Burling v Police - [2015] NZHC 2526

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-68

CRI-2014-463-69 [2015] NZHC 2526

BETWEEN
JESSICA BURLING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 October 2015

Counsel:

T Ellis for Appellant
C H Macklin for Respondent

Judgment:

14 October 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 October 2015 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Carole Curtis (Auckland) for Appellant
Gordon Pilditch (Rotorua) for Respondent

BURLING v POLICE [2015] NZHC 2526 [14 October 2015]

Introduction

[1] Ms Burling appeals her convictions and sentence on three charges brought under s 112(2)(a) of the Telecommunications Act 2001 (“the Act”). Ms Burling pleaded guilty to those charges. The issues in this appeal revolve around Ms Burling’s mental health. As a preliminary hurdle, Ms Burling must obtain leave to appeal out of time.

Background

[2] In early October 2012, Ms Burling created a false profile in Facebook in the name of the victim who had been one of her school teachers. Ms Burling placed a number of inappropriate comments on the Facebook page as though they had been posted by the victim. The victim had the profile closed down and, following a complaint to the Police, Ms Burling was warned that a repetition could result in prosecution.

[3] Ms Burling was 19 years old at the time.

[4] In November 2012, Ms Burling created two further false profiles in the

victim’s name and these were closed down after further complaints from the victim.

[5] In March 2013, the victim discovered another false profile, this time in the

name of the victim’s mother. It was shut down at her request.

[6] Some days later, Ms Burling created yet another Facebook profile in the name of the victim. Again, inappropriate and offensive comments were posted as though made by the victim. Some of them referred to the victim’s eight year old son.

[7] The Police lost patience and brought two charges under s 112(2)(a) of the Act of “using a telephone device for the purpose of annoying by wantonly transmitting communications–sound with the intention of offending the recipient”. The maximum penalty is imprisonment for a term not exceeding three months or a fine not exceeding $2,000.

[8] The summary of facts does not specify what type of “telephone device” was

allegedly used. It might well have been a computer.

[9] Ms Burling first appeared in the District Court on these charges in April

2013. It was clear that she has mental health difficulties. Accordingly, having been seen by the Forensic Court Liaison Nurse, Ms Burling was remanded for a report under s 38(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIP”). The report was for the purpose of assisting the Court to determine:

·the type and length of sentence that might be imposed on the defendant as part of, or as a condition of, a sentence or order;

·the nature of a requirement that the Court may impose on the defendant…

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.

Keep reading for free

Create a free CaseChat account to read Burling v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZHC 2526
Decision Date: 14 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Jessica Burling appealed her convictions and sentence on three charges under section 112(2)(a) of the Telecommunications Act 2001. Ms Burling pleaded guilty to the charges, which related to her creation of false Facebook profiles under the identity of a former teacher and the teacher's mother, leading to harassment and distress. The appeal focused on Ms Burling's mental health, particularly her mild intellectual disability and Reactive Attachment Disorder, and the appropriateness of her sentence.

The court considered whether Ms Burling was fit to plead, whether a computer could be considered a "telephone device" for the purposes of the charges, and whether the sentence was manifestly excessive. The court determined that the psychologist's report was thorough enough to conclude that Ms Burling was fit to plead, despite her intellectual disability and difficulties in court proceedings. The court also found that the term "telephone device" could encompass computers used for communications, and since Ms Burling pleaded guilty, the specific device used was irrelevant. However, the court found the sentence of one month's imprisonment to be manifestly excessive, given Ms Burling's mental health issues and the need for a rehabilitative, community-based sentence. The court quashed the sentence and discharged Ms Burling on the three charges, highlighting the importance of considering mental health and the least restrictive sentencing options.

Orders