dangers involved in his job, prior to being shot by you, the officer has said he did not consciously appreciate there was a potential for him to suffer a life-threatening injury at work, or worse, there was a risk he could die while on duty. As he said, while undertaking his work as a frontline police officer, his focus was on finding ways to deal as humanely and as effectively as possible with the many different members of the community and the many different situations he faced. Although he had dealt with you before, he had no reason to suspect that you would behave in this way towards him.

[18]   I acknowledge the courage and bravery displayed by the officer after he had been shot by you. Although wounded he ran and radioed for help thereby protecting his colleagues by warning them that you were armed.

[19]   The injuries you inflicted continue to impact the officer. Not only was he hospitalised for a period, but he was bedridden for weeks at home after the incident.

He continues to suffer pain and numbness in his right arm and because not all the lead pellets were able to be surgically removed, as we have heard today, there is an ongoing concern about their toxicity and the long-term effect this may have on his health.

[20]   Although he has returned to frontline policing, one of the most difficult things for him to deal with has been the effect this incident has had on his family, who now worry every time he goes to work. But rather than expressing hate and anger towards you however this is what the officer’s wife has said:

I am not holding anger towards Shannon Henry; I mainly just feel sadness about his actions both on that night and when he appeared in Court the Monday after. I am not really seeking punishment, but my hope is that the consequences that the Court decides, give him opportunities for change, so that no other families are harmed by his future actions in the way that we were. My understanding is he has family that could help him with this and that gives me some hope.

[21]   Your offending has also impacted the officer’s colleagues involved in frontline policing and their families. Young men and women around your age join the police force to serve their community because they want the community to be a safe place for everyone. They are trained to deal with difficult, challenging and stressful situations. However, police officers should not have to go to work worrying about whether their life is at risk because of the random and unprovoked actions of others.

What should the starting point for the term of imprisonment be?

[22]   In sentencing you, I must take into account the seriousness of the offending, including your culpability for it. I must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for them. I have already outlined that the most serious and lead charge in your case is wounding with intent to cause grievous bodily harm, which carries a maximum penalty of 14 years imprisonment. I must also take into account the general desirability of consistency, with appropriate sentencing levels and other means of dealing with offenders in respect of committing similar offences in similar circumstances, and as your lawyer submitted, I must impose the least restrictive outcome that is appropriate in the circumstances.

[23]   In this case, given the seriousness of the offending, namely that you shot an unarmed police officer while he was on duty, the starting point must be a lengthy term of imprisonment. The length of sentence I impose as a starting point must be sufficiently stern to deter you and others from, first, possessing such firearms and, secondly, using them against the police whose job is to protect and ensure the safety of others.4

[24]   The Crown submits that a starting point in the region of 12 years imprisonment justified, with an uplift of 12 months to reflect the unlawful possession of the firearm, and the fact that you had it with you and it was loaded when you were arrested, the conversion of the police vehicle and the way you drove it. Your lawyer accepts that such a starting point is open to the Court.

[25]   I am assisted in adopting a starting point on the lead charge by the Court of Appeal decision in R v Taueki.5 In this case the Court identified a number of aggravating factors that ought to be considered when assessing culpability, and categorised them in three bands, with Band one offending attracting the lower range of starting points and Band 3 attracting the highest.

[26]   Although your counsel submitted that the least restrictive starting point for you would place your offending within Band 2, the Crown has submitted that it clearly falls within Band 3. The difference is that a starting point for the term of imprisonment in Band 2 is between five and 10 years imprisonment and, for Band 3, it is between nine and 14 years.

[27]   Helpfully, in Taueki, the Court of Appeal specifically addressed offending that involves assaults on police officers.6 Having considered that was said about such assaults, in my view, the offending in your case can properly be categorised as a serious attack on a police officer because although multiple attackers with weapons were not involved, the officer in this case potentially suffered a life-threating injury.

4 R v Taylor CA407/88, 9 May 1989

5      R v Taueki [2005] 3 NZLR 372

6      R v Taueki, above n1, at [41](c).

[28]   The use of the weapon and the serious injury suffered by that officer are in my view aggravating features of the offending and I have already referred to what they are in my summary of the facts. As well, you knew you were wanted for arrest as a result of an earlier failure by you to appear at Court. Arguably as well, and adopting the approach taken by Harrison J in R v McDonald 7, the officer was vulnerable in this situation. He was by himself, unarmed and it was late at night. He was retreating and he had no immediate shelter nearby. I accept he had no ability to protect himself. And there are also the victim impacts that I have already outlined.

[29]   In my view, considering the above, a starting point within the range of Band 3 in Taueki is appropriate, namely a term of between 9- and 14-years imprisonment.

[30]   Before adopting a starting point, however, I must look at other cases of offending said to be similar to yours, to ensure that the starting point I adopt is consistent and therefore fair.

[31]   I was referred to R v Samuels.8 R v Smith,9 R v Kite10 and R v Heke11 which  are all cases involving the use of a firearm against police officers. In three of these cases, the police officers were not injured, however in R v Smith, where a starting point of 13½ years’ imprisonment was adopted, two police officers were shot, and a police dog was killed.

[32]   The offending in Smith occurred when the police visited the defendant’s address and, upon noticing a strong smell of cannabis, invoked a search under the Misuse of Drugs Act 1975. The defendant refused to leave his bedroom and yelled at the police in response to their appeals. While remaining in the room, he readied a semi-automatic .22 rifle in his possession, which was loaded with live rounds in the magazine. The police and police dog entered the bedroom. The defendant fired two rounds in quick succession, one of which hit one officer in his lower jaw. A shot was

7 CRI-2009-004-16897, HC Auckland, 22 September 2009

8      R v Samuels [2009] NZCA 153

9      R v Smith HC Christchurch, CRI-2010-009-0104358, 4 November 2011, Whata J.

10     R v Kite [2018] NZHC 409.

11     R v Heke [2018] NZHC 3168.

fired at another two officers which resulted in the death of the police dog. Further rounds were fired at another police officer, hitting him once in his left thigh.

[33]   Although in R v Kite, Hinton J did not find R v Smith helpful in determining a starting point because it seemed incongruous with R v Samuel, where a starting point two years higher was adopted despite no police officer actually being injured, I consider Smith in the context of this case to be a relevant and useful comparator. Hinton J’s reasoning was largely based on the starting point adopted for the wounding charge in relation to one of the officers (one of 10 years imprisonment) whereas the starting point of 13 ½ years was adopted on an attempted murder charge for the other officer who had been shot in the jaw. In my view although the lead charge was different the assessment of the aggravating factors involved in the offending was identical for both charges. The offending in Smith was however more serious as it involved serious injury to two officers.

[34]   I also consider Heke to be a useful comparison. In that case, the police observed the offender driving erratically. This was followed by a pursuit, and the presentation of a firearm by the offender (in that case, a military-style semi-automatic rifle) which was fired at the police but, fortunately, only struck their vehicle. In that case, Whata J adopted a starting point of 12 years 6 months imprisonment.

[35]   As another point of comparison, the Crown referred to Tahuri v R,12 Nuku v R13 and R v Amohanga.14 In these cases, the defendants were all charged with wounding with intent to cause grievous bodily harm having shot their victims, but the additional aggravating feature involving a police officer as the victim was not present. The starting points for the terms of imprisonment range between 9 and 11 years.

[36]   In Tahuri, the victim sustained a serious injury to his right shoulder and was left with ongoing pain, with some one hundred shotgun pellets remaining in his shoulder. A starting point of 11 years imprisonment was adopted. In Nuku, the Court of Appeal noted that a starting point of 9½ to 10 years could not have been criticised

12     Tahuri v R [2013] NZCA 254.

13     Nuku v R [2019] NZCA 319.

14     R v Amohanga [2021] NZHC 1121.

in circumstances where the offender shot a taxi driver at close range before running off, causing serious injuries to his right shoulder requiring surgery. In Amohanga, a starting point of 10 years imprisonment was adopted for offending which involved the offender producing a sawn-off shotgun at the victim, who was shot at close range, resulting in injury to his stomach and the prospect of further surgery to remove shotgun pellets.

[37]   Your lawyer accepted that these cases are comparable, but he submitted that the least restrictive starting point would result in a term of imprisonment of between 5 and 10 years, however he also accepted there would need to be an uplift because the victim of your offending is a police officer.

[38]   Bearing in mind the aggravating features of your offending which I have referred to above and the comparable cases, I adopt a starting point of 12 years’ imprisonment, uplifted by one year to reflect the fact that the victim was a police officer, and to reflect the firearms and conversion charges.

[39]   The starting point I adopt therefore is a term of imprisonment of 13 years. In my view, this is the least restrictive outcome based on the facts of this case.

Aggravating and mitigating matters personal to you

Aggravating factors personal to you

[40]   I next consider whether there are any aggravating matters relating to you personally that mean I should increase the starting point for the sentence of imprisonment which I have adopted.

[41]   You have previous convictions. Most of these relate to driving offences and include, driving with excess breath alcohol (x2), driving while disqualified (x8), giving false details as to our identity while driving recklessly or failing to stop for red and blue lights (x3) and resisting the police (x2).

[42]   In the main, your previous convictions show a disregard for authority and a willingness not to comply with legal requirements. You received a term of imprisonment for the worst of your driving in October 2016.

[43]   Ms Hamilton attached to her submissions three summaries of facts that relate to your previous convictions. I agree that these all display an anti-social attitude towards the police. In relation to one of your previous convictions in 2018 for disorderly behaviour, you were arrested by the officer who is the victim of your offending in this case. You were obstructive on this occasion. You were also convicted of assault and resisting the police in 2018.

[44]   You have received sentences of community work and intensive supervision for offending in 2017, for which you were sentenced in June 2018. However, I am less sure given your background I am going to refer to in a moment, whether these sentences, particularly the intensive supervision, was ever going to be enough to address the complex matters that arise from your past.

[45]   I acknowledge that there are no previous convictions for offending that is even remotely like your offending on this occasion.

[46]   Your poor attitude towards authority is also reflected in your bail history where there are numerous breaches of bail conditions and offending while on bail on four separate occasions.

[47]   Even though the Crown seek an uplift to reflect your previous convictions, I do not consider this is warranted, because your previous offending against police officers until now has been at the lower end of the scale.

Mitigating matters personal to you

[48]   A pre-sentence report and s 27 report have been prepared. Both cover your background and make sad reading. I acknowledge that sharing these personal matters with the report writers would have been hard for you. It was important for you to do this, as I have a much better picture of who you are and what you have experienced because you chose to share these painful matters. You are a young person who has

suffered a lot in your short life. I am now going to outline these matters that will potentially painful for you to hear, but they are necessary, in my view, to speak about because they explained some of these things and they reveal you to be a person who, as I have said, has suffered a lot.

[49]   Your father was imprisoned early in your life and your mother died when you were seven years old. It seems you were moved continuously between members of your whānau with little stability. Sadly, your most vivid memory of your mother is of her “getting the bash” from an abusive partner, knocking her out. You were only five or six years old at that time and tried to help your mother by dragging her into her room and placing her on her bed, which was a mattress on the floor. It is noted that violence was normalised in your upbringing.

[50]   Your father was diagnosed with cancer while in prison and was released, on compassionate grounds after seven years, into the care of hospice. You spent the last two years of his life with him, but, understandably, wished you could have had more time with him when he was in good health.

[51]   Following your father’s death and in order to deal with it, you turned to “every drug known” to escape the feelings you were experiencing. This a very human response, even though turning to drugs is clearly not a good option.

[52]   The pre-sentence report writer notes that much of your offending can be attributed to your dysfunctional formative years, substance abuse and subsequent gang membership. You advised the report writer that you were under the influence of a cocktail of drugs at the time of the offending and that you have difficulty recalling the details of it. Clearly, drug addiction is a major contributing factor to this offending.

[53]   You say that at the time you felt “possessed” and not in control of your actions due to paranoia. Two weeks prior to your offending, you were attacked by member of a rival gang. Although you have refused (probably understandably) to identify that person or the gang that they belong to, this explains, you say, why you were armed with a firearm because you were concerned for your own safety.

[54]   After the shooting, you became so distraught about what you had done, you (attempted to take your own life with the same weapon you had used to shoot the officer, but you were prevented from doing so by your brother. Even though your behaviour upon arrest was aggressive and threatening and this was highlighted by the Crown, I do not doubt what you said about how you felt following the shooting.

[55]   The s 27 cultural report has fleshed out some of the matters referred to in the pre-sentence report, with more of a focus on your cultural background. Sadly, you have been disconnected from it, both in terms of understanding your whakapapa and in terms of your ability to understand Te Reo Māori and therefore your cultural heritage. Because of this you do not know much about who you are and where you are from.

[56]   You have expressed a feeling of being whakamā (shame) because of your lack of knowledge and understanding about your heritage. However, it is not your fault that this important aspect of your background was not revealed to you as it ought to have been until recently.

[57]   I am very pleased to see you have expressed a willingness to learn about your heritage. You have relatives who can help you with this. I note your marae is Hukanui which is very famous marae and full of very famous and very good people I acknowledge your willingness to learn and the willingness of your wider family to support you in this. I have no doubt that if you truly engage with them and learn, this will provide a turning point for you away from the life that you have experienced so far.

[58]   The s 27 report also highlights the exposure you had as a child to violence. Your immediate family are an entrenched Black Power family and you yourself are a patched member of the Black Power. You have stated that the gang is the only family you have and that you have known your entire life. I accept that gang membership has served to replace your lack of connection with your heritage. I accept that these factors explain your attitude towards authority.

[59]   In addition to this, you experience mental health and substance abuse issues which the report identifies was normalised in your life through your immediate family. Sadly, alcohol, cannabis and methamphetamine use were prevalent in your family. You report first smoking cannabis as an 11-year-old, developing a daily habit which you continued until you were 16. At this point, alcohol appears to have featured and, since the age of 14, methamphetamine. I am sorry for you that you were exposed to these harmful drugs and that you felt it was the only way to dampen the pain you were experiencing.

[60]   I am satisfied that there is a nexus between the deprivation, violence and addiction you have experienced in your life and your offending.

[61]   You told both report writers that you are very sorry for what you have done. And for the benefit of those here today, I am going to read what you have said:

I’ve already talked to probation about restorative justice. I’m hoping he’ll come in so I can say it to his face. I’m remorseful as. I could just imagine the thoughts that were going through his head at that time, it eats away at me slowly. What I would be thinking if I got shot was their kids are going to lose their father. I’m sorry to his family and to his children for almost losing their father, also I still pray for him. I’m learning how to pray and stuff. I’m just hoping he’ll come in so I can say it to him in person and find closure and forgiveness.

[62]   I accept you are genuinely sorry for what you did. Even though you did not write a letter and there was not a restorative justice conference, I am satisfied that you truly are sorry and want that to be expressed to the officer you shot.

[63]   After serving your term of imprisonment, you wish to move away from this region to start a new life. One of your brothers, who has been imprisoned in the past has since turned his life around. He is a person you admire and wish to follow. Your future will be better, if you can follow through with these stated intentions.

[64]   I am prepared to adopt a discount of 5 per cent for additional remorse. In relation to the deprivation and trauma you experienced in your childhood, which has had a direct impact on your ability to act and respond positively in times of stress, a 15 per cent discount is, in my view, justified.

[65]   You originally pleaded not guilty to the charges. You accepted responsibility for them however by a guilty plea when your case was transferred to this Court, in my view, a discount of 20 per cent is justified in these circumstances.

[66]   Taking all these matters of mitigation into account, a discount of 40 per cent from the starting point is warranted.

[67]   The end sentence is therefore an overall term of imprisonment of seven years and eight months. Although the sentence will be entered in respect of the lead charge, the remaining two charges form part of the same incident and I intend to impose a concurrent sentence of imprisonment in respect of them.

Is a minimum period of imprisonment justified?

[68]   The Crown submits that the imposition of a minimum non-parole period of 50 per cent is warranted, however, your lawyer submits that it is not.

[69]   The Court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under the Parole Act 2002 if it is satisfied that period is insufficient for all or any of the following purposes:

(a)Holding the offender accountable for the harm done to the victim and the community by the offending;

(b)Denouncing the conduct in which the offender was involved;

(c)Deterring the offender or other persons from committing the same or a similar offence;

(d)Protecting the community from the offender.15

[70]   I have carefully considered your age in relation to this because you are a young man, only 23 years of age. I accept that in some circumstances, a non-parole period could be seen as a crushing response. But in your case, I am not persuaded by that

15     Sentencing Act 2002, s 86(2).

argument. Having particular regard to the need to deter offending of this type and to denounce it in a clear way, I agree that a minimum non-parole period is required. Despite your youth, in  my view,  an MPI is justified for  all the  reasons  outlined in s 86(2) of the Sentencing Act. A 50 per cent MPI is appropriate. This means you will serve 50 per cent of your actual sentence before you are eligible for parole. However, I think that will give you a much better opportunity to address in prison the matters that you need to address, in order to come out of prison and start the new life that you say you wish to.

Result

[71]   Mr Henry, in relation to the charge of wounding with intent to cause grievous bodily harm, I sentence you to a term of seven years and eight months’ imprisonment. In relation to the charge of conversion  of the  motor vehicle,  I sentence you to     two years’ imprisonment. In relation to the charge of unlawfully carrying a firearm, I sentence you to three years imprisonment. These sentences are to be served concurrently, which means at the same time.

[72]   I also direct, with your consent, that a copy of the s 27 cultural report be made available to the prison authorities and also to the Parole Board so that they can fully understand the matters you need to address for rehabilitation purposes.

Harland J