Burchell v Police

[2020] NZHC 889

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-542

CRI-2019-404-557 [2020] NZHC 889

BETWEEN

LLEWELLYN BURCHELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Virtual hearing:	4 May 2020
Appearance:	K A Lummis for the respondent
Date of judgment:	4 May 2020

REASONS FOR JUDGMENT OF JAGOSE J

This judgment was delivered by me on 4 May 2020 at 2.30pm.

………………………… Registrar/Deputy Registrar

Party/Solicitors:

Appellant

Meredith Connell, Auckland

BURCHELL v NEW ZEALAND POLICE [2020] NZHC 889 [4 May 2020]

[1]    After hearing this appeal in open virtual Court, counsel for the respondent, Kirsten Lummis, submitting she had nothing to add to her written submissions earlier filed and served on Mr Burchell,1 I dismissed the appeal with reasons to follow in writing. These are those reasons.

[2]    Llewellyn Burchell appeals the decision of Judge D J Sharp in the District Court at Auckland on 26 November 2019,2 convicting him on one charge each of blackmail,3 and theft,4 and sentencing him to six months’ home detention.

Background

[3]    On or about 31 October 2015, Mr Burchell threatened to disclose alleged criminal activity committed by the complainant, with intent to obtain her compliance and to obtain a pecuniary advantage. This formed the basis for the blackmail charge.

[4]On 25 May 2017, Mr Burchell took a Harley Davidson motorcycle valued at

$12,000 from Sky City’s underground carpark in Auckland. He registered the motorcycle in his own name the next day. Mr Burchell told police “I took the motorbike because it was abandoned”. This was the basis for the theft charge.

[5]    On 19 June 2019, Judge Sharp gave a sentence indication, if pleading guilty to the blackmail charge, “[t]he greatest sentence [he was] likely to receive is eight months’ home detention with six months’ post-release conditions”.5 Mr Burchell pleaded guilty to both charges. On 26 November 2019, Judge Sharp then convicted and sentenced Mr Burchell. He imposed the six-month home detention sentence for the two charges concurrently and without release conditions. The sentence is due to expire on 25 May 2020.

1      Mr Burchell was not represented at the hearing, and did not appear in person or otherwise contact the registry either to appear by alternative means or to make other arrangements. I am satisfied (from my enquiries of both the registry and Ms Lummis) Mr Burchell, presently on home detention, had notice of the fixture for oral hearing. But he also did not file any written submissions.

2      R v Burchell [2019] NZDC 26271.

3      Crimes Act 1961, s 237(1) and 238, maximum penalty 14 years’ imprisonment.

4      Crimes Act 1961, s 219 and 223, maximum penalty 7 years’ imprisonment.

5      R v Burchell RI-2016-044-002411, Notes of Judge DJ Sharp on sentencing indication, 10 June 2019 at [5].

Issues on appeal

[6]    On 17 December 2019, Mr Burchell filed an appeal against his conviction and sentence. Using a Form 5 under Part 6 of the Criminal Procedure Act 2011 addressed to the Court of Appeal, he particularised the grounds of his appeal:

(a)on the theft charge, he says he pleaded guilty because a police constable threatened to kill him with the aid of other police on the instructions of a court registrar. The motorcycle had been abandoned and was “legally owned” by him. Evidence of the complainant’s ownership of the motorcycle was “fraudulently manufactured” by police; and

(b)on the blackmail charge, he says he pleaded guilty to avoid the stress and abuse of registry staff and the judge together preventing him calling witnesses other than the complainant, whose examination improperly was limited by the judge.

There also is Mr Burchell’s copious correspondence since with the registry, making various allegations of misconduct by corrections, court, police and probation officers.

Approach on appeal

—appeal against conviction

[7]    Mr Burchell has a first appeal right against his convictions to this Court.6 Given his guilty pleas, I must allow the appeal if a “miscarriage of justice” has occurred. By ‘miscarriage of justice’ I mean something has occurred in relation to the trial (defined to include his guilty pleas) to create a real risk against a more favourable outcome for Mr Burchell, or has resulted in an unfair trial or a nullity.7 Otherwise the appeal is to be dismissed.

6      Criminal Procedure Act 2011, ss 229(1) and 230(b).

7      Section 232(4) and (5).

—appeal against sentence

[8]    I must allow Mr Burchell’s appeal against sentence only if I am satisfied there is an error in the sentence, and a different sentence should be imposed.8 In any other case, I must dismiss the appeal.9

[9]    The approach previously taken by courts on sentencing appeals continues to apply,10 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.11 I will not intervene where the sentence is within the range that can be properly justified by accepted sentencing principles. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than by the process by which it is reached.12

Discussion

—appeal against conviction

[10]   I have considered the material on the Court file from the District Court, including Judge Sharp’s notes on sentence indication and sentencing, and transcripts from hearings before him on 10 June and 26 November 2019, and of a callover before Judge N R Dawson on 2  September  2019.  I  am  satisfied  from  those  materials Mr Burchell’s conviction discloses no miscarriage of justice.

[11]   To the contrary, it is clear the Judge gave painstaking regard to Mr Burchell’s arguments. That was consistent with his pre-trial engagements on the admissibility of the evidence Mr Burchell sought to adduce.13 The Judge was thoroughly engaged with the subject  matter,  even  to  the  extent  he  acknowledged  the  history  between  Mr Burchell and the blackmail complainant.

[12]   But the reality is Mr Burchell pleaded guilty to the two charges. There is a sound basis for the charges. There is no evidential basis for any suggestion those pleas

8      Criminal Procedure Act 2011, s 250(2).

9      Section 250(3).

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

11     At [33] and [35].

12     Ripia v R [2011] NZCA 101 at [15].

13     Minutes, 29 April and 6 June 2019.

were made under duress, or the convictions otherwise are unsafe. There is evidence Mr Burchell, as an unrepresented litigant, misunderstands many court and police formalities and  vests  his  misunderstandings  with  official  animus  toward  him. An example can be seen in his dispute of a form with spaces for indication of Māori lineage. No more favourable outcome than Mr Burchell’s conviction was in prospect.

—appeal against sentence

[13]   Neither does Judge Sharp’s sentence err. The sentence is well within, and at the low end of, the range available for “an invidious and destructive offence … prey[ing] on people’s vulnerabilities”.14 In its application here, it meets the applicable purposes and principles of sentencing – particularly to hold him accountable for his offending, and to deter him from such in the future – and is the least restrictive outcome available.

Result

[14]The appeal is dismissed.

—Jagose J

14     Blackwood v R [2018] NZCA 215 at [32]–[34].