SHEERS v R [2022] NZCA 618

SHEERS v R [2022] NZCA 618 [9 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA351/2022[2022] NZCA 618BETWEEN CONRAD JOHN SHEERSAppellantAND THE KINGRespondentHearing: 14 September 2022Court: Brown, Katz and Simon France JJCounsel: S J Gray for AppellantP D Marshall and T C Didsbury for RespondentJudgment: 9 December 2022 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentence of 14 years' imprisonment is quashed. In its place we substitutea 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 aggravatedrobbery armed with an offensive weapon.1 On 7 July 2020 he was sentenced by1 Crimes Act 1961, s 235(c).Woolford J in the High Court at Auckland to 14 years' imprisonment.2 The maximumpenalty for the offence was imposed because the offending was a stage-3 offence underthe "three strikes" sentencing regime.3[2] The appellant appealed against that sentence in reliance on the principlerecognised in Fitzgerald v R, contending that the imposition of the maximum sentencein accordance with s 86D(2) of the Sentencing Act 2002 was disproportionately severetreatment 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 wasdelivered subsequent to his sentencing, the Crown does not oppose an extensionof 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 GermanBakery at 346 Ponsonby Road, Auckland through the front door, carrying agym bag. The two victims, Ms Grealish and Ms Messelidis, were working atthe bakery at the time. You produced a large knife from the gym bag andpointed it at Ms Grealish, saying to both victims, "I won't hurt you, just giveme all the money in the register." Ms Messelidis took $785 from the cashregister and handed it to you. You took the money, placed it into the bag andquickly left the bakery with the money.[5] The offending was very similar to that which resulted in Mr Sheers' twoprevious strike offences. They were also aggravated robberies which involvedMr Sheers walking into a small retail shop, producing a knife and successfully makingdemands for cash from the register. No victims were hurt in either instance.2 R v Sheers [2020] NZHC 1596 [Sentencing notes].3 At [2].4 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.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 twoprevious warnings and his level of culpability for the offending.5 In his assessment:(a) The offending was a moderately serious example ofaggravated robbery. Although premeditated, the circumstances wereunsophisticated, with Mr Sheers acting alone and making no attempt todisguise himself. A moderate amount of cash was taken but no injurieswere caused.6(b) Dr McGinn, a clinical neuropsychologist, considered that Mr Sheersfunctioned at a level below his 23 years of age. Dr McGinn diagnosedMr Sheers as having foetal alcohol spectrum disorder (FASD) inaddition to his previously diagnosed attention deficit hyperactivitydisorder (ADHD).7(c) Dr McGinn's evidence suggested that although Mr Sheers was awarehe was on his third strike, he did not fully comprehend the jeopardy inwhich this placed him.8[7] The Judge agreed with the view shared by the Crown and Mr Sheers' thencounsel that an end sentence of around two and a half to three years' imprisonmentwould have been appropriate had it not been for the three strikes regime.9 The Judgeconcluded:[16] The relatively short length of the otherwise appropriate sentence doesnot, in itself, make the sentence of 14 years' imprisonment without parolemanifestly unjust. However, in conjunction with your FASD, it does.You suffer from a severe and pervasive neuro-disability, not of your ownmaking, which significantly reduces your capacity to manage your behaviour.Your moral culpability is far less than most other offenders.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].Consequently the Judge exercised the power in s 86D(3) of the Sentencing Act todecline to order that Mr Sheers serve his sentence without parole.10Grounds 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 thesentence and a different sentence should be imposed.11[9] It is Mr Sheers' contention that, having regard to the relatively low seriousnessof the offending and his FASD diagnosis, the 14-year term of imprisonment amountsto disproportionately severe treatment in breach of s 9 of the NZBORA. Consequentlythe Judge was obliged to adopt ordinary sentencing principles and disregard theapplication of s 86D of the Sentencing Act. The Crown accepts that the sentenceimposed was manifestly excessive and disproportionately harsh. However it contendsthat such excess is not, without more, sufficient to support a conclusion that thesentence was in breach of s 9.Fitzgerald and subsequent authorities[10] Fitzgerald concerned an offender who was sentenced for his third strikeoffence under s 86D(2) of the Sentencing Act, which led to the High Court imposingthe maximum term of imprisonment prescribed for that offence. The Supreme Courtheld that the three strikes regime was not intended to prevail over s 9 ofthe 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 ordinarysentencing principles.13[11] The majority in Fitzgerald confirmed the "high threshold" to establishing thata sentence breaches s 9 of the NZBORA. Winkelmann CJ referred to phrases inTaunoa v Attorney-General, which stated that, in order to breach s 9, the treatment or10 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] perGlazebrook 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'Reganand Arnold JJ.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 adopteda similar approach when they said "a sentence which is simply severe,disproportionate or manifestly excessive would not meet the test".15 Glazebrook Jagreed with the reasons given by Winkelmann CJ and O'Regan and Arnold JJ as towhy in the circumstances s 9 was breached. She said that "a sentence that breachess 9 would be one that is so out of proportion in the circumstances of the case that itwould shock the conscience of New Zealanders".16[12] Acknowledging the difficult exercise in distinguishing in practice between thetwo types of sentence (those so disproportionate as to shock the national conscienceand those merely disproportionate), this Court in Phillips v R examined a number ofdecisions from cognate jurisdictions.17 It identified three factors likely to play asignificant 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 havebeen imposed and the fact that a prison sentence must be imposedunder 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 tos 86D(2).(b) The difference between any prison sentence that would have beenimposed but for the three strikes regime and the prison sentenceimposed pursuant to s 86D(2). This may involve more than themultiplicative difference between the two sentences. It may also benecessary to take into account the actual difference in years betweenthe sentence imposed and that which would otherwise have beenadopted but for the three strikes regime.(c) The nature of the offending. This requires an assessment of whetheror not the defendant is plainly an inadvertent and unforeseen casualtyof the three strikes regime.14 At [77], referring to Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [92] perElias 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].[13] Those factors were adopted by this Court in Mitai-Ngatai v R, where a sentenceof seven years' imprisonment imposed for a third strike conviction on a single chargeof indecent assault was quashed and substituted with a sentence of two years'imprisonment.19 The Court observed that a sentence imposed in accordance with thethree strikes regime may be stern but not breach s 9, particularly in cases where theoffending involves serious violence and the offender's history of serious offendingindicates they present a danger to the community.20[14] Matara v R was an appeal against a conviction of attempted murder, which wasa second strike offence in respect of which s 86C(4) of the Sentencing Act requiredthe sentencing Judge to order that Mr Matara serve the full term of the sentencewithout parole.21 Following a discussion of the authorities, including the assumptionvoiced in Fitzgerald that successful appeals would be rare,22 this Court observed:23[73] Experience since Fitzgerald suggests that in practice such casesare not rare. Third strike sentencing is capable of producing grosslydisproportionate outcomes whenever the otherwise appropriate sentence forthe index offending is a fraction of the maximum penalty. The Crown hasconceded that s 9 was breached in the two third strike appeals brought sinceFitzgerald.[15] The reference to the Crown concessions reflected the fact that in both Phillipsand Mitai-Ngatai the Crown did not resist the appeals. However in the latter this Courtindicated that in future cases opposing submissions would likely be required.24Viewing that indication as a request to act as contradictor, in Allen v R (where themaximum penalty of seven years' imprisonment was imposed) the Crown fileddetailed submissions, which Mr Marshall for the Crown acknowledged wereessentially reprised on the present appeal.2519 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.Discussion[16] There is no bright line which separates what Glazebrook, O'Regan andArnold JJ described as "rare cases" from the "vast grey area between the trulyappropriate sentence and a cruel and unusual sentence".26 In each instance it isnecessary to undertake an analysis of how the particular factual matrix measures up tothe law as expressed in Fitzgerald.[17] While recognising that each case is different, Mr Marshall acknowledged thatthe present is an especially difficult one. Nevertheless in the Crown's assessment thereare 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, thedifference in parole eligibility is less (approximately three and a halfyears). Ultimately, given Mr Sheers' offending history and the risk heposes to the community, a sentence that nevertheless permits hisrelease after four years and eight months (if safe) may not shock thenational conscience.(c) This is particularly so given Parliament's intent in enacting the threestrikes regime was to protect the public from adult offenders whocontinue to commit serious violent offences. Incapacitation lies at theheart of the regime. Mr Sheers is neither an inadvertent norunforeseen 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 receiveda custodial sentence for his third strike offence, but she submitted that that alone wasinsufficient to detract from the other factors which strongly supported the appeal.[19] Ms Gray contended that the Judge's assessment of the offending as amoderately serious instance of aggravated robbery somewhat overstated the gravity ofthe 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 monthsand three years.27 She emphasised the unsophisticated circumstances noted by26 R v Smith [1987] 1 SCR 1045 at 1090 per McIntyre J dissenting.27 R v Mako [2000] 2 NZLR 170 (CA) at [59].the Judge and, while acknowledging the presence of the knife was an aggravatingfactor, she drew attention to the fact that Mr Sheers specifically told the victims theywould 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 disparityin the sentence and, in that context, the implications for Mr Sheers of his FASDdiagnosis.[21] Mr Marshall submitted that where the "but for" sentence would have beenimprisonment, it is necessary to consider the disparity between that sentence and thestrike sentence. He said that consideration should be given to both the multiplicativeand absolute difference in sentence length and in parole eligibility dates.[22] We acknowledge that the multiplicative difference may be a useful pointer towhether a sentence is manifestly excessive and disproportionately harsh, an outcomewhich is not contested by the Crown in Mr Sheers' appeal. It may also provide asomewhat rudimentary basis of comparison with other cases. However, as the presentappeal demonstrates, relatively small adjustments to the denominator can producesignificantly different outcomes. While the Crown submission proceeds on a disparityfactor of 4.6, if the lesser figure identified by counsel and the Judge of two years andsix months is adopted, the disparity figure increases to 5.6, which happens to equateto that in Phillips.[23] When one is considering the ultimate issue whether the national conscience isappropriately shocked, as in Matara we consider that the absolute differential is moreinstructive.28 Mr Marshall responsibly accepted that the 11-year disparity suggests abreach of s 9. Certainly that period is longer than the differentials in a number ofHigh 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 byreference to the prospect of a release on parole after a period of detention which isviewed as not so egregious. As in Matara, we are not in a position to assess28 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; andR v Tikena-Stuchbery [2022] NZHC 1266.the prospect of parole being granted by the Parole Board.30 That is particularly so inlight of the Crown's observation that Mr Sheers has shown himself unable to livesafely or successfully in the community, in combination with the submission that therationale of the three strikes regime was not only deterrence but also protection of thecommunity by incapacitating offenders for longer periods.31[25] It is significant in our view that the disproportionately severe implications ofMr Sheers' sentence are compounded by the fact of his FASD diagnosis. In Fitzgerald,Winkelmann CJ considered that avoiding a breach of s 9 required weighingMr Fitzgerald's mental health as the principal consideration in sentencing.32Similarly O'Regan and Arnold JJ noted that the s 9 prohibition covered conduct thataffected both the physical and mental integrity of the person subjected to it.They considered the effect of the challenged conduct on the particular individualinvolved (taking account of their particular vulnerabilities) can be relevant to theassessment of what is disproportionately severe.33[26] Dr McGinn's report describes FASD as being "a severe pervasive braindisorder" which is a lifelong brain-based disability rendering individuals prone toimpaired decision-making and acting on impulse without thinking about theconsequences. For a diagnosis of FASD there need to be deficits in at least three of10 brain domains, as evaluated with neuropsychological testing. Mr Sheers hasdeficits in seven. As Dr McGinn explained:[Mr Sheers] believes that he is right and others are wrong due to his inabilityto self-reflect. This limits the degree to which he can realise how his actionsimpact on himself and others. He was markedly impulsive and rushed aheadwithout forethought during testing. Mr Sheers clearly knows right fromwrong but has limited capacity to choose right from wrong. He has a verylimited window in which to stop and think before acting. It is known thatindividuals with FASD have a disconnected sense of ownership due to theirbrain damage. This leaves them at risk of taking things that are not theirs.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 ParoleReform Bill 2009, the Bill which gave rise to the three strikes regime: (25 May 2010) 663 NZPD11227.32 Fitzgerald v R, above n 4, at [141]. Winkelmann CJ noted that the information before the Courtat the time of sentencing suggested that imprisonment could worsen Mr Fitzgerald's mental healthcondition, and that imprisonment had deprived him of rehabilitative treatment he might otherwisehave accessed.33 At [162].They do not make good criminals as they tend to do wrong things in asimplistic 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 toMr Sheers' FASD, it is something of double-edged sword: to the extent theconsequences of the condition include a heightened risk of further offending,considerations of public protection also come into play. Nevertheless the Crownresponsibly accepts that Mr Sheers' intellectual difficulties, manifesting in impaireddecision-making and marked impulsivity, mitigate his culpability, and substantially so.The Crown notes that Dr McGinn's report recognised that imprisonment comes withboth potential risks and benefits for Mr Sheers:Individuals with FASD often do well in prison due to the strict structure androutine and lack of need to make any decisions for themselves. However, theyare a vulnerable group due to their disability and often victimised. This ismitigated to a degree by disabled individuals being placed in a segregated unit.[28] Mr Marshall submitted that the determination of the question whether theidentified sentence disparity is disproportionately severe for the purposes of s 9 isunavoidably "a matter of appreciation". That expression, employed byWilliam Young J in Fitzgerald, was qualified by the words "at least at the margin".34However in our view Mr Sheers' appeal is not a marginal case. We consider that the11-year differential, particularly in the context of the implications of FASD whileimprisoned, 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 supplementarysubmissions addressing the proposition, not previously foreshadowed, that s 19 ofthe NZBORA, which guarantees the right to freedom from discrimination, mightprovide an alternative basis for Mr Sheers' appeal.35 In the circumstances the Crowndid not have an adequate opportunity to engage with that proposition. Given our34 Fitzgerald v R, above n 4, at [328].35 Relevantly, disability (which includes "intellectual or psychological disability or impairment") islisted as a prohibited ground of discrimination in s 21(1)(h) of the Human Rights Act 1993.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 asentence of three years' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent