Burgess v The Queen - [2014] NZCA 363

IN THE COURT OF APPEAL OF NEW ZEALAND

CA200/2014
[2014] NZCA 363

BETWEEN	ROBIN ADRIAN BURGESS Appellant
AND	THE QUEEN Respondent

Hearing:	9 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	P E Dacre QC for Appellant C A Harold for Respondent
Judgment:	31 July 2014 at 3.30 pm

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.

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REASONS OF THE COURT

(Given by Cooper J)

The appellant, Robin Burgess, pleaded guilty to one count alleging that between 1 January 2008 and 21 April 2010 he received property knowing that it was stolen, or being reckless as to whether or not it was stolen. The charge was a representative one.
In the Auckland District Court Judge Rea sentenced Mr Burgess to three years and six months’ imprisonment.[1] Mr Burgess contends that the sentence was manifestly excessive. He argues that the Judge took a starting point that was too high and that greater allowances should have been made in respect of his health and personal circumstances.
[1]R v Burgess DC Auckland CRI-2010-004-14161, 21 March 2014.
The prosecution had a history which Mr Dacre QC described as “unfortunate and lengthy”. However, for the purposes of this appeal it is unnecessary to address that history in detail.

Background

Mr Burgess, together with his wife, owned and operated a second-hand shop in Avondale, Auckland. The business bought and sold second-hand goods, including jewellery.
Police carried out an investigation of second-hand dealers operating in the Auckland region which had the consequence that on 21 April 2010 Mr and Mrs Burgess were arrested and charged with nine counts of receiving. Following committal, the Crown Solicitor filed an indictment in which three counts alleged representative offences respectively for the years ending 31 December 2008, 31 December 2009 and the period between 1 January and 21 April 2010. Six other charges were laid alleging receipt of particular items of jewellery.
For various reasons the trial was scheduled for four successive dates, but was unable to proceed. A further fixture was allocated in July 2013 for a three week fixture to commence on Monday 17 February 2014. However, following discussions the Crown agreed to present an amended indictment which replaced the original nine counts with one representative charge. That charge alleged Mr Burgess received property between 1 January 2008 and 21 April 2010, knowing that it was stolen or being reckless as to whether or not it was stolen. The particulars referred to gold jewellery and watches.
When Mr Burgess was arraigned on 13 February, he pleaded guilty to that charge. On the same day, the Crown decided not to proceed against Mrs Burgess: her name was manually crossed out on the indictment. Subsequently, she pleaded guilty to a charge laid under the Secondhand Dealers and Pawnbrokers Act 2004, and fined. She was discharged on the nine counts of receiving in the original indictment.

The facts

Prior to his arraignment, Mr Burgess had indicated that he disputed the value of the property…

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 Burgess v The Queen

Details

AGLC: Burgess v The Queen [2014] NZCA 363
Case: [2014] NZCA 363
Decision Date: 31 July 2014 at 3.30 pm

CaseChat Overview and Summary

Robin Adrian Burgess, the appellant, pleaded guilty to a charge of receiving property knowing that it was stolen, or being reckless as to whether or not it was stolen. The charge was a representative one, spanning from 1 January 2008 to 21 April 2010. The Auckland District Court sentenced Mr Burgess to three years and six months’ imprisonment. Burgess contended that the sentence was manifestly excessive, arguing that the starting point was too high and that greater allowances should have been made in respect of his health and personal circumstances. The central issue before the Court was whether the starting point of four and a half years’ imprisonment adopted by the sentencing Judge was excessive, given the extent of Mr Burgess’s activities, the quantity of jewellery involved, and its value. The Court examined the appellant's explanation for his actions, which suggested he had sold gold received from a licensed dealer, an explanation that did not align with the agreed summary of facts. The Court held that the Judge was entitled to infer that many people would have been affected by the theft of the jewellery, and that the starting point adopted by the Judge was not excessive.

In reaching its decision, the Court compared the present case with previous cases, including R v Clayton and R v Bom, which involved similar offences. The Court noted that the starting point of four and a half years' imprisonment adopted in this case did not seem excessive, in view of the extent of Mr Burgess's activities, the quantity of jewellery involved and its value, the premeditation, and the methodology employed whereby significant amounts of gold jewellery were melted down to form buttons, thereby precluding recovery of the original items. The Court was not persuaded that there would be any proper justification for a further allowance for the appellant's personal circumstances beyond the four months allowed by the Judge for his heart condition. The appeal was dismissed, and the sentence upheld.

Orders