Burns v Police - [2021] NZHC 1589

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-20

[2021] NZHC 1589

KENNETH JOHN BURNS

v

NEW ZEALAND POLICE

Hearing: 30 June 2021

Appearances:

J M Woodcock for Mr Burns L A Blencowe for Crown

Judgment:

30 June 2021

JUDGMENT OF COOKE J

[1] Kenneth Burns appeals against the sentence of two years and three months’ imprisonment imposed by the District Court on one charge of unlawfully possessing of a firearm,1 one of unlawfully possessing ammunition,2 one of unlawfully possessing a magazine,3 and two charges of theft4 and trespass5 following his guilty pleas.

[2] Judge A S Greig adopted a starting point of 27 months’ imprisonment on the firearms charges, and then uplifted the sentence by three months for the theft and trespass charges, and then a further six months because of previous convictions. He

1      Arms Act 1983, s 45; $5,000 fine and/or 4 years imprisonment.
2      Section 22B; $10,000 fine.
3      Section 22A; $10,000 fine.
4      Crimes Act 1961, s 223(d); 3 months imprisonment.
5      Trespass Act 1980, ss 3, 4 and 11; $1,000 fine or 3 months imprisonment.

BURNS v NEW ZEALAND POLICE [2021] NZHC 1589 [30 June 2021]

then reduced the sentence by nine months for the guilty pleas leading to the end sentence of 27 months.6

[3] The appellant contends that the end sentence is manifestly excessive. The respondent accepts that the end sentence was stern, and in particular that a starting point of 24 months’ imprisonment for the firearms offending was more appropriate, but argues that a difference of approximately three months would not make the overall sentence manifestly excessive.

Facts

[4] The relevant facts begin with the theft and trespass charges. On 29 October 2020 the appellant was trespassed from The Warehouse at Bell Block Court, New Plymouth. On 8 January 2021 the appellant and a female associate entered The Warehouse. The appellant wore sunglasses in an apparent attempt to conceal his identity. He took two pairs of trousers to the fitting rooms. He only paid for one pair when leaving the shop having concealed the other pair in a bag. They were worth $69. This gave rise to one theft and one trespass charge.

[5] On 29 January 2021 the appellant and a male associate entered The Warehouse again. This time the appellant selected multiple items of clothing and went into the fitting rooms. He left the singlet he was wearing in the fitting room and exited wearing a different black singlet with a grey shirt over his shoulder. Members of the staff recognised the appellant and asked him to return the items he had taken but he continued to walk away and left the store. The items were valued at $102. This gave rise to a second theft and trespass charges.

[6] On 10 March 2021 the police executed a search warrant at the appellant’s address. The warrant was sought after information that the appellant was in possession of firearms was…

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.

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Details

Case: [2021] NZHC 1589
Decision Date: 30 June 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Burns v Police involved Kenneth John Burns appealing against a sentence imposed by the District Court. The District Court had sentenced Burns to two years and three months’ imprisonment for various charges including the unlawful possession of a firearm, ammunition, and a magazine, as well as theft and trespass offences. The appellant argued that the sentence was manifestly excessive, and the New Zealand Police conceded that the starting point for the firearms charges should have been lower but argued that the difference would not make the sentence manifestly excessive.

The legal issue for the court was whether the end sentence was manifestly excessive. The court considered the starting point adopted by the District Court for the firearms charges and whether it was appropriate in light of comparable cases. The court also considered the uplifts for the theft and trespass charges, and the previous convictions, as well as the discount for the guilty pleas.

The court found that the starting point adopted by the District Court was higher than what could be regarded as within the range for this type of offending. While the court acknowledged that the subsequent uplifts and discounts made the end sentence correspond with the starting point, the cumulative effect of the approach adopted by the District Court led to a manifestly excessive sentence. The court concluded that a starting point of 22 months’ imprisonment, with uplifts of three months for the theft and trespass charges, and three months for previous convictions, and a discount of seven months for the guilty pleas, resulted in a sentence of 21 months’ imprisonment. The appeal was allowed, and the sentence of 27 months’ imprisonment was replaced with a sentence of 21 months’ imprisonment.

The final orders of the court were that the appeal was allowed and the sentence of 27 months’ imprisonment was replaced with a sentence of 21 months’ imprisonment. In all other respects, the sentence imposed by the District Court would remain.

Orders