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 described the presentation of a firearm following a road rage incident as an “extreme step” and entered a conviction.

[6]        As previously noted Mr Winterburn’s sentencing appears to have taken place immediately, the opening line of Judge Menzies sentencing notes follows on from his reasons and advises Mr Winterburn that a conviction had been entered.

[7]        His Honour went on to note that Mr Winterburn’s last conviction was some 20 years before, and accepted that the offending was mitigated due to “contributing behaviour” from the occupants of the other vehicle. Taking into account those considerations, the Judge considered 80 hours of community work was the most appropriate sentence, alongside the order for the forfeiture of the rifle.

The case for Mr Winterburn

[8]        In his written submissions filed on behalf of Mr Winterburn, Mr Wilkins submitted that s 11(1) of the Sentencing Act 2002 requires a court to consider whether an offender would more appropriately be dealt with through a discharge without conviction. The District Court, he submitted, erred in not explicitly discussing the possibility of a discharge at the time Mr Winterburn was sentenced. In particular, while acknowledging that Mr Winterburn’s trial counsel had not sought a discharge without conviction Mr Wilkins also noted the somewhat complex background to the Judge alone trial which had seen a number of charges against Mr Winterburn due to be heard before a jury reduced to a single charge dealt with  by a  Judge alone.  In  Mr Wilkins submission, trial counsel would not initially have contemplated the possibility of a sentencing on that single charge going ahead at the completion of the Judge alone trial, noting that there was no time between conviction and sentencing for preparation to occur.

Discussion

[9]        There is no dispute that s 11 requires a Court to consider whether a discharge without conviction should be granted. But as Mr Wilkins acknowledged in his submissions, the decision of Justice Peters in Barrington-Nash v NZ Police4 stands as authority that if a discharge without conviction was not raised in the District Court that precludes the issue from being raised on appeal in the  High  Court.  The  Barrington- Nash decision was considered by the Court of Appeal in Ho v The Queen5 which did not reach the conclusion that a failure to raise the issue in the District Court was an absolute bar to raising the issue on appeal, but noted that it may be appropriate to consider granting a discharge on appeal where there have been changes in circumstance or fresh evidence becomes available following sentencing in the District Court.

[10]      The problem on this issue for Mr Winterburn, as Mr Wilkins has fairly acknowledged, is that there is absolutely no evidence before me with regard to any change in circumstance or indeed fresh evidence, as to why or indeed if the question of a discharge without conviction had been raised in the District Court. There is neither evidence from Mr Winterburn nor trial counsel and in the circumstance there is no basis for me to conclude that any miscarriage could or had arisen such that the issue should be revisited on appeal.

[11]      Even if this was not the case and there was some basis to consider the issue on appeal, as Mr Wilkins again concedes, there is no evidence before me upon which I could conclude that there is any error in the sentence imposed that would lead it to be manifestly excessive. There is certainly no evidence for me to conclude that the consequences of the conviction for Mr Winterburn were out of all proportion to the gravity of the offence. In particular while Mr Wilkins suggested in his written submissions that an indirect consequence of Mr Winterburn’s conviction would be the loss of his firearms licence and that as such this will have an impact with regard to his employment as an agricultural contractor, there is absolutely no evidence nor indeed any further detail to support such a contention and at best it is in the area of speculation

4      Barrington-Nash v NZ Police [2012] NZHC 868.

5      Ho v The Queen [2016] NZCA 229.

that falls far short of providing a sufficient evidential platform for me to conclude that there was any reasonable basis for a s 106 discharge without conviction to have been ordered. Given this position, a position fairly accepted by Mr Wilkins, there is no option but to dismiss this appeal and I now do so.

Decision

[12]The appeal is dismissed.

Powell J