Shannon v Police - [2015] NZHC 1811

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000099

CRI-2015-404-000100 [2015] NZHC 1811

BETWEEN
IAN ANTHONY SHANNON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 August 2015

Counsel:

S Withers for Appellant
K Eastwood for Respondent

Judgment:

3 August 2015

JUDGMENT OF BREWER J

Solicitors/Counsel: Shannon Withers (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

SHANNON v POLICE [2015] NZHC 1811 [3 August 2015]

Introduction

[1] Mr Shannon appeals a sentence of 10 months’ home detention handed down by Judge GA Fraser in the District Court at Auckland on 16 March 2015.1 This case has quite a complicated factual matrix. It is relevant to the points on appeal so I will summarise the background as follows.

Background

Breach of community work – 8 July 2014

[2] Mr Shannon was serving a sentence of 180 hours’ community work imposed in February 2014 following a conviction for burglary. He completed 97 hours, but on 8 July 2014 failed to report.

Arrest for first burglary – 14 August 2014

[3] Mr Shannon was arrested for the first burglary with which this appeal is concerned on 14 August 2014. The facts were that on 9 May 2014 at about 1:20 am, Mr Shannon and two associates drove to a Vodafone store in Orewa. Mr Shannon used a crowbar to try to remove a panel of glass on the front of the store. He then kicked the panel numerous times, putting his right leg through the glass, and pushed his body against the glass to gain access to the store. Mr Shannon returned to the vehicle and his associate entered the store and took a number of cellphones. The offenders then left in their vehicle.

[4] As a result of putting his leg through the glass, Mr Shannon left blood and this was analysed by the ESR and Mr Shannon identified through DNA records.

First sentence indication from Judge Fraser – 9 October 2014

[5] Mr Shannon requested a sentence indication and appeared before Judge Fraser on 9 October 2014. The Judge indicated a “24 months’ starting point with this burglary plus the previous two”. The reference to the previous two is, I accept, a
reference to Mr Shannon’s two prior convictions for burglary.

1 Police v Shannon [2015] NZDC 8342.

[6] The Judge then indicated an uplift of six months for Mr Shannon’s 49 previous convictions for dishonesty, taking the adjusted starting point to 30 months. His Honour indicated a three months reduction for rehabilitative efforts and an additional guilty plea credit, which would give a short term sentence of imprisonment allowing conversion to home detention “in the event that I could be satisfied that he is genuine in his wish to rehabilitate”.

[7] Mr Shannon then made a request to defer acceptance of the sentence indication on the basis that he was seeking admission to the Alcohol and Other Drugs Treatment Court. During the referral process, Mr Shannon was admitted to electronically monitored bail on 6 November 2014.

Court appearance for second…

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.

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Details

Case: [2015] NZHC 1811
Decision Date: 3 August 2015

CaseChat Overview and Summary

Ian Anthony Shannon appeals against a sentence of 10 months’ home detention handed down by Judge Fraser in the District Court at Auckland on 16 March 2015. The sentence was imposed for a number of offences including a second burglary and charges of resisting and assaulting Police. The appeal raises two issues: whether the Judge was wrong to offset credit for the time spent on remand in custody and electronically monitored bail against the new charges and whether the Judge was bound to follow the sentence indication given on 9 October 2014. The Judge had given a second sentence indication on 9 February 2015 but did not alter the starting point of 30 months’ imprisonment, which had been indicated previously. The appeal was heard on 3 August 2015 and the judgment was delivered on the same day.

The court found that the Judge did not take into account the new charges when he gave the second sentence indication on 9 February 2015. However, when he sentenced Mr Shannon on 16 March 2015, the Judge recognised the new charges and offset the credit for the time spent on remand and electronically monitored bail against the new charges. The court held that there was no error in the Judge’s decision to offset the credit and that the sentence of 10 months’ home detention was not manifestly excessive. The appeal was dismissed.

Orders