Burton v R - [2018] NZCA 355

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA643/2017
[2018] NZCA 355

BETWEEN	IRAIA ARANGA NGAMOTU BURTON Appellant
AND	THE QUEEN Respondent

Hearing:	14 August 2018
Court:	Kós P, French and Miller JJ
Counsel:	Appellant in person K S Grau and R K Thomson
Judgment:	11 October 2018 at 2.30 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against conviction is dismissed.

C The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Burton was charged with a number of burglary and receiving offences, unlawful taking of a motor vehicle and assault with intent to injure. The latter charge arose out of an incident while he was in custody on remand for the dishonesty offending. The dishonesty offending was alleged to have all occurred between 11 September 2015 and 2 December 2015.
There were in total four burglary charges relating to properties situated at Stansfield Street, Balmacewen Road, Lynn Street and Calvert Place in Dunedin. Mr Burton pleaded guilty to the Balmacewen Road burglary. The unlawful taking of a vehicle charge concerned a vehicle belonging to the Balmacewen Road occupiers which Mr Burton used to remove the property taken in the burglary. He pleaded guilty to that charge as well.
There were three receiving charges, each of which concerned items stolen from three of the burgled properties, namely Stansfield Street, Calvert Place and Lynn Street. Each receiving charge was charged as an alternative charge to the associated burglary. On Mr Burton pleading guilty to all the receiving charges, two of the burglary charges — those relating to Calvert Place and Stanfield Street — were withdrawn. The Lynn Street burglary charge was not withdrawn.
Mr Burton also pleaded guilty to the assault with intent to injure.
The various guilty pleas, which were entered at different times, ultimately resulted in only one charge — the Lynn Street burglary — being defended. A judge alone trial of that charge was held before Judge Crosbie. The Judge found Mr Burton guilty of the Lynn Street burglary[1] and sentenced him on it and all the other offences to an overall term of imprisonment of five years and three months.[2]
[1]R v Burton [2017] NZDC 13558 [reasons for verdict].
[2]R v Burton [2017] NZDC 13924 [sentencing notes] at [4].
Mr Burton now appeals his conviction for the Lynn Street burglary and the sentence.
The appeal was filed out of time. However, this was because of an understandable mistake over jurisdiction. The Crown did not oppose an extension of time being granted and we so order.

Appeal against conviction

The Judge’s decision

At trial, it was not in dispute the Lynn Street property had been burgled between 22 and 26 October 2015. What was disputed was the identity of the burglar, the Judge describing the Crown case that the burglar was Mr Burton as being wholly inferential and circumstantial.[3]
[3]Reasons…

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 R

Details

AGLC: Burton v R [2018] NZCA 355
Case: [2018] NZCA 355
Decision Date: 11 October 2018 at 2.30 pm

CaseChat Overview and Summary

Burton was charged with a series of burglaries, receiving stolen property, unlawful taking of a motor vehicle, and assault with intent to injure. He pleaded guilty to some charges but contested the Lynn Street burglary charge, which led to a trial. The Court of Appeal was asked to consider the conviction and sentence imposed by the trial Judge. The appeal against the conviction and sentence was filed out of time but the Court granted an extension due to a jurisdictional mistake. The Crown did not oppose the extension.

The Court considered whether the Judge erred in his assessment of the evidence leading to the conviction. Burton argued the Judge wrongly applied propensity reasoning, made errors about the evidence of his association with a Carr Street address, and failed to take into account the absence of certain evidence. The Court rejected these arguments, finding the Judge's reasoning sound and his conclusions supported by the evidence.

The Court also considered Burton's claims of trial counsel error. Burton alleged his counsel failed to follow his instructions about calling witnesses and questions to be asked. The Court found Burton's allegations not well founded and accepted the counsel's explanation of her conduct. The Court was satisfied the counsel provided a competent representation.

Regarding the sentence, Burton argued it was manifestly excessive. The Court found the sentence appropriate, considering the aggravating factors of the offending and Burton's criminal history. The uplifts for the aggravating factors and credits for the guilty pleas were justified and the overall sentence properly calculated.

The Court dismissed the appeal against conviction and sentence. The application for an extension of time to appeal was granted, and the conviction and sentence stood.

Orders