Burgess v Police - [2017] NZHC 393

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000006 [2017] NZHC 393

BETWEEN
DANIEL BURGESS

Appellant

AND

NEW ZEALAND POLICE Respondent

AND

DEPARTMENT OF CORRECTIONS Second Respondent

Hearing: 7 March 2017

Appearances:

D Dickson for Appellant
E J Henderson for Crown

Judgment:

9 March 2017

JUDGMENT OF DUNNINGHAM J

[1] Mr Burgess was sentenced on 16 December 2016 on the following

11 charges:

(a) breach of community work;

(b)      driving while disqualified in the aggravated form (x 4); (c)     using a forged document (x 2);
(d)      unlawful interference with a motor vehicle; (e)           possession of methamphetamines;
(f)       possession of a pipe for smoking methamphetamine; and

BURGESS v NEW ZEALAND POLICE [2017] NZHC 393 [9 March 2017]

(g)possession of an instrument (that is, 22 car keys) for the taking of motor vehicles.

[2] The sentence imposed was two years and four months’ imprisonment. Mr Burgess is also disqualified from driving for two years and six months. He now appeals this sentence on the grounds that it was manifestly unjust.

Background facts

[3] On 15 January 2016, Mr Burgess was disqualified for 12 months. On

27 July 2016, he was caught driving in Christchurch and admitted he was a disqualified driver.

[4] On 9 August, he drove to a petrol station and purchased cigarette supplies valued at $81.05. He used a hundred dollar note to pay. A short time later he entered the shop again to purchase some food, presenting another hundred dollar note to pay for it. The shop assistant noticed it was counterfeit. Staff checked the first note and discovered it was also a forgery.

[5] Mr Burgess’ first appearance for the initial driving while disqualified charge was on 10 August. All offending from this date was while he was on bail.

[6] On 12 August, the appellant drove to a different petrol station. He entered the shop and paid for petrol and some other items, using a hundred dollar note to pay. Staff found this was a forgery. In explanation, the appellant stated that he did not know the notes were counterfeit and that he had been given them for doing some gardening work.

[7] On 24 August, the appellant was a passenger in a vehicle which had been stolen several hours earlier by an associate of his. He was searched pursuant to arrest. Police found 17 car keys of varying sizes in his underwear and five more in his pocket. They also found a small bag containing .15 grams of methamphetamine and a glass pipe for smoking it in his back pack. He explained to police that he did not have permission to be in the vehicle and used the keys to try car doors. However he denied knowledge of the drugs and pipe.

[8] On 11 November, the appellant was stopped by police while driving his vehicle. He explained that he drove because he had to go get some rent money.

The District Court decision

[9] After setting out the facts which led to the charges,…

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.

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Details

Case: [2017] NZHC 393
Decision Date: 9 March 2017

CaseChat Overview and Summary

Daniel Burgess was sentenced to two years and four months' imprisonment on 11 charges, including driving while disqualified, using forged documents, unlawful interference with a motor vehicle, possession of methamphetamines, and possession of an instrument for taking motor vehicles. The District Court Judge imposed concurrent sentences, reflecting the totality of the offending and taking into account the appellant's criminal history. Burgess appealed the sentence, arguing it was manifestly excessive. The High Court was required to determine whether the sentence was justified by the relevant sentencing principles and whether the Court should intervene and substitute its own views.

The High Court found that the Judge appropriately dealt with all charges on a concurrent basis, choosing one starting point to reflect the totality of the offending. The court considered the individual sentences imposed and the total sentence they would lead to if cumulative sentences were imposed, taking account of the principles in the Sentencing Act 2002. The court found that the end sentence did, in fact, reflect the totality of the offending and was not manifestly excessive. The High Court also found that the duration of the disqualification period imposed was within the available range for this level of offending.

The appeal was dismissed. The High Court did not find any errors in the imposition of the sentence, and there was no basis for the Court to interfere with the sentence imposed by the District Court. The two years and four months' imprisonment sentence, as well as the two years and six months' disqualification period, were considered appropriate and justified by the relevant sentencing principles.

Orders