Burchell v R [2010] NZCA 314 (22 July 2010)

Last Updated: 27 July 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA162/2008 [2010] NZCA 314

BETWEEN LLEWELLYN WILLIAM BURCHELL
Appellant

AND THE QUEEN
Respondent

Hearing: 24 May 2010

Court: Randerson, Wild and Harrison JJ

Counsel: Appellant in person
J M Jelas for Respondent

Judgment: 22 July 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
   
2. The application for leave to appeal the sentence out of time is granted.
   

100. The appeal against sentence is allowed. The sentence of eight months imprisonment is quashed and substituted by a sentence of four months imprisonment.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Mr Llewellyn Burchell appeals against his conviction following trial before Judge Field and a jury in the District Court at Auckland on one charge of threatening to kill.
[2] Mr Burchell also appeals against his sentence of eight months imprisonment.[1]

District Court

[3] The evidence led by the Crown at Mr Burchell's trial on 25 January 2008 on a charge of threatening to kill Detective Stephen Garrett fell within a narrow compass.
[4] At about 10.15 am on 1 May 2006 Mr Burchell reported to the Community Probation Service at Takapuna. He was met by Mr Michael Savage, a senior probation officer. Mr Savage spent time ascertaining the purpose of Mr Burchell's visit. He found out that Mr Burchell had been referred by the District Court for preparation of a pre-sentence report. Mr Savage explained that the allocated officer was away on annual leave that day but that he would arrange an interview with Mr Burchell on his return.
[5] Mr Burchell did not react well to this news. He became progressively angry and recounted details of his adverse experiences at the hands of the court system and the police. Mr Burchell advised Mr Savage that the reason for his reference to the Probation Service was his conviction for scratching a police officer's vehicle. He alleged that that officer was harassing, haranguing and assaulting him. He identified this officer but Mr Savage only heard the surname of Garrett. Detective Stephen Garrett had had dealings with Mr Burchell in the preceding two months.
[6] According to Mr Savage, Mr Burchell, while still in an obviously frustrated and angry state, said that:

... he had had enough... He knew where the police officer lived... While ... he had no intention of going to this officer's house ... if he saw him again he would kill him.

[7] Mr Savage's meeting with Mr Burchell lasted for about 30 minutes, across the counter of the reception area. Mr Savage attempted to calm Mr Burchell down – with apparent success at times. He offered advice on the appropriate avenues for complaints about the police or the court system. Mr Savage asked Mr Burchell just before the latter's departure to repeat the name of the officer whom he said had been harassing him. Mr Burchell again identified the officer by the name of Garrett, observing that he had last seen the officer that morning because he had followed him to the Probation Service. Mr Burchell's mood had calmed substantially when he left.
[8] Mr Savage then phoned the North Shore Police because he was concerned for the safety of the particular officer. He spoke with a Constable Jean Hindley. In response to her request, Mr Savage sent her an email within two hours with details of his complaint. It is common ground that Mr Savage did not identify Detective Garrett in his email.
[9] Another probation officer, Ms Susan McGee, was in her office, quite close to the main reception area, when Mr Burchell visited. She could hear "very loud voices, aggressive voices, enough for me to move from my office to go out into the main reception area". She heard Mr Burchell twice threaten to kill a police officer whom he considered had victimised him. She did not hear the name of the officer concerned. She noted that Mr Burchell's mood was angry and his language was aggressive.
[10] Messrs Savage and Garrett and Ms McGee were the Crown's only witnesses at trial. Mr Burchell was represented by Mr Nigel Cooke. He did not give evidence or call witnesses in his own defence. The jury returned a verdict of guilty.
[11] It is appropriate to record that at trial Mr Cooke did not challenge the accuracy or veracity of Mr Burchell's threatening statements. Instead, the defence was directed towards raising doubts about whether, first, Mr Burchell's words were or should have been taken seriously and, second, whether Detective Garrett was in fact the object of his threat to kill.

Conviction

[12] We record that we formally refused Mr Burchell's application for leave to call oral evidence at the hearing of his appeal. He failed to comply with the provisions of the Court of Appeal (Criminal) Rules Act 2005 or with directions given by this Court at a conference on 3 March 2010. He also failed to establish the nature or relevance of such evidence or the reasons for its unavailability at trial.
[13] Mr Burchell advanced wide-ranging submissions which we have distilled into three principal grounds. First, he submitted that his trial counsel erred. He alleged that Mr Cooke wilfully worked with corrupt police officers to secure his conviction. He particularised this breach as failures to call the officer-in-charge of the investigation, Constable Lyndon Large, who had allegedly lied; to require production of video footage of a separate and later incident involving Mr Burchell and police officers; and to act in Mr Burchell's best interests.
[14] This submission cannot succeed. Mr Burchell failed to comply with directions given by this Court on 16 March 2010 to provide the Crown and the Court with a sworn affidavit setting out his instructions and the manner of Mr Cooke's departure from them. Additionally, although this is not decisive, Mr Burchell did not offer to waive his privilege in respect of his communications with Mr Cooke.
[15] In any event, we are satisfied from reading the notes of evidence as a whole that Mr Cooke did not fail or err materially in his conduct of Mr Burchell's defence at trial. Mr Cooke's cross-examination was structured, with apparent care and deliberation, to advance the two principal planks of Mr Burchell's defence (see [11] above). He did not stray into some of the potentially damaging and self-incriminating areas proposed by Mr Burchell on appeal which were irrelevant to the issues for determination at trial. Cross-examination of Constable Large, for example, would not have assisted Mr Burchell's defence but might have placed him at risk of prejudicial answers.
[16] Mr Burchell also submitted that Mr Cooke purposely used language derogatory or demeaning of Mr Burchell when cross-examining witnesses. We accept that Mr Cooke's literal description of Mr Burchell's behaviour in some of his questions of prosecution witnesses was unorthodox. But, in the context of his cross-examination as a whole, it was plainly directed towards showing that, because Mr Burchell's mood was obviously agitated, even irrational, a reasonable listener would not treat his threats seriously.
[17] It is appropriate also to record Mr Burchell's own contention advanced in support of his second ground of appeal that Mr Cooke proved that Mr Savage was an unreliable witness.
[18] Second, Mr Burchell submitted there was insufficient evidence to conclude that his threats referred to Detective Garrett. He relied principally on Mr Savage's omission to identify the officer in his email sent to Constable Hindley, who had taken his original complaint, less than two hours after the incident. He said that this factor proved Mr Savage was an unreliable witness who also resorted to fabrication and perjury. (Mr Burchell was not originally in possession of a copy of the email but the Crown provided him with one before this hearing.)
[19] In legal terms Mr Burchell's submission was an argument that the jury's verdict was against the weight of evidence or unreasonable. However, it cannot stand. In summing-up, Judge Field pointed out that the Crown's case was based upon an inferential footing: he emphasised that the jury had to be satisfied beyond reasonable doubt, based upon the juxtaposition of Mr Burchell's words with his references to Detective Garrett, that he was threatening to kill that officer. Mr Cooke cross-examined Mr Savage at some length about his omission to mention Detective Garrett in his email for the purpose of showing his unreliability. The jury's verdict is a rejection of that thesis.
[20] It was for the jury to determine whether Mr Savage was a reliable or truthful witness. We have no basis for interfering with a verdict which must have been founded upon an acceptance of Mr Savage's evidence. This ground must fail also.
[21] Third, Mr Burchell advanced a general argument to the effect that he was himself the subject of police brutality or ill-treatment on other occasions, and that this prosecution was part of a concerted attack upon him. It is unnecessary to discuss this submission further. It does not bear upon events which occurred at the Community Probation Service at Takapuna on 1 May 2006.

Sentence

[22] Mr Burchell's notice of appeal was limited to conviction. However, we are satisfied that his intention throughout was to appeal also against his sentence of eight months imprisonment. Ms Jelas for the Crown did not oppose an order granting Mr Burchell leave to appeal out of time. An unusual element is that Mr Burchell has already served his term of imprisonment.
[23] Mr Cooke appeared for Mr Burchell at sentence. However, the Judge also granted Mr Burchell leave to address. Mr Burchell's principal argument was that the Court should consider the sentencing option of home detention and adjourn to enable an appendix report to be prepared by the Probation Service.
[24] Judge Field declined to impose a sentence of home detention. His sole stated ground related to "real concerns for the safety of [Detective Garrett] and [Mr Burchell's] view of this whole case in its entirety". He considered that a sentence of imprisonment was the only available option. The end sentence of eight months was the apparent starting point given that the Judge did not identify any mitigating factors.
[25] Judge Field was correct that there is no tariff for the offence of threatening to kill. The circumstances are always decisive. This Court has viewed threats to kill police officers as particularly serious. In R v Cherri[2] and R v Terry[3] sentences of one year and 16 months respectively were upheld (although in the former the sentence was reduced to six months for other reasons). In Terry the threat was made directly to the officer, with a strict timeframe, and described as a promise. A previous conviction for threatening to kill a local body officer was a significantly aggravating factor.
[26] In our judgment the relevant facts place Mr Burchell's culpability at the lower end of the scale. The aggravating feature was that the threat was directed towards a named police officer. We accept also that Mr Savage took the threat seriously.
[27] However, while Mr Burchell's threat involved a police officer, it was not made to the officer or in his presence. Its scope was limited to the prospect of an opportunistic encounter. Mr Burchell disclaimed any intention of seeking out the officer. He did not particularise the mode of carrying out the threat. And, significantly, it was the spontaneous culmination of an apparently angry and irrational tirade against police officers and authorities in general. Mr Burchell had no relevant previous convictions.
[28] We consider that a sentence of eight months imprisonment was excessive. A starting point and end sentence of four months imprisonment would have been sufficient to meet the relevant principles of deterrence, denunciation and accountability while recognising the relatively low level of Mr Burchell's culpability.

Result

[29] Mr Burchell's appeal against conviction is dismissed.
[30] Mr Burchell's application for leave to appeal out of time against his sentence is allowed. His appeal against sentence is allowed. The sentence of eight months imprisonment is quashed and substituted by a sentence of four months imprisonment.

Addendum on process issues

[31] This appeal was one of several brought by Mr Burchell and had been adjourned on a number of previous occasions since 15 August 2008. There is a series of Minutes of the Court through 2008 and 2009, culminating in the two Minutes of 3 and 16 March 2010 already mentioned.
[32] As noted, Mr Burchell did not comply with the directions given but again sought an adjournment of this appeal by email sent to the Court on 19 May 2010. He indicated that he wished to call witnesses and he also wished to question police witnesses and his trial counsel. The Crown strongly opposed the adjournment on the grounds that the hearing date was the fourth allocated for this appeal and that the matter had been very much delayed since the notice of appeal was filed in April 2008.
[33] The Court indicated that the matter would not be adjourned at that stage, but Mr Burchell could renew his application at the commencement of the hearing if he wished to do so. He was advised that he should be ready to proceed on the hearing date.
[34] In the event, Mr Burchell did not pursue his application for an adjournment, but he did seek to call witnesses. We declined to allow him to do so since he had not complied with the clear directions given to him on more than one occasion.
[35] Mr Burchell complained about some disclosure issues even though Ms Jelas confirmed that a full copy of the police file had been sent to him by courier on 18 March 2010. First, he wanted copies of the depositions. These were provided to him.
[36] Secondly, he wanted a copy of an email sent by Mr Savage to the police dated 1 May 2010. A copy of this was provided to him as well, but it was clear that Mr Burchell had already seen this document on an earlier occasion.
[37] Mr Burchell also stated that he wanted a video taken by Television New Zealand of an incident he says occurred long before the date of the charge of threatening to kill. Plainly, this incident had no relevance to the appeal and was not a police document. Mr Burchell accepted that he was able to have a DVD made of the video from internet material if required.
[38] Mr Burchell addressed us on aspects relating to the periods during which he was held in prison either on remand or as a sentenced prisoner. We requested the Crown to provide details to the Court by memorandum which has now been received. Mr Burchell has not responded within the time directed. The Crown memorandum confirms that, at the date of his sentence on 6 March 2008, Mr Burchell’s pre-sentence detention period was such that he was entitled to immediate release. However, his remand and sentencing on other matters meant that he was not released from custody as a sentenced prisoner until 8 July 2009. The concerns Mr Burchell raised in this regard to not require any further response from this Court.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Burchell DC Auckland CRI-2006-044-5625, 6 March 2008.
[2] R v Cherri [1989] NZCA 133; (1989) 5 CRNZ 177 (CA).
[3] R v Terry CA45/00, 8 June 2000.