Burton v Police - [2015] NZHC 3251

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000091 [2015] NZHC 3251

BETWEEN
KAELEN BURTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 December 2015

Appearances:

A MacMillan for Appellant
J Barry for Respondent

Judgment:

16 December 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 16 December 2015 at 2.15pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:……………………………….

Solicitors/Counsel:
A MacMillen, Auckland
Meredith Connell, Auckland

BURTON v NZ POLICE [2015] NZHC 3251 [16 December 2015]

Introduction

[1] On 3 March 2015 the appellant, Mr Burton, pleaded guilty to one charge of indecent assault. He was convicted and sentenced to a fine of $350 by Judge J H Walker in the District Court at North Shore. Judge Walker declined to grant Mr Burton a discharge without conviction.

[2] Mr Burton now appeals against the Judge’s refusal to grant a discharge

without conviction under s 106 of the Sentencing Act 2002.

Relevant facts

[3] At about 8.30pm on 28 May 2014 Mr Burton was at a party at a residential address. The complainant was also present. Mr Burton had been drinking heavily. At one stage he followed the complainant up a flight of stairs. As they walked up the stairs Mr Burton reached forward and placed his hand between the complainant’s legs. He proceeded to press his fingers on her underwear and pushed them against her vagina.

[4] When he was spoken to by the police, Mr Burton accepted that he was at the address, but denied the offending. When he was later spoken to by the probation officer who prepared the pre-sentence report, he said that he had limited recall of the incident. He said that he was unable to confirm the summary of facts. He recalled being in the kitchen, that he heard the complainant and her flatmate yelling in the background, and that his next recollection was running down the stairs with the complainant’s friend chasing him carrying something in her hand and yelling that she was going to kill him. He said that his next memory was of waking up in hospital with a head injury. He told the probation officer that he believed he was struck on the head with a heavy object.

[5] Mr Burton has since filed two affidavits.

(a) The first is dated 28 February 2015. In that affidavit he stated that he was either pushed or fell down the stairs at the house, and hit his head. He said that he was shocked at the allegations when the police put

them to him, and that the behaviour was out of character for him. He said that he pleaded guilty because he could not remember anything that occurred, and because he did not want to put the complainant through the stress of giving evidence in Court. He also said that when he discussed the matter with his lawyer, he was advised that the police prosecutor had suggested that this was a matter which could…

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: [2015] NZHC 3251
Decision Date: 16 December 2015

CaseChat Overview and Summary

In Burton v Police, the appellant, Mr Burton, appealed against the refusal of Judge Walker to grant a discharge without conviction under s 106 of the Sentencing Act 2002. Mr Burton had pleaded guilty to a charge of indecent assault at a party where he had touched the genital area of a complainant. The District Court Judge had declined to grant Mr Burton a discharge without conviction, finding the offence to be serious, and that the consequences of a conviction would not be out of proportion to the gravity of the offence. The High Court was required to determine whether the District Court Judge had erred in her assessment of the gravity of the offending, the consequences of a conviction, and the proportionality between the consequences and the gravity of the offence.

The High Court found that the indecent assault was serious, occurring at a party, involving touching of the genital area, with the complainant suffering significant emotional impact. While there were some mitigating factors, such as the lack of skin to skin contact and Mr Burton's remorse, the offending was at the lower end of the scale of seriousness for such offences. The Court also found that there was no real and appreciable risk that a conviction would have a disproportionate impact on Mr Burton's future employment prospects. The Court noted that while some employers might not consider a conviction favourably, it could not be assumed that all employers would behave in that way, particularly where the offender was otherwise a person of good character. The Court concluded that the consequences of a conviction were not out of proportion to the gravity of the offending and dismissed the appeal.

The Court did not make any orders beyond dismissing the appeal.

Orders