IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000099
CRI-2015-404-000100 [2015] NZHC 1811

BETWEEN	IAN ANTHONY SHANNON
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	3 August 2015	

Counsel:	
S Withers for Appellant
K Eastwood for Respondent	

Judgment:	
3 August 2015	

JUDGMENT OF BREWER J

Solicitors/Counsel:	Shannon Withers (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

SHANNON v POLICE [2015] NZHC 1811 [3 August 2015]

Introduction

[1]       Mr Shannon appeals a sentence of 10 months’ home detention handed down by Judge GA Fraser in the District Court at Auckland on 16 March 2015.1   This case has quite a complicated factual matrix.  It is relevant to the points on appeal so I will summarise the background as follows.

Background

Breach of community work – 8 July 2014

[2]       Mr Shannon was serving a sentence of 180 hours’ community work imposed in February 2014 following a conviction for burglary.  He completed 97 hours, but on 8 July 2014 failed to report.

Arrest for first burglary – 14 August 2014

[3]       Mr Shannon was arrested for the first burglary with which this appeal is concerned on 14 August 2014.  The facts were that on 9 May 2014 at about 1:20 am, Mr Shannon and two associates drove to a Vodafone store in Orewa.  Mr Shannon used a crowbar to try to remove a panel of glass on the front of the store.  He then kicked the panel numerous times, putting his right leg through the glass, and pushed his body against the glass to gain access to the store.  Mr Shannon returned to the vehicle and his associate entered the store and took a number of cellphones.  The offenders then left in their vehicle.

[4]       As a result of putting his leg through the glass, Mr Shannon left blood and this was analysed by the ESR and Mr Shannon identified through DNA records.

First sentence indication from Judge Fraser – 9 October 2014

[5]       Mr  Shannon  requested  a  sentence  indication  and  appeared  before  Judge Fraser on 9 October 2014. The Judge indicated a “24 months’ starting point with this burglary plus the previous two”.  The reference to the previous two is, I accept, a
reference to Mr Shannon’s two prior convictions for burglary.

1	Police v Shannon [2015] NZDC 8342.

[6]       The  Judge  then  indicated  an  uplift  of  six  months  for  Mr  Shannon’s  49 previous convictions for dishonesty, taking the adjusted starting point to 30 months. His  Honour indicated a three months  reduction  for rehabilitative efforts  and  an additional   guilty  plea   credit,   which   would   give   a   short   term   sentence   of imprisonment allowing conversion to home detention “in the event that I could be satisfied that he is genuine in his wish to rehabilitate”.

[7]       Mr  Shannon  then  made  a  request  to  defer  acceptance  of  the  sentence indication on the basis that he was seeking admission to the Alcohol and Other Drugs Treatment Court.  During the referral process, Mr Shannon was admitted to electronically monitored bail on 6 November 2014.

Court appearance for second burglary charge – 6 November 2014

[8]       On the same day as the EM bail hearing, a second charge of burglary against Mr Shannon was placed before the Court.   The facts of that burglary were that at about 4:45 am on 14 August 2014, Mr Shannon was on Neilson Street in Onehunga. He smashed a window at the rear of the Spraytech New Zealand shop.  He climbed through the window, knocking over an oil drum and spilling oil.   The shop alarm went off.   Mr Shannon exited the address through the window and fled empty- handed. Again he was identified by forensic evidence left at the premises.

[9]       When this charge came to be heard, it was anticipated it would be resolved through the AODT Court.

Assault and resist Police – 7 November 2014

[10]     On 7 November 2014, Mr Shannon was at home in Glen Eden.   He was subject to EM bail.  Between about 5:30 am and 6:00 am, Chubb Security recorded that Mr Shannon had left the premises.  Shortly after this, two police officers visited Mr Shannon’s home to arrest him. They found Mr Shannon in the garage covered by a sleeping bag.   When Detective Elima asked Mr Shannon where he had been, Mr Shannon became aggressive, lunging towards the officer and head-butting him on the bridge of his nose.   Detective Elima noted that Mr Shannon smelt strongly of alcohol.  He told Mr Shannon he was under arrest, but Mr Shannon became angry

and refused to co-operate.  A struggle ensued and Mr Shannon was pepper-sprayed twice.   The officers were then able to handcuff Mr Shannon, who was making threats.  Mr Shannon was placed in the Police car and other officers arrived at the address to assist.  Mr Shannon’s aggression continued and he spat several times at a nearby officer.   A number of officers were required to restrain Mr Shannon, who made threats about killing the officers and their families while en route to the Police Station.

[11]     Mr Shannon eventually pleaded guilty to aggravated assault and resisting Police when it was confirmed there would be no charge of breaching the conditions of EM bail.

[12]     This  morning,  Mr Withers for Mr  Shannon  emphasises  that  Mr Shannon subsequently   completed   a   restorative   justice   session   with   Detective   Elima. Mr Withers submits that the actual circumstances of this offending are less culpable than is noted in the official record.  Mr Withers urges me to consider Mr Shannon’s position as someone who felt that he was able to be in the garage and who was woken from sleep in circumstances which took him some time to comprehend.

Revisiting the sentence indication – 29 January 2015

[13]     On 5 December 2014, Mr Shannon was declined entry to the AODT Court based on his history of mental health episodes.  Counsel requested that Mr Shannon be placed before Judge Fraser so he could revisit the sentence indication.  He was remanded to 29 January 2015 for that purpose.

[14]     Counsel filed an updating submission covering all new charges but the Judge who  presided  on  that  date,  Judge Thomas,  declined  to  provide  a  new  sentence indication.

Second sentence indication from Judge Fraser – 9 February 2015

[15]     Mr Shannon came before Judge Fraser again on 9 February 2015.   In his

written submissions, Mr Withers submits that in the “crush of the list” it appears the

Judge overlooked the new charges.2     In his oral submissions today, Mr Withers submits that he was perhaps a little hasty in so characterising the Judge’s state of mind.  Mr Withers points to the formal record as making it clear that the Judge had had the new charges drawn to his attention.  However, looking at what the Judge said and how he dealt with the new charges in the actual sentencing, it is clear to me that whatever had been drawn to the Judge’s attention initially had left his mind at the time that he dealt with the second sentence indication.

[16]     What Judge Fraser did on 9 February 2015 was confirm the first indication, saying simply:3

Mr Shannon, things appear to be going well.   We need to keep that momentum and if there is no further offending and the rehabilitative work that you are presently doing continues, then obviously that indication of sentence will be the outcome.  I have got no reason to believe that it is not going to be the case so we will leave things on a positive note and we will see you back here, your bail to continue, on 16 March at 11.45 am for a probation officer’s report and sentence, including appendices.  Thank you, your bail continues.

[17]     I simply do not see that statement as being consistent with a Judge who has a conscious appreciation of the new charges.   Mr Shannon, of course, accepted the new indication.

Sentencing – 16 March 2015

[18]     When  it  came  time  to  sentence  Mr  Shannon,  Judge  Fraser  clearly  did recognise that there were new charges. This is what he said:4

Based on the sentence indication I gave you last time but recognising that there are further charges, I was inclined to give you credit for the remand in custody and also the electronic bail and, in fact, I do give you the credit in this way. Instead of topping up the sentence which I would have done for the resisting and the assault, the reality is that I am not going to add anymore to that but I am not discounting for the period of time that you spent on remand either. So those factors balance off in terms of the final sentence outcome.

2	Synopsis of submissions for the appellant on appeal against sentence, at para 3.18.
3	Police v Shannon DC Auckland CRI-2014-004-8190, 9 February 2015.
4	Police v Shannon, above n 1, at [4].

[19]     The Judge held that the “ultimate sentence would have been a 20 months sentence of imprisonment”, but in lieu of this gave “10 months’ home detention on all matters”.

Discussion

[20]     Before going to address the submissions of counsel, I pause to note that Mr Shannon has a lengthy criminal history.   He is 35  years old and his list of offending begins in 1997.  Initially his convictions are for violence and driving.  In
2000, he began amassing convictions for dishonesty.  I summarise his list as follows:

	2000: five months’ imprisonment

	2004: eight months’ imprisonment

	2006: one year’s imprisonment

	2007: three months’ imprisonment

	2009: (this includes a conviction for violence) nine months’ imprisonment

	2010: nine months’ imprisonment

	2011: one year one month imprisonment

	2012: one year six months’ imprisonment

	2013: (including his first conviction for burglary) seven months 14 days’

imprisonment

	2014: (his second burglary conviction) 180 hours’ community work plus

reparation

[21]     At the sentencing, the Judge emphasised that the sentence he was about to impose was “driven” by the chances of Mr Shannon being rehabilitated.  Despite the

fact of the further charges, the Judge offset credit for the factors of custody on remand and being subjected to electronically monitored bail by the uplift he would otherwise have given for the assault and resisting charges.

[22]     The basis of the appeal is that this decision by the Judge to offset credit for the remand in custody and the time spent on electronically monitored bail against the offending relating to the Police was wrong.   Mr Shannon had spent 85 days in custody and 126 days on electronically monitored bail.  In Mr Withers’s submission, this so greatly exceeded in severity the sentence which would be appropriate for the offending against the Police that the result is that 10 months’ home detention is manifestly excessive.

[23]     Mr Withers puts it this way in his written submissions:5

The defendant had spent 85 days in custody and 126 days on EM bail.  On a conservative calculation this would amount to in excess of seven months’ imprisonment credit if factored against a short term of imprisonment: 2 days for each spent in custody (2 x 85 = 170) and 1 day for each three spent on
24-hour EM bail (42 days).   Counsel submits that there should be no diminution in credit for time spent on EM bail for the offending given it
came at the start of the term of EM bail.

[24]     Mr Withers places emphasis on the successful completion of a restorative justice conference with the police officer he assaulted, a matter to which I have already referred, and Mr Shannon’s “limited history for violence, appreciating of course the 1 month term of imprisonment for two counts of assaulting Police in
2008”.6

[25]     There  is  also  a  procedural  ground  for  the  appeal.    It  is  submitted  that following  the  sentence  indication  on  9 October  2014  there  was  another  one  on
9 February 2015.  At that time, as Mr Withers now submits, the Judge was aware of the further charge of burglary and the charges relating to resisting and assaulting the Police.   However, he did not change the sentence indication.   Instead, the Judge corrected Mr Withers  as to  an  error in  his  documents  and  simply repeated the
indication given on 9 October 2014.  Pleas of guilty were entered in reliance on that

5	Synopsis of submissions for the appellant, above n 2, at para 3.21.
6	At para 3.22.

indication and a sentencing date was set.   Mr Withers submits that the Judge was then bound by that indication.

[26]     The respondent contends that the Judge appears to have given a sentence indication on 9 February 2015  but without having in mind the 14 August 2014 burglary and the charges relating to resisting and assaulting Police.   However, the respondent submits that, in the end, the Judge did follow his sentence indication and sentenced Mr Shannon to home detention. That sentence is not manifestly excessive.

Decision

[27]     In my view, Mr Shannon is extraordinarily fortunate.   He was a very poor candidate for home detention given his criminal history.   The sentence indication given by the Judge did not take account of the later burglary and the charges of resisting and assaulting the Police.   Nevertheless, he imposed a term of home detention.

[28]     The original sentence indication did not specify the sentence that would be imposed other than to say “… which gets him down to a short sentence which would then convert in the event that I could be satisfied that he is genuine in his wish to rehabilitate”.

[29]     Section 116 of the Criminal Procedure Act 2011 (“CPA”) binds a Judge to the sentence indication given unless information becomes available to the Court after the sentence indication was given but before sentencing and the Judge is satisfied that it materially affects the basis on which it was given.   Technically, the information about the further offending had become available to the Court but, in reality, it was not in the mind of the Judge when he gave the sentence indication. At the hearing on
9 February 2015 the Judge, in confirming the previous sentence indication, made it conditional upon there being no further offending.  There had been further offending, but either the Judge was unaware of it or it had slipped his mind.  At the sentencing he clarified the position but, and fortunately for the appellant, he did not alter the sentence indication because he offset the new charges against Mr Shannon’s remand in custody and time spent on electronically monitored bail.  He did not again refer to the rehabilitation-driven sentence.

[30]     In my view, given Mr Shannon’s record, an offset (assuming the validity of Mr Withers’s calculations) of seven months’ imprisonment for the time spent in custody and  on  electronically monitored  bail  against  a further burglary and  the charges of violence against the Police cannot be faulted.  The burglary on 14 August
2014 was committed while Mr Shannon was subject to sentence (to come up if called upon within nine months, imposed on 29 April 2014).  Further, the charges of assaulting and resisting Police were committed while Mr Shannon was on bail.

[31]     I note that s 250(2) of the CPA states that the Court must allow an appeal if satisfied that:

(a)	For any reason, there is an error in the sentence; and

(b)	A different sentence should be imposed. In any other case, the Court must dismiss the appeal.
[32]     In terms of error, at most the Judge should have, pursuant to s 115 of the CPA, given Mr Shannon the opportunity to withdraw his guilty plea because of his recognition that the sentence indication given previously was out of date due to the offending now recognised by the Judge.  However, Mr Shannon has not applied to withdraw his guilty pleas and instead appeals his sentence.

[33]     Mr Withers today has  emphasised what  he  calls  the transparency of  the individual before the Court.   In other words, he submits that Mr Shannon entered pleas of guilty to charges based on what he thought was a sentence indication but it is an indication which has left him confused in its application.  My view is that what was indicated originally was a short sentence of imprisonment which could be converted to a sentence of home detention. That is what has happened.

[34]     The remaining issue is whether the sentence of 10 months’ home detention was manifestly excessive.  Because of that, I have considered the overall sentencing picture for myself.  In my view, sentencing for the two burglaries could easily have attracted a starting point of 18 months’ imprisonment, with an uplift of nine months’

imprisonment for Mr Shannon’s record of previous dishonesty, a final starting point of two years three months’ imprisonment.7   An uplift of three months’ imprisonment for the charges of breaching community work, resisting and assaulting the police officer is justified easily.   The starting point comes to two years six months’ imprisonment.    With  discounts  for  the  factors  recognised  by  the  Judge,  and contended for by Mr Withers, an end sentence of imprisonment of 19-20 months is
reasonable.    In  these  circumstances,  I cannot  fault  the Judge’s  end  sentence of

20 months’ imprisonment, and it was a matter within his discretion to convert that sentence to 10 months’ home detention.  It is not a manifestly excessive sentence.

[35]   I repeat; in my view the Judge’s decision to convert the sentence of imprisonment to one of home detention, given Mr Shannon’s record of offending and the matrix of the offending which the Judge had to deal with, was reasoned, merciful and very optimistic.  The period of 10 months’ home detention is within the sentence
range open to the Judge. Accordingly, the appeal is dismissed.

Brewer J

7	R v Stevens [2009] NZCA 190; Walker v Police [2012] NZHC 2628; Barakat v Police [2012] NZHC 1671; Pluim v Police [2012] NZHC 1592.