Burke v The King - [2024] NZHC 2134

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-116

[2024] NZHC 2134

BETWEEN
JUSTIN RICHARD BURKE

Appellant

AND

THE KING

Respondent

Hearing: 8 July 2024

Appearances:

D M Kirby for the Appellant

C M Hallaway for the Respondent

Judgment:

1 August 2024

JUDGMENT OF HARLAND J

Introduction

[1] On 28 March 2024, Justin Burke was sentenced to two months’ imprisonment on two charges of breaching release conditions imposed by the New Zealand Parole Board (Parole Board) following his release from the Otago Corrections Facility on 14 February 2024.1 The Judge also imposed six months of post-expiry conditions identical to the release conditions Mr Burke had breached. Mr Burke now appeals against the imposition of the six months’ post-release conditions but, for various reasons that will be traversed shortly, that appeal has been filed out of time. Leave is therefore required for it to proceed.

1 Department of Corrections v Burke [2024] NZDC 7115.

BURKE v R [2024] NZHC 2134 [1 August 2024]

[2] Although the Crown opposes the appeal, it does not oppose the application for leave to appeal, and it accepts that the new material presented to the Court on this appeal should also be considered by this Court.

[3] I grant the application for leave to appeal out of time and for leave to adduce further evidence on appeal.

[4] I have also decided to grant the appeal and quash the standard and special release conditions imposed by the District Court Judge.2 This judgment sets out my reasons for doing so.

Background

[5] On 8 December 2018, Mr Burke and four others were involved in an incident in which Shayne Heappey was repeatedly stabbed by one of the four other people present and subsequently died from the injuries he received. Mr Burke was found guilty of manslaughter by a jury and was sentenced to five years and two months’ imprisonment.3

[6] Mr Burke appealed his conviction to both the Court of Appeal and Supreme Court. His appeal was heard by the Supreme Court on 20–21 March 2023, but the judgment allowing it was not issued until 22 April 2024.4 I return to this shortly.

[7] On 14 February 2024, Mr Burke finished serving the full term of his sentence of five years and two months’ imprisonment. On that day, he was released subject to six months of standard and special release conditions imposed pursuant to s 18 of the Parole Act 2002 (Parole Act). The special conditions imposed included the following:5
(a) Not to enter Christchurch as defined by a Probation Officer in writing unless he had the prior written approval of a Probation Officer.

2      This applies to all standard and special release conditions apart from those relating to electronic monitoring which were set aside by Cull J on 14 June 2024.
3      R v Burke [2021] NZHC 136 at [59].
4      Burke v R [2024] NZSC 37.
5      Parole Act 2002, s 15(3).

(b) Not to…

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 Burke v The King

Details

AGLC: Burke v The King [2024] NZHC 2134
Case: [2024] NZHC 2134
Decision Date: 1 August 2024

CaseChat Overview and Summary

Justin Burke appeals against the six months’ post-release conditions imposed by the District Court Judge, Judge Hix, on 28 March 2024. The conditions were imposed after Mr Burke pleaded guilty to charges of breaching both standard and special release conditions imposed by the New Zealand Parole Board, following his release from the Otago Corrections Facility on 14 February 2024. The Crown accepts that the new material presented to the Court on this appeal should also be considered, but does not oppose the application for leave to appeal. Mr Burke’s appeal has been filed out of time and requires leave to proceed. The appeal is allowed, and the remaining release conditions imposed by the District Court Judge are quashed. The appeal is allowed on the grounds that the District Court Judge failed to provide reasons for imposing the release conditions, the conditions did not fulfil the statutory purposes, and they set Mr Burke up to fail. The sentencing Judge did not provide any reasons for imposing the release conditions and, in the absence of such reasons, it is difficult to see how the special conditions imposed would assist to reduce Mr Burke’s risk of reoffending or facilitate his reintegration or rehabilitation. Further, any conditions imposed were required to be reasonably necessary and proportional and were also required to reflect the precise criminality of the offence for which Mr Burke was being sentenced. The imposition of the conditions was unfair, but this conclusion is largely reached with the benefit of hindsight and with the knowledge of further information presented before this Court that was not available before the District Court Judge. The appeal is allowed on these grounds, and the remaining release conditions imposed by the District Court Judge are quashed.

Orders