Shierney v Police - [2014] NZHC 2963

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000268 [2014] NZHC 2963

BETWEEN
ARTHUR SHIERNEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 November 2014

Appearances:

P Eastwood for the Appellant
R Thomson for the Respondent

Judgment:

26 November 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 26 November 2014 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: P Eastwood, Barrister, Auckland
Meredith Connell (Crown Solicitors) Auckland

ARTHUR SHIERNEY v NEW ZEALAND POLICE [2014] NZHC 2963 [26 November 2014]

[1] On 15 July 2014, Arthur Paul Shierney was convicted and sentenced to a total of three years imprisonment on a lead charge of burglary and six other more minor offences.1 He now appeals against his sentence on a number of grounds, including that the sentence is manifestly excessive.

Factual background

[2] There are two sets of offending. The first was on the night of 3 – 4 February,

2014, and the second was two weeks later on 19 February 2014. On the evening of

3 February 2014, an associate picked up Mr Shierney from a motel in Newmarket, Auckland. They travelled to Herne Bay, Auckland, and parked in the vicinity of the Speight’s Ale House. Mr Shierney then entered onto a residential property in Jervois Road. He found an insecure garage door and together with his associate entered the residence. The occupants of the address were overseas. A search was carried out and numerous items, including jewellery and electronic products, were placed in bags and removed from the residence and taken to the associate’s vehicle. Mr Shierney and his associate drove back to Newmarket where they emptied the vehicle of the stolen property and placed it in the motel room occupied by Mr Shierney.

[3] At about 4:00 am the next morning, 4 February 2014, Mr Shierney and his associate again drove to Herne Bay. En route they uplifted two further individuals. They again parked outside the Speight’s Ale House and after consuming some methamphetamine, Mr Shierney and his associate again entered the residence in Jervois Road. On this occasion, Mr Shierney forced a metal locker open using a screwdriver. There were numerous high powered rifles and ammunition in the locker. Mr Shierney and his associate began to unload the locker and prepare the rifles for transport away from the house. They wrapped the rifles in bed sheets and placed them at the garage door. Three rifles in rifle cases were easier to transport. At this point, Mr Shierney and his associate realised they were being watched by a neighbour and left the address. Mr Shierney’s associate ran to their vehicle and placed the three rifle cases into the boot before driving away.

[4] Mr Shierney walked briskly in the opposite direction to the vehicle to get away. A short time later, the associate uplifted Mr Shierney and they drove to another address in Herne Bay, where they dumped the three stolen rifles and ammunition in a…

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 Shierney v Police

Details

AGLC: Shierney v Police [2014] NZHC 2963
Case: [2014] NZHC 2963
Decision Date: 26 November 2014

CaseChat Overview and Summary

Arthur Paul Shierney appealed against his three-year imprisonment sentence imposed by the District Court for burglary and other related offences. The High Court was required to determine whether the sentence was manifestly excessive or whether any other error of law had been made in the sentencing process. The appellant argued that the sentence was excessive because he did not know that the house contained firearms when he first entered the property, he had no interest in using the firearms, he had not rejected rehabilitation efforts, and the protection of the public was not the dominant principle of sentencing in his case. The court examined the sentencing judge's approach and the appellant's criminal history, and found that the sentence was within the sentencing judge's discretion and did not amount to a manifestly excessive sentence. The court also noted that the appellant's co-offender had received a sentence indication of home detention, but the court was not provided with sufficient information to compare the sentences fairly.

The High Court held that the District Court Judge had approached the sentencing exercise in a careful and principled manner. The final sentence of three years imprisonment was unremarkable in light of the circumstances of the burglary and the appellant's previous history. The appeal was dismissed, and the original sentence was upheld.

Orders