Sheers v The the King

Case [2022] NZCA 618


IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA351/2022
 [2022] NZCA 618

BETWEEN

CONRAD JOHN SHEERS
Appellant

AND

THE KING
Respondent

Hearing:

14 September 2022

Court:

Brown, Katz and Simon France JJ

Counsel:

S J Gray for Appellant
P D Marshall and T C Didsbury for Respondent

Judgment:

9 December 2022 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

BThe appeal against sentence is allowed.

CThe sentence of 14 years’ imprisonment is quashed.  In its place we substitute a sentence of three years’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

  1. The appellant pleaded guilty to and was convicted of one charge of aggravated robbery armed with an offensive weapon.[1]  On 7 July 2020 he was sentenced by Woolford J in the High Court at Auckland to 14 years’ imprisonment.[2]  The maximum penalty for the offence was imposed because the offending was a stage-3 offence under the “three strikes” sentencing regime.[3]

    [1]Crimes Act 1961, s 235(c).

    [2]R v Sheers [2020] NZHC 1596 [Sentencing notes].

    [3]At [2].

  2. The appellant appealed against that sentence in reliance on the principle recognised in Fitzgerald v R, contending that the imposition of the maximum sentence in accordance with s 86D(2) of the Sentencing Act 2002 was disproportionately severe treatment in contravention of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).[4]

  3. Mr Sheers’ appeal was filed approximately one year and 11 months out of time.  Given the length of his sentence and the fact he relies on Fitzgerald, which was delivered subsequent to his sentencing, the Crown does not oppose an extension of time.  The extension is granted.

The factual background

  1. The circumstances of the offending were summarised by the Judge as follows:

    [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.

  2. The offending was very similar to that which resulted in Mr Sheers’ two previous strike offences.  They were also aggravated robberies which involved Mr Sheers walking into a small retail shop, producing a knife and successfully making demands for cash from the register.  No victims were hurt in either instance.

The High Court sentence

  1. The Judge focused upon the circumstances of Mr Sheers’ offending, his criminal history, his personal circumstances, his ability to understand the two previous warnings…

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Details
AGLC
Sheers v The the King [2022] NZCA 618
Case
[2022] NZCA 618
Decision Date

CaseChat Overview and Summary

Conrad John Sheers appealed against a 14-year imprisonment sentence imposed by the High Court for aggravated robbery, arguing that it breached s 9 of the New Zealand Bill of Rights Act 1990 by being disproportionately severe. The appeal hinged on whether the sentence imposed under the three strikes regime was manifestly excessive and disproportionately harsh. The Court had to decide if the sentence breached s 9 of the NZBORA by being so disproportionate as to shock the conscience of New Zealanders.

The Court found that the sentence imposed under the three strikes regime was disproportionately severe, particularly given Sheers' foetal alcohol spectrum disorder (FASD) and the relatively low seriousness of the offending. The Court identified that the 11-year disparity between the otherwise appropriate sentence and the sentence imposed under the three strikes regime, compounded by Sheers' FASD, comfortably surmounts the high threshold set in Fitzgerald v R. The Court observed that the implications of FASD while imprisoned significantly impact the assessment of what is disproportionately severe. The Court concluded that the appeal was not a marginal case and that Sheers should be re-sentenced.

The Court granted the application for an extension of time to appeal. It allowed the appeal against the sentence and quashed the 14-year imprisonment sentence, substituting it with a sentence of three years’ imprisonment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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