R v Sheers - [2020] NZHC 1596

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-002688

[2020] NZHC 1596

THE QUEEN

v

CONRAD JOHN SHEERS

Hearing: 7 July 2020

Appearances:

E Woolley for the Crown

M Pecotic for the Defendant

Sentencing:

7 July 2020

SENTENCING REMARKS OF WOOLFORD J

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: Ms M Pecotic, Auckland

R v SHEERS [2020] NZHC 1596 [7 July 2020]

Introduction

[1] Mr Sheers, you appear for sentencing, having pleaded guilty to one charge of aggravated robbery armed with an offensive weapon pursuant to s 235(c) of the Crimes Act 1961, the maximum penalty for which is 14 years’ imprisonment. I now formally convict you.

[2] Aggravated robbery is a qualifying offence under the three-strikes provisions of the Sentencing Act 2002.1 Mr Sheers, you have a record of two previous warnings: the first warning entered on 11 September 2015 and a final warning on 15 July 2016. As a result, your current offending is a stage-3 offence. That means the Court is required to sentence you to the maximum term of imprisonment for the offence.2 The Sentencing Act also provides that the Court must order the sentence to be served without parole, unless it is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so.3

[3] On 5 May 2020, my sentence indication, which you accepted, was that I would sentence you to a period of 14 years’ imprisonment retaining your eligibility for parole after one-third of the sentence has been served.

Factual background

[4] At around 5 pm on 15 March 2019, you entered the Brotzeit German Bakery at 346 Ponsonby Road, Auckland through the front door, carrying a gym bag. The two victims, Ms Grealish and Ms Messelidis, were working at the bakery at the time. You produced a large knife from the gym bag and pointed it at Ms Grealish, saying to both victims, “I won’t hurt you, just give me all the money in the register.” Ms Messelidis took $785 from the cash register and handed it to you. You took the money, placed it into the bag and quickly left the bakery with the money.

1      Sentencing Act 2002, s 86A.
2      Section 86D(2).
3      Section 86D(3).

PAC report

[5] I have now had the benefit of the PAC report, which was not before me at the time of the sentence indication. The report does not does not change the views expressed in my sentence indication; however, it provides some more background to you and your offending.

Approach to sentencing

[6] Ordinarily, sentencing occurs in three stages. First, the Court identifies a starting point which reflects the gravity of the offending. Secondly, allowance is made for personal aggravating and mitigating factors. Thirdly, there is a discount for a guilty plea.

[7] The Court must also have regard to the purposes and principles of sentencing. Mr Sheers, the Crown submits that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sheers

Details

AGLC: R v Sheers [2020] NZHC 1596
Case: [2020] NZHC 1596
Decision Date: 7 July 2020

CaseChat Overview and Summary

In the case of R v Sheers, the defendant, Conrad John Sheers, appeared before Woolford J in the High Court of New Zealand Auckland Registry for sentencing, having pleaded guilty to one count of aggravated robbery armed with an offensive weapon under section 235(c) of the Crimes Act 1961. This charge was a qualifying offence under the three-strikes provisions of the Sentencing Act 2002, and given Sheers' record of two previous warnings, his current offence was classified as a stage-3 offence, necessitating a maximum sentence of 14 years’ imprisonment.

The legal issues that the court had to decide revolved around the applicability of the three-strikes provisions and whether it would be manifestly unjust to impose the full sentence without parole. The court had to assess the circumstances of the offence, Sheers' personal circumstances, his understanding of the warnings, his level of culpability, and the sentence that would have been appropriate absent the three-strikes regime.

The court's reasoning began with an analysis of the offence itself, noting its premeditated nature but also its unsophisticated execution. The court then considered Sheers' criminal history, which included multiple convictions for similar offences and a spree of criminal activity in 2015. Additionally, the court examined Sheers' personal circumstances, including his young age and a diagnosis of Fetal Alcohol Spectrum Disorder (FASD), which significantly impaired his decision-making abilities. The court also found that Sheers did not fully comprehend the consequences of a third strike, which would lead to a maximum sentence without parole. Given these factors, the court determined that to sentence Sheers to the full term of 14 years without parole would be manifestly unjust.

Ultimately, the court sentenced Sheers to 14 years’ imprisonment, with eligibility for parole after one-third of the sentence had been served, considering this sufficient to meet the purposes of deterrence, accountability, and community protection.

Orders