BURCHELL v NEW ZEALAND POLICE [2020] NZHC 889

BURCHELL v NEW ZEALAND POLICE [2020] NZHC 889 [4 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-542CRI-2019-404-557[2020] NZHC 889BETWEEN LLEWELLYN BURCHELLAppellantAND NEW ZEALAND POLICERespondentVirtual hearing: 4 May 2020Appearance: K A Lummis for the respondentDate of judgment: 4 May 2020REASONS FOR JUDGMENT OF JAGOSE JThis judgment was delivered by me on 4 May 2020 at 2.30pm.Registrar/Deputy RegistrarParty/Solicitors:AppellantMeredith Connell, Auckland[1] After hearing this appeal in open virtual Court, counsel for the respondent,Kirsten Lummis, submitting she had nothing to add to her written submissions earlierfiled and served on Mr Burchell,1 I dismissed the appeal with reasons to follow inwriting. These are those reasons.[2] Llewellyn Burchell appeals the decision of Judge D J Sharp in the DistrictCourt at Auckland on 26 November 2019,2 convicting him on one charge each ofblackmail,3 and theft,4 and sentencing him to six months' home detention.Background[3] On or about 31 October 2015, Mr Burchell threatened to disclose allegedcriminal activity committed by the complainant, with intent to obtain her complianceand to obtain a pecuniary advantage. This formed the basis for the blackmail charge.[4] On 25 May 2017, Mr Burchell took a Harley Davidson motorcycle valued at$12,000 from Sky City's underground carpark in Auckland. He registered themotorcycle in his own name the next day. Mr Burchell told police "I took themotorbike because it was abandoned". This was the basis for the theft charge.[5] On 19 June 2019, Judge Sharp gave a sentence indication, if pleading guilty tothe blackmail charge, "[t]he greatest sentence [he was] likely to receive is eightmonths' home detention with six months' post-release conditions".5 Mr Burchellpleaded guilty to both charges. On 26 November 2019, Judge Sharp then convictedand sentenced Mr Burchell. He imposed the six-month home detention sentence forthe two charges concurrently and without release conditions. The sentence is due toexpire on 25 May 2020.1 Mr Burchell was not represented at the hearing, and did not appear in person or otherwise contactthe registry either to appear by alternative means or to make other arrangements. I am satisfied(from my enquiries of both the registry and Ms Lummis) Mr Burchell, presently on homedetention, had notice of the fixture for oral hearing. But he also did not file any writtensubmissions.2 R v Burchell [2019] NZDC 26271.3 Crimes Act 1961, s 237(1) and 238, maximum penalty 14 years' imprisonment.4 Crimes Act 1961, s 219 and 223, maximum penalty 7 years' imprisonment.5 R v Burchell RI-2016-044-002411, Notes of Judge DJ Sharp on sentencing indication, 10 June2019 at [5].Issues on appeal[6] On 17 December 2019, Mr Burchell filed an appeal against his conviction andsentence. Using a Form 5 under Part 6 of the Criminal Procedure Act 2011 addressedto the Court of Appeal, he particularised the grounds of his appeal:(a) on the theft charge, he says he pleaded guilty because a police constablethreatened to kill him with the aid of other police on the instructions ofa court registrar. The motorcycle had been abandoned and was "legallyowned" by him. Evidence of the complainant's ownership of themotorcycle was "fraudulently manufactured" by police; and(b) on the blackmail charge, he says he pleaded guilty to avoid the stressand abuse of registry staff and the judge together preventing him callingwitnesses other than the complainant, whose examination improperlywas limited by the judge.There also is Mr Burchell's copious correspondence since with the registry, makingvarious allegations of misconduct by corrections, court, police and probation officers.Approach on appeal—appeal against conviction[7] Mr Burchell has a first appeal right against his convictions to this Court.6 Givenhis guilty pleas, I must allow the appeal if a "miscarriage of justice" has occurred. By'miscarriage of justice' I mean something has occurred in relation to the trial (definedto include his guilty pleas) to create a real risk against a more favourable outcome forMr Burchell, or has resulted in an unfair trial or a nullity.7 Otherwise the appeal is tobe dismissed.6 Criminal Procedure Act 2011, ss 229(1) and 230(b).7 Section 232(4) and (5).—appeal against sentence[8] I must allow Mr Burchell's appeal against sentence only if I am satisfied thereis an error in the sentence, and a different sentence should be imposed.8 In any othercase, I must dismiss the appeal.9[9] The approach previously taken by courts on sentencing appeals continues toapply,10 so that the measure of error is the sentence be "manifestly excessive" – aprinciple "well-engrained" in this Court's approach to sentence appeals.11 I will notintervene where the sentence is within the range that can be properly justified byaccepted sentencing principles. Whether 'manifestly excessive' is to be assessed interms of the sentence given, rather than by the process by which it is reached.12Discussion—appeal against conviction[10] I have considered the material on the Court file from the District Court,including Judge Sharp's notes on sentence indication and sentencing, and transcriptsfrom hearings before him on 10 June and 26 November 2019, and of a callover beforeJudge N R Dawson on 2 September 2019. I am satisfied from those materialsMr Burchell's conviction discloses no miscarriage of justice.[11] To the contrary, it is clear the Judge gave painstaking regard to Mr Burchell'sarguments. That was consistent with his pre-trial engagements on the admissibility ofthe evidence Mr Burchell sought to adduce.13 The Judge was thoroughly engaged withthe subject matter, even to the extent he acknowledged the history betweenMr Burchell and the blackmail complainant.[12] But the reality is Mr Burchell pleaded guilty to the two charges. There is asound basis for the charges. There is no evidential basis for any suggestion those pleas8 Criminal Procedure Act 2011, s 250(2).9 Section 250(3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].11 At [33] and [35].12 Ripia v R [2011] NZCA 101 at [15].13 Minutes, 29 April and 6 June 2019.were made under duress, or the convictions otherwise are unsafe. There is evidenceMr Burchell, as an unrepresented litigant, misunderstands many court and policeformalities and vests his misunderstandings with official animus toward him.An example can be seen in his dispute of a form with spaces for indication of Māorilineage. No more favourable outcome than Mr Burchell's conviction was in prospect.—appeal against sentence[13] Neither does Judge Sharp's sentence err. The sentence is well within, and atthe low end of, the range available for "an invidious and destructive offence prey[ing] on people's vulnerabilities".14 In its application here, it meets the applicablepurposes and principles of sentencing – particularly to hold him accountable for hisoffending, and to deter him from such in the future – and is the least restrictiveoutcome available.Result[14] The appeal is dismissed.—Jagose J14 Blackwood v R [2018] NZCA 215 at [32]–[34].