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Sheers v The the King

Sheers v The the King

Case [2022] NZCA 618 9 December 2022

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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

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].
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]
[4]Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
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

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.
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

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

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 the King

Details

AGLC: Sheers v The the King [2022] NZCA 618
Case: [2022] NZCA 618
Decision Date: 9 December 2022 at 10.00 am

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