Burgoyne v Police

[2012] NZHC 702

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-488-43 [2012] NZHC 702

BETWEEN  ALBERT REECE BURGOYNE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 April 2012

Counsel:         J S Day and Appellant in person

M A Jarman-Taylor for Crown

Judgment:      17 April 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 17 April 2012 at 3:30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:

Marsden Woods Inskip & Smith, Crown Solicitor, Whangarei –  [email protected]

Counsel:

J S Day, Barrister, Whangarei –  [email protected]

Copy for:

A R Burgoyne, 12 Colonel Mould Drive, Mangonui, Far North District 0420

BURGOYNE V POLICE HC WHA CRI 2011-488-43 [17 April 2012]

[1]      The appellant appeals his conviction in the District Court at Kaitaia on two charges, namely:

(a)      that on 22 October 2008, having been warned by a Mr Nathan, an occupier, to stay off the Te Kao school grounds, the appellant wilfully trespassed  on  that  place  within  two  years  of  the  giving  of  the warning;[1] and

(b)that on 22 October 2008 he used a telephone device for the purpose of disturbing by maliciously transmitting the communication of sound with the intention of offending the recipient, a Mr Alan Cammell.[2]

[1] Trespass Act 1980, ss 4(4) and 11(2)(a).

[2] Telecommunications Act 2001, s 112(2)(a).

[2]      The Judge ordered the appellant to come up for sentence if called upon within

12 months.

[3]      The  appellant  faced  related  charges  arising  from  events  alleged  to  have occurred on 18 October 2008.   The Judge was not, however, satisfied that those charges were proved and he dismissed them accordingly.

[4]      On 17 July 2011 the appellant filed a notice of general appeal pursuant to s 116  of  the  Summary  Proceedings Act  1957,  appealing  against  conviction  and sentence.

[5]      The appellant has had numerous counsel assigned to him.   The appellant sought an adjournment when this matter was called today but I declined to grant the adjournment as there have been previous adjournments and it had been made clear to the appellant previously that today’s hearing would proceed.

[6]      Although no points or submissions on appeal were filed, the appellant’s case

is:

(a)       that the land on which he was found to have trespassed is in fact

Maori land and he was not required to stay off it; and

(b)that he did not make the remarks to Mr Cammell that the Judge found he made.

[7]      Dealing with the first of these points, the Judge identified the block of land on which the appellant trespassed as Te Kao 65B1, comprising 1.6997 hectares more or less, being the land described in NA2B/792.  In support of its case in the District Court, the Crown produced a copy of the relevant certificate of title, authenticated in the manner referred to in s 75(1) of the Land Transfer Act 1952.  The certificate of

title records that the registered proprietor of that land is Her Majesty the Queen.[3]

[3] Police v Burgoyne DC Kaitaia CRI 2008-029-1138 exhibits 2 and 3.

[8]      Today, the appellant produced in support of his appeal a letter from the Maori Land Court to him dated 22 September 2009 which concerns ownership of two different blocks of land, being Te Kao 65B2C and 65B2D.  This letter does not affect the factual issue of who is the owner of the different land at issue on the trespass charge.

[9]      Turning  to  the  telecommunications  charge,  both  Mr  Cammell  and  the appellant gave evidence as to the content of a telephone call between them.   The Judge accepted Mr Cammell’s evidence that the appellant said he would get the Mongrel  Mob  onto  Mr  Cammell  if  Mr  Cammell  impounded  some  livestock  in dispute and that the appellant  also said he would burn Te Kao school down if Mr Cammell did not do as he wished.  The Judge also found that those comments had offended Mr Cammell and that the charge was proved.

[10]     The  appellant  denies  making  these  comments  but  there  is  no  basis  for

interfering with the Judge’s findings of fact given that he heard the evidence.

[11]     Turning now to  the  appeal  against  sentence,  it  could  not  be argued  and counsel for the appellant did not try to do so, that the sentence the Judge imposed

was manifestly excessive. The appellant turns 75 years old tomorrow and has had no

previous convictions.    His record in that respect has been exemplary.    It was no doubt in recognition of this that the Judge imposed the sentence he did.

..................................................................

M Peters J