R v Burnie - [2007] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND
CA331/06
[2007] NZCA 54
THE QUEEN
v
WAYNE MICHAEL BURNIE
Hearing:15 February 2007

Court:Arnold, Panckhurst and Priestley JJ
Counsel:M M Wilkinson-Smith for the Appellant

P K Feltham for Crown

Judgment:8 March 2007 at 3 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of reparation is quashed.
CThe terms of imprisonment imposed in respect of the burglary charges laid summarily are quashed. Terms of three years imprisonment are substituted to be served concurrently with one another and concurrently with the lead sentence.
DThe appeal against the imposition of the term of six years imprisonment on the burglary charge laid indictably is allowed. A term of five years and four months imprisonment is substituted.
EThe minimum term of imprisonment of four years imposed under s 86 is quashed. A minimum term of imprisonment of two years and eight months is substituted.

____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
The appeal
[1]       The appellant, who is now aged 38, has amassed a large number of convictions for burglary and entering with intent over a 21 year period.
[2]       His last round of offending took place over a three week period in December 2005 - January 2006. This offending was a regrettable lapse on the appellant’s part. In October 2004 the appellant had been released on parole having served a third of the five year sentence imposed in January 2003 in respect of 13 burglary convictions and nine convictions of entering with intent.
[3]       The appellant pleaded guilty in the North Shore District Court to eight charges of burglary, two of aggravated assault, one of assault with a weapon, one charge of dangerous driving, two of reckless driving, and four traffic related charges of failure to stop.
[4]       On 24 April 2006 Judge Perkins sentenced the appellant to six years imprisonment on all eight burglary convictions. A minimum term of four years imprisonment, representing two thirds of the sentence was imposed. Lesser terms of 18 months and six months imprisonment, to be served concurrently, were imposed in respect of the assaults. The penalties imposed in respect to the driving offences are immaterial to this appeal.
The offending
[5]       The burglaries, although not involving large sums of money, were pre‑meditated and mean. The spree took place in Epsom and Devonport in Auckland and in Cambridge in the Waikato. Each burglary involved the appellant during daylight hours entering premises occupied by elderly people and making off with cash, credit cards, and valuables. In some cases the appellant had observed the elderly occupant of the premises and then exploited the fact that the house was open and easily entered. During the Epsom burglary the appellant was caught inside a bedroom by the 90 year old property owner and her son. He assaulted them both during the course of his escape.
[6]       The driving offences and one of the assault charges were laid as the result of reckless or dangerous driving. The appellant…

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 R v Burnie

Details

AGLC: R v Burnie [2007] NZCA 54
Case: [2007] NZCA 54
Decision Date: 8 March 2007

CaseChat Overview and Summary

The appellant in this case, Wayne Michael Burnie, was appealing against his sentence for various charges including burglary, assault, and driving offences. The case was heard in the Court of Appeal of New Zealand. The central legal issues revolved around the appropriateness of the sentence imposed by the District Court Judge, particularly in relation to the burglary charges, the minimum term of imprisonment, and the reparation sentence.

The court found that the sentencing process was flawed in two respects. Firstly, the Judge did not consider that only one of the burglary charges was laid indictably, thus limiting the maximum sentence for the other seven charges to five years. Secondly, the Judge's imposition of a two-thirds minimum term of imprisonment was deemed excessive given the mitigating factors and the appellant's efforts to rehabilitate himself. The court also found the reparation sentence inappropriate as the appellant would be in prison for several years and would eventually be released with the reparation order still pending, which could hinder his rehabilitation.

The Court of Appeal substituted a new sentence, quashing the original terms of imprisonment for the charges laid summarily and imposing three years imprisonment to be served concurrently with the lead sentence. The term of six years imprisonment on the burglary charge laid indictably was reduced to five years and four months. Additionally, the minimum term of imprisonment under section 86 was reduced from four years to two years and eight months. The reparation sentence was also quashed.

Orders