Burns v Police

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-20

[2021] NZHC 3383

KENNETH JOHN BURNS

v

NEW ZEALAND POLICE

Hearing: On the papers

Appearances:

J H C Waugh for Mr Burns J E Bourke for the Crown

Judgment:

9 December 2021

JUDGMENT (NO 2) OF COOKE J

[1] By judgment dated 30 June 2021 I allowed Mr Burns appeal against sentence and substituted a sentence of 21 months’ imprisonment for the 27 months’ imprisonment imposed by the District Court.1 This meant that the sentence of imprisonment was one of short duration. In terms of release conditions no special conditions were sought or imposed at the time meaning that only the standard release conditions applied.

[2] By application dated 23 November Ms Sarah Millynn, a probation officer, applies to vary the release conditions under s 94(3)(a) of the Sentencing Act 2002. She has sworn an affidavit of the same date setting out the reason the special condition is sought.

1 Burns v New Zealand Police [2021] NZHC 1589.

BURNS v NEW ZEALAND POLICE [2021] NZHC 3383 [9 December 2021]

[3]The proposed special condition is:

To attend a psychological assessment with a Departmental psychologist. Attend and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of a Probation Officer and treatment provider.

[4] She explains that Mr Burns has taken positive steps in prison, although his general attitude has been aggressive towards staff at times. He has not participated in any formal rehabilitative programmes while in prison, and the special condition is designed to improve his reintegration into the community. She reports that Mr Burns himself believed it would be helpful, and that he would comply with the condition if it was imposed.

[5] The application has been provided to counsel for Mr Burns who has indicated that it is consented to. I agree that the conditions are appropriate and I specify the above special conditions accordingly. They will expire six months after the sentence expiry date.

Cooke J

Solicitors:
Crowley Waugh, Whanganui for Mr Burns Crown Solicitor, New Plymouth for the Crown

CaseChat Overview and Summary

The case of Burns v Police involves Kenneth John Burns, who had previously been convicted and sentenced to 27 months imprisonment by the District Court, a sentence which was subsequently reduced to 21 months by the High Court. In the current proceeding, Sarah Millynn, a probation officer, applied to the High Court to vary the release conditions of Mr Burns under section 94(3)(a) of the Sentencing Act 2002. The application sought to impose a special condition that Mr Burns attend a psychological assessment and complete any recommended treatment or counselling to the satisfaction of a probation officer and treatment provider. The application was made in light of Mr Burns' aggressive attitude towards staff and his lack of participation in formal rehabilitative programs while in prison. Mr Burns' counsel consented to the application, and the court agreed that the proposed conditions were appropriate.

The primary legal issue the court had to address was whether the special conditions proposed by the probation officer were justified and appropriate under the Sentencing Act. The court had to consider the circumstances of Mr Burns, including his behaviour in prison and the potential benefits of the proposed conditions for his reintegration into the community. The court also needed to assess whether the proposed conditions were reasonable and necessary to ensure that Mr Burns would not reoffend and could successfully reintegrate into society.

The court found that the special conditions were appropriate and necessary for Mr Burns' rehabilitation and reintegration into the community. The court noted that Mr Burns had taken positive steps in prison and had expressed a willingness to comply with the proposed conditions. The court was satisfied that the conditions were reasonable and necessary to address Mr Burns' aggressive behaviour and to provide him with the support he needed to successfully reintegrate into society. The court also noted that the conditions would expire six months after the sentence expiry date, which the court found to be an appropriate duration.

In conclusion, the High Court granted the application to vary the release conditions of Mr Burns and imposed the special conditions proposed by the probation officer. The court found that the conditions were necessary to address Mr Burns' aggressive behaviour and to provide him with the support he needed to successfully reintegrate into society. The court also noted that Mr Burns' counsel had consented to the application, and that the conditions were reasonable and necessary under the Sentencing Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	On the papers
Appearances:	J H C Waugh for Mr Burns J E Bourke for the Crown
Judgment:	9 December 2021