Sheers v The Queen - [2016] NZHC 2353

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 Respondent

Judgment:

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…

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 Sheers v The Queen

Details

AGLC: Sheers v The Queen [2016] NZHC 2353
Case: [2016] NZHC 2353
Decision Date: 4 October 2016

CaseChat Overview and Summary

In this appeal, Conrad John Eduardo Sheers challenges both his conviction and sentence for various criminal offences, including aggravated robbery. The primary focus of the appeal is the trial Judge's decision not to discharge the appellant without conviction for the second aggravated robbery charge and the overall sentence imposed. The appellant argues that his learning and cognitive difficulties should have led to a discharge without conviction for the second aggravated robbery charge due to diminished culpability. He also contends that the sentence is manifestly excessive and that the Judge failed to properly consider his guilty pleas and personal characteristics. The court found that while the appellant's difficulties and young age were relevant mitigating factors, they did not warrant a discharge without conviction for the serious offence of aggravated robbery. The court also found that the sentence, while unorthodox, was not manifestly excessive, as it was within the appropriate sentencing range considering the totality of the offending.

The court allowed the appeal only to the extent the trial Judge erred in imposing sentences on the original charges without providing reasons in open court, in violation of statutory requirements. The High Court imposed fresh sentences on the appellant during the hearing of the appeal, ensuring the appellant was present as required by law. The court dismissed the appeal in all other respects, affirming the trial Judge's decisions on the conviction and the sentence for the second aggravated robbery.

Orders