Burns v Police

[2019] NZHC 3195

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-73

[2019] NZHC 3195

BETWEEN

ZHARN CRAIG BURNS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 December 2019

Counsel:

Appellant in person

K L Kensington for Respondent

Judgment:

5 December 2019

JUDGMENT OF SIMON FRANCE J

[1]    Mr Burns was sentenced in relation to a large number of charges committed between 6 February and 11 September 2019. They included two breaches of a family protection order, an assault on a person in a family relationship, unlawfully getting into a vehicle, dangerous driving, failing to stop, breach of release conditions and resisting arrest. Mr Burns has an extensive criminal record.

[2]    When initially arrested Mr Burns was remanded in custody. He was released to attend (successfully) a two-month treatment programme. However, he again breached the protection order not long after completing the programme. The Judge noted the time already spent on custodial remand and concluded the rehabilitative sentence of intensive supervision was appropriate.

[3]    This was to include the wearing of an electronic monitoring device. The Judge considered it would offer protection for the complainant and assist Mr Burns to learn

BURNS v NEW ZEALAND POLICE [2019] NZHC 3195 [5 December 2019]

to live within the terms of the protection order and other conditions. The Judge was keen to see the cycle of breach and imprisonment broken.1

[4]    The supervision is for 15 months. Mr Burns appeals the monitoring condition, submitting it is too harsh given the pre-trial remand he had served and the successful treatment course.

[5]    I do not agree. An experienced Judge has fashioned a sentence in the hope that it would effect some change in Mr Burns. The knowledge that his whereabouts can always be determined may prove the incentive to see Mr Burns begin to stop breaching the protection order. He and his former partner have children and she recognises contact is inevitable. The supervision conditions allow for this. Mr Burns needs to adjust his behaviour or further breaches are inevitable. The condition is directed at reoffending.

[6]    Electronic monitoring is a special condition authorised by s 54I(3)(f) of the Sentencing Act. This is because another of the special conditions prohibits Mr Burns from entering a particular area. In such circumstances, the condition may be reinforced by use of an electronic monitoring condition. Its use is appropriate here. The appeal is dismissed.

Simon France J

Solicitors:

Crown Solicitor, Wellington

1      New Zealand Police v Burns [2019] NZDC 21584.