The Queen v Shiels

[2007] NZCA 441

IN THE COURT OF APPEAL OF NEW ZEALAND

CA260/07

[2007] NZCA 441

THE QUEEN

v

BRENDAN JOSEPH SHIELS

Hearing:27 August 2007

Court:Glazebrook, Baragwanath and Heath JJ

Counsel:P E Dacre for Appellant

M D Downs for Crown

Judgment:15 October 2007 at 10.30am

JUDGMENT OF THE COURT

A        AN EXTENSION OF TIME TO APPEAL IS GRANTED.

B        THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

Introduction

[1]       Mr Shiels applies out of time for leave to appeal against a sentence for aggravated robbery of five years imprisonment with a minimum non‑parole period of three years imposed by the late Judge Abbott on 22 December 2005. The appellant had pleaded guilty to that lead charge in the week before the trial was due to commence, having at an early stage pleaded guilty to lesser charges.  The Judge did not specify the starting point for the aggravated robbery.  He considered that, taking into account the appellant’s previous convictions, the fact that the aggravated robbery was committed while the appellant was on parole and the lateness of the  guilty plea on the major charge, the offending would normally have justified a sentence of imprisonment for six years.  But because the appellant was already serving terms of imprisonment totalling ten years and nine months, on an application of the totality principle the Judge reduced that sentence to five years. 

The composition of the total sentence

[2]       As a result, the appellant’s notional single sentence for the purposes of s 75 of the Parole Act 2002 was fifteen years and nine months.  That term is made up as follows:

DATE OF OFFENCE	Nature of lead offence	Date of sentence	Term of sentence
19 May 2002	Willful damage endangering life	18 September 2002	Five years six months
26 February 2005	Aggravated robbery	22 December 2005	Five years
26 March 2005	Injuring with intent	23 September 2005	Five years three months
TOTAL	15 YEARS NINE MONTHS

Initial offending (sentence 18 September 2002)

[3]       The appellant had been sentenced on 18 September 2002 when he was 21 for wilful damage endangering life, for offending committed on 19 May 2002 and for 18 other offences on that and other dates.  Judge Kerr adopted a starting point of seven and a half years which was reduced to five and a half years to recognise the plea of guilty.  A minimum non‑parole period of two and a half years was ordered.

[4]       On 19 May the appellant converted a car, failed to stop, assaulted four police officers using the car as a weapon, and committed two aggravated assaults on members of the public who tried to stop him.  The wilful damage endangering life entailed deliberately driving into a police vehicle in the course of a chase extending over some 23 km while the appellant was under the influence of methamphetamine. The Judge stated:

…there was considerable bravery by members of the police and indeed civilians in trying to apprehend you… your actions were deliberate, dangerous  and potentially could have caused serious injury or death to innocent members of the public

Other offending for which the appellant was sentenced on this occasion included three burglaries (one business and two private premises) and other offences of dishonesty.

Second offending (sentence 22 December 2005)

[5]       The appellant was released on parole on 1 February 2005.  On 10 March 2005 he was recalled having committed an aggravated robbery on 26 February 2005.  But because that offence was not admitted immediately the appellant was not sentenced on the aggravated robbery charge until 22 December 2005.  In committing the aggravated robbery, the appellant and a co-offender entered business premises masked and carrying firearms.  Pointing the weapons at two employees they demanded and received the key of a safe and stole nearly $4000.  The appellant was concurrently sentenced for car conversion and burglary.

Third offending (sentence 23 September 2005)

[6]        Following the aggravated robbery, after escaping from prison and prior to the sentence on 22 December the appellant committed a further series of offences.  The major one was injuring a prison officer with intent to injure on 26 March 2005.  The appellant punched him from behind with considerable force. While he was unconscious on the ground a female officer intervened.  The appellant forced her away so that she struck her head on a metal beam.  He then kicked the first officer in the head and stomped on his head causing significant injury.  The other suffered continuing loss of hearing from the assault on her.  Having escaped from prison, on 2 September 2005 the appellant converted a vehicle after punching the driver several times in the face. 

[7]       That conduct led to the second sentencing in sequence,  23 September 2005 by Judge Holderness, when a starting sentence of four and a half years was reduced to three and a half by reason of a guilty plea.  It embraced, in addition to the sentence for injuring with intent to injure, escaping from custody (for which there had been a previous conviction), common assault and aggravated assault as well as car conversion and driving while disqualified.

Judge Abbott’s sentencing remarks

[8]       Referring to the appellant’s long list of convictions the Judge noted that the offending occurred four weeks after the appellant’s release from the first sentence and while he was on parole. The Judge considered the effect of the sentences by Judges Kerr and Holderness and directed himself that the totality principle required him to avoid imposing a sentence that was totally crushing.  Looking at the 2005 conduct as a whole he decided that an appropriate total term would be ten to eleven years.  He imposed the five year term cumulatively upon the five years and three months imposed by Judge Holderness.

Submissions for appellant

[9]       Mr Dacre noted that the effect of the Parole Act was to combine the three sets of sentences into a notional single sentence of 15 years nine months.

[10]     He referred to s 85 of the Sentencing Act 2002:

85       Court to consider totality of offending

(1)       Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)       If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)       If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)       If only concurrent sentences are to be imposed,—

(a)       the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

He cited the statement of principle in R v O CA258/05 3 March 2006:

Where an offender is to be sentenced for multiple offences, individual sentences must be fashioned which reflect the seriousness of each offence…But the sentence must also be structured in such a way as to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of the offending…

[11]     He submitted that since the Parole Act effectively combines the three sets of sentencing, the correct approach was to assess the appropriate total term for all three sets of sentencing rather than simply the 2005 offending.

[12]     He argued that a term of 15 years nine months for the total offending was manifestly excessive and that the five years of the sentence imposed by Judge Abbott, unexceptionable when looked at in isolation, must be reduced to achieve a proportionate total result.

Submissions for Crown

[13]     Mr Downs submitted that leave to appeal should be declined, the appeal being seventeen months late.  He contended that the sentence imposed was a proportionate response to a seemingly inveterate offender.

Analysis

[14]     Section 75 of the Parole Act provides:

75       Cumulative sentences form notional single sentence

(1)       If… an offender is sentenced to a sentence of imprisonment (a later sentence) that is directed to be served cumulatively on another sentence (an earlier sentence), the later sentence and the earlier sentence form a notional single sentence for the purpose of determining—

(a)whether the offender is subject to a long-term sentence or a short-term sentence; and

(b)the non-parole period to apply when determining the offender's parole eligibility date; and

(c)the release date to apply when determining the offender's statutory release date.

(2)       If the earlier sentence is part of a series of cumulative sentences, then all the sentences… in that series, along with the later sentence, form a notional single sentence for the purpose described in subsection (1).

…

[15]     The definition of the “notional single sentence” is for the specific purposes stated in subsection (1) and is not of wider application.  Section 75 says nothing about how a court is to treat an offender who, while on parole, commits further offences.  The notion that he is to receive a discount for later offending because of the fact of his earlier offending is unattractive and no authority was cited to support it.  It would be wrong in principle to require a Court to provide a credit in these circumstances because to do so would have the potential to mark inadequately later offending (protection of community) in favour of the prisoner's interests in not receiving too long a sentence. It would also take away the flexibility inherent in assessment of the totality of the offending. We respectfully agree with the approach taken by Judge Abbott, to look at the 2005 offending as a unit separate from the earlier offending in 2002 and previously.  Such prior offending was properly to be considered as an aggravating rather than a mitigating factor.  

[16]     As to the decision that a sentence of ten years and three months was appropriate for the 2005 offending, the probation officer recorded in the pre‑sentence report provided to Judge Abbott that since 1997 the appellant had accumulated 62 convictions and that:

Over the years there has been a significant increase in the dishonest, dangerous and violent nature of offending in which drug addiction and criminal association were contributing factors…His lack of motivation and insight into his offending put him at high risk of reoffending in a similar manner, if his capacity for violence and thinking patterns are not addressed.

[17]      The offending for which Judge Holderness sentenced the appellant included serious violent offending against the first officer which in terms of R v Taueki [2005] 3 NZLR 372 (CA) by itself justified a starting point approaching five years before plea. The total sentence, which included the assault on the second officer and required a deterrent penalty for the second escape, was moderate.

[18]     Equally, in relation to the offending considered by Judge Abbott, in terms of  R v Mako [2000] 2 NZLR 170 (CA) a sentence of five years for the aggravated robbery alone would have been moderate.

[19]     Given the nature of the total offending and the appellant’s prior list, a sentence of twelve years before mitigation would have been within range.  The sentence of ten years and three months can be analysed as entailing a discount for the plea of guilty before Judge Holderness and the belated plea before Judge Abbott.  It cannot be said to be excessive.

Decision

[20]     Because the case warranted examination of the significance of the “notional single sentence” we extend the time to appeal.  But the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington