Burke v The King
[2024] NZHC 2134
•1 August 2024
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 possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed by a health professional.
(c) To submit to electronic monitoring as directed by a Probation Officer in order to monitor his compliance with any conditions relating to his whereabouts.
(d) To comply with the requirements of electronic monitoring and provide unimpeded access to his approved residence by a Probation Officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a Probation Officer.
(e) To reside at an address approved in writing by a Probation Officer, and not move from that address unless he had the prior written approval of a Probation Officer.
(f) To obtain the written approval of a Probation Officer before starting or changing his position and/or place of employment (including voluntary and unpaid work). To notify a Probation Officer if he left his position of employment.
[8] The special conditions set out in [7](c) and (d) were set aside by Cull J on 14 June 2024, she having been satisfied there was no jurisdiction to impose them as no pre-sentence report had been obtained as required under s 93(3A) of the Sentencing Act 2002 and s 15(3)(f) of the Parole Act.
[9] The standard release conditions required Mr Burke to report to a probation officer as and when required to do so,6 to allow the collection of biometric information,7 and not to associate with “persons of any specified class” that the probation officer directs.8 Mr Burke was directed to report three times a week.
[10] When he was released from prison, Mr Burke had no support in Dunedin and no address to go to. He lived in a vehicle that had been altered to allow space for him
6 Parole Act, s 14(1)(b).
7 Section 14(1)(fb).
8 Section 14(1)(h).
to sleep. He had no medication for his severe ADHD. Mr Burke’s living situation caused him great distress and he informed his probation officer about this.
[11] On 1 March 2024, Mr Burke was charged with breaching the standard/special conditions imposed by the Parole Board upon his release without reasonable excuse, contrary to s 71(1) of the Parole Act. His first appearance in respect of this charge was in the Dunedin District Court on 5 March 2024.
[12] On 5 March 2024, Mr Burke breached a special release condition imposed by the Parole Board by failing to submit to electronic monitoring as directed by a Probation Officer, again contrary to s 71(1) of the Parole Act. Mr Burke was required to attend the Dunedin District Court to answer this charge on 8 March 2024.
[13] Mr Burke did not appear at Court to answer the charges on either 5 March or 8 March 2024 and, on both occasions, warrants for his arrest were issued.
[14] On 28 March 2024, Mr Burke was arrested and brought before the Court. He pleaded guilty to both charges and was convicted and sentenced by Judge Hix to two months’ imprisonment. The Judge imposed standard release conditions for six months after Mr Burke’s sentence expiry date and special release conditions likewise to apply. In relation to the release conditions, the Judge said:
[3] You have six months release conditions. They are identical to what your parole conditions are. They are set out in the probation officer’s opposition to bail form that is on the file, referred to as being special conditions.
[15] Mr Kirby for Mr Burke advised that Mr Burke was released after one month of serving this sentence.
[16] By that time and on 16 May 2024, the Supreme Court had issued its judgment allowing the appeal against his manslaughter conviction. The Supreme Court quashed Mr Burke’s conviction for manslaughter, substituted a conviction for injuring with intent to injure under s 189(2) of the Crimes Act 1961 and sentenced Mr Burke to three years’ imprisonment on the substituted conviction.9
9 Burke v R [2024] NZSC 59.
[17] Mr Kirby submitted that, were it not for the errors in Mr Burke’s trial and resulting sentence, Mr Burke would have been released from prison in approximately December 2021 and the Parole Board would have had no jurisdiction to impose release conditions beyond June 2022. He submitted that it is only as a result of Mr Burke wrongly serving an additional 26 months in prison that he remained subject to release conditions.
The appeal and legal principles that apply
[18] As outlined above, Mr Burke challenges the imposition of six months’ post release conditions. Three reasons advanced for the appeal are:
(a) the conditions did not fulfil the statutory purposes and they set Mr Burke up to fail;
(b) in all the circumstances, the sentence is unfair; and
(c) imposing further release conditions when sentencing for a compliance breach of release conditions has placed Mr Burke on the “wheel of offending”.
[19] An appeal against sentence must be allowed if the Court determines there is an error in the sentence imposed and a different sentence should be imposed.10 In practice, the Court will often intervene where the end sentence is seen to be manifestly excessive.11 The focus is on outcome rather than process.12
Discussion
[20] Mr Kirby submitted that the breaches arose primarily from Mr Burke failing to report and charge his electronic monitoring tracker. He submitted that Mr Burke had been told by Corrections that these failures would result in him being breached and returned to prison. Mr Kirby submitted this led to Mr Burke absconding in a futile attempt to avoid returning to prison, rather than for the purpose of committing any
10 Criminal Procedure Act 2011, s 250(2).
11 Tutangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[39].
12 Taylor v R [2020] NZCA 584 at [24].
further offending. He submitted that the gravity of the breach of release conditions offending can be properly viewed as low and that the purposes of deterrence and denunciation were met, if not exceeded, by the sentence of two months’ imprisonment imposed by Judge Hix.
[21] Ms Hallaway, for the respondent, highlighted that the Judge had a discretion to impose standard and/or special release conditions on the short-term sentence of imprisonment he imposed.13 She submitted that, at the time the Judge imposed the conditions, Mr Burke was still convicted of manslaughter. Thus, when he was released from the Otago Corrections Facility, he was lawfully subject to release conditions imposed by the Parole Board, which he then repeatedly breached within a month of his release. Ms Hallaway submitted that it was understandable that, in a busy list Court, the Judge did not go through the conditions at length but adopted the conditions that had been set by the Parole Board the previous month. She noted that the practical effect of the Judge’s decision was to extend the end date of the conditions from August 2024 to November 2024.
[22] Although Ms Hallaway submitted that the conditions were properly imposed by the District Court Judge, she nonetheless acknowledged that the breach has meant Mr Burke will remain subject to conditions for three months longer than he otherwise would have been required to do. Ms Hallaway suggested that the Court could remedy this by reducing the time the post-detention conditions are to apply.
[23] I now address the three reasons Mr Burke submits justify the appeal being granted.
Did the conditions fulfil the statutory purposes?
[24] Section 93 of the Sentencing Act 2002 enables a court, sentencing an offender to imprisonment for 12 months or less, to impose standard conditions and special release conditions on an offender.14 Such conditions may be imposed for a period of
13 Sentencing Act 2002, s 93(1).
14 Sentencing Act, s 93(1).
up to six months after the sentence expiry date.15 Special conditions are those outlined in s 15(3) of the Parole Act, and standard conditions are those outlined at s 14(1).16
[25] However, importantly, special release conditions must not be imposed unless they are designed to:17
(a) reduce the risk of reoffending by the offender; or
(b) facilitate or promote the rehabilitation and integration of the offender; or
(c) provide for the reasonable concerns of the victims of the offender.
[26] In Temara v Police, Dunningham J considered an appeal against the imposition of standard release conditions on a short term of imprisonment.18 She said:
[7] The standard conditions imposed in s 14 of the Parole Act are not onerous. They are designed to assist a convicted person with their rehabilitation. Release conditions are not part of the penalty aspect of a sentence. Where the evidence is that the rehabilitative purpose of the standard or special release conditions inevitably will not be achieved, then it is difficult to see why they should be imposed.
[8] However, I have also had regard to Mr Elliott’s submission that a mere statement that release conditions will not be complied with, should not be an excuse or a reason not to impose them, because they do of course provide a level of supervision of the person post sentencing.
[27] I agree with Dunningham J’s articulation of the principles that apply to the imposition of standard and special release conditions.
[28] But further, in Patterson v R, the Court of Appeal made it clear that every special condition should exhibit a rational nexus to the s 93(3) Sentencing Act purposes for which it is imposed and, when considered with other conditions to be imposed, must be reasonably necessary and proportionate.19
15 Section 93(2A).
16 Section 93(2B).
17 Section 93(3).
18 Temara v Police [2014] NZHC 1917.
19 Patterson v R [2017] NZCA 66 at [18].
[29] The District Court Judge did not provide any reasons explaining why he considered it was necessary to impose the release conditions in terms of s 93(3) of the Sentencing Act. While acknowledging that guilty pleas to charges such as these, in the context of a busy District Court list, are often unremarkable in terms of the legal issues they present, nonetheless, s 93(3) requires a Judge to turn their mind to, and articulate the reasons why, such conditions should be imposed and, if they are, for what period up to the maximum of six months after the sentence expiry date. As well as being legally required, the giving of reasons in such circumstances need not unduly burden the Court because all that is needed is a brief explanation outlining why standard or special release conditions are considered necessary and why, if they are to be extended beyond a sentence expiry date, that should be the case. Care needs to be taken when special conditions are imposed under s 93 given the mandated requirements of s 93(3).
[30] When sentencing Mr Burke, the Judge had in front of him a summary of facts, Mr Burke’s bail and criminal history, and the Department of Corrections’ grounds for opposing bail dated 28 March 2024, the latter being the most useful document in terms of background information.
[31] The grounds for opposing bail outlined details about Mr Burke’s living situation, including that he was currently of no fixed abode, was residing in a vehicle that had been altered to allow for a space for him to sleep, that he was very stressed due to his living situation and that he suffered from ADHD and did not have medication to manage this condition. Unsurprisingly, because of his unacceptable living situation, he had been unable to charge his electronic monitoring equipment, which was of concern to the Police. It was noted that Mr Burke had been located and arrested by the Police in Christchurch when, subject to the victim notification register, he was excluded from Christchurch.
[32] As well, the grounds for opposing bail included an observation that, since release, Mr Burke’s engagement had been poor and his failure to report to his probation officer had impeded the progress of special conditions, which it was noted had been imposed to reduce his risk of reoffending and enhance victim safety. It was also noted that Mr Burke had no support in Dunedin and had declined a referral to PARS
(Prisoners Aid Rehabilitation Service) to gain support to seek private accommodation and other reintegrative needs.
[33] The grounds for opposing bail concluded by listing the special conditions which had been imposed by the Parole Board.
[34] Given that the grounds of opposition were prepared by a probation officer, records would have been readily available to confirm the fact that no programmes had been offered to Mr Burke while serving his sentence, which was subsequently quashed by the Supreme Court. But importantly, this information was relevant to the Judge’s assessment under s 93 of the Sentencing Act and it was not provided to him.
[35] It is difficult to see how the special conditions the Judge imposed would assist to reduce Mr Burke’s risk of reoffending20 or facilitate his reintegration or rehabilitation,21 with the factors noted above at [25] in mind. In addition, there were no victims of this offending (being the breach of release conditions offending), so s 93(3)(c) of the Sentencing Act did not apply.
[36] As well as this, any conditions imposed were required to be reasonably necessary and proportional22 and were also required to reflect the precise criminality of the offence for which Mr Burke was being sentenced.23
[37] I am satisfied that there was an insufficient nexus between the special conditions imposed and statutory purposes to justify imposing them. Further, on these facts, the special conditions were not reasonably necessary. But, even if I am wrong about this, at the time the Judge sentenced Mr Burke, given that he was already subject to these conditions following his release from prison, there was no purpose to be served by simply reimposing them, given that Mr Burke’s known living situation was a key factor in the offending. In this sense, I agree with Mr Kirby that the imposition of these conditions set Mr Burke up to fail.
20 Sentencing Act, s 93(2)(a).
21 Section 93(3)(b).
22 Patterson v R, above n 19, at [18].
23 R v Janssen [2007] NZCA 450 at [15] and [18].
[38]For these reasons, the appeal should be allowed.
In all the circumstances, is the sentence unfair?
[39] It is now clear that 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. This ground of appeal relies on events that occurred after the sentence, namely that the Supreme Court had quashed Mr Burke’s conviction in respect of which he had served a term of five years and two months’ imprisonment.
[40] I agree with Mr Kirby’s submission that the integrity and moral authority of a legal system “depends on those factors which satisfy the reasonable informed observer that it is fair in practice”.24 And, if it is correct that Mr Burke was denied the opportunity to participate in rehabilitation programmes while in prison because he had excised his right of appeal, this would be unfair. However, I do not have sufficient information to conclude that this was indeed the case but, more importantly, this could not negate the District Court Judge’s power to impose the conditions he imposed at the time.
[41] On this ground, the Crown’s submissions address the issue more directly. In Fakaosilea v R, the Court of Appeal was dealing with an appellant who had been on bail at the time he committed further offences. He was acquitted on the original offences but received an uplift on his sentence for the offences committed on bail which he challenged.25 The Court of Appeal held:26
…the issue is whether the sentence should have been uplifted to recognise the fact that Mr Fakaosilea offended while on bail…Whether Mr Fakaosilea was ultimately acquitted of the charges in respect of which he had been bailed does not change the fact that he was subject to bail conditions at the time he committed the offending for which he was being sentenced. Offending while on bail is an aggravating factor that the sentencing Judge was required to take into account. The Judge did not err.
24 Erris Promotions Ltd v Commissioner of Inland Revenue (2003) 16 PRNZ 1014 (CA) at [24].
25 Fakaosilea v R [2024] NZCA 218.
26 At [193].
[42] The Court of Appeal’s reasoning in Fakaosilea v R is applicable in this case. While the manslaughter conviction and sentence were quashed on appeal and substituted, the fact remains that, at the time Mr Burke was released, he was lawfully subject to release conditions that he rapidly and repeatedly breached.
[43] Although I have found that the imposition of conditions was wrong in law by virtue of the statutory test, I do not find them to be unfair in the sense argued for by Mr Kirby. Nonetheless, I note the following for clarity.
[44] The Supreme Court’s decision on Mr Burke’s conviction was issued one month after Judge Hix’s sentencing. Furthermore, Corrections opposition to bail did not refer to the fact that Mr Burke had appealed his conviction to the Supreme Court, that a hearing had been held in relation to his appeal and that the judgment in respect of it was pending. Mr Burke must take some responsibility for not appraising the duty solicitor who represented him of this fact as these matters are likely to have been relevant.
The wheel of offending argument
[45] Section 94 of the Land Transport Act enables the Court to impose a community-based sentence in circumstances where disqualification would be inappropriate, with the Court of Appeal noting that it is undesirable for non-compliant offenders to be caught up in a “never ending cycle of offending”.27 Mr Kirby submitted that similar reasoning could be applied here, because the imposition of further conditions on Mr Burke when he had already breached them placed him on the “wheel of offending”.
[46] There is specific statutory provision made under s 94 of the Land Transport Act, for what would otherwise be a mandatory period of driving disqualification for certain offenders.28 In many cases, the sentencing Court must impose a disqualification. By way of contrast, a sentencing Court has a much wider discretion to impose special conditions given the factors outlined in s 93(3) of the Sentencing Act.
27 Governor v Police [2021] NZCA 403 at [10].
28 For example, subject to ss 64 and 94 of the Land Transport Act 1998, persons who are convicted of their third or subsequent drink driving offence must be disqualified from driving for more than one year under s 56(4) of the Land Transport Act.
[47] Furthermore, comparing driving disqualification with special conditions on release, at first blush, does not appear to compare like for like. I am hesitant, without more fulsome submissions, to consider this argument any more than I already have. It is also unnecessary for me to do so, given that I have allowed the appeal on other grounds.
Administrative matters
[48] Mr Burke was sentenced on two charges, one for breaching release conditions without reasonable excuse29 and the other for breaching electronic monitoring conditions. As noted, Cull J issued a Minute, with acceptance from the Crown, that the EM bail condition should never have been imposed as there was no jurisdiction to do so. That strengthens the case for allowing this appeal. One of the charges Mr Burke was sentenced on should never have been issued in the first instance.
Result
[49] The appeal is allowed. To be clear, this outcome applies to both charges. The remaining release conditions, both standard and special, imposed by the District Court Judge are quashed.
Harland J
Solicitors:
J R Rapley KC, Barrister, Christchurch Crown Solicitor’s Office, Christchurch.
29 CRN 24012500114 and CRN 24012500128.
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