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].
5 Parole Act 2002, s 15(3).
(b) Not to…
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