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Burton v Police

Burton v Police

Case [2017] NZHC 664 7 April 2017

Manifestly Excessive Sentence

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-19 [2017] NZHC 664

BETWEEN
MARK BURTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 April 2017

Appearances:

G P Tyrrell for Appellant
P A Norman for Respondent

Judgment:

7 April 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Appeal

[1] On 27 January 2017 His Honour Judge MacAskill sentenced the appellant, Mr Burton, to eight months home detention on one charge of injuring with intent to injure1 and concurrently to seven days home detention on one charge of intentional damage.2 The Judge ordered the appellant to pay property and emotional harm reparation of $2,820.

[2] The appellant says the end sentence was manifestly excessive. Counsel
Mr Tyrrell, submits that a sentence of intensive supervision, community detention, and community work would be appropriate.

1 Crimes Act 1961, s 189(2), maximum penalty five years imprisonment.
2 Summary Offences Act 1981, s 11(1)(a), maximum penalty three months imprisonment, $2000 fine.

BURTON v NEW ZEALAND POLICE [2017] NZHC 664 [7 April 2017]

[3] Mr Burton was a passenger in a vehicle entering a McDonald’s driveway in the early hours of the morning. The victim, who was on his stag-do and extremely intoxicated, was standing in the driveway and obstructing entry to the car park. After sounding the horn, Mr Burton got out and approached the victim in an aggressive manner. He pushed the victim in the chest and punched him in the chin, causing him to fall to the ground. He then kicked him a number of times in the body and legs, until the victim was unconscious. He then picked up the victim’s cell phone and threw it to the ground.

[4] The victim made a statement that this was an unprovoked and cowardly attack which resulted in being knocked to the ground and unconscious by a direct king-hit punch and a forceful shove which caused him to fall backwards hitting the concrete ledge on an adjacent building which split the back of his head. He remembers waking up in the ambulance but in and out of consciousness. He had a laceration to the back of his head which required four staples. His lips were ripped, a tooth fractured, and he had a chip to another tooth. He could not eat solids for a week because of the pain, and his short term memory was affected for some weeks.

[5] The offending occurred on 12 November 2015, and at the time of the victim’s impact statement, he still had recurring headaches and spells of mental exhaustion. He had to go to a four day working week. There was pressure on his family because he and his partner were to get married within days.

[6] I recognise from the sentencing notes that the appellant is not a first offender, but there is nothing relevant in his record, other than the fact that drink-driving convictions indicate a problem with his judgment being affected by alcohol. He has self-referred in this regard. He presented to the court as…

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 Burton v Police

Details

AGLC: Burton v Police [2017] NZHC 664
Case: [2017] NZHC 664
Decision Date: 7 April 2017

CaseChat Overview and Summary

The appellant, Mr Burton, appealed against his sentencing for charges of injuring with intent to injure and intentional damage, arguing that the sentence of eight months home detention was manifestly excessive. The sentencing judge had imposed the sentence after discounting the starting point of 30 months, by six months for mitigating factors, and a further six months (25%) from the subtotal, resulting in a sentence of 18 months. The Judge then imposed a sentence of 10 months home detention, according to principle. By then, almost a year had passed since Mr Burton pleaded guilty, and the Judge deducted a further two months from the sentence to compensate, leaving a final sentence of eight months home detention. The appellant submitted that the starting point of 30 months was outside the available range, that the Judge erred in not following the common practice of halving the end sentence of imprisonment for home detention, and that the Judge was wrong to impose a sentence of home detention. The court found that the starting point was within range, that the one month discrepancy in the calculation of home detention did not affect the fairness of the end result, and that the sentence imposed was within the range available to the sentencing Judge. The appeal was dismissed.

Orders