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Burchell v R

Burchell v R

Case [2010] NZCA 314 22 July 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA162/2008
[2010] NZCA 314
BETWEENLLEWELLYN WILLIAM BURCHELL

Appellant

ANDTHE QUEEN

Respondent

Hearing:24 May 2010

Court:Randerson, Wild and Harrison JJ
Counsel:Appellant in person

J M Jelas for Respondent

Judgment:22 July 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe application for leave to appeal the sentence out of time is granted.
CThe appeal against sentence is allowed. The sentence of eight months imprisonment is quashed and substituted by a sentence of four months imprisonment.

____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]        Mr Llewellyn Burchell appeals against his conviction following trial before Judge Field and a jury in the District Court at Auckland on one charge of threatening to kill.
[2]        Mr Burchell also appeals against his sentence of eight months imprisonment.[1]
District Court
[1]      R v Burchell DC Auckland CRI-2006-044-5625, 6 March 2008.
[3]        The evidence led by the Crown at Mr Burchell's trial on 25 January 2008 on a charge of threatening to kill Detective Stephen Garrett fell within a narrow compass.
[4]        At about 10.15 am on 1 May 2006 Mr Burchell reported to the Community Probation Service at Takapuna. He was met by Mr Michael Savage, a senior probation officer. Mr Savage spent time ascertaining the purpose of Mr Burchell's visit. He found out that Mr Burchell had been referred by the District Court for preparation of a pre-sentence report. Mr Savage explained that the allocated officer was away on annual leave that day but that he would arrange an interview with Mr Burchell on his return.
[5]        Mr Burchell did not react well to this news. He became progressively angry and recounted details of his adverse experiences at the hands of the court system and the police. Mr Burchell advised Mr Savage that the reason for his reference to the Probation Service was his conviction for scratching a police officer's vehicle. He alleged that that officer was harassing, haranguing and assaulting him. He identified this officer but Mr Savage only heard the surname of Garrett. Detective Stephen Garrett had had dealings with Mr Burchell in the preceding two months.
[6]        According to Mr Savage, Mr Burchell, while still in an obviously frustrated and angry state, said that:
… he had had enough… He knew where the police officer lived… While … he had no intention of going to this officer's house … if he saw him again he would kill him.

[7] Mr Savage's meeting with Mr Burchell lasted for about 30 minutes, across the counter of the reception area. Mr Savage attempted to calm Mr Burchell down – with apparent success at times. He offered advice on the appropriate avenues for complaints about the police or the court system. Mr Savage asked Mr Burchell just before the latter's departure to repeat the name of the officer whom he said had been harassing him. Mr Burchell again identified the officer by the name of Garrett, observing that he had…

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 R

Details

AGLC: Burchell v R [2010] NZCA 314
Case: [2010] NZCA 314
Decision Date: 22 July 2010

CaseChat Overview and Summary

Llewellyn William Burchell appealed against his conviction and sentence for threatening to kill a police officer, Detective Stephen Garrett. Burchell's conviction stemmed from a statement he made to a probation officer, Michael Savage, while visiting the Community Probation Service at Takapuna on 1 May 2006. Burchell was upset and angry, recounting his grievances with the police and the court system, and specifically threatened to kill Detective Garrett. The appeal raised several issues, including the effectiveness of Burchell's trial counsel, the reliability of the witnesses, and the sufficiency of the evidence to prove that Detective Garrett was the intended target of the threat. The Court found that trial counsel did not materially err, and that the jury's acceptance of the witnesses' reliability was not unreasonable. The court also determined that the evidence, though circumstantial, was sufficient to support the jury's verdict.

The appeal against the sentence focused on whether the eight-month imprisonment term was excessive. The Court of Appeal concluded that the sentence was indeed excessive, considering Burchell's relatively low level of culpability. The threat, while serious, was not made to the officer or in his presence, and Burchell had no previous convictions. The Court substituted the original sentence with a four-month imprisonment term. Burchell's application for leave to appeal the sentence out of time was granted, and his appeal against the sentence was allowed.

Orders