Burchell v Police - [2020] NZHC 652

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-557

CRI-2019-404-542 [2020] NZHC 652

BETWEEN
LLEWELLYN BURCHELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 March 2020 (Via telephone)

Counsel:

Appellant in person

B Finn for Respondent

Judgment:

26 March 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 26 March 2020 at 4.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

BURCHELL v POLICE [2020] NZHC 652 [26 March 2020]

[1] Mr Burchell appeals against conviction and sentence for one charge of blackmail and one charge of theft. It is currently set down for hearing on 4 May 2020.

[2]This comes to me under urgency because:

(a)Mr Burchell claims Court staff have been refusing to table matters raised by him with the Court;

(b)Mr Burchell says he has not been able to attend Court for previous call overs because probation officers refused to let him attend and or arrested him for breach of his home detention conditions – this has prejudiced his ability to secure an early fixture;

(c)Mr Burchell maintains his home detention sentence was stayed by the District Court;

(d)Mr Burchell’s fixture has been set down for May, by which time his sentence of home detention will have nearly expired; and

(e)Mr Burchell has asked to bring his appeal forward and applies to cancel EM bail ordered by Judge Sharp as soon as possible.

[3] I must therefore determine whether it is necessary, in the interests of justice, to bring this matter on for urgent hearing and/or suspend Mr Burchell’s home detention pending the appeal. Given that Covid-19 alert level 4 will apply in respect of any urgent fixture, only priority matters may be set down for hearing.

[4] In addition, because the Covid-19 alert level 3 was operative at the time of this hearing, it was dealt with by way of telephone conference. No objection was raised to this course. At the conclusion of the hearing, I directed that the appeal be heard on 6 April 2020 at 10.00 am, but I declined to suspend the home detention. My reasons follow.

Background

[5] Dealing first with the blackmail, Mr Burchell was charged with threatening to disclose alleged criminal activity of the victim on 15 October 2015. He was given a sentencing indication on 10 June 2019 of 6 to 8 months. He then pleaded guilty to the blackmail. He later received a sentence of 6 months’ home detention on 26 November 2019.

[6] Turning to the theft conviction, Mr Burchell was charged with stealing a Harley Davidson motorbike on 23 May 2017. He also pleaded guilty to this charge, on September 2019.

[7] Mr Burchell filed his appeals on 17 December 2019. Mr Burchell’s grounds of appeal in relation to the theft charge are summarised as follows:

(a)He pleaded guilty to the charge of theft under significant duress – he says, among other things, a constable threatened to kill him and that he…

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 Burchell v Police

Details

AGLC: Burchell v Police [2020] NZHC 652
Case: [2020] NZHC 652
Decision Date: 26 March 2020

CaseChat Overview and Summary

Llewellyn Burchell appeals against his conviction and sentence for one charge of blackmail and one charge of theft. Burchell contends that he pleaded guilty under duress, that the process was unfair, and that court staff have been refusing to assist him with his appeal. He also claims that his home detention sentence was stayed by the District Court and that he has been prevented from attending court hearings due to interference by probation officers. The court must decide whether the appeal should be expedited and whether Burchell's home detention sentence should be suspended pending the appeal. The court first examines Burchell's claims of unfair treatment by court staff, police, and probation officers. The court rejects Burchell's claims that court staff have maliciously refused to assist him, noting that transcripts and other documents have been provided to him. However, the court finds that an early hearing is warranted given the nearing expiration of Burchell's home detention sentence. The court then turns to whether Burchell's home detention should be suspended. The court notes that an appeal does not automatically suspend a sentence, and that Burchell must show it is in the interests of justice to suspend the sentence. The court finds that Burchell's claims of undue pressure and unfair process are weak, and that no exceptional circumstances warrant suspension of the home detention. The court therefore brings the appeal forward to 6 April 2020 but declines to suspend Burchell's home detention sentence.

The court finds that Burchell's claims of unfair treatment by court staff, police, and probation officers lack credibility and credible evidence. While the court notes that an appeal does not automatically suspend a sentence, the court finds that Burchell has not shown that it is in the interests of justice to suspend his home detention. The court brings the appeal forward to 6 April 2020 to ensure the appeal is not rendered nugatory, but declines to suspend Burchell's home detention sentence. The court directs that further transcripts be provided to Burchell and reserves leave for him to return if his circumstances change.

Orders