Shierney v Police [2014] NZHC 2963 (26 November 2014)

Last Updated: 12 December 2014

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 recycling bin.

[5] Later that day the Police located Mr Shierney in his Newmarket motel room and recovered numerous items taken in the burglary. Mr Shierney admitted his actions immediately. He was charged on three counts: burglary, possession of methamphetamine, and possession of a pipe for the consumption of methamphetamine. He was subsequently released on bail.

[6] Approximately two weeks later he accrued four further charges: one of driving while disqualified, one of possessing cannabis, one of possession of a pipe for the consumption of methamphetamine, and receipt of a stolen debit card. At about 4:30 pm on 19 February 2014, Mr Shierney was the driver of a motor vehicle in Park Road, Grafton, Auckland. Police saw Mr Shierney stop and get out of the vehicle and walk to a nearby shop. Police stopped and spoke to the front seat passenger of the vehicle. Mr Shierney then exited the shop and on seeing the Police vehicle began to run. Police chased Mr Shierney on foot and apprehended him a short distance later.

[7] Mr Shierney’s vehicle was searched pursuant to arrest under the Search and Surveillance Act 2012. Located in the boot of the vehicle was a large crow bar, a single garden glove, a hammer and a black handled screw driver. These items are commonly used for burglary. Located in a black satchel in the front of the car was a pair of yellow handled pliers, a pair of black gloves, a small red torch and a pair of orange handled pliers. These items are commonly used for vehicle conversion.

[8] Located in a black backpack on the back seat of the vehicle was a small amount of cannabis, two glass pipes, four cut straws, and numerous small zip lock bags. These items are commonly used in the consumption of methamphetamine. Along with these items, a Mastercard debit card in the name of a member of the public was located in the backpack.

[9] Mr Shierney had, on 16 December 2013, been convicted for driving while his licence was suspended or revoked and he was subsequently disqualified from driving for six months, starting on 18 December 2013 and ending on 18 June 2014.

[10] When spoken to by the Police, Mr Shierney said that he was on his way to the hospital and that he had run because it was his instinct to do so, because he was disqualified from driving. He also stated that the bags in the vehicle belonged to him and that the tools were used for his bike.

District Court decision

[11] After reviewing the facts relating to the charge of burglary, the sentencing Judge made it clear at the outset of the sentencing that he considered a burglary which involved taking firearms to be extremely serious. He stated that so much of really serious crime in New Zealand is carried out with firearms which are stolen, and to him, that elevated this burglary to a different level than that which normally applies. He referred to a recent Court of Appeal decision Arahanga v R, in which it

was stated:²

[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of 18 months to two years and six months imprisonment.

[12] The sentencing Judge then referred to the aggravating factors, being burglary of a domestic residence, burglary at night, multiple offenders, the consumption of methamphetamine before the second entry and returning and targeting the theft of firearms.

[13] The sentencing Judge said that he was of the view that if the property had been targeted because they were setting out to steal firearms, then in his view, a starting point of five years imprisonment would have been appropriate, but dealing with the facts in this case, he treated the taking of the firearms as at least

opportunistic in part. Therefore, in his view on the authority of Arahanga, Heald v R,³ and other cases, the starting point for the burglary was three and a half years imprisonment. The sentencing Judge then uplifted that by six months to take account of all the offending on a combined totality basis. This led to an adjusted starting point of four years imprisonment.

[14] Although he agreed with Mr Shierney’s counsel that an uplift of a further six months imprisonment for his previous offending was appropriate and justifiable, the sentencing Judge decided not to uplift his sentence for his previous convictions, saying that he had paid the price for those previously and he warned himself against what he referred to as an uplift creep.

[15] The sentencing Judge then turned to the purposes and principles of sentencing, saying that they were all in play. The one that he thought should dominate now, given the multitude of Mr Shierney’s previous convictions, including

11 for burglary, was protection of the public. Mr Shierney’s expressions of remorse were regarded by the sentencing Judge as being situational remorse. He therefore declined to give any additional discount for remorse because he was not satisfied that it was genuine. However, the sentencing Judge noted that Mr Shierney was entitled to a discount for a guilty plea and he was given the full 25 per cent discount for that.

[16] The sentencing Judge therefore sentenced to Mr Shierney to three years imprisonment for the burglary. On all other charges in respect of the incidents on 3,

4 and 19 February he was sentenced to one month’s imprisonment, to be served concurrently. On the driving while disqualified charge, Mr Shierney was also disqualified for one year.

[17] Finally, the sentencing Judge chose not to impose a minimum period of imprisonment, saying that Mr Shierney would be eligible for parole in the normal way and the question of when he got parole would be entirely a matter for the Parole Board.

Mr Shierney’s affidavit

[18] The appellant has applied for leave to adduce fresh evidence on appeal in the form of an affidavit from him. The respondent opposes leave being granted. In his affidavit, the appellant contests inferences drawn by Judge from the summary of facts or criticises the Judge’s approach for failing to taking into account mitigating factors, such as his prospects of rehabilitation et cetera. Much of the affidavit can be characterised as submissions and is therefore, strictly speaking, not fresh evidence.

[19] Nonetheless, I admit the appellant’s affidavit as evidence in the appeal in the interests of justice as it clearly sets out his grievances, which have been fashioned by his counsel into points on appeal.

Discussion

[20] Counsel for the appellant makes five main points:

(a) The appellant did not know that the house contained firearms when he and his co-offender first entered the property. The firearms were therefore not targeted.

(b) The appellant had no interest in using the firearms and helped Police to locate the three that had been dumped in a bin in Herne Bay. No credit was given for this assistance to the Police.

(c) The appellant did not reject efforts of rehabilitation as assumed by the Judge. He turned down a place at a residential alcohol and drug treatment centre, Odyssey House, because he wanted to explore rehabilitative options in Westport, where he hoped to return to.

(d) Although the appellant had 11 previous convictions for burglary, the Judge was wrong to use these to say that the protection of the public was the dominant principle of sentencing in his case.

(e) The appellant’s co-offender had been given a sentence indication of home detention.

[21] Although the sentencing Judge did state that one of the aggravating factors of the burglary was that the appellant went back and targeted the theft of firearms, this comment has to be seen in the context of the Judge’s sentencing decision as a whole. The starting adopted by the sentencing Judge was three and a half years imprisonment. It would have been more if he was of the view that the appellant had targeted the property because he was setting out to steal firearms. At [14] of his decision, the sentencing Judge stated:

If I was of the view that this property had been targeted because you were setting out to steal firearms then in my view a starting point of five years would have been appropriate...

The sentencing Judge also referred to the taking of the firearms as being opportunistic in part. So when the sentencing Judge made reference to returning and targeting the theft of firearms, the Judge was obviously referring to the fact that on their first visit to the property the appellant and his co-offender had identified a secured locker. They specifically returned to the property a number of hours later in order to open this locker and steal its contents, if they were of some value. The firearms were found in this locker and hence had been targeted in that way.

[22] While the appellant states that he had no interest in using the firearms and led the Police to the three rifles that had been dumped in a nearby street, they were obviously of some value to him and his co-offender, like all other property they had taken from the address. The sentencing Judge was well able to infer that Mr Shierney intended to dispose of the stolen property in return for cash, which he would then spend on his methamphetamine habit. Even if the appellant did not intend to use the firearms in the commission of further burglaries, it is clear he intended to sell them to associates or others who may have used them for a similar illegal purpose.

[23] This puts in context the sentencing Judge’s comment that a burglary which involves the taking of firearms is extremely serious. The appellant and his co- offender did take firearms from the property with the intention of dealing with them

and the sentencing Judge was accordingly able to elevate the burglary from the normal starting point of 18 months to two and a half years imprisonment set in Arahanga v R. Although the start point was towards the upper end of the available range, I consider it was within the sentencing Judge’s discretion. In coming to that conclusion I have regard to the fact the sentencing Judge declined to uplift the appellant’s sentence for his previous convictions even though it would have been well within his discretion to do so.

[24] The sentencing Judge did comment that the appellant had rejected efforts of rehabilitation, but he specifically stated that the appellant was not to be punished for that. The appellant had however chosen to forego an offer of a place at Odyssey House for whatever reason and, accordingly, he was not able to advance a rehabilitative option on sentencing. There was no proposal advanced at sentencing which may have allowed the sentencing Judge to explore the appellant’s prospects for rehabilitation.

[25] It is also correct that the sentencing Judge referred to the appellant’s

11 previous convictions for burglary. The appellant explains that five of these all occurred on one day when he was a youth and he gives explanations for the other convictions for which he received sentences of one or two years imprisonment. However, the 11 convictions for burglary are not the only convictions of the appellant. The appellant was first imprisoned on 12 November 2003. Since that date he has received on a regular basis 131 separate terms of imprisonment for a whole range of offences. Many are dishonesty offences, such as receiving, theft ex car or using documents for a pecuniary advantage. I am therefore of view that the sentencing Judge was properly able to consider the protection of the public as being the dominant principle of sentencing. In any event, the sentencing Judge did not uplift the starting point for the burglary because of the appellant’s 19 page conviction history, although he could well have done so.

[26] Finally, although I was advised that the appellant’s co-offender had been given a sentence indication of home detention, I was not provided with any information as to the co-offender’s criminal history or his personal circumstances, which may have warranted a different approach on sentencing, nor was I advised

whether the co-offender faced other charges. The appellant did face other charges and received an uplift for those offences.

[27] The appellant’s final sentence was one of three years imprisonment. To be eligible for home detention, the otherwise appropriate sentence must be two years imprisonment or less. It is quite conceivable that there are significant differences between the appellant and his co-offender, which justify a lesser sentence. I was not, however, provided with any details of the sentence indication and, accordingly, am unable to give it any consideration in the context of this appeal.

Result

[28] I am of the view that the District Court Judge approached the sentencing exercise in a careful and principled manner. The maximum sentence for burglary is ten years imprisonment. The final sentence of three years imprisonment was therefore quite unremarkable in light of the circumstances of the burglary and the appellant’s previous history. The appeal is dismissed.

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Woolford J