BURNS v NEW ZEALAND POLICE [2019] NZHC 3195
The High Court held the imposition of an electronic monitoring condition as part of a 15‑month intensive supervision sentence was within the sentencing Judge's discretion, authorised by s 54I(3)(f) of the Sentencing Act given an exclusion area, proportionate to the need to protect the complainant and to promote...
Source-derived case information.
- Citation
- [2019] NZHC 3195
- Parties
- Appellant: Zharn Craig Burns; Respondent: New Zealand Police
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 5 December 2019
- Procedural Posture
- Appeal Against Sentence / High Court Judgment
- Outcome
- Appeal dismissed
- Legal Topics
- Intensive Supervision, Electronic Monitoring Condition, Breach of Protection Order, Sentence Proportionality, Rehabilitation, Special Conditions Under Sentencing Act S54 I(3)(f)
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zharn Craig Burns
Appellant
New Zealand Police
Respondent
Procedural Posture
Appeal Against Sentence / High Court Judgment
Legal Issues
- 1 Whether the electronic monitoring condition was disproportionate given pre-trial remand and completion of a treatment programme
- 2 Whether electronic monitoring is authorised and appropriate under s 54I(3)(f) of the Sentencing Act where an exclusion zone is imposed
- 3 Whether the sentence appropriately targets rehabilitation and protection of the complainant
Ratio Decidendi
The High Court held the imposition of an electronic monitoring condition as part of a 15‑month intensive supervision sentence was within the sentencing Judge's discretion, authorised by s 54I(3)(f) of the Sentencing Act given an exclusion area, proportionate to the need to protect the complainant and to promote rehabilitation, and was not rendered disproportionate by prior remand or completion of a treatment programme.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Sentence of 15 months intensive supervision including an electronic monitoring condition upheld
Full Case Text
Judgment text and source record
1 paragraphs
BURNS v NEW ZEALAND POLICE [2019] NZHC 3195 [5 December 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-73[2019] NZHC 3195BETWEEN ZHARN CRAIG BURNSAppellantAND NEW ZEALAND POLICERespondentHearing: 4 December 2019Counsel: Appellant in personK L Kensington for RespondentJudgment: 5 December 2019JUDGMENT OF SIMON FRANCE J[1] Mr Burns was sentenced in relation to a large number of charges committedbetween 6 February and 11 September 2019. They included two breaches of a familyprotection order, an assault on a person in a family relationship, unlawfully gettinginto a vehicle, dangerous driving, failing to stop, breach of release conditions andresisting arrest. Mr Burns has an extensive criminal record.[2] When initially arrested Mr Burns was remanded in custody. He was releasedto attend (successfully) a two-month treatment programme. However, he againbreached the protection order not long after completing the programme. The Judgenoted the time already spent on custodial remand and concluded the rehabilitativesentence of intensive supervision was appropriate.[3] This was to include the wearing of an electronic monitoring device. The Judgeconsidered it would offer protection for the complainant and assist Mr Burns to learnto live within the terms of the protection order and other conditions. The Judge waskeen to see the cycle of breach and imprisonment broken.1[4] The supervision is for 15 months. Mr Burns appeals the monitoring condition,submitting it is too harsh given the pre-trial remand he had served and the successfultreatment course.[5] I do not agree. An experienced Judge has fashioned a sentence in the hope thatit would effect some change in Mr Burns. The knowledge that his whereabouts canalways be determined may prove the incentive to see Mr Burns begin to stop breachingthe protection order. He and his former partner have children and she recognisescontact is inevitable. The supervision conditions allow for this. Mr Burns needs toadjust his behaviour or further breaches are inevitable. The condition is directed atreoffending.[6] Electronic monitoring is a special condition authorised by s 54I(3)(f) of theSentencing Act. This is because another of the special conditions prohibits Mr Burnsfrom entering a particular area. In such circumstances, the condition may bereinforced by use of an electronic monitoring condition. Its use is appropriate here.The appeal is dismissed._____________________Simon France JSolicitors:Crown Solicitor, Wellington1 New Zealand Police v Burns [2019] NZDC 21584.