Burkhart v The Queen - [2013] NZCA 314

IN THE COURT OF APPEAL OF NEW ZEALAND

CA178/2013
[2013] NZCA 314

BETWEEN	KIERAN JOHN BURKHART Appellant
AND	THE QUEEN Respondent

Hearing:	10 July 2013
Court:	Stevens, Heath and Cooper JJ
Counsel:	C D Bean for Appellant K J Cooper for Respondent
Judgment:	19 July 2013 at 11.45 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Mr Burkhart, together with a co-offender Kyle Devlyn was convicted following a jury trial in the Hamilton District Court of two counts of jointly receiving stolen property. He was sentenced by Judge Connell to 12 months’ imprisonment.[1]
[1]R v Devlyn DC Hamilton CRI-2012-019-927, 19 March 2013.
The appeal against sentence was initially advanced on the basis that the Judge erred in setting the starting point, in assessing the personal circumstances of the appellant, and in failing properly to consider home detention as the least restrictive outcome. Before us the appeal against the failure to impose a sentence of home detention was not pursued. Given the proximity of the appellant’s release date on 11 August 2013, counsel contended for a reduction in the length of the sentence of imprisonment. Counsel was concerned that nothing should occur that might affect the release date.

Background

On 10 February 2012 the police executed a search warrant at a secure storage facility rented by the appellant. Inside they located a welder valued at approximately $3,500 and a Samsung television valued at between $500–$1000. Both items had been reported stolen in burglaries in Hamilton. The welder was stolen in a burglary of commercial premises in Grasslands Place on 4 or 5 October 2011, while the television was stolen in a burglary of a residential address in Jeanette Street on 25 October 2011.
The appellant denied ownership of the items, claiming that they belonged to Mr Devlyn. The appellant and Mr Devlyn were tried together and both were convicted jointly of receiving stolen property.

Sentencing

Judge Connell noted the appellant had 34 previous convictions including one for receiving and five convictions for burglary (and a finding of case proven in respect of a sixth burglary dealt with in the Youth Court). The Judge also observed that at the time of the offending, the appellant was still subject to release conditions following a sentence of seven months’ imprisonment imposed in February 2011.
The Judge adopted a starting point of twelve months’ imprisonment before imposing an uplift of three months to account for the fact that the appellant had previous convictions for dishonesty offences. Finally, a three month discount was allowed for the fact that the appellant had expressed motivation to rehabilitate himself following the birth of his first child.
Judge Connell then considered whether a sentence of home detention was appropriate. He noted that the appellant’s position was not helped by the fact that he had a previous conviction for a breach of home detention. Although the Judge sympathised with the appellant’s desire to take up…

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 Burkhart v The Queen

Details

AGLC: Burkhart v The Queen [2013] NZCA 314
Case: [2013] NZCA 314
Decision Date: 19 July 2013 at 11.45 am

CaseChat Overview and Summary

Kieran John Burkhart, the appellant, appealed against his sentence, arguing that the sentencing judge had erred in several aspects. The appeal was heard by Stevens, Heath and Cooper JJ in the Court of Appeal of New Zealand, and the judgment was delivered by Stevens J. Counsel for the appellant, C D Bean, argued that the starting point for sentencing was too high, the personal circumstances were not properly assessed, and the judge failed to consider home detention as the least restrictive outcome. The appeal against the failure to impose a sentence of home detention was not pursued before the court. The appeal against the length of the sentence was made considering the proximity of the appellant’s release date. The background of the case revealed that the appellant and his co-offender, Kyle Devlyn, were convicted of receiving stolen property, and the police had found stolen items during a search of a storage facility rented by the appellant. The court examined the legal issues raised by the appellant and found that the starting point for sentencing, while potentially high, was within the appropriate range. The court also found that the error in the judge's comments about the appellant's partner's pregnancy did not have a material effect on the sentence imposed.

The court considered the appellant's argument that the starting point for sentencing was too high. The appellant's counsel argued that a starting point in the range of four to six months imprisonment was more appropriate, given that the appellant had been convicted of only two counts of dishonesty. However, the court found that the starting point of twelve months' imprisonment was within the appropriate range, considering the comparator cases presented by the respondent's counsel and the nature of the offending. The court also found that the appellant's previous record of offending and the fact that the stolen property came from burglaries justified the starting point chosen by the judge.

The court further considered the appellant's argument that the personal circumstances were not properly assessed. The appellant's counsel argued that the judge was wrong to consider that the fact of the pregnancy should have been borne in mind by the appellant at the relevant time. However, the court found that the inaccuracy in the judge's comments concerning the appellant's partner's pregnancy did not have any material effect on the sentence imposed. The court accepted that the judge's overall message was that the appellant's past offending could not be entirely excused by his current determination to rehabilitate himself.

In conclusion, the appeal against the sentence was dismissed. The court found that the starting point for sentencing was within the appropriate range and that any error in the judge's comments about the appellant's partner's pregnancy did not have a material effect on the sentence imposed. The court also found that the discount given for the appellant's genuine wish to stop offending was fair and reasonable in the circumstances. The final orders of the court were that the appeal against sentence was dismissed.

Orders