Burke v Police

[2025] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000202

[2025] NZHC 2365

BETWEEN

LATAFISI WAYNE TOGIA ROWLAND CONRAD-TINO BURKE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	8 July 2025
Appearances:	J Corby for Appellant R Va’ai for Respondent
Judgment:	20 August 2025

JUDGMENT OF MOUNT J

This judgment was delivered by me on 20 August 2025 at 3 pm,

………………………………… Registrar/Deputy Registrar

Solicitors:

Colby Law
Meredith Connell

BURKE v NEW ZEALAND POLICE [2025] NZHC 2365

Introduction

[1]                The appellant, Latafisi Burke, pleaded guilty to possessing cannabis for supply in October 2024. At a sentence indication on 28 February 2025, Judge E M Thomas indicated there was a possibility of an electronically monitored sentence, depending on a positive pre-sentence report.

[2]                On 11 April 2025, the appellant appeared for sentence. The Judge described the pre-sentence report as very negative. The Judge said it was “a very disappointing read for a young man and regrettably it leaves me with no options for today.” The Judge sentenced the appellant to one year and seven months’ imprisonment, with orders for destruction of the cannabis and forfeiture of $640 in cash found in the appellant’s possession.

[3]                Mr Burke appeals on the grounds of fresh evidence which, he submits, presents a materially different factual position to that before the sentencing Judge.

Background

[4]                On 11 October 2024 the appellant was driving at excessive speed on the northwestern motorway in Auckland. Police stopped him and searched his car. They located 465 grams of cannabis in 36 zip lock bags together with $640 cash.

The pre-sentence report

[5]As noted above, the pre-sentence report was the key factor at sentencing.

[6]                The appellant proposed to serve an electronically monitored sentence at the same address as his partner. Unfortunately, the visit by the probation officer occurred shortly after an incident between the couple, which led them both to believe their relationship was over.

[7]                In light of the situation between them, the probation officer did not support the proposed address. The appellant had also not shown any remorse for his offending.

Appeal

[8]                At the appeal hearing on 8 July 2025, counsel for the appellant submitted medical documents confirming a diagnosis of autism for the appellant’s son, together with affidavits from the appellant’s partner and mother.

[9]                The appellant and his partner have been in a relationship for the last seven years. They share two sons aged six and four. She is currently pregnant with their third child. The four year old with autism requires additional care and support. He has an extremely close relationship with his father, who provides hands on day-to-day care for him when not at work. She has minimal family support, and the appellant’s presence is important to her in caring for the children. She acknowledges there have been rocky moments in their relationship, but says they are both committed to their family. She confirms her support for the appellant.

[10]            The appellant’s partner attended the appeal hearing and addressed the Court, confirming the details expressed in her affidavit.

[11]            The appellant’s mother also confirmed the details in the affidavit of the appellant’s partner. She proposed what she described as “an ideal solution”, namely that the appellant serve an electronically monitored sentence living with her. The mother’s address is close to the partner, allowing some sharing of the parenting load.

[12]            With the agreement of both parties I directed the Department of Corrections to assess the suitability of the appellant’s mother’s house for an electronically monitored sentence.

Updated pre-sentence report

[13]            On 18 July 2025 Community Corrections conducted a home visit to the proposed address. They spoke to the appellant’s mother who was home. She confirmed she has previously lived with the appellant and has never had any difficulties with him. She expressed a keen interest in the appellant staying with her so she could support him in completing programmes and courses to address his offending needs. She acknowledged that the appellant would benefit from mental

health support as well. She consented to the appellant living in her home subject to electronic monitoring.

[14]            Community Corrections also spoke to the appellant on an audio-visual call. He said he has been in regular contact with his partner since sentencing. The appellant told the probation officer he has changed his view of the offending, and wants to get back on track. He is looking forward to making more productive decisions for himself and his family.

[15]            The appellant wrote a letter, a copy of which has been provided to the Court, which acknowledged the harm his actions caused to his family and friends, the wider community and society. He described his determination and desire to be a better father and member of the community.

[16]The probation officer recommended home detention at the mother’s address.

Suitability for electronic monitoring

[17]            At the appeal hearing, counsel for the appellant described the difficulties he experienced in obtaining instructions from the appellant, consistent with the challenges the first pre-sentence report writer also experienced. Counsel for the respondent accepted that the difficulties as described created barriers for the appellant to express himself.

[18]            The respondent did not oppose the admission of the fresh evidence presented on behalf of the appellant, including the affidavits described above and the letter of remorse. I admit the evidence on the grounds expressed by the Privy Council in Lundy.1

[19]            The respondent reviewed the information that had not been available  to Judge Thomas, including the autism diagnosis for the appellant’s son, the affidavits of support from his family, the letter of remorse and the positive report from the probation officer. The respondent accepted the appellant has now demonstrated he understands

1      Lundy v R [2013] UKPC 28, at [120].

the gravity of his offending, and has explicitly expressed remorse. He has an address that is available and suitable for an electronically monitored sentence. His mother and partner are both willing to support the appellant. Most significantly, the appellant has a child who is in need of his support.

[20]            The respondent referred to the decision of the Supreme Court in Philip v R,2 and the impact that a sentence of imprisonment can have on children. The respondent recognised this is an important consideration in assessing the appellant’s circumstances for the purposes of sentencing. In light of the new information provided, the respondent accepted it is in the interests of justice to allow the appellant to serve an electronically monitored sentence. I agree.

[21]            The appellant has now served slightly over four months in custody. Had the current information been available at the time of sentencing, a sentence of approximately 10 months’ home detention would have been appropriate in my view. Taking into account the time already served in custody, I consider the appropriate sentence is one of six months’ home detention.3

Conclusion

[22]            The appeal is allowed. The sentence of one year and seven months’ imprisonment is quashed and a sentence of six months’ home detention is substituted, with six months of standard post-detention conditions, together with the two special release conditions imposed by Judge Thomas:

(a)Mr Burke is to complete an alcohol and drug programme.

(b)Mr Burke must do any other assessment, counselling or programme as directed by his probation officer.

2      Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.

3      In doing so, I adopt the orthodox approach of substituting half the remaining term of the sentence: see Kopa v Police [2017] NZHC 1244.

[23]            There is no change to the orders for destruction and forfeiture made in the District Court.

Mount J