Sheers v R [2022] NZCA 618 (9 December 2022)

Last Updated: 12 December 2022

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

1. The application for an extension of time to appeal is granted.
2. The appeal against sentence is allowed.

100. The 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]
• [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

• [4] 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.

• [5] 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

• [6] The Judge focused upon the circumstances of Mr Sheers’ offending, his criminal history, his personal circumstances, his ability to understand the two previous warnings and his level of culpability for the offending.^[5] In his assessment:

  (a) The offending was a moderately serious example of aggravated robbery. Although premeditated, the circumstances were unsophisticated, with Mr Sheers acting alone and making no attempt to disguise himself. A moderate amount of cash was taken but no injuries were caused.^[6]

  (b) Dr McGinn, a clinical neuropsychologist, considered that Mr Sheers functioned at a level below his 23 years of age. Dr McGinn diagnosed Mr Sheers as having foetal alcohol spectrum disorder (FASD) in addition to his previously diagnosed attention deficit hyperactivity disorder (ADHD).^[7]

  (c) Dr McGinn’s evidence suggested that although Mr Sheers was aware he was on his third strike, he did not fully comprehend the jeopardy in which this placed him.^[8]

• [7] The Judge agreed with the view shared by the Crown and Mr Sheers’ then counsel that an end sentence of around two and a half to three years’ imprisonment would have been appropriate had it not been for the three strikes regime.^[9] The Judge concluded:

[16] The relatively short length of the otherwise appropriate sentence does not, in itself, make the sentence of 14 years’ imprisonment without parole manifestly unjust. However, in conjunction with your FASD, it does. You suffer from a severe and pervasive neuro-disability, not of your own making, which significantly reduces your capacity to manage your behaviour. Your moral culpability is far less than most other offenders.

Consequently the Judge exercised the power in s 86D(3) of the Sentencing Act to decline to order that Mr Sheers serve his sentence without parole.^[10]

Grounds of appeal

• [8] The appeal is brought under s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if satisfied that there was an error in the sentence and a different sentence should be imposed.^[11]
• [9] It is Mr Sheers’ contention that, having regard to the relatively low seriousness of the offending and his FASD diagnosis, the 14-year term of imprisonment amounts to disproportionately severe treatment in breach of s 9 of the NZBORA. Consequently the Judge was obliged to adopt ordinary sentencing principles and disregard the application of s 86D of the Sentencing Act. The Crown accepts that the sentence imposed was manifestly excessive and disproportionately harsh. However it contends that such excess is not, without more, sufficient to support a conclusion that the sentence was in breach of s 9.

Fitzgerald and subsequent authorities

• [10] Fitzgerald concerned an offender who was sentenced for his third strike offence under s 86D(2) of the Sentencing Act, which led to the High Court imposing the maximum term of imprisonment prescribed for that offence. The Supreme Court held that the three strikes regime was not intended to prevail over s 9 of the NZBORA.^[12] Where the imposition of a maximum sentence would breach s 9, the Court ruled that an offender was to be sentenced in accordance with ordinary sentencing principles.^[13]
• [11] The majority in Fitzgerald confirmed the “high threshold” to establishing that a sentence breaches s 9 of the NZBORA. Winkelmann CJ referred to phrases in Taunoa v Attorney-General, which stated that, in order to breach s 9, the treatment or punishment would need to be “so excessive as to outrage standards of decency”, “so out of proportion to the particular circumstances as to cause shock and revulsion” or “so severe as to shock the national conscience”.^[14] O’Regan and Arnold JJ adopted a similar approach when they said “a sentence which is simply severe, disproportionate or manifestly excessive would not meet the test”.^[15] Glazebrook J agreed with the reasons given by Winkelmann CJ and O’Regan and Arnold JJ as to why in the circumstances s 9 was breached. She said that “a sentence that breaches s 9 would be one that is so out of proportion in the circumstances of the case that it would shock the conscience of New Zealanders”.^[16]
• [12] Acknowledging the difficult exercise in distinguishing in practice between the two types of sentence (those so disproportionate as to shock the national conscience and those merely disproportionate), this Court in Phillips v R examined a number of decisions from cognate jurisdictions.^[17] It identified three factors likely to play a significant role in determining whether or not a sentence imposed pursuant to s 86D(2) of the Sentencing Act breaches s 9 of the NZBORA:^[18]

  (a) Any difference in the nature of the sentence that would otherwise have been imposed and the fact that a prison sentence must be imposed under s 86D(2). This consideration is illustrated by Fitzgerald where, in all likelihood, a non-custodial sentence would have been imposed, compared to the prison sentence that was imposed pursuant to s 86D(2).

  (b) The difference between any prison sentence that would have been imposed but for the three strikes regime and the prison sentence imposed pursuant to s 86D(2). This may involve more than the multiplicative difference between the two sentences. It may also be necessary to take into account the actual difference in years between the sentence imposed and that which would otherwise have been adopted but for the three strikes regime.

  (c) The nature of the offending. This requires an assessment of whether or not the defendant is plainly an inadvertent and unforeseen casualty of the three strikes regime.

• [13] Those factors were adopted by this Court in Mitai-Ngatai v R, where a sentence of seven years’ imprisonment imposed for a third strike conviction on a single charge of indecent assault was quashed and substituted with a sentence of two years’ imprisonment.^[19] The Court observed that a sentence imposed in accordance with the three strikes regime may be stern but not breach s 9, particularly in cases where the offending involves serious violence and the offender’s history of serious offending indicates they present a danger to the community.^[20]
• [14] Matara v R was an appeal against a conviction of attempted murder, which was a second strike offence in respect of which s 86C(4) of the Sentencing Act required the sentencing Judge to order that Mr Matara serve the full term of the sentence without parole.^[21] Following a discussion of the authorities, including the assumption voiced in Fitzgerald that successful appeals would be rare,^[22] this Court observed:^[23]

[73] Experience since Fitzgerald suggests that in practice such cases are not rare. Third strike sentencing is capable of producing grossly disproportionate outcomes whenever the otherwise appropriate sentence for the index offending is a fraction of the maximum penalty. The Crown has conceded that s 9 was breached in the two third strike appeals brought since Fitzgerald.

• [15] The reference to the Crown concessions reflected the fact that in both Phillips and Mitai-Ngatai the Crown did not resist the appeals. However in the latter this Court indicated that in future cases opposing submissions would likely be required.^[24] Viewing that indication as a request to act as contradictor, in Allen v R (where the maximum penalty of seven years’ imprisonment was imposed) the Crown filed detailed submissions, which Mr Marshall for the Crown acknowledged were essentially reprised on the present appeal.^[25]

Discussion

• [16] There is no bright line which separates what Glazebrook, O’Regan and Arnold JJ described as “rare cases” from the “vast grey area between the truly appropriate sentence and a cruel and unusual sentence”.^[26] In each instance it is necessary to undertake an analysis of how the particular factual matrix measures up to the law as expressed in Fitzgerald.
• [17] While recognising that each case is different, Mr Marshall acknowledged that the present is an especially difficult one. Nevertheless in the Crown’s assessment there are principled and sound arguments in favour of the sentence imposed. They include:

  (a) Mr Sheers’ offence was serious. Even taking into account Mr Sheers’ personal mitigating factors, a substantial term of around three years’ imprisonment would otherwise have been imposed.

  (b) While the sentence imposed is 4.6 times, or 11 years, longer, the difference in parole eligibility is less (approximately three and a half years). Ultimately, given Mr Sheers’ offending history and the risk he poses to the community, a sentence that nevertheless permits his release after four years and eight months (if safe) may not shock the national conscience.

  (c) This is particularly so given Parliament’s intent in enacting the three strikes regime was to protect the public from adult offenders who continue to commit serious violent offences. Incapacitation lies at the heart of the regime. Mr Sheers is neither an inadvertent nor unforeseen casualty of that regime.

• [18] With reference to the first Phillips factor Ms Gray, counsel for Mr Sheers, appropriately accepted that it was more than likely that Mr Sheers would have received a custodial sentence for his third strike offence, but she submitted that that alone was insufficient to detract from the other factors which strongly supported the appeal.
• [19] Ms Gray contended that the Judge’s assessment of the offending as a moderately serious instance of aggravated robbery somewhat overstated the gravity of the offending. She suggested its characteristics were more akin to a street robbery, which this Court in R v Mako stated would attract starting points of between 18 months and three years.^[27] She emphasised the unsophisticated circumstances noted by the Judge and, while acknowledging the presence of the knife was an aggravating factor, she drew attention to the fact that Mr Sheers specifically told the victims they would not be hurt. Indeed one of the victims even described Mr Sheers as “polite”.
• [20] In our view the two factors of particular significance are the degree of disparity in the sentence and, in that context, the implications for Mr Sheers of his FASD diagnosis.
• [21] Mr Marshall submitted that where the “but for” sentence would have been imprisonment, it is necessary to consider the disparity between that sentence and the strike sentence. He said that consideration should be given to both the multiplicative and absolute difference in sentence length and in parole eligibility dates.
• [22] We acknowledge that the multiplicative difference may be a useful pointer to whether a sentence is manifestly excessive and disproportionately harsh, an outcome which is not contested by the Crown in Mr Sheers’ appeal. It may also provide a somewhat rudimentary basis of comparison with other cases. However, as the present appeal demonstrates, relatively small adjustments to the denominator can produce significantly different outcomes. While the Crown submission proceeds on a disparity factor of 4.6, if the lesser figure identified by counsel and the Judge of two years and six months is adopted, the disparity figure increases to 5.6, which happens to equate to that in Phillips.
• [23] When one is considering the ultimate issue whether the national conscience is appropriately shocked, as in Matara we consider that the absolute differential is more instructive.^[28] Mr Marshall responsibly accepted that the 11-year disparity suggests a breach of s 9. Certainly that period is longer than the differentials in a number of High Court judgments where a breach of s 9 has been established.^[29]
• [24] Nor do we accept that the extent of the disparity can safely be diminished by reference to the prospect of a release on parole after a period of detention which is viewed as not so egregious. As in Matara, we are not in a position to assess the prospect of parole being granted by the Parole Board.^[30] That is particularly so in light of the Crown’s observation that Mr Sheers has shown himself unable to live safely or successfully in the community, in combination with the submission that the rationale of the three strikes regime was not only deterrence but also protection of the community by incapacitating offenders for longer periods.^[31]
• [25] It is significant in our view that the disproportionately severe implications of Mr Sheers’ sentence are compounded by the fact of his FASD diagnosis. In Fitzgerald, Winkelmann CJ considered that avoiding a breach of s 9 required weighing Mr Fitzgerald’s mental health as the principal consideration in sentencing.^[32] Similarly O’Regan and Arnold JJ noted that the s 9 prohibition covered conduct that affected both the physical and mental integrity of the person subjected to it. They considered the effect of the challenged conduct on the particular individual involved (taking account of their particular vulnerabilities) can be relevant to the assessment of what is disproportionately severe.^[33]
• [26] Dr McGinn’s report describes FASD as being “a severe pervasive brain disorder” which is a lifelong brain-based disability rendering individuals prone to impaired decision-making and acting on impulse without thinking about the consequences. For a diagnosis of FASD there need to be deficits in at least three of 10 brain domains, as evaluated with neuropsychological testing. Mr Sheers has deficits in seven. As Dr McGinn explained:

[Mr Sheers] believes that he is right and others are wrong due to his inability to self-reflect. This limits the degree to which he can realise how his actions impact on himself and others. He was markedly impulsive and rushed ahead without forethought during testing. Mr Sheers clearly knows right from wrong but has limited capacity to choose right from wrong. He has a very limited window in which to stop and think before acting. It is known that individuals with FASD have a disconnected sense of ownership due to their brain damage. This leaves them at risk of taking things that are not theirs. They do not make good criminals as they tend to do wrong things in a simplistic way, right out in the open.

Ms Gray submitted that the final sentence perfectly summarises Mr Sheers’ offending.

• [27] The Crown suggested that to the extent the offending is causally linked to Mr Sheers’ FASD, it is something of double-edged sword: to the extent the consequences of the condition include a heightened risk of further offending, considerations of public protection also come into play. Nevertheless the Crown responsibly accepts that Mr Sheers’ intellectual difficulties, manifesting in impaired decision-making and marked impulsivity, mitigate his culpability, and substantially so. The Crown notes that Dr McGinn’s report recognised that imprisonment comes with both potential risks and benefits for Mr Sheers:

Individuals with FASD often do well in prison due to the strict structure and routine and lack of need to make any decisions for themselves. However, they are a vulnerable group due to their disability and often victimised. This is mitigated to a degree by disabled individuals being placed in a segregated unit.

• [28] Mr Marshall submitted that the determination of the question whether the identified sentence disparity is disproportionately severe for the purposes of s 9 is unavoidably “a matter of appreciation”. That expression, employed by William Young J in Fitzgerald, was qualified by the words “at least at the margin”.^[34] However in our view Mr Sheers’ appeal is not a marginal case. We consider that the 11-year differential, particularly in the context of the implications of FASD while imprisoned, comfortably surmounts the high Fitzgerald threshold.
• [29] Therefore Mr Sheers should be re-sentenced.
• [30] Finally we note that shortly before the hearing Ms Gray filed supplementary submissions addressing the proposition, not previously foreshadowed, that s 19 of the NZBORA, which guarantees the right to freedom from discrimination, might provide an alternative basis for Mr Sheers’ appeal.^[35] In the circumstances the Crown did not have an adequate opportunity to engage with that proposition. Given our conclusion in respect of s 9 it is unnecessary to explore the alternative contention, which would necessitate careful consideration after full argument.

Result

• [31] The application for an extension of time to appeal is granted.
• [32] The appeal against sentence is allowed.
• [33] The sentence of 14 years’ imprisonment is quashed. In its place we substitute a sentence of three years’ imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent

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

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

^[3] At [2].

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

^[5] Drawing on the approach in R v Waitokia [2018] NZHC 2146.

^[6] Sentencing notes, above n 2, at [9].

^[7] At [11].

^[8] At [12].

^[9] At [15].

^[10] At [17].

^[11] Criminal Procedure Act 2011, s 250(2).

^[12] Fitzgerald v R, above n 4, at [123] and [128]–[130] per Winkelmann CJ, [247]–[248] per Glazebrook J and [203] per O’Regan and Arnold JJ.

^[13] At [137] and [139] per Winkelmann CJ, [250] and [252] per Glazebrook J and [231] per O’Regan and Arnold JJ.

^[14] At [77], referring to Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [92] per Elias CJ, [172] per Blanchard J and [289] per Tipping J.

^[15] At [161].

^[16] At [239].

^[17] Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661 at [22]–[26].

^[18] At [28].

^[19] Mitai-Ngatai v R [2021] NZCA 695.

^[20] At [26].

^[21] Matara v R [2021] NZCA 692.

^[22] At [72], referring to Fitzgerald v R, above n 4, at [245] per Glazebrook J and [219], [231] and [236] per O’Regan and Arnold JJ.

^[23] Matara v R, above n 21 (footnote omitted).

^[24] Mitai-Ngatai v R, above n 19, at [31].

^[25] Allen v R CA715/2021, in which judgment is reserved.

^[26] R v Smith [1987] 1 SCR 1045 at 1090 per McIntyre J dissenting.

^[27] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [59].

^[28] See Matara v R, above n 21, at [66], [68] and [74].

^[29] See for example R v Morgan [2022] NZHC 790; R v Lloyd [2022] NZHC 1044; and R v Tikena‑Stuchbery [2022] NZHC 1266.

^[30] Matara v R, above n 21, at [69].

^[31] Citing the speech of the Hon Judith Collins at the third reading of the Sentencing and Parole Reform Bill 2009, the Bill which gave rise to the three strikes regime: (25 May 2010) 663 NZPD 11227.

^[32] Fitzgerald v R, above n 4, at [141]. Winkelmann CJ noted that the information before the Court at the time of sentencing suggested that imprisonment could worsen Mr Fitzgerald’s mental health condition, and that imprisonment had deprived him of rehabilitative treatment he might otherwise have accessed.

^[33] At [162].

^[34] Fitzgerald v R, above n 4, at [328].

^[35] Relevantly, disability (which includes “intellectual or psychological disability or impairment”) is listed as a prohibited ground of discrimination in s 21(1)(h) of the Human Rights Act 1993.