Shadbolt v The Queen
[2020] NZHC 1312
•12 June 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-488-000011
[2020] NZHC 1312
BETWEEN JOSHUA SHADBOLT
Appellant
AND
THE QUEEN
Respondent
Hearing: 10 June 2020 Appearances:
N S Leader for Appellant S Patia for Crown
Judgment:
12 June 2020
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 12 June 2020 at 3 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Whangarei Counsel:
N Leader, Whangarei
SHADBOLT v R [2020] NZHC 1312 [12 June 2020]
[1] Mr Shadbolt pleaded guilty in the District Court to two charges of burglary and six charges of being unlawfully in possession of a firearm. On 30 April 2020 Judge D J McDonald sentenced Mr Shadbolt to one year ten months imprisonment.1
[2] Mr Shadbolt appeals against sentence on the basis that the Judge ought to have imposed a sentence of home detention rather than imprisonment.
The offending
[3] All of the charges were laid as a result of an incident that occurred during the afternoon of 14 November 2019. On that date Mr Shadbolt and two associates, one male and one female, travelled to an address in Tikipunga. They parked their vehicle and he and his male associate went to reconnoitre an address nearby. They were filmed approaching the address by CCTV cameras at the address. They discovered that no one was home and then left the address and went to another address in Tikipunga. There Mr Shadbolt and his associates discussed how they would burgle the house they had just visited.
[4] Mr Shadbolt and his male associate then returned to that address and broke into a storage area under the house. They were able to open a firearms locker and steal six firearms from it. They placed the firearms in a blanket and drove back to the address in Tikipunga at which they had planned the burglary. Once there, they discovered the firearms did not have bolts and were accordingly inoperable. They then returned to the address from which they had taken the firearms and Mr Shadbolt attempted to break into another container in which he believed the bolts were being stored. By this time the owner of the property had returned to the address and heard noises coming from the storage unit below his house. He then confronted Mr Shadbolt and a short scuffle ensued before Mr Shadbolt and his associate fled from the address.
[5] Later that afternoon the police stopped a vehicle in which Mr Shadbolt was travelling with the same associates. He ran away but his two associates were arrested by the police. The police found the six firearms in the boot of the vehicle. They comprised a .33 Enfield rifle, a Winchester .22 rifle, a Marlin 10 shot semi-automatic
1 Police v Shadbolt [2020] NZDC 7329.
.22 rifle, a Marlin 12 gauge goose gun, a Sportsman Tube Mag bolt action .22 rifle and an air rifle.
[6]Mr Shadbolt was subsequently arrested approximately two weeks later.
The sentence
[7] The Judge took a starting point of two and a half years imprisonment on all charges. These reflected the fact that the burglary was undertaken after considerable planning and premeditation and it targeted property in the form of lethal firearms. The firearms were stolen so they could be given to a gang with which Mr Shadbolt is associated. In addition, the occupant of the address was placed in physical danger when he confronted Mr Shadbolt. Not surprisingly, the incident has left a deep and lasting impression on the victim and his family.
[8] The Judge applied a discount of 25 per cent to reflect early guilty pleas and Mr Shadbolt’s expression of remorse.2 The Judge declined to give Mr Shadbolt any further discount for factors identified in a report prepared under s 27 of the Sentencing Act 2002. This recorded difficulties Mr Shadbolt had encountered during his upbringing. These arose as a result of his mother’s association with gangs and the death of his grandfather, to whom he was very close. This resulted in Mr Shadbolt being left for long periods in the care of his brother, who administered discipline on Mr Shadbolt by way of violence.
[9] The Judge rejected a submission that Mr Shadbolt should receive a sentence of home detention for the following reasons:3
[30] I have regard to s 16 Sentencing Act which indicates a person should not be sentenced to imprisonment unless it is absolutely necessary for one or more of the matters outlined in that section. The Courts do the best they can to keep people out of prison where possible. It is only when there is a need to deter and denounce, or given the seriousness of the offending, that a person should be sentenced to prison.
[31] I have weighed up all the matters that Mr Sayes has spoken to me about at length today and all the written submissions. At the end of the day,
2 The Judge gave a discount for remorse even though he could not say whether expressed remorse was genuine: Police v Shadbolt, above n 1 at [21].
3 Police v Shadbolt, above n 1.
for the reasons I have outlined above, I consider that the need to deter and denounce being paramount for people who specifically plan and target firearms for criminal purposes, that a full-time custodial sentence is appropriate. On each of these charges you will be convicted and sentenced to one year 10 months’ imprisonment.
Argument on appeal
[10] On Mr Shadbolt’s behalf Mr Leader does not take issue with the starting point the Judge adopted or the discounts applied to reflect mitigating factors. He contends, however, that the factors identified in the s 27 report ought to have persuaded the Judge a sentence of home detention was appropriate rather than imprisonment. He submits the Judge erred in making the sentencing purpose of deterrence a priority over all other sentencing principles and purposes.
[11] Mr Leader submits that a sentence of imprisonment is a measure of last resort, and that a sentence of home detention is a severe sentence in its own right because of the restrictions it places on the liberty of the offender. He also points out that s 7 of the Sentencing Act requires the Court to have regard to the desirability of keeping offenders in the community so far as that is practicable and consonant with the safety of the community. In addition, he submits the courts should not impose sentences of imprisonment unless that outcome cannot be achieved by a sentence other than imprisonment, and that no other sentence would be consistent with the application of the principles contained in s 8 of the Act.
Decision
[12] As Mr Leader recognises, a decision whether to impose a sentence of imprisonment or home detention is the exercise of a discretion. The discretion is fettered by the requirement to apply the sentencing purposes and principles contained in the Sentencing Act.4
[13] In the present case the Judge clearly considered the serious nature of the offending warranted a deterrent sentence and that this could not be achieved other than
4 Manikpersadh v R [2011] NZCA 452 at [12].
by way of a sentence of imprisonment. He had earlier declined to give any discount for the factors identified in the s 27 report for the following reasons:5
[22] I now deal with the s 27 report. I do not know the author. It sets out verbatim comments you have made about your upbringing, comments from your mother. You are 42 years old. For the most part in your upbringing you were raised by your grandfather. He treated you properly given what was considered appropriate at that time. However, for long periods of time, you stayed with your mother. She would party. She would associate with gangs. She would delegate to your older brother discipline of you by way of violence. You seek to say that because of your appalling upbringing, your deprived upbringing, that that is what has led you to commit these offences.
[23] My difficulty with that is that your grandfather died when you were 19 and following that, apart from some minor convictions, it appears that you have led, on the face of it, a law-abiding life. You have worked as a builder. You have had a 20-year association with this criminal gang. It is only on your account the taking of methamphetamine in the last couple of years that has led you to commit these offences. That is a decision you made. It is a decision you also made as to who you associate with.
[24] In my view, there is no nexus between your upbringing and this offending. One does not just automatically discount because a person appearing for sentence has had 20 or more years ago a bad upbringing. No discount will be given to you for that.
[35] Your view that you only committed this offence, as you told both the s 27 reporter and the probation reporter, was because you were out of it on meth and alcohol. It does not help you. There is a provision in the Sentencing Act 2002 which says that, “If you commit an offence because you are intoxicated by whatever, you cannot call that to aid,” so you cannot say, “Well I was drunk, that’s why I hit him. I was drunk, that’s why I committed this burglary.” I treat you as though you committed this burglary stone cold sober.
[14] The first issue is whether the Judge was correct to find no nexus between the factors identified in the s 27 report and the circumstances giving rise to the present charges.
[15] Mr Shadbolt committed five offences between 1996 and 2000, when he was between the age of 18 and 22 years of age. Four of these related to the possession of cannabis and utensils, whilst the fifth was a charge of receiving stolen property. All of these were dealt with by way of fine or conviction and discharge.
[16] Mr Shadbolt then went for approximately 16 years without coming before the courts again. In 2016 he was convicted and fined on a charge of assaulting a female
5 Police v Shadbolt, above n 1.
and he sustained two convictions for theft in 2017. In 2018 he was convicted on two charges of failing to comply with a prohibition on driving as an unlicensed driver. He was also convicted of breaching a sentence of community work imposed on one of these charges. The present charges for the offending on 14 November 2019 are therefore a marked departure from the pattern of Mr Shadbolt’s earlier offending.
[17] The death of Mr Shadbolt’s grandfather occurred when he was approximately 18 years of age. During the next 14 years, however, Mr Shadbolt was seemingly able to hold down a steady job, lead a productive life and stay away from criminal offending. Those are not the usual hallmarks of a person who has been traumatised and left vulnerable by an appalling family life.
[18] Mr Shadbolt told the writer of the pre-sentence report that the present offending occurred when he was “boozed and meth’d up”. The pre-sentence report also records that Mr Shadbolt told the writer that he had been taking methamphetamine for the previous 18 months and the writer observed that this coincided with his more recent criminal offending. This is at odds with information contained in the s 27 report. That report records Mr Shadbolt as saying he began taking methamphetamine approximately 20 years ago and that it had ruled his life for the past five years.
[19] Whatever the length and extent of his addiction may be, Mr Shadbolt appears to accept that the current offending was driven by the consumption of both alcohol and methamphetamine. As the Judge observed, that factor cannot be regarded as a mitigating factor. It provides, however, a ready explanation for Mr Shadbolt’s decision to offend in such a serious way.
[20] Like the Judge, I have been unable to discern any nexus between the issues raised in the s 27 report and Mr Shadbolt’s decision to offend in such a serious way on 14 November 2019. Furthermore, the aggravating features of the offending were such that the Judge was entitled to conclude a deterrent sentence was required. It follows that I detect no error of principle in the approach taken by the Judge to the issue he was required to decide.
Result
[21]The appeal against sentence is dismissed.
Lang J