Winterburn v The Queen - [2019] NZHC 104

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-51

[2019] NZHC 104

BETWEEN
LEGRAND ANTHONY WINTERBURN

Appellant

AND

THE CROWN

Respondent

Hearing: 4 February 2019

Appearances:

L Wilkins for the Appellant B Vaili for the Respondent

Judgment:

4 February 2019

ORAL JUDGMENT OF POWELL J

L Wilkins, Barrister, Hamilton Almao Douch, Hamilton
Crown Law

WINTERBURN v THE CROWN [2019] NZHC 104 [4 February 2019]

[1] On 5 September 2018 the appellant, Legrand Winterburn, was convicted on one charge of presenting a firearm to another person under 52(1) of the Arms Act 1983.1 He was sentenced immediately following the trial to 80 hours of community work and an order was made for the forfeiture of his rifle.2

[2] Mr Winterburn initially appealed against both conviction and sentence. At the time submissions were filed on his behalf in support of the appeal Mr Wilkins, for Mr Winterburn, confirmed that the conviction appeal had been abandoned and limited his submissions to the appeal against sentence, submitting that Mr Winterburn should have received a discharge without conviction.

[3] At the time the submissions were filed the submissions indicated that Mr Wilkins had had difficulty contacting Mr Winterburn and at that time had been unable to secure any evidence in support of his contentions at appeal. At the outset of the hearing today Mr Wilkins confirmed that that position had not changed and as a result the appeal was limited to Mr Wilkins outline submissions which were not supported by any evidence filed by or on behalf of Mr Winterburn.

Background

[4] The appeal arose after Mr Winterburn was found guilty following a Judge alone trial before His Honour Judge Menzies. Judge Menzies described the background to the offending in the following terms:3
[4] The background to the charge is a series of events that might be characterised as road rage. The defendant and his girlfriend or partner Sue were in a vehicle driven by the defendant in the vicinity of Ngaruawahia at the time. There was an interchange with the occupants of another vehicle, not known to the defendant. Both vehicles came to a halt on the open road. The occupants of the other vehicle got out, as did the defendant exit his vehicle. The occupants of the other vehicle approached the defendant, he pulled a rifle from his car and told them to back off.

[5] Judge Menzies rejected Mr Winterburn’s evidence that he had acted in self- defence, in response to the occupants of the other vehicle running at him with a metal

1      R v Winterburn [2018] NZDC 23820. [Reasons for conviction]
2      R v Winterburn [2018] NZDC 21157. [Sentencing Notes]
3      Reasons for conviction, above n 1.

bar. Instead, His Honour found that although the occupants of the other vehicle did have a metal bar, they were not waving it threateningly, and were some distance away when Mr Winterburn pointed the gun at them. His Honour…

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 Winterburn v The Queen

Details

AGLC: Winterburn v The Queen [2019] NZHC 104
Case: [2019] NZHC 104
Decision Date: 4 February 2019

CaseChat Overview and Summary

Legrand Anthony Winterburn, the appellant, was convicted in the District Court of presenting a firearm to another person under section 52(1) of the Arms Act 1983. Following his conviction, Winterburn was sentenced to 80 hours of community work and the forfeiture of his rifle. Winterburn appealed both the conviction and sentence, but at the time of the hearing, his counsel withdrew the appeal against the conviction and limited the appeal to the sentence, arguing that Winterburn should have received a discharge without conviction instead. The hearing took place before Powell J in the High Court of New Zealand.

The legal issues before the court were whether the District Court erred in not considering a discharge without conviction as a sentencing option and whether the sentence was manifestly excessive. The appellant's counsel submitted that the District Court failed to consider a discharge without conviction, as required by section 11(1) of the Sentencing Act 2002. The Crown opposed the appeal, arguing that the appellant's counsel had failed to provide any evidence to support the contention that a discharge without conviction should have been considered and that there was no error in the sentence imposed.

In dismissing the appeal, Powell J held that the District Court was not required to consider a discharge without conviction if it was not raised at the time of sentencing, as per the authority of Barrington-Nash v NZ Police. The court also noted that there was no evidence before it that would support a conclusion that the sentence was manifestly excessive or disproportionate to the gravity of the offence. The appellant's counsel had failed to provide any evidence to support the contention that a discharge without conviction should have been considered, and there was no basis for the court to conclude that any miscarriage of justice had occurred. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal was dismissed, and the original conviction and sentence of 80 hours of community work and the forfeiture of the rifle stood.

Orders