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Sheppard v R

Sheppard v R

Case [2013] NZCA 639 11 December 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA530/2013
[2013] NZCA 639

BETWEEN	CHRISTOPHER EDWARD SHEPPARD Appellant
AND	THE QUEEN Respondent

Hearing:	21 November 2013
Court:	Harrison, Simon France and Dobson JJ
Counsel:	C D Savage for Appellant G H Vear for Respondent
Judgment:	11 December 2013 at 11.00 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of two years and three months’ imprisonment is quashed and a sentence of six months’ home detention is substituted.
C The sentence of home detention is to be served at the address identified in the report prepared for the District Court by the Department of Corrections in July 2013. On his release, Mr Sheppard is to go directly to that address and remain there pending the arrival of a probation officer and an officer of the company responsible for connecting the electronic monitoring system.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

On 15 July 2013, the appellant (Mr Sheppard) was sentenced by Judge Crosbie in the District Court at Dunedin on convictions for one charge each of wounding with intent to injure and possession of an offensive weapon.[1] Mr Sheppard was sentenced to two years and three months’ imprisonment, with a concurrent sentence of nine months’ imprisonment on the less serious conviction. He has appealed the longer sentence, contending that it was manifestly excessive.
[1]R v Sheppard DC Dunedin CRI-2012-012-1812, 15 July 2013.
The charge of wounding with intent to injure carries a maximum penalty of seven years’ imprisonment, and that for possession of an offensive weapon carries a maximum penalty of three years’ imprisonment. On sentencing, the Judge treated the second conviction as carrying a maximum penalty of two, rather than three, years’ imprisonment.[2] We are not concerned that the Judge’s misapprehension as to the maximum penalty had any bearing on the correctness of his analysis on sentencing.

The facts

[2]The penalty had increased from two to three years as from 19 March 2012: Crimes Amendment Act (No 3) 2011, s 8.

The offences occurred around 11.30 pm on 25 May 2012. Mr Sheppard and two female friends were asked to leave a central Dunedin bar. The victim in the wounding was a part-time security guard employed at the bar, who had been called to assist in dealing with Mr Sheppard’s group. There had been an argument between Mr Sheppard and other members of the staff at the bar, and after the victim confirmed a request that they were to leave the premises, Mr Sheppard grabbed the back of the victim’s neck, pulled the victim towards him, and at the same time thrust a small screwdriver into the neck of the victim. The victim sustained a small puncture wound to his throat, which was cleaned and dressed by medical staff. Bruising associated with the attack made it difficult for him to eat solids for about a week and the victim was also emotionally harmed by the experience.
After Mr Sheppard and his companions left the…

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 Sheppard v R

Details

AGLC: Sheppard v R [2013] NZCA 639
Case: [2013] NZCA 639
Decision Date: 11 December 2013 at 11.00 am

CaseChat Overview and Summary

In the case of Sheppard v R, the appellant, Christopher Edward Sheppard, was convicted in the District Court at Dunedin on one charge each of wounding with intent to injure and possession of an offensive weapon. Sheppard appealed the sentence of two years and three months’ imprisonment, arguing that it was manifestly excessive. The Crown contended for a starting point of four years’ imprisonment, while Sheppard's counsel argued for a starting point of two years. The Judge opted for a starting point of three years’ imprisonment, which was challenged on appeal as being excessive.

The Court of Appeal of New Zealand found that the starting point was indeed too high. The Judge had expressed doubts about the presence of the aggravating factors of vulnerability and premeditation, but his overall assessment must have placed some reliance on a combination of both, leading to him placing the offending relatively higher within the bands from Nuku than was appropriate. The Court concluded that a starting point of two and a half years would have appropriately reflected the considerations relevant to sentencing. Therefore, the Court of Appeal allowed the appeal, quashed the sentence imposed, and substituted one of six months’ home detention on the more serious conviction for wounding with intent to injure, and two months’ home detention on the conviction for possession of an offensive weapon to be served concurrently.

The Court of Appeal directed that on Sheppard's release, he is to go directly to the home detention address identified in the report prepared for the District Court by the Department of Corrections in July 2013, to await the arrival of those responsible for the electronic monitoring of his sentence of home detention. Sheppard is not to consume or be in possession of alcohol at all times while subject to home detention. Any absence from the property at which the sentence is to be served for work or medical purposes is to be arranged in advance with those monitoring his sentence.

Orders