Bourke v Police
[2024] NZHC 3748
•10 December 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-34
[2024] NZHC 3748
BETWEEN SHANE LESLEY BOURKE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 November 2024 Appearances:
R M Gould for Appellant N H Brown for Respondent
Judgment:
10 December 2024
JUDGMENT OF McQUEEN J
[1] Mr Bourke was sentenced on a number of charges on 9 October 2024 by Judge Northwood at the Palmerston North District Court, following the entry of guilty pleas.1 The charges were as follows: five charges of burglary,2 four charges of dishonestly taking a vehicle,3 three charges of receiving items valued more than
$1,000,4 one charge of receiving an item worth between $500 and $1,000,5 two charges of receiving items worth under $500,6 two charges of theft,7 one charge of dangerous driving,8 one charge of failing to stop for the police while driving dangerously,9 one
1 R v Bourke [2024] NZDC 24676.
2 Crimes Act 1961, s 231(1)(a) and s 66. Maximum penalty 10 years’ imprisonment.
3 Crimes Act, s 226(1). Maximum penalty seven years’ imprisonment.
4 Crimes Act, s 246 and 247(a). Maximum penalty seven years’ imprisonment.
5 Crimes Act, s 246 and 247(b). Maximum penalty one year’s imprisonment.
6 Crimes Act, s 246 and 247(a). Maximum penalty three months’ imprisonment.
7 Crimes Act, s 219 and 223(s). Maximum penalty three months’ imprisonment.
8 Land Transport Act 1998, s 35(1)(b). Maximum penalty three months’ imprisonment, $4,500 fine.
9 Land Transport Act, ss 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2). Maximum penalty $10,000 fine.
BOURKE v NEW ZEALAND POLICE [2024] NZHC 3748 [10 December 2024]
charge of driving with an excess drug and alcohol concentration10 and one charge of failing to report to a Probation Officer.11
[2] Mr Bourke was sentenced to a period of five years and three months’ imprisonment. He now appeals this sentence on the grounds that the starting point for the burglaries was too high, as was the uplift for other dishonesty offending, and the discounts for personal factors were too low, meaning that overall, the sentence was manifestly excessive. Mr Bourke also seeks an adjournment of the hearing of his appeal, to permit him to engage in rehabilitation.
[3] The Crown opposes the appeal, submitting that the overall sentence imposed was within range and not manifestly excessive, and the Judge did not err in his assessment of the appellant’s rehabilitative prospects.
[4] For the reasons that follow, the appeal and the application for an adjournment are dismissed.
The offending
[5] Mr Bourke’s offending occurred over a month-long period between 18 July and 23 August 2023.
[6] On 18 July 2023, Mr Bourke took a Subaru vehicle and broke into the Hunting & Fishing premises in Taupō at 7:30 am. Mr Bourke was accompanied by an associate, no property was taken, and the Subaru was found abandoned after the offending. Later that day Mr Bourke took a Mazda vehicle from a property in Taupō. At about 9:30 pm Mr Bourke and his associate returned to the Hunting & Fishing store in the stolen vehicle. They cut open the gate with an angle grinder and stole $80,000 worth of rifle scopes, only spending 90 seconds in the store. The Mazda was abandoned and recovered, but Police have only been able to recover two rifle scopes.
10 Land Transport Act, s 57A(1)(a) and 57D(1). Maximum penalty three months’ imprisonment,
$4,500 fine.
11 Parole Act 2002, s 71(1). Maximum penalty one years’ imprisonment or $2,000 fine.
[7] The third burglary occurred between 5 and 6 August 2024. The Trayla Trailers premises in Levin was burgled. Mr Bourke arrived in his vehicle and used an angle grinder to cut open the front gate and then the rear fence line. He stole a trailer valued at $11,000 which has not been recovered.
[8]On 7 August 2023, Mr Bourke filled his vehicle with diesel to the value of
$125.23 at a petrol station in Palmerston North and left without paying. Later that afternoon, Mr Bourke was driving, and Police signalled for him to stop. He did so, and Police asked for his details and for him to hand over his keys. He refused and immediately accelerated, driving at speed. Police abandoned the pursuit for safety reasons. Mr Bourke was seen travelling at 80 kph in a 50 kph speed zone, overtaking vehicles, swerving and running through a red light.
[9] On 10 August 2024, Mr Bourke took a VW Amarok Ute valued at $85,000. The vehicle was later recovered. Later the following day, Mr Bourke entered Jaycars Electronics in Palmerston North and stole property worth $229. On 12 August 2023, Mr Bourke drove the stolen VW Amarok vehicle into a commercial property in Rongotea. There, he stole clothing and diesel.
[10] On 13 August 2023, he drove the same vehicle to Sharkey’s Engineering in Palmerston North, cutting the security chain on the fence with an angle grinder. He left briefly and returned with an associate, who then assisted him to steal a tow truck worth $30,000. The tow truck was later recovered.
[11] On 17 August 2024, Police conducted enquiries at an address in Himatangi to arrest Mr Bourke. At the address a KTM motorbike was located with false plates. It had been stolen from a property at Tokomaru and was valued at $5,500. Also on 17 August Mr Bourke escaped custody from an address in Himatangi. He then stole a Range Rover, valued at $5,000, driving it away.
[12] Between 5 pm 18 August 2023 and 10:15 am 19 August, there was a burglary at a Taupō address. An assortment of power tools were stolen. The tools were later located at an address where the occupant stated they belonged to Mr Bourke.
[13] On 22 August 2023, a burglary occurred at Lakeside Collision in Taupō. A Mercedes Benz vehicle valued at $80,000 was stolen. Later that night, and into the early hours of 23 August 2023, a number of tools were stolen from a vehicle in Taupō. On the morning of 23 August 2023, Mr Bourke drove the stolen vehicle to a petrol station, where he filled up with $279.77 of petrol, before being apprehended by Police. The stolen tools were located in the stolen Mercedes vehicle. Once taken to the Police station, Mr Bourke admitted to consuming methamphetamine. The blood test showed methamphetamine at 480 nanograms per millilitre of blood. The high-risk level being 50 nanograms per millilitre of blood with the tolerance level being 10 nanograms.
[14] Mr Bourke was released from imprisonment on 20 January 2023, on standard and special release conditions, including to report to a Probation Officer when required to so do. On 16 August 2023 Mr Bourke failed to report as directed and made no attempt to contact his Probation Officer. This gave rise to the Parole breach charge.
Criminal history
[15] Mr Bourke has a lengthy criminal history of 44 convictions dating back to 2006. His criminal history includes patterns of large-scale dishonesty offending, including five previous burglary convictions. On 24 August 2021, he was sentenced by Judge Northwood to two years and 11 months’ imprisonment for a range of charges including burglary, reckless driving and receiving.12 It was while he was on parole for that offending that the current offending occurred.
Decision under appeal
[16] The District Court Judge considered the fact that the offences occurred within such a “tight period”, “remarkable” and said that it was “consistent with [Mr Bourke’s] life being thoroughly out of control”.13
[17] After summarising the offences, the Judge noted Mr Bourke’s convictions, in particular, the 2021 offending for which he previously sentenced Mr Bourke.
12 Police v Bourke [2021] NZDC 17201.
13 Police v Bourke, above n 1, at [2].
[18] The Judge noted that Mr Bourke acknowledged the link between his methamphetamine addiction and his current and previous offending. The Judge also referred to the pre-sentence reports which noted the unexpected death of an ex-partner, Mr Bourke’s apparent high motivation to undertake programmes to deal with addiction, and the role of family support. The Judge considered a cultural report that had been provided for the 2021 sentencing. The theme identified was that Mr Bourke’s offending is addiction-based, and that the roots for this addiction can be seen in early trauma. However, the Judge reiterated that this must be tempered by the seriousness of the offending and Mr Bourke needing to take responsibility for his own actions. The Judge observed that although Mr Bourke wrote a letter of remorse, he also wrote such a letter in 2021, and “writing more letters is starting to wear thin.”14
[19] The Judge approached the offending in categories, starting with the burglary offending. The Judge considered that dishonestly taking vehicles for use in the burglaries were aggravating factors. The Judge considered that Mr Bourke was a confident and experienced burglar, pointing to the fact that in one 90 second intrusion at Hunting & Fishing, he took $80,000 worth of property. The Judge considered Mr Bourke’s capability and skillset relevant to all the burglaries, with the only difference being that some premises offered fewer challenges and perhaps items of less value to be stolen.
[20] The Judge concluded that the two Hunting and Fishing burglaries, with the associated vehicle thefts, warranted a starting point of no less than three years’ imprisonment. Next the Judge considered the burglary of Sharkey’s Engineering. This was considered with the aggravating features of the dishonestly taken vehicle, the angle grinder used to cut into the yard, and the fact that a $30,000 tow truck was taken, but later recovered. In isolation, this warranted a two-year starting point. The two remaining burglary charges (the Levin burglary and the Rongotea burglary) warranted a starting point of 15 months’ imprisonment each, acknowledging the lack of significant pre-planning and the lower value of the goods taken.
14 At [30].
[21] This led to a total of seven and a half years’ imprisonment for all the burglary and unlawful taking charges, which the Judge adjusted for totality to six years’ imprisonment.
[22] The next charges considered were the other unlawful takings, including the Range Rover and the motorcycle. Together with the vehicle receiving charges, the Judge considered that an increase of 12 months’ imprisonment was warranted, and this allowed for an assessment of the overall gravity of the offending.
[23] The Judge then turned to the lower value dishonesty charges (being the power tool charges, theft of $125 worth of diesel, theft of an electronic device worth $229, theft of $279.77 of diesel, receiving $1,000 worth of power tools, receiving on another occasion $2,000 worth of power tools, and receiving of a fuel card). For this, the Judge considered that although a modest increase might be required, an assessment of the starting point against the overall gravity of the offending meant no increase to the total sentence was warranted, as seven years’ imprisonment was already high enough. Similarly, no increase was needed for the traffic offending and breaches of parole conditions.
[24] The Judge considered that a combined adjusted starting point of seven years was not wholly out of proportion to the overall gravity of the offending, and thus a further totality adjustment was not required.
[25] The starting point was then increased by 10 per cent to recognise Mr Bourke’s criminal history. The Judge concluded that a 25 per cent reduction was warranted for the guilty pleas which, although not entered at the first opportunity, followed significant modification of the charging structure.
[26] Finally, the Judge considered the personal background and deprivation factors. A Provision of Advice to Courts (PAC) report was available to the Judge, as was a s 27 cultural report. Mr Bourke sought the same reduction of 15 per cent provided for his earlier offending, on the basis that the deprivation factors do not go away. However, the Judge considered whether this reduction may be reduced, even to nil, to reflect a heightened need for denunciation and protection of the community, because other
purposes of sentencing come into play.15 Balancing these factors, the Judge decided a reduction for background factors of 10 per cent was appropriate.
[27] In terms of remorse and rehabilitation prospects, the Judge considered the letter of apology Mr Bourke wrote to the Court and his positive prison record. The Judge concluded overall that he was unable to reduce Mr Bourke’s sentence any further for these factors because no actual progress had been made by Mr Bourke since he had previously appeared in 2021.
[28] Thus, the Judge arrived at an end sentence of five years and three months’ imprisonment. Mr Bourke was disqualified from holding or obtaining a driver’s licence for six months. The Judge considered ordering reparation but considered it futile, as the reparation of $4,000 previously ordered remains outstanding.
Approach to appeal
[29] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.16 The focus is on the final sentence reached, rather than the process by which it is reached.17 Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court's approach to determining the extent of the error in sentence appeals.18
Discussion
[30] The two issues on appeal relate first to the starting point adopted, and second to the sufficiency of the discount given to reflect background factors, including addiction and the guilty pleas. Consideration of the application for an adjournment sensibly then follows the assessment of these two issues. The second ground of appeal,
15 Citing Carroll v Police [2023] NZHC 3293 at [24], [29]
16 Criminal Procedure Act 2011, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
17 Ripia v R [2011] NZCA 101 at [15].
18 At [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
and its implications for the application for adjournment, were the focus of the submissions made by Ms Gould, counsel for Mr Bourke.
Starting point
[31] Ms Gould submits that the starting point adopted for the burglary offences was too high and in error. She emphasises that the offending was essentially a one-month spree of dishonesty offending, notwithstanding the high level of loss incurred and the seriousness with which the courts regard burglary offending. Ms Gould says that an appropriate total starting point for the burglaries is five years’ imprisonment, being four years for the burglaries (and related car taking) and one year for the other offending.19 Ms Gould submits that where the behaviour is recidivist, it is more appropriate to apply a lower starting point and then uplift it for prior offending.
[32] Counsel for the Police, Mr Brown, submits that the totality adjusted starting point was in range and the comparatively low uplift for the receiving and unlawful taking charges counterbalanced the higher starting point for burglary offences.
[33] There is no tariff decision for burglary, given that the range of circumstances in which the offence can be committed varies widely.20 This Court in Gargus v Police addressed the relevant factors set out in earlier decisions as follows:21
[34] There is no tariff decision which governs sentencing for burglary offending. In Senior v Police, which predates the sentencing methodology laid down in Hessell v R and R v Taueki, the Full Bench of the High Court identified factors which had historically been regarded as aggravating in burglary offending, including behaviour which involves actual danger of confrontation with occupiers, behaviour which makes a victim feel targeted, wanton destruction of property, theft of high value or sentimental items, sophisticated planning, and offending while on bail, parole, or in close proximity to other burglary charges.
[35] In R v Nguyen the Court of Appeal drew on the factors identified in R v Mako (the aggravated robbery tariff case) in assessing the seriousness of burglary charges. It considered that the factors which were relevant to the criminality of the offending included the degree of planning and sophistication in the offending, the nature of the premises entered, the nature and value of property stolen, damage done, the impact and potential impact upon occupants
19 Ms Gould did not draw my attention to any specific authorities to support this submission.
20 Arahanga v R [2012] NZCA 480 at [78].
21 Gargus v Police [2015] NZHC 3127. See also Lenihan v R [2015] NZHC 3127 at [26] and Pompey v Police [2023] NZHC 2378.
or owners of property, and the extent of the offending where multiple burglaries were involved.
[36] In Arahanga v R, the Court of Appeal stated that burglary of a domestic residence is a significantly aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. The Court also stated that dwelling house burglaries at the relatively minor end of the scale tend to attract starting points of between 18 months' to two and a half years' imprisonment.
[37] The High Court in Senior v Police identified three categories of burglary being: a first time burglar; a recidivist burglar; and a spree burglar. In respect of the recidivist burglar category, the Court found that a typical case may involve an offender with 20 or 30 previous burglary convictions, and who is probably a professional, in the sense that the offender burgles and steals to support a drug addiction. Regrettably Mr Gargus, if not a recidivist burglar within this definition, is well on the way to being one.
[38] In R v Southon, the Court of Appeal noted that the categorisation in Senior should not be regarded as more than a helpful analysis of historic sentencing patterns for burglary offending.
[34] There are several aggravating factors present in Mr Bourke’s burglary offending. As recognised by the District Court Judge, the burglaries were sophisticated, with Mr Bourke using tools, specifically an angle grinder to cut through gates, and an associate on two occasions. Further, as shown by the speed at which Mr Bourke took $80,000 worth of property in the second Hunting & Fishing burglary, I accept Mr Brown’s submission that he demonstrated a high level of skill. The value of the property stolen was high. Although the burglaries were carried out on commercial properties, some occurred during the daytime, where there was a risk of confrontation with people on the properties. The unlawful taking of three vehicles to assist in the burglaries also add to the seriousness of the offending. Finally, I note that Mr Bourke’s previous convictions for burglary likely put him into the category of a recidivist burglar, further aggravating the offending.22
[35] Individually, I am satisfied that each set of offending was considered without error by the sentencing Judge. First, in the Hunting & Fishing burglaries and associated taking charges, a starting point of three years was adopted. This is in line with comparable cases. For example, and as cited by Mr Brown, in Ikahihifo v Police, offenders forced open supermarket doors at 4am and stole $20,000 worth of property,
22 Senior v Police (2000) 18 CRNZ 340 (HC). See also discussion of the categories in Gargus v Police above n 21, at [37].
which was later recovered.23 The offending did not result in a confrontation, and while it was planned, it was unsophisticated. A starting point of 20 months was adopted. In comparison, both Hunting & Fishing burglaries were relatively serious. The first was serious in that it was committed in daylight, risking contact with workers at the store (although this did not eventuate as Mr Bourke fled). The second burglary was more serious, involving pre-meditation, a high level of sophistication and significant economic loss (over $80,000 in high-powered rifle scopes were taken and most were not recovered). These factors are more serious than those in Ikahihifo and, when combined with the associated vehicle charges, show that a three-year starting point was justified.
[36] In my view, this conclusion is reinforced by Mr Brown’s submission that if individual starting points had been adopted for the related motor vehicle offending, they could have each justified up to nine months’ imprisonment, notwithstanding the lack of damage and the recovery of the vehicles.24 Mr Brown also says that the first burglary could have justified 12 months’ imprisonment25 while the second, which was considerably more serious than Ikahihifo, could have justified two years’ imprisonment, as the District Court Judge recognised.
[37] I am also satisfied that the Judge settled on appropriate starting points for the remaining burglary charges. First, I turn to the Sharkey’s Engineering offending. Again, comparing to Ikahihifo, this burglary involved the use of tools, an associate, and the taking of a $30,000 tow truck (later recovered). It was pre-meditated, with Mr Bourke leaving the property only to return with an associate. In these circumstances, a two-year starting point was not out of range. The offending for the Levin burglary (in which an $11,000 trailer was stolen and not recovered) and the Rongotea burglary (in which clothing and diesel was taken during the day) is more serious than cases where a lower starting point was adopted. For example, in Benson, a starting point of 12 months was adopted for a burglary of a commercial premises at night, where nothing was taken.26 Against this, the starting point of 15 months was not out of range.
23 Ikahihifo v Police HC HAM CRI-2012-419-000067 [18 December 2012].
24 O’Rourke v Police [2016] NZHC 273.
25 Benson v Police [2018] NZHC 296.
26 Benson v Police above n 25 at [37], recognising this would have been at the upper end of the range.
[38] The adoption of an adjusted starting point of six years’ imprisonment for all burglary charges, including the associated vehicle charges was, while perhaps stern, within range, given the aggravating factors identified above, and the comparable cases. Mr Brown refers to the case of Pompey where, over six burglaries, the offender stole
$171,230.30 in property and a starting point of six years’ imprisonment was adopted on appeal.27 Mr Brown submits that in comparison, while the value of items stolen by Mr Bourke was lower, the offending was brazen, often committed in daylight, required some skill, and was frequently committed while Mr Bourke was fleeing custody.
[39] The offending in Pompey also did not feature the further vehicle thefts and receiving charges that arise in the present case. Mr Brown submits that the offending covered by the 12-month uplift the Judge imposed had significant value. The VW Amorak, Mercedes Benz, Gray Range Rover, Power Tools, and motorcycle were collectively worth around $178,500. Mr Brown submits that once this value is combined with the burglary offending, the combined value of stolen property amounts to $340,139, and this means a seven-year starting point is well within range.28
[40] I am satisfied that the sternness of the burglary starting point is mitigated by the reasonably low uplift for the other offending, where the Judge was again conscious of the principle of totality. For the remaining charges of receiving, a further charge of taking a vehicle, and theft, the Judge only imposed a 12-month uplift. And, for the remaining driving offences, and failure to report for parole, no uplift was imposed.
[41] Overall, while the burglary starting points may have been at the higher end, I am satisfied they were not out of range.
Discounts for background factors
[42] I turn now to consider the discounts given for background factors. Ms Gould says that the 10 per cent granted by the District Court Judge is insufficient; rather,
27 Pompey v Police, above n 21.
28 Compared to Ormsby v R [2017] NZHC 2508.
given the approach in Berkland and Zhang, a discount of 25–30 per cent is justified for Mr Bourke.29
[43] Ms Gould relies on the reports in relation to Mr Bourke, especially the s 27 report written in 2021 and a recent Alcohol and Drug (AOD) report available on the appeal,30 arguing that a full reading of the material does not support the Judge’s finding that there is little prospect of rehabilitation.
[44] Ms Gould said there is “room for hope” for Mr Bourke given his solid employment history, good family support, and motivation to finally beat his addiction. Ms Gould notes that Mr Bourke did well in the Drug Treatment Unit while previously in prison. However, somewhat disappointingly, he was discharged from the mental health service without residential rehabilitation or at least a relapse prevention programme. Following the death of his ex-partner in a car accident in 2022, he struggled to cope and began a downwards spiral, resulting in a relapse and the current offending. Ms Gould also points to the conclusion in the AOD report that Mr Bourke needs long-term residential treatment to build a recovery foundation.
[45] Ms Gould observes that Mr Bourke has strong family support, demonstrated most recently by his family’s attendance at the hearing of this appeal. She submits that Mr Bourke is committed to rehabilitation for as long as it takes, to prevent any return to a life of drugs and crime. She emphasises that the current sentence is only Mr Bourke’s second sentence of imprisonment.
[46] Ms Gould also advised the Court that Mr Bourke wishes to make reparation payments, despite the District Court Judge concluding that making an order for reparation was futile. Ms Gould says that a payment of $1,000 to the Court has been made as a result of a family loan to Mr Bourke. She explains that the victims of the current offending did not want reparation even for insurance excesses and, in any event, because there are outstanding reparation payments due for the 2021 offending, any payment made must first be applied to that. Ms Gould says that Mr Bourke is
29 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; Zhang v R [2019] NZCA 507, [2019]
3 NZLR 648.
30 Leave was not formally sought to adduce further evidence on the appeal, but no objection was raised by the Police. Accordingly leave is granted.
committed to paying the outstanding reparation payments and repaying the family loan once he has returned to work.
[47] Ms Gould provided the Court with a letter from a former employer expressing positive sentiments about Mr Bourke’s skills, workmanship and character, and offering to provide him with employment once he has completed his sentence and rehabilitation.
[48] Ms Gould highlights the recognition in Berkland and Zhang of the mitigating circumstances of addiction, submitting they are relevant in relation to:31
(a)impairing rational choice thereby diminishing moral culpability;
(b)diminished rational choice reducing the deterrent aspect of sentencing, both general and specific; and
(c)such impairments potentially adding to the severity of imprisonment.
[49] Ms Gould asks the Court to take into account that while Mr Bourke is a threat to property, he is not a violent offender and therefore not a danger to the community. She submits that the sentence imposed on Mr Bourke is both harsh and crushing, arguing that it will not have a deterrent effect for him or others who commit similar offending given the critical issue is the underlying addiction.
[50] The Supreme Court has said that, when assessing credit given for background factors, the “causative contribution” approach should prevail.32 I agree with the District Court Judge that there is a causative link between Mr Bourke’s offending and his methamphetamine addiction. This is evidenced by the comments in the PAC report, and the AOD report. The PAC report also details Mr Bourke’s struggles with his mental health.
31 Zhang v R, above n 29, at [138], referenced in Berkland v R, above n 29, at [35].
32 Berkland v R, above n 29, at [109].
[51] However, assessing credits for background in the case of repeat offenders raises additional issues. In Berkland, the Supreme Court said that, in addition to the potential effect of seriousness:33
A question also arises as to the impact of background in sentencing for repetitive offending. While this is not a matter before us we acknowledge that it may raise similar issues. Again, the focus must be on the facts of the offence and the offender. On the one hand criminogenic background factors tend to be reflected in repeat offending. Sentencing judges generally understand this and the need for patience. But we accept that at some point other sentencing principles however will take over.
[52] In the High Court, Palmer J said in Carroll v Police, in respect of a repeat offender that, if some level of discount was justified for the offender’s background factors, “it should have been at a rate that was lesser than his previous discount, to reflect the heightened need to denounce his conduct, and to protect the community, and to recognise the lower likelihood of rehabilitation.”34 The District Court Judge in this case cited Carroll to support the fact that a lower credit for background factors was warranted given the repeat offending.35 However, this Court has also recognised that even in the case of mature, repeat offenders, background features still exist and require recognition just as repeat offenders deserve patience.36
[53] In Mr Bourke’s case, I am satisfied that there is no error in awarding a discount of 10 per cent. As discussed above, he has previously offended in extremely similar ways. A reduction from the 15 per cent given for the earlier offending to 10 per cent for the current offending, to recognise the same background factors, was therefore open to the Judge. I consider that the offending has reached a point where other sentencing principles, such as the need for denunciation and community protection have become more significant. In my view, the 10 per cent reduction given was at the lower end of that available but was not outside of an appropriate range.
[54] I also consider it was open to the Judge to give no reduction in sentence for remorse and prospects of rehabilitation. I accept this is a difficult assessment. As canvassed above, Mr Bourke has family support, previous good employment history
33 At fn 105.
34 Above n 15, at [29].
35 At fn 1.
36 Smith v Police [2024] NZHC 858 at [22].
and engagement in drug and alcohol rehabilitation programmes. However, equally, he has committed this current offending while on parole for previous offending and failed to maintain his rehabilitative efforts in relation to methamphetamine. While I acknowledge a trigger of grief for his ex-partner, the fact remains that it is difficult to be confident in his rehabilitative prospects. Also, as Mr Brown points out, Mr Bourke’s offending dates back to 2006, preceding the loss of his ex-partner, and casting further doubt on his rehabilitative prospects. Overall, while the Judge’s decision to provide no reduction in sentence for remorse and prospects of rehabilitation may have been severe, it does not constitute an error. I acknowledge that the Judge did not have the AOD report available to him but on my reading of the report, it does little more than confirm Mr Bourke’s already expressed desire to address his addiction issues.
[55] Taking a step back, as I am required to do, I am satisfied that no error in the sentence has been identified, and the overall sentence was not manifestly unjust.
Application for adjournment
[56] Mr Bourke requests an adjournment pursuant to s 25 of the Sentencing Act 2002, to allow him to complete a rehabilitation programme before this Court hears his appeal.37
[57] There was no proposal in the District Court that Mr Bourke’s sentencing should be adjourned to enable Mr Bourke to undertake a rehabilitation programme. While adjournment is raised in the context of the appeal against sentence (and particularly as to whether there the sentence reflects an adequate response to Mr Bourke’s personal background), Ms Gould accepts that it is a request for adjournment of the appeal itself.
[58] Ms Gould submits it is accepted that Mr Bourke’s offending was committed to finance his addiction to methamphetamine. Ms Gould advises that Mr Bourke has been referred to Moana House, Dunedin, to join the six- or 12-month residential programme it offers (which can be undertaken with electronic monitoring). Ms Gould provided material supporting the value of the Moana House programme. Whether
37 At the hearing Ms Gould proposed an alternative, being an adjournment until it is known whether or not Mr Bourke has been accepted into Moana House.
Mr Bourke will be accepted for the programme will not be known until January 2025. The earliest time a placement may be available is February 2025. Mr Bourke has been in prison for 15–16 months now and is eligible for parole in August 2025.
[59] Ms Gould submits that it is apparent from Berkland and Zhang that the courts are to be proactive in considering the need to address addiction through rehabilitation.38 She says that the Court of Appeal and Supreme Court have urged sentencing judges (which Ms Gould says should include judges sitting on appeals) to take addiction very seriously and not to leave rehabilitative considerations to the Parole Board.
[60] Ms Gould submits that s 25 of the Sentencing Act empowers me to adjourn the appeal. Section 25 provides that:
(1)A court may adjourn the proceedings in respect of any offence after the offender has been found guilty or has pleaded guilty and before the offender has been sentenced or otherwise dealt with for any 1 or more of the following purposes:
[…]
(d)to enable a rehabilitation programme or course of action to be undertaken:
…
(e)to enable the court to take account of the offender’s response to any process, agreement, programme, or course of action referred to in paragraph … (d).
(2)If proceedings are adjourned under this section or under section 10(4) or 24A, a Judge or Justice or Community Magistrate having jurisdiction to deal with offences of the same kind (whether or not the same Judge or Justice or Community Magistrate before whom the case was heard) may, after inquiry into the circumstances of the case, sentence or otherwise deal with the offender for the offence to which the adjournment relates.
[61] Ms Gould accepts the provision itself states that s 25 is to be used to adjourn proceedings “before the offender has been sentenced or otherwise dealt with” but says that it is within the spirit of s 25 to allow a Judge on appeal to exercise the power.
38 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [175]–[186]; Berkland v R [2022] NZSC
143, [2022] 1 NZLR 509 at [97], [130].
[62] Ms Gould submits that s 25 also contemplates adjournment under s 10(4) of the Act, and in reliance on the completion of remedial action under s 10(1)(e), this Court could take account of Mr Bourke’s proposed rehabilitation at Moana House. I do not set out s 10 in full as I consider this submission is misplaced as the remedial actions addressed in s 10 do not include rehabilitative proposals such as is proposed for Mr Bourke.
[63] Ms Gould further submits that in any event, this Court’s inherent jurisdiction or the general power of adjournment under s 167 of the Criminal Procedure Act 2011 would allow the Court to adjourn an appeal as Mr Bourke seeks here.
[64] As far as jurisdiction is concerned, the power of adjournment in s 25 is on its face limited to consideration before sentencing and therefore does not appear to be available on a sentence appeal. Nonetheless, I accept that the Court may have the ability, either under s 167 of the Criminal Procedure Act or at least in its inherent jurisdiction, to adjourn a sentence appeal, in appropriate circumstances. The Court of Appeal in Zhang cites an earlier decision of the Court in R v Barry where it adjourned a sentence appeal for two months.39 In R v Barry, this enabled a residential treatment programme to be completed, and, on receiving an updated report indicating a positive response from the appellant, the Court quashed a custodial sentence and replaced it with supervision containing a condition that the appellant continue the programme. I note that R v Barry involved an appeal from the sentencing Judge’s refusal to substitute a prison sentence with attendance at a rehabilitative programme, which is not the same situation here where the proposal to attend rehabilitation is only raised on appeal.40
[65] I conclude that I do not need to reach any final view about jurisdiction to adjourn the appeal as I am satisfied that that an adjournment is not justified in Mr Bourke’s circumstances.
39 Zhang v R, above n 38 at [177], citing R v Barry CA228/93, 17 June 1993 and R v Barry
CA228/93, 17 August 1993.
40 See Mathew Downs (ed) Adams on Criminal Law – Sentencing (online ed, Thomas Reuters) at SA25.02 where the learned authors suggest that the better view is that there is no right of appeal against a refusal to exercise the discretion to grant an adjournment under s 25 of the Sentencing Act 2002.
[66]In Zhang, the Court of Appeal said that where counsel wish to invoke s 25:41
… they should present the court with a considered plan supported by written confirmation that the offender has already enrolled in the programme or has a start date. In an addiction case, that will mean providing the judge with information from a recognised drug rehabilitation centre regarding the available programmes as well as an objective assessment of the offender’s willingness to participate and a prognosis of whether the treatment is likely to be successful.
[67] Mr Bourke has no guarantee of a place at Moana House. While an AOD report has been prepared for Mr Bourke, there is no information from Moana House as to the programme Mr Bourke would undertake or any prognosis of whether treatment is likely to be successful. In addition, I have already concluded that there was no material error in the sentence Mr Bourke received. This includes consideration of whether the sentencing Judge erred in his assessment of Mr Bourke’s rehabilitative potential. In these circumstances, I consider there is no proper basis on which to adjourn the appeal. Also relevant is that Mr Bourke’s proposed attendance at the residential programme offered by Moana House raises issues of bail which have not been addressed on the appeal.42
[68] I am satisfied that Mr Bourke will have the opportunity to fulfil his rehabilitative potential while on parole. I expect that, as previously, he will also take up any opportunities available to him in prison while he completes his sentence.
Result
[69]The appeal is dismissed.
[70]The application for an adjournment of the appeal hearing is dismissed.
McQueen J
Solicitors:
BVA, Palmerston North for Respondent
41 At [181].
42 See Zhang v R above n 29, at [183].
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