Burdett v R

IN THE SUPREME COURT OF NEW ZEALAND
SC 73/2009
[2009] NZSC 114
KEVIN STANTON BURDETT
v
THE QUEEN
Court:Blanchard, Tipping and McGrath JJ
Counsel:M E Goodwin for Applicant

S B Edwards for Respondent

Judgment:4 November 2009

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
REASONS
[1]        The applicant wishes to appeal to this Court against the Court of Appeal’s dismissal of his appeal against a sentence of two years four months imprisonment imposed after he pleaded guilty to a charge of having sexual connection with a person aged between 12 and 16 years of age, contrary to s 134(1) of the Crimes Act 1961. Such offending carries a maximum sentence of imprisonment of 10 years.
[2]        The offending on one occasion, against a 15 year old girl by a 44 year old man, was preceded by a period of grooming, although as the Court of Appeal recognised some encouragement had been given, after grooming commenced, by the complainant. What occurred was consensual but that provides no defence to a charge under s 134(1).
[3]        We are not persuaded that this Court should interfere with the Court of Appeal's determination that the sentence was within the range open to the sentencing Judge.
[4]        This Court has previously had occasion to point out that the primary responsibility for reviewing levels of sentencing rests with the Court of Appeal which, because of the large number of sentencing appeals coming before it, has expertise and experience in the area which this Court lacks. Second level appeal Courts in comparable jurisdictions also do not regard themselves as the appropriate vehicles to perform such a function. It will therefore be only in rare cases where some important question of general principle arises, such as the jurisdiction for the imposition of a sentence, or where there is plainly an appearance of a substantial miscarriage of justice, that this Court will grant leave on a sentencing matter. Neither of those exceptional circumstances exist in the present case.
Solicitors:
Jess Nguy, Auckland for Applicant
Crown Law, Wellington

CaseChat Overview and Summary

In the case of Burdett v R, the applicant, Kevin Stanton Burdett, sought leave to appeal against his sentence in the Supreme Court of New Zealand. The sentence was imposed by the High Court after Burdett pleaded guilty to engaging in sexual activity with a minor, specifically a 15-year-old girl, which contravened section 134(1) of the Crimes Act 1961. The Court of Appeal had previously dismissed Burdett's appeal against the sentence of two years and four months imprisonment. The maximum penalty for this offence is ten years' imprisonment. The Court of Appeal held that the sentence was within the range of what the sentencing judge could impose.

The legal issues before the Supreme Court were whether the sentence was appropriate and whether there were exceptional circumstances warranting the Supreme Court's intervention. The Supreme Court considered that the primary responsibility for reviewing sentencing levels lies with the Court of Appeal, which has greater expertise and experience in this area. The Supreme Court noted that it would only grant leave to appeal on a sentencing matter in rare cases, such as when there is a significant question of general principle or a substantial miscarriage of justice. The Supreme Court found no such exceptional circumstances in this case and dismissed the application for leave to appeal.

In reaching its decision, the Supreme Court highlighted that the Court of Appeal had correctly determined that the sentence was within the range that the sentencing judge could impose. The Court also acknowledged that while the offending was preceded by grooming, it did not alter the fact that the activity was consensual, which does not provide a defence under section 134(1). Given that the Court of Appeal's decision was consistent with the principles governing sentencing and there was no apparent miscarriage of justice, the Supreme Court upheld the Court of Appeal's ruling. Consequently, Burdett's application for leave to appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established