Swinburne v The Queen - [2017] NZHC 1842

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2017-463-19 [2017] NZHC 1842

BETWEEN
DAVID BARRY SWINBURNE

Appellant

AND

THE QUEEN Respondent

Hearing: 3 August 2017

Counsel:

D Hall for Appellant
A Gordon for Respondent

Judgment:

4 August 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 4 August 2017 at 9.15am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Rotorua
Counsel:
D Hall, Rotorua

SWINBURNE v THE QUEEN [2017] NZHC 1842 [4 August 2017]

The appeal

[1] On 23 November 2016, Mr Swinburne was tried in the District Court at

Rotorua on one charge of threatening to kill or do grievous bodily harm.1 On 2 and 3

February 2017, he was tried on three charges of assault with a weapon2 and one of obstruction of a police officer.3 Judge Snell presided over both trials, sitting without a jury. Mr Swinburne was found guilty on all five charges.4

[2] Mr Swinburne was sentenced, on all offending, on 11 April 2017. Judge Snell imposed an effective term of imprisonment of one year and four months.5 A period of disqualification from holding or obtaining a driver licence was also imposed.

[3] Earlier appeals against the convictions entered have been abandoned. Mr Swinburne appeals against sentence. He contends that the sentencing Judge erred in imposing imprisonment, rather than a sentence of home detention.6 No issue arises about the disqualification order.

Background

(a) The November 2016 trial

[4] The threatening to kill (or do grievous bodily harm) charge arose out of an incident that occurred on the morning of 25 May 2015. Mr Swinburne was in dispute with Motor Trade Finance Ltd about moneys he had borrowed to purchase a utility vehicle and a lawnmower. Motor Trade Finance intended to repossess those items for non-payment of the debt.

[5] On 25 May 2015, Mr Swinburne telephoned a director of Motor Trade

Finance in Rotorua. During the course of that telephone call, he threatened the

1      Crimes Act 1961, s 306(1)(a).
2      Ibid, s 202C.
3      Summary Offences Act 1957, s 23(a).
4      New Zealand Police v Swinburne [2016] NZDC 23144, at para [22] and New Zealand Police v Swinburne [2017] NZDC 2759, at para [70]. Bail pending appeal was refused: Swinburne v R [2017] NZDC 8071.
5      New Zealand Police v Swinburne [2017] NZDC 7997, at para [49].
6      Criminal Procedure Act 2011, s 250.

director (to use Judge Snell’s words) that he would “come down and knee-cap him that [he] would knock his block off and that [he] could arrange with [his] gang related associates for him to be killed”.7 The Judge found that those words constituted a threat of the type captured by the charge.8

(b) The February 2017 trial

[6] The assault with a weapon and obstruction charges arose out of events that occurred on 26 April 2016. At that time, police officers went to Mr Swinburne’s address in Mamaku to execute a warrant to impound a motorcycle. At…

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 Swinburne v The Queen

Details

AGLC: Swinburne v The Queen [2017] NZHC 1842
Case: [2017] NZHC 1842
Decision Date: 4 August 2017

CaseChat Overview and Summary

David Barry Swinburne appealed against the sentence imposed on him in the District Court. He was convicted of threatening to kill or do grievous bodily harm, three charges of assault with a weapon, and one of obstruction of a police officer. Judge Snell found Mr Swinburne guilty on all charges. The appeal was against the sentence imposed, specifically the decision not to impose a sentence of home detention rather than imprisonment. The sentencing judge found that home detention would be inappropriate, based on Mr Swinburne’s anti-authoritarian attitude and the possibility that he would place a probation officer in danger. The High Court found that the sentencing judge was correct in imposing a sentence of imprisonment. The nature of the home detention sentence and the purposes and principles of sentencing were considered, along with the sentencing judge’s observations about Mr Swinburne’s anti-authoritarian attitude. The appeal was dismissed.

Orders