Legal Research
Cases
Bourke v Police

Bourke v Police

Case [2024] NZHC 3748 10 December 2024

No judgment structure available for this case.

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bourke v Police

Details

AGLC: Bourke v Police [2024] NZHC 3748
Case: [2024] NZHC 3748
Decision Date: 10 December 2024

CaseChat Overview and Summary

Shane Lesley Bourke appeals his sentence, arguing it is manifestly excessive. He was sentenced to five years and three months’ imprisonment for a range of offences including burglary, theft, and driving with an excess drug and alcohol concentration. The Crown opposes the appeal. The appeal was heard by McQueen J. The appeal and the application for an adjournment are dismissed. The offending occurred over a month-long period between 18 July and 23 August 2023. 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”. The Judge approached the offending in categories, starting with the burglary offending. 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. 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. 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. Finally, the Judge considered the personal background and deprivation factors. The Judge decided a reduction for background factors of 10 per cent was appropriate. In terms of remorse and rehabilitation prospects, 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. The appeal is dismissed. The application for an adjournment of the appeal hearing is dismissed.

Orders