CALLUM GARETH ALEXANDER BURROWS-PAGE AND NEW ZEALAND POLICE
[2025] NZHC 2194
•6 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000048
[2025] NZHC 2194
BETWEEN CALLUM GARETH ALEXANDER BURROWS-PAGE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 July 2025 Appearances:
M Hamlin for Appellant G Young for Respondent
Judgment:
6 August 2025
JUDGMENT OF BECROFT J
This judgment was delivered by me on 6 August 2025 at 3pm.
Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel:
M Hamlin, Auckland
Meredith Connell, Auckland
BURROWS-PAGE v NEW ZEALAND POLICE [2025] NZHC 2194 [6 August 2025]
This appeal and the result
[1] Mr Callum Burrows-Page was found guilty by Judge EM Thomas at the Auckland District Court on 21 August 20241 of one charge of threatening to kill his then girlfriend.2
[2] Subsequently, Mr Burrows-Page’s application to be discharged without conviction was refused. He was convicted, sentenced to 12 months’ supervision, and ordered to pay emotional harm reparation of $500.3
[3] Mr Burrows-Page appeals that sentencing decision. He accepts the finding of guilt. But he argues that the Judge was in error in not granting him a discharge without conviction.
[4] He advances two grounds of appeal. First, that the Judge overstated the gravity of his offending. Second, that the Judge understated the consequences to him, as a relatively young 24-year-old, of this conviction being entered.
[5] An appeal against a refusal to discharge without conviction is a composite appeal against both conviction and sentence.4 The appeal is by way of rehearing. Having made my own assessment of the material before this Court, I conclude that a miscarriage of justice has occurred.5 In my view, a discharge without conviction should have been entered.
[6]What follows are my reasons.
The offending
[7] Mr Burrows-Page’s offending occurred against a series of events and a pattern of conduct earlier that evening that were described as “very highly manipulative and controlling behaviour”. That behaviour culminated in Mr Burrows-Page’s threat to his
1 Police v Burrows-Page [2024] NZDC 20133.
2 Crimes Act 1961, s 306.
3 Police v Burrows-Page [2024] NZDC 31301.
4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].
5 Harvey-Lemon v Police [2024] NZHC 82 at [20].
then girlfriend, which was that Mr Burrows-Page “would leave her in the bush where she would be eaten by pigs”.
[8] The threat followed an evening of Mr Burrows-Page texting his girlfriend numerous times, threatening to destroy her property, turning up (uninvited) to a property where she was, physically taking her phone off her and using that as leverage to get her into his car. He drove away with her and made the relevant threat, as they were driving towards Silverdale on the North Shore of Auckland.
The Judge’s decision
[9] Judge Thomas assessed the gravity of the offending. He determined that it sat on the “cusp of low to moderate”. He took into account Mr Burrows-Page’s personal aggravating and mitigating factors. In making that determination, the Judge considered:
(a)the offending itself, and the harm it caused to his girlfriend;
(b)the time Mr Burrows-Page had spent undertaking counselling and
rehabilitation;
(c)Mr Burrow-Page’s claimed remorse, which was not accepted because he took the matter to trial;
(d)Mr Burrow-Page’s relative youth and psychological information; and
(e)community work undertaken.
[10] The Judge then considered the evidence of the risk of direct and indirect consequences of a conviction. Mr Burrows-Page was not going to (and did not) lose his job. The Judge noted that a conviction, itself, is not an immediate barrier to progress in an industry because employers ask themselves a range of relevant questions as to suitability for promotion and do not focus simply on the conviction. The conviction entered against Mr Burrows-Page was not the type of conviction, in the Judge’s view, that automatically made Mr Burrows-Page less employable.
[11] The risk that travel to Australia would be affected by a conviction was held to be speculative, there being no specific plans and the evidence proffered fell short of what was required.
[12] Ultimately, Judge Thomas determined that the consequences of a conviction were not out of all proportion to the gravity of the offending.
Legal approach in considering the discharge without conviction
[13] Consideration of a discharge without conviction under s 106 of the Sentencing Act 2002 involves what is now a well-known three-step process. The Court must consider:
(a)first, the gravity of the offending;
(b)second, the consequences of conviction; and
(c)finally, whether these consequences are out of all proportion of the gravity of the offending identified at the first step.
[14] As to the gravity of the offending, this involves consideration of a defendant’s overall culpability for the offending. This includes an analysis of both the offence itself and relevant factors relating to the offender. As the Court of Appeal stated in R v Hughes:6
The ‘gravity of the offence’ should be read as including not only of the offence itself but also anything that may affect the court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the courts assessment of how likely it is that the offender will reoffend, the victim’s perspective, and any consequence already suffered by way of reparation, community work, or publicity.
[15] As to the consequences of conviction (the second step) there must be a real and appreciable risk that the consequences will occur. While a “real and appreciable” risk is all that is required, the more serious the consequence and the higher the likelihood of the consequence occurring, the more likely it is that the disproportionality test will be satisfied.
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [27].
The gravity of the offending
[16] The District Court Judge determined the gravity of the offending as low to moderate.
[17] In my view, Mr Hamlin who argued the appeal for Mr Burrows-Page was persuasive that, in making this assessment, the Judge gave inadequate weight to factors relating to the offence and the offender. In my view, Mr Hamlin was correct to submit that the gravity of the offending must be considered as “low”. I say this for at least three reasons.
The offence itself
[18] First, while it is acknowledged that the threat was the culmination of a period of highly manipulative and controlling behaviour by Mr Burrows-Page, he did not face any charges for the earlier behaviour.
[19] The actual threat to kill was isolated, was not accompanied by any violence and Mr Burrows-Page’s strongest wording was that he would “leave her in the bush where she would be eaten by the pigs”.
[20] It is evident in the District Court Judge’s decision finding Mr Burrows-Page guilty, that the Judge clearly struggled with this aspect of the charge, and specifically whether a threat to kill was actually made. Indeed, the Judge stated that:7
Nowhere in the remaining evidence from [the victim] is there evidence or words that would amount to you saying you are going to do the actual act of ending her life. The strongest words that you have used in the evidence are that you would leave her in the bush where she would be eaten by the pigs. So was that a threat to kill, given that it is the pigs doing the killing in a technical sense.
[21]Later in his decision, he said:8
Telling her that you would leave her in a place which would then result in her death amounts to a threat to kill.
7 At [18].
8 At [20].
[22] In my view, those words are at the very outside edge of what would constitute a threat to kill. The words certainly do not convey a direct threat to kill, or of killing by Mr Burrows-Page. As the Judge concluded, at most, they are an indirect threat as to possible death. Realistically, that indirect threat would be contingent upon a number of factors over which Mr Burrows-Page could have no control.
[23] The words are nasty and unsettling but, in my view, barely satisfy the legal definition of a threat to kill.
[24] Certainly, the victim thought she would die—although she seems to be also referring to words not proved by the police to have been said by Mr Burrows-Page. I note that the Judge’s decision finding Mr Burrows-Page guilty mentions that the victim was not sure whether more direct threats to kill were made. The starting point must be words actually used.
[25] I accept there was nasty, if not sinister, controlling behaviour that informed the seriousness of that threat. And I certainly accept the victim was traumatised by the whole incident—and still is. But on the evidence, the threat to kill was a one-off comment, not repeated or followed-up in any way and not in the context where it could be immediately and presently carried out. It was imprecise and lacked specificity. This distinguishes it from many other more serious cases of its kind.
[26] Understandably, the Judge may have been swayed by the effect of the threat on the victim, as clearly set out in her victim impact statement. But an analysis of the nature of the threat and the words used was also required. Such analysis, in my view, means that the wording of the threat itself is very much at the lowest end of the scale.
The offender
[27] I also accept Mr Hamlin’s submission that the Judge’s assessment of Mr Burrows-Page’s relevant personal factors was a little brief and, more importantly, omitted two important factors. That said, I mean no criticism of the District Court Judge who was doubtless operating in a very busy sentencing court. In this Court there is the opportunity for more considered reflection.
First offender/good character
[28] First, the Judge made no reference to Mr Burrows-Page having no previous convictions and being of otherwise good character, as supported by references from his parents, employer, friend, and aunt and uncle. This matter deserved careful consideration.
[29] Mr Burrows-Page is a first offender, but even at age 24 he has had some time to demonstrate and display good character. His references are illuminating. They support Mr Hamlin’s argument that this offending was out of character.
Remorse?
[30] Second, the Judge said that in respect of Mr Burrows-Page claimed remorse, that he could not give any allowance for that. He said it is “more for the people who plead guilty. Maintaining a not guilty plea and going all the way to trial, always tempers the claim of remorse”.
[31] Respectfully, I think that overstates the position. Remorse is a discrete factor that is specifically allowed for in the Sentencing Act.9 It cannot be that remorse is unavailable for someone, as here, who pleads not guilty and goes to trial. Certainly, recognition for a guilty plea is not available. But the position regarding remorse is different. A defendant may come to their senses after trial and demonstrate remorse— even significant remorse.
[32] Also, the “going all the way to trial always tempers remorse” remark, with great respect, as an absolute proposition goes too far. For instance, as seems to have been the case here, a defendant might regret his actions, even right from the outset, but could legitimately dispute that what he did constituted the actus reus of the offence with which he was charged. But the fact of going to trial does not automatically preclude any consideration of remorse. The Sentencing Act itself contains no such restriction.
9 Sentencing Act 2002, s 9(2)(f).
[33] A more specific and nuanced consideration is required. Here, there was a letter from Mr Burrows-Page saying that he was truly sorry for the events on the night in question. He says he now sees, as the Judge said to him, that he must learn to accept differences in opinions and conflict. He says that he has accepted the Judge’s verdict and completed a range of actions to set him up for a better life, including anti-violence courses, private counselling and community service. His apology letter was specifically addressed to the victim.
[34] In my view, some credit should have been given, albeit at the lower end of the scale, for Mr Burrows-Page’s evident remorse even though it came after the Judge’s finding of guilt.
Other factors as to gravity of offending
[35] Here, in addition to these two factors omitted by the Judge, the following “offender based” matters, accepted by the Judge, are also relevant.
(a)Mr Burrows-Page’s relevant youth. He was 24 years old at the time of the offending. The Judge acknowledged this required greater recognition due to particular psychological issues affecting his maturity as set out in the report from his registered psychotherapist.
(b)Completion of the Man Alive Programme, a six-month programme comprising 20 weekly sessions, each lasting two hours.
(c)Completion of 37.5 hours of the Living without Violence Programme, most of which had been completed prior to sentencing.
(d)He had engaged in 12 non-mandated psychotherapy sessions with a psychotherapist who outlined that Mr Burrows-Page’s present issues appear to anxiety based, stemming from early trauma that seemed to have long-term impact on his current family dynamics. For privacy reasons, I do not provide further details.
(e)In total, therefore, Mr Burrows-Page had completed at least 89.5 hours of significant counselling and rehabilitative programmes. As the Judge noted, this demonstrated his commitment to address the factors causing Mr Burrows-Page’s offending. I assess it as a very significant commitment. It points towards a low risk of re-offending.
(f)Engagement in a small period of voluntary community service with the Salvation Army of no more than 10 hours.
(g)His willingness to pay reparation and to undergo a restorative justice programme. (As it happens, this offer, perhaps understandably, was not accepted by the victim).
Conclusion as to gravity of offending
[36] In conclusion, when all these factors are taken into account, the gravity of Mr Burrows-Page’s offending including, as it must, a consideration of his personal factors, is properly regarded as low. In my view, the Judge overstated the gravity of Mr Burrows-Page’s offending.
Consequences of conviction
[37] Mr Hamlin submitted that the Judge underestimated the consequences of conviction, especially on Mr Burrows-Page’s employment prospects. I agree, with my reasoning as follows.
[38] The first thing to say is that a Crimes Act threatening to kill charge is a serious one carrying with it a maximum sentence of seven years’ imprisonment. The maximum penalty would be easily discoverable by any prospective employers or those dealing with travel documentation. The charge itself, as is evident here, covers a wide variety of situations some of which can be extremely serious.
[39] Those reading of a conviction for this charge would be legitimately concerned as to a risk of violence and endangering the safety of others with possible access to weapons. They would not know the gravity of this offending would be considered as low.
[40] As I read the Judge’s decision, he may have underestimated the consequences of a conviction for an apparently serious criminal offence such as this. The Judge said in his remarks to Mr Burrows-Page that, “you fear that a conviction may impact on your progress with your current employer, or it may impact your progress with other employers in your industry”. He went on to say that:
Many employers have got convictions, many managers have got convictions for one thing or another. It is not an immediate barrier to work, it is not an immediate barrier to progress in an industry and it is not an immediate barrier to those things because people tend to make sensible decisions about people.
[41] All of this is understandable to a degree and unobjectionable as far as it goes. But the Judge went on to observe “there are some convictions that do close doors for people in industry”. He concluded, “this is not one of those convictions that automatically makes you less employable because of the nature of the conviction, because it is trust with an employer for that issue”.
[42] With respect to the Judge’s comments, Mr Hamlin submitted that these comments are themselves a little speculative. Furthermore, they downplay the significance of a Crimes Act threatening to kill charge. The Judge, as I see it, may be referring to what actually happened in this instance, rather than the charge itself. But the charge itself is surely one that could be legitimately expected to affect employment opportunities.
[43] The second thing to say is that usually specific and verified information in relevant affidavits should be provided wherever possible to set out the consequences of a conviction to a defendant. This is a starting principle and is now well accepted.
[44] That said, Mr Hamlin informed the Court that in this case it was very difficult to get specific information as to consequences on employment. While Mr Burrows- Page’s employer was clear in its support for a discharge without conviction, Mr
Hamlin understands from his client that the employer was reluctant to specify what might be the consequences of a conviction. Mr Hamlin could only speculate that the employer may have been reluctant to put such information in writing.
[45] As it happened, soon after his conviction, Mr Burrows-Page’s application for promotion was declined. He does not know why. Mr Hamlin cannot get information about that. But he submits that it is reasonable for him to suggest that the conviction may have played some part in that decision.
[46] Mr Burrows-Page is currently employed in the motor industry, at most (as his counsel put it) in a lower management/administrative role. It is public facing. His employer considers that he has future management potential. However, in the light of his potential conviction, it did not progress any conversations about that until his sentencing was resolved.
[47] Given the nature and connotations of a conviction for this charge, the consequences for promotion in this job and for future employment elsewhere in a public facing industry are likely to be significant. A conviction would at least deter employers in the short to medium term.
[48] The Judge said in his comments that a conviction would not be an immediate bar to progress in an industry, nor an immediate barrier to work—which I take to mean employment elsewhere. As I say, while doubtless intending to be reassuring to Mr Burrows-Page, the Judge perhaps underestimated the consequences of a conviction such as this.
[49] Mr Young who argued the case carefully and responsibly for the Crown, submitted that the lack of information as to specific consequences must count against the appeal and justified the Judge’s decision.
[50] In that respect, Mr Hamlin emphasised that the Courts have indicated some sympathy for a defendant when information about specific consequences is difficult to obtain. He pointed to the decision of Asher J in Alshami v New Zealand Police and the decision of Randerson J in Iosefa v Police:10
It is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.
[51] In Nash v Police,11 when discharging Mr Nash without conviction on a charge of common assault, Mallon J noted there was little evidence to support specific damage to employment or other prospects if Mr Nash were to receive a conviction, but accepted that there were general consequences that may flow from conviction:
I accept the submission for Mr Nash that there are general consequences that follow from a conviction. In a variety of ways (e.g. employment, insurance, immigration) people are asked to disclose whether they have criminal convictions. For those that are remorseful there can be a loss of pride and self- esteem or at least embarrassment in having to answer that question honestly. It may also materially disadvantage him—as his counsel says it may count against him when he is competing for a position against someone who does not have a conviction.
[52] In R v Taulapapa,12 the Court of Appeal observed the courts must gauge the nature and severity of consequences of conviction and set out a non-exhaustive list of possible consequences of conviction for young people, with the following having particular relevance in this case:13
(b) The consequence may be severe if employers are unwilling to look behind the conviction to consider the person’s merits and that reaction is unfair to the offender in the sense that the conviction itself ought not to exclude them from the career or job concerned. Such risk may arise where the conviction speaks to character or records a serious offence but does not fairly reflect the offender’s character or culpability. Theft may be an example of an offence that may lead employers to reject an applicant without further inquiry.
…
(d)The court may assume that applicants with convictions are likely to be excluded without inquiry where employers must filter many
10 Alshami v New Zealand Police HC Auckland CRI-2007-404-000062, 15 June 2007, at [20] citing
Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
11 Nash v Police HC Wellington CRI-2009-485-000007, 22 May 2009 at [19].
12 R v Taulapapa [2018] NZCA 414 at [42] (footnotes omitted).
13 At [42(b)]. [42(d)] and [42(f)] (footnotes omitted).
applications before arriving at a shortlist for interview; this may apply particularly to unskilled or semi-skilled work.
…
(f)Contrary to [Crown counsel’s] submission, the consequences may also be severe where the offender points only to general consequences for a young person looking for any employment suited to his or her talents. That may be so where, as noted above, employers are unwilling to consider the young person on their merits.
[53] In Taulapapa, the young 18-year-old offender pleaded guilty to charges of burglary and kidnapping relating to unlawfully taking a baby in highly unique circumstances. However, the general approach in Taulapapa is useful in this case.
[54] As Mr Hamlin submitted, a threatening to kill conviction raises serious negative issues for any prospective employer. The offence is likely to be viewed as indicating that the convicted person has a violent disposition and issues with conflict. Characteristics of this kind are commonly regarded as being inconsistent with expected standards of behaviour of employees in work environments in general and inconsistent with employers’ obligations to ensure their employees are protected and work in a safe environment.
[55] Given that Mr Burrows-Page is involved in an outward public facing industry, and in light of his relatively short career, it is inevitable he will be required to disclose any criminal convictions in connection with future employment opportunities. I agree that this creates a “real and appreciable” risk that his conviction will adversely affect his chances of securing employment or advancing his career, due to the serious stigma attached to such a conviction.
[56] I add that the argument regarding restricted travel opportunities to some countries arising from this conviction is more speculative. I accept the Crown’s submission that each country will have its own standards and the conviction will prevent a hurdle, but not necessarily an insurmountable one for short term travel.
[57] Mr Burrows-Page sought to file an additional affidavit with what was said to be fresh evidence on the travel issue. I do not think it takes the appeal any further and I put it to one side. The Judge’s approach to travel difficulties was correct.
[58] There is one further matter regarding travel. Mr Hamlin now informs the Court that Mr Burrows-Page has in mind the possibility of starting a career in the United States. It may well be that long term entry into the United States may be, or may become, much more difficult, if not precluded, by this conviction. But there is no evidence before the Court on that matter and, again, given that it is to a degree hypothetical, I put it to one side.
Conclusion
[59] Given my assessment as to the gravity of the offence, including what was specifically said, I am inclined to the view that, here, the employment consequences identified by Mr Hamlin are real and appreciable and are out of all proportion to what actually happened.
[60] In reaching my conclusion, I do not think it necessary to consider the many cases presented to me by Mr Hamlin. They are said to be comparator cases. In fact, they only exemplify that each case turns on its own particular set of facts and circumstances.
[61] I have come to the view that the Judge overestimated the gravity of the proved offending including the personal matters advanced on Mr Burrows-Page’s behalf. Also, perhaps inadvertently, he underestimated the consequences of the conviction. I can now conclude that the consequences of conviction here are out of all proportion to the gravity of the proved offending.
[62] I regard this case as very much confined to its own facts particularly as to the threat used which contained no direct or immediate threat to kill. Like many other cases, it has little precedential value outside those facts.
[63] I am reluctant to differ from an experienced District Court Judge but, in this case, I come to a different conclusion.
[64] The appeal is successful. The sentence is quashed to the extent that Mr Burrows-Page is discharged without conviction. But the order to pay emotional harm reparation to the victim of $500 is preserved.
Becroft J
0