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 primary purposes in your case is to deter you and others from similar offending, to hold you accountable for the harm done to the complainants and to protect the community. It further submits that the principles of sentencing that are particularly relevant include the gravity of the offending, including the degree of your culpability, and the need to impose the least restrictive outcome.

[8]                 Mr Sheers, this is your third warning under the three-strikes provision. The Court is therefore required to sentence you to the maximum term of imprisonment for aggravated  robbery,  being  14  years’  imprisonment.   However,  as  I  have  noted, s 86D(3) of the Sentencing Act provides that the Court must order a sentence for a stage-3 offence to be served without parole unless it is satisfied that it would be manifestly unjust to do so. The approach of Collins J in R v Waitokia is instructive:4

[7]        The Court of Appeal in R v Harrison outlined the approach to be adopted when assessing whether it would be manifestly unjust to impose the full sentence without parole. Although that case was decided in the context of a section that details with charges of murder, the High Court has recently applied the same approach to other three strikes cases.

[8]        The manifestly unjust exception is intended to avoid grossly disproportionate sentencing outcomes. The case for a finding of manifest injustice must be clear and convincing, but such cases need not be rare or exceptional. I am required to assess both [i] the circumstances of your

4      R v Waitokia [2018] NZHC 2146. See also R v Ratima [2017] NZHC 252 at [19]–[21].

offending and [ii] your personal circumstances. [iii] The sentence I would have imposed but for the three strikes regime is relevant to this assessment. I am also to take into account [iv] whether you had the ability to understand your two earlier warnings, [v] your level of culpability for your offending and

[vi] whether you are likely to re-offend. Ultimately, the application of the manifestly unjust exception is intensely factual.

(footnotes omitted)

Analysis

[9]       First, I turn to the circumstances of your offending. The offending was premeditated, as indicated by your possession of a large kitchen knife and your immediate demand for money upon entry of the premises. But the circumstances of the offending were unsophisticated: you acted alone and made no attempt to disguise yourself. A moderate amount of cash was taken. While no injuries were caused, the victims were understandably scared for their safety. Accordingly, your offending is a moderately serious example of aggravated robbery.

[10]     Your criminal history is also relevant. You have two previous warnings under the three-strikes regime, both offences being committed in 2015. Both strike-offences involved aggravated robbery with a knife, as with the present case. Additionally, you have 19 other convictions, 17 of which were committed during a two-month spree of offending committed in 2015. Notably, a number of those convictions involve the use of a weapon. Your present offence is consistent with this pattern of offending. And it occurred only months after your release from custody for the two previous strike- offences and thus involves a breach of release conditions.

[11]     Secondly, Mr Sheers, I turn to your personal circumstances. You are relatively young, being only 23 years of age. More notably however, Dr McGinn, a clinical neuropsychologist, notes in her summary of findings from a neurological assessment that you function at a level below your chronological age. You have previously been diagnosed with ADHD, and Dr McGinn now diagnoses you as having Fetal Alcohol Spectrum Disorder (FASD). Dr McGinn opines that your impaired decision-making and marked impulsivity are not of your own making. Dr McGinn notes that a term of imprisonment will be a significantly harsher punishment for disabled offenders, who are at risk of victimisation.

[12]     Thirdly, I turn to whether you had the ability to understand the two earlier warnings. Mr Sheers, you were able to tell Dr McGinn that you were facing a third strike. However, Dr McGinn reports that you did not seem to grasp that this could result in you serving the maximum sentence of 14 years’ imprisonment. She further records that you did not seem to fully comprehend the seriousness of your current situation. Dr McGinn also notes that you seemed unable to grasp the feelings that the complainants would have experienced as a result of your actions. She records that you thought the complainants would not be scared because you told them you would not hurt them despite your holding a knife. Dr McGinn considered that there were some real limits to your reasoning in this regard. Accordingly, it appears that although you were aware of the three-strike regime and that you are on your third strike, you did not fully comprehend the jeopardy this placed you in.

[13]     Fourthly, I turn to your level of culpability for the offending. As set out at [11] and [12] above, Dr McGinn’s report makes clear that people suffering from Fetal Alcohol Spectrum Disorder have reduced culpability. In particular, Mr Sheers, you have reduced capacity to judge situations and respond appropriately. As a result of your impairment, you act on impulse without stopping to think of the consequences.

[14]     Finally, I turn to the sentence that would be appropriate but for the three-strikes regime. Following the three-stage approach for sentencing set out above, I turn first to consider the starting point. R v Mako is the guideline decision for sentencing for aggravated robbery.5 First, the offending is of moderate seriousness. The following aggravating factors are present: there was some premeditation as evidenced by bringing the knife onto the scene,6 but the degree of premeditation is low given the unsophisticated nature of the offending and the absence of any disguise;7 use of a weapon;8 the target premises being a small retail business located on a busy road in Auckland;9 property, namely cash, was stolen;10 and while the complainants were not injured, they were scared for their safety.11 Secondly, there are significant personal

5      R v Mako [2000] 2 NZLR 170 (CA).

6 At [36].

7      At [37]–[38].

8 At [39].

9      At [40] and [42].

10 At [44].

11 At [46].

mitigating factors, as discussed above, including your relative youth and impairment. Thirdly, you pleaded guilty and are entitled to the full 25 per cent discount.

[15]     Having regard to the circumstances, the Crown and Ms Pecotic, who appears on your behalf, are agreed that an end sentence of around two and a half years to three years’ imprisonment would have been an appropriate end sentence had it not been for the three-strikes regime. I also agree.

[16]     The relatively short length of the otherwise appropriate sentence does not, in itself, make the sentence of 14 years’ imprisonment without parole manifestly unjust. However, in conjunction with your FASD, it does. You suffer from a severe and pervasive neuro-disability, not of your own making, which significantly reduces your capacity to manage your behaviour. Your moral culpability is far less than most other offenders.

[17]     Accordingly, Mr Sheers, to sentence you to the full term of imprisonment, being 14 years, without parole would be manifestly unjust. A term of imprisonment of one-third of the sentence of 14 years’ imprisonment should, in all the circumstances, be sufficient to meet the purposes of deterrence, accountability and protection of the community.

Result

[18]Would you please stand Mr Sheers.

[19]     Mr Sheers, in accordance with my indication on 5 May 2020, I sentence you to a period of 14 years’ imprisonment retaining your eligibility for parole after one- third of the sentence has been served.

[20]A minimum period of imprisonment is unnecessary, and I do not impose one.

[21]You may stand down.

Woolford J