Sheers v The Queen
[2016] NZHC 2353
•4 October 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000245 [2016] NZHC 2353
BETWEEN CONRAD JOHN EDUARDO SHEERS
Appellant
AND
THE QUEEN Respondent
Hearing: 3 October 2016 Counsel:
E P Priest for Appellant
R Thompson for RespondentJudgment:
4 October 2016
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 4 October 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
E P Priest, Auckland.
Meredith Connell, Auckland.
SHEERS v THE QUEEN [2016] NZHC 2353 [4 October 2016]
[1] This is an appeal against conviction and sentence: conviction insofar as Judge Sharp did not discharge the appellant without conviction in relation to a charge of aggravated robbery; and sentence insofar as the Judge allegedly erred when sentencing for that offence, an earlier aggravated robbery and a raft of other charges. A long run-up is necessary in order to explain the background, but this is time well spent. Several features are material in the determination of the appeal.
[2] Between March and June 2015 the appellant committed a number of offences, the most serious of which was aggravated robbery. In sequence:
(a) On 19 March 2015 the appellant stole three bottles of wine from a supermarket resulting in a charge of theft.
(b)On 30 March 2015 the appellant smashed a glass door of a clothes shop by kicking it. He was intoxicated. This resulted in a charge of wilful damage.
(c) On 7 April 2015 the appellant attempted to steal bottles and cans of alcohol from a supermarket. He was thwarted by a security guard. This resulted in another theft charge, or at least some inchoate species thereof.
(d)On 8 April 2015 the appellant stole a packet of cigarettes from a convenience store. Another theft charge resulted.
(e) On 11 April 2015 the appellant stole a pair of earrings from a department store.
(f) On 15 April 2015 the appellant went back to the department store. He was recognised as the earrings’ thief. On this occasion, the appellant had a small knife in his possession. So, he was charged with theft in relation to the earrings, and possessing a knife in a public place.
(g) On 12 April 2015 the appellant went yet again to the department store.
He stole perfume and tester cream. Another theft charge was laid.
(h)On 30 April 2015 the appellant followed two men in a street. He verbally abused them. The appellant then pulled out a knife and showed it to them. He was charged with possessing a knife and behaving threateningly.
(i)On 6 May 2015 the appellant stole meat from a supermarket. He was charged with both theft and trespass, as he had previously been served with a trespass notice by the supermarket.
(j)On 22 May 2015 the appellant was arrested and searched. A knife was found on him. He was charged with possessing a knife in a public place.
(k)On 28 May 2015 the appellant’s offending escalated. He and another man broke into someone’s home. The appellant stole a laptop and charger which he gave to an acquaintance.
(l)That evening, the appellant confronted a man on a street, produced a knife and demanded money. The victim ran away. The appellant was charged with assault with intent to rob.
(m)Shortly thereafter, the appellant entered a bottle store. It was staffed by a single shop assistant, described in the summary of facts as a “slender female”. The appellant knew that and chose his target believing he could easily intimidate her. The appellant first spoke to the victim and then produced a knife. He demanded cash. The victim gave him between $2,000 and $3,000. The appellant fled.
(n)On 29 May 2015, the appellant was arrested for breaching bail. He was searched. A knife was found on him. He was charged with possession of that.
[3] All of these charges were the subject of a sentence indication hearing on
11 September 2015.1 Judge E M Thomas concluded if guilty pleas were entered, the likely outcome was a term of two years’ imprisonment or a sentence of home detention. The appellant pleaded guilty. On 1 December 2015 Judge Thomas sentenced the appellant to six months’ community detention, 400 hours’ community work, and two years’ intensive supervision.2
[4] I pause here to observe the Judge’s benevolent approach provided the appellant an opportunity for rehabilitation.
[5] On 8 December 2015, and hence a week after the imposition of the community-based sentence, the appellant went to a shop he believed looked quiet and easy to rob. The sole attendant was a 21 year old female. The appellant approached the counter. He produced some form of kitchen knife. The appellant held the knife approximately 30 centimetres from the victim’s neck. He demanded cash. The victim gave the appellant $310. The appellant then left. He later met with friends and spent the proceeds with them.
[6] This (second) aggravated robbery was committed at approximately 9 pm, and so in breach of a curfew which existed by virtue of the sentence imposed by Judge Thomas.
[7] On 10 December 2015 the appellant stole cosmetics from a department store. He was initially co-operative when detained by a security guard, but then ran away. In doing so, the appellant knocked over a small girl. She suffered scrapes to her leg.
[8] On 2 May 2016 the Department of Corrections applied to cancel the sentence imposed by Judge Thomas. And on 15 July 2016, all of the charges came before Judge D J Sharp for sentence: the second aggravated robbery, associated curfew breach, and the 10 December theft charge for initial sentence; and all of the earlier charges by way of re-sentencing, in light of Corrections’ application to cancel the
original sentence. Judge Sharp’s decision is the subject of the appeal.3
1 R v Sheers DC Auckland CRI-2015-004-5447, 11 September 2015.
2 Police v Sheers [2015] NZDC 24147.
3 R v Sheers [2016] NZDC 13291.
[9] Before addressing the sentencing exercise, it will be apparent the appellant has propensities to:
(a) Commit dishonesty offences in quick succession. (b) Possess and present knifes in public.
(c) Commit aggravated robbery with a knife in relation to lone female shop assistants, the most troubling combination of the three.
The decision and the appeal
[10] Judge Sharp first addressed the original charges. The Judge considered he should honour the original sentence indication of two years’ imprisonment, save for an uplift of three months’ imprisonment to reflect the cancellation of a sentence of reparation.
[11] The Judge then turned to the discharge application for the second aggravated robbery offence. This charge was a “second strike” under the Sentencing Act, and this required any sentence handed down to be served in full without parole.4
Unsurprisingly, while the Judge accepted the absence of parole was a serious consequence, it was not outweighed by the gravity of the offending, particularly given the appellant’s propensities outlined above (the Judge did not quite express himself this way, but that was the essence of his reasoning). The Judge dismissed the application.
[12] The Judge then considered the appropriate sentence for the later aggravated robbery. He uplifted the two-year and three-month sentence by another 18 months’ imprisonment, to reach a total sentence of three years’ and six months’ imprisonment. The Judge said this was equivalent to a “potential starting point in the second aggravated robbery case of four years imprisonment reduced by 25 per
cent for a guilty plea.”
4 Sentencing Act 2002, s 86C.
[13] The Judge gave a six month discount for the appellant’s personal characteristics, about which I say more later. This resulted in an end sentence of three years’ imprisonment.5
[14] The Judge gave the appellant the requisite three-strikes warning, and noted all of the original charges other than the first aggravated robbery would result in concurrent sentences. But His Honour did not specify what these sentences were. Nor did the Judge provide any reasons in relation to these charges.
[15] The appellant contends the Judge should have discharged him without conviction in relation to the second aggravated robbery charge because the appellant’s learning and cognitive difficulties diminished his culpability in circumstances in which the consequences of a second strike, imprisonment without parole, would be out of all proportion to the gravity of the offence. Moreover, the appellant notes the structure provided by parole would serve to further his rehabilitation, and submits a “cold release” may simply result in further offending. The appellant contends his commission of the second aggravated robbery is illustrative.
[16] As to the sentence appeal, the appellant argues:
(a) There were a number of failures in the sentencing process, in that the Judge did not: follow the sentencing approach set out in R v Taueki;6 mitigate the sentence for the appellant’s guilty pleas; or pass sentence on the other original charges.
(b) The sentence is manifestly excessive.
[17] Before considering the grounds of appeal, I say something about the appellant.
5 The Judge imposed concurrent sentences of one month’s imprisonment for the later theft and two months’ imprisonment for the later breach of community detention.
6 R v Taueki [2005] 3 NZLR 372 (CA).
The appellant
[18] The appellant is young. He was 18 when he committed all but one of the offences, the first theft. The appellant suffers from reactive attachment disorder (RAD) and attention deficit hyperactivity disorder (ADHD). I gather the former is characterised by indiscriminate sociability such as excessive familiarity with relative strangers, and the latter by attention deficits, hyperactivity and impulsiveness.
[19] No fewer than eight psychological reports were placed before the District Court. However, much of their content was of peripheral relevance to sentencing and there was a degree of repetition too. While I intend no criticism of Ms Priest, who was doing nothing but the best for her client, busy courts are entitled to a more discerning approach in the selection of sentencing materials.
[20] The most recent report, and perhaps most direct in terms of sentencing considerations, is from Ms Morris, a psychotherapist retained by the appellant. She expresses the opinion the appellant has little, if any, will to resist others’ demands. The appellant contends he committed both aggravated robberies because others told him to, and at least in the case of the first robbery, that direction came from one or more gang members. No associated evidence was placed before the District Court; it appears the matter was dealt with by submission in the absence of any objection by the Crown. Ms Morris also observes the appellant is at high risk of recidivism.
[21] The appellant’s IQ was assessed in 2012 at 73. This is a little above the level of intellectual disability. As Ms Priest observed, the appellant is “not highly intelligent”. This factor and the various factors above are said to underlie the offending; to warrant a discharge without conviction in relation to the second aggravated robbery; and to demonstrate the ultimate sentence was manifestly excessive.
Analysis
The conviction appeal: the discharge application in relation to the second aggravated robbery
[22] I have no doubt Judge Sharp was correct to dismiss this application, which was at best ambitious:
(a) The likelihood of a discharge without conviction necessarily decreases as the seriousness of an offence increases. In part, this is because the consequences of conviction are less likely to be disproportionate when the offending is serious. More importantly, this is also because there is a heightened public interest in the conviction of those who commit serious criminal offences.
(b)Even in its lesser forms, aggravated robbery is a serious offence. The nature of the offence, its maximum penalty (14 years’ imprisonment) and the guideline judgment of a Full Court of the Court of Appeal in R v Mako put this beyond argument.7
(c) These principles find expression in practice. Ms Priest was unable to cite any case from the adult criminal jurisdiction in which an offender has been discharged without conviction for aggravated robbery. This is not to hold a discharge without conviction in relation to a single instance of aggravated robbery could never occur. But obviously, the case would need to be truly extraordinary in terms of both the circumstances of the offence and the offender. Truly extraordinary means just that.
(d)Turning to the facts, the appellant committed not one but two aggravated robberies. Each involved the targeting of a lone female shop attendant, at night, with a bladed weapon. Each is a troubling
example of its kind.
7 R v Mako (2000) 17 CRNZ 272 (CA).
(e) The appellant’s recidivism was a highly relevant sentencing consideration. The second aggravated robbery was committed shortly after the appellant had been sentenced for the first; and only six months after the first’s commission. Moreover, the appellant had also committed an assault with intent to rob on the same evening as the first robbery. And as observed, he has a more general propensity to carry and present knives.
(f) Even on the assumption the appellant’s difficulties played a role in the offending, about which I say more later, this factor, whether alone or in combination with the other mitigating features, was simply not of an order to justify the outcome sought by the appellant.
[23] What then of the absence of parole by virtue of this being a second-strike offence? Here, the appellant places reliance on the decision of Allan J in Stipich v Police,8 in which the Judge accepted that in principle at least, the consequences of a second or third strike could found a basis for a discharge without conviction. As against this:
(a) There is some tautology in inviting attention to alleged disproportionality of consequence when the consequence necessarily follows from the commission of a serious criminal offence, and hence to all offenders who commit such offences.
(b)Parole eligibility is not normally treated as relevant in the assessment of sentence.9
(c) Clear legislative commands must be obeyed by the Courts. So, granting a discharge to an offender because of what would otherwise happen under the three-strike regime, which is limited to “serious violence offences” as defined by s 86A of the Sentencing Act 2002,
would presumably require extraordinary circumstances and more
8 Stipich v Police HC Auckland CRI-2010-404-451, 14 June 2011.
9 For example, see Palalagi v Police [2015] NZHC 1832 at [57].
particularly, a case in which the legislative objectives would not be frustrated by that outcome.
(d)A discharge without conviction would be a blunt remedy in connection with serious criminal offending. As observed, there is a heightened public interest in the conviction of those who commit serious criminal offences.
[24] Again, in this particular case, the appellant’s difficulties are simply not of an order to justify the outcome sought.
[25] In reaching the conclusion the conviction appeal must be dismissed, I acknowledge the benefit the appellant would receive from parole. Ms Isaacson, a clinical psychologist at the Mt Eden Correctional Facility, has said as much in a report dated 26 April 2016. I acknowledge also the appellant’s age means he will not qualify for many, if any, rehabilitative courses, which is unfortunate. However, a discharge without conviction on the facts of this case is a bridge much too far.
[26] The conviction appeal is dismissed.
The sentence appeal
[27] It was common ground at the hearing the Judge’s approach was unorthodox in that His Honour did not employ conventional Taueki methodology. But in fairness to the Judge, that was because he considered he should preserve the original sentence indication, which he could only achieve if he constructed a sentence around it. The better approach would have been to start afresh, particularly as the original sentences were to be cancelled and the appellant had committed further serious offending.
Nothing in law precluded that.10
[28] However, I am not satisfied the Judge failed to appropriately mitigate the
sentence for the appellant’s guilty pleas and personal characteristics. This is because
10 Section 115 of the Criminal Procedure Act 2011 was not engaged as the appellant had been sentenced. And, because the original sentence had been cancelled, s 252 of that Act was broadly
the Judge expressly discounted what would otherwise have been a greater uplift for the second aggravated robbery, and then allowed a further six-month deduction for youth and personal characteristics.
[29] More importantly, I not persuaded the overall sentence is manifestly excessive. This point and those above are best illustrated by how the sentence could have been approached if everything had been reconsidered afresh. And this, I hope, will alleviate the appellant’s concern he has suffered material sentencing error.
[30] The first task would have been to identify an overall starting point for the offending. Aggravated robberies of the type committed by the appellant ordinarily attract starting points of four years’ imprisonment—each.11 The totality principle operates to ameliorate what might otherwise constitute a crushing sentence. Here, that principle would have precluded a strictly arithmetical approach, such as four years’ imprisonment plus four years’ imprisonment equals eight years’
imprisonment. But that said, the totality principle also recognises offenders should not “get a crime for free”. A typical starting point for the two aggravated robberies would therefore be five and a half years’ imprisonment or six years’ imprisonment.12
[31] The other offences, especially the assault with intent to commit robbery, would have required a discrete uplift to the starting point. So too would the fact the second aggravated robbery was committed while the appellant was serving a sentence for the first. The lowest available uplift would be in the range of six to 12 months’ imprisonment, so assuming five and a half years’ imprisonment had been selected as the initial starting point, the lowest overall starting point would be six years’ imprisonment.
[32] The next task would have been to identify and deduct from this figure mitigating features. Those features were said to have been youth, the appellant’s
personal characteristics and his guilty pleas.
11 R v Mako, above n 7, at [56].
12 See, for example, Solicitor-General v Singh [2014] NZHC 3331.
[33] Discounts for youth in the context of aggravated robbery are not automatic but fact-dependent. The appellant’s commission of a second such robbery shortly into his rehabilitative sentence for the first made any such discount problematical, especially given the appellant’s targeting of a particular type of victim; a key reason for a discount for youth is because the associated offending is often impulsive.13
[34] However, the appellant contends his particular characteristics need also to be considered, for they allegedly demonstrate, in conjunction with youth, a diminished level of culpability. As will be recalled, the appellant has RAD, ADHD and a modest intellect. Ms Morris, the appellant’s psychotherapist, has expressed the view that without a more structured environment, the appellant is bound to commit offences, either to please others or because of his impulsivity. She contrasts his good behavior in the (highly structured) prison environment with his lawless behavior in the community.
[35] It is settled principle that factors of this nature may operate to mitigate an otherwise proper sentence when there is a causative link between the difficulty or condition and the offending.14 However, there must be some causal connection. Moreover, this principle can operate as a dual-edged sword. In cases in which the consequence of the condition is a heightened risk of further offending, considerations of public protection also come into play.15
[36] There is a measure of consensus in the relevant expert reports the appellant’s offending is in some way attributable to his difficulties. And that was how both Judge Thomas and Judge Sharp approached the case. But even approaching the appeal the same way, it is far from clear the appellant was entitled to a 35 per cent reduction for these factors, as Ms Priest submitted. That is because:
(a) If the relevant experts are correct, the same characteristics imply a high likelihood of recidivism, in turn activating considerations of
public safety.
13 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
14 E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68]–[70]; and R v Bridger [2003] 1
NZLR 636 (CA) at [40]–[43].
15 See for example R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493 at [36].
(b)There is no obvious linkage between the appellant’s underlying difficulties and the more serious offences committed by him. That linkage is only found in the appellant’s contention he was directed by others to commit the aggravated robberies. Even that linkage does not explain his more general carriage of knives, the associated propensity to produce them, or the assault with intent to commit robbery offence.
(c) Difficulties of the type suffered by the appellant are likely to be common in the prison population. Care must be taken not to “stretch” discounts to achieve seemingly laudable sentencing objectives.
[37] It follows a more realistic deduction was in the order of 20 per cent, and even that might well have been benevolent. But if applied, that would have reduced the starting point to four years’ and nine months’ imprisonment.
[38] The guilty plea deduction would come last, so assuming 25 per cent was applied for this factor, it would operate to reduce the otherwise remaining sentence to three years’ and seven months’ imprisonment.
[39] Of course, variations at each stage of the analysis can be readily imagined, including an allowance for youth even though that factor was largely subsumed by the appellant’s difficulties, and was of questionable availability on the facts in any event. So too, could a slightly lower starting point and slightly higher discounts. The point, however, is that a three-year sentence for this offending was well within range. This conclusion is also an answer to the appellant’s final submission the Judge did not make a full allowance for the guilty pleas. I agree the Judge’s remarks at [30]–[34] are a little Delphic, but whatever the discount, the sentence is clearly within range. At the risk of being repetitive, the appellant committed two aggravated robberies, an assault to commit robbery and a raft of other charges which involved knives or dishonesty. A significant term of imprisonment was inevitable.
The failure to pass sentence on the original charges other than the first aggravated robbery
[40] Section 31 of the Sentencing Act requires a Judge to provide reasons for the imposition of a sentence, and in open court. It is common ground the Judge gave no reasons for the concurrent sentences he imposed in relation to the original charges, beyond of course the first aggravated robbery. Indeed, it is not clear valid sentences were imposed on the other original charges, because the Judge said nothing about them beyond the mere fact there would be concurrent terms, and the parties were only informed of them by virtue of the terms of the warrant of commitment. Moreover, s 123 of the Criminal Procedure Act 2011 requires the presence of the defendant for the sentencing of category 2 or 3 charges. This provision was also engaged. Very properly, Ms Thompson for the Crown accepted the Judge had erred in relation to at least s 123 of the Act. I agree.
[41] The appeal is allowed, but only to the extent the Judge erred in relation to the imposition of sentence on the original charges, with the exception of the aggravated robbery.
[42] I imposed fresh sentences on the appellant when the appeal was heard. The appellant was present, as it seemed to me this was a necessary incident of correcting the procedural error below. Those sentences and my reasons are annexed as an appendix to the judgment.
[43] The sentence appeal is otherwise dismissed.
……………………………..
Downs J
Appendix: what was said in the presence of the appellant at the hearing
[44] On 19 March 2015, you took two bottles of wine from a supermarket and left the store without paying for them. A short time later you went back and took a third. You admitted this all to the Police. The Judge, that is Judge Sharp, was of the opinion that a sentence of one months’ imprisonment should be imposed in relation to this offence. The lawyers today have discussed with me how this offence and others like it should be dealt with, and they agree that if each attracts a sentence of imprisonment that could give rise to unfairness, particularly in relation to your record and the likelihood of bail if there were further offending in the future. I accept that submission, and on that basis in relation to this particular charge you are convicted but otherwise discharged. Bear with me there are lots to go.
[45] On 29 March the same year, you kicked the glass door of a clothing shop which caused it to smash. I gather you were moderately intoxicated at the time. In relation to this charge you are convicted and discharged.
[46] On 7 April 2015, you took or tried to take alcohol from a supermarket. You were stopped by a security guard. This resulted in a charge of theft. Again, you are convicted and discharged.
[47] The next day, that is 8 April, you entered a convenience store and you stole a packet of cigarettes from the store. In relation to that offence of theft, you are convicted and discharged.
[48] Four days later, so on 12 April 2015, you went to a department store. You stole some cosmetics. In relation to that offence of theft, you are convicted and discharged.
[49] You went back to the same department store three days later, that is, 15 April. You stole a pair of earrings. In relation to that charge of theft, you are convicted and discharged.
[50] On the same day, you were found with a knife in your possession. The outcome today is the same. A conviction is entered but you are otherwise discharged.
[51] Fifteen days later, so on 30 April; 2015, you followed two men in the street and verbally abused both. Troublingly you pulled out a knife and showed it to both of them. In relation to offences of possessing a knife and threatening behaviour, you are convicted and discharged.
[52] On 6 May 2015, you went to a supermarket and took packets of meat. An offence of trespass arose because you had previously been issued with a trespass notice in relation to that store. In relation to both offences you are convicted and discharged.
[53] On 20 May 2015, you went to another store from which a trespass notice had been issued. In relation to that you are convicted and discharged too.
[54] A further offence of possessing a knife in a public place you committed on
22 May 2015. The Police found that knife on you. Again, you are convicted and discharged in relation to that.
[55] The next offence is more serious. It is one of burglary on 28 May 2015. You and someone else kicked open a door and entered someone’s home. You stole a laptop and a charger. Judge Sharp intended to impose a sentence of six months’ imprisonment. I impose the same term because this offending is serious.
[56] The same day you approached a victim and pulled a knife and brandished it at the victim. He or she ran away. In relation to a charge of assault with intent to rob the Judge, again Judge Sharp, considered that a term of six months’ imprisonment was appropriate. I agree and pass in open court the same sentence.
[57] This leave just one charge which arose the following day. On 29 May 2015 you were arrested for breaching bail. A knife was found on you. In relation to the offence of possession of a knife I convict you and discharge you.
[58] Thank you. You may sit down now.
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Downs J
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