CLEGHORN v NEW ZEALAND POLICE [2018] NZHC 2553

CLEGHORN v NEW ZEALAND POLICE [2018] NZHC 2553 [28 September 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-000020[2018] NZHC 2553BETWEEN BRENT DOUGLAS CLEGHORNAppellantAND NEW ZEALAND POLICERespondentHearing: 24 September 2018Appearances: B Stephenson for AppellantC Power for RespondentJudgment: 28 September 2018JUDGMENT OF DUNNINGHAM J[1] On 13 July 2018, the appellant, Brent Cleghorn, was sentenced to four years'imprisonment on four charges of burglary, two charges of trespass, and one charge oftheft. He now appeals this sentence on the basis that the global starting point was toohigh, and that the Judge made unreasonable inferences from the summary of facts.Background facts[2] The first charge of burglary relates to events that occurred on the afternoon of3 May 2017, when Mr Cleghorn went to a residential address in David Street,Caversham, Dunedin. He smashed a small leadlight window near the front door butthe door was dead bolted and he was unable to gain access. He then went to the rearof the house where he smashed the glass pane at the top of the back door. This doorwas also deadbolted and he remained unable to gain access. He then climbed up andthrough the smashed pane in the door and entered the house. While inside he upliftedLotto tickets, courier tickets and prescription medication. He was disturbed by thearrival of the home owner and exited the address through the back door and over afence. None of the property was recovered.[3] The second charge of burglary relates to events that occurred between 4 and5 May, when Mr Cleghorn went to a two-storey residential address in Forbury Road,Caversham, Dunedin. He smashed a glass pane in a door close to the door locks. Hethen reached in through the smashed pane and unlocked the door, gaining entry to thehouse. Inside he searched the ground floor, uplifting two 750ml bottles of spirits. Healso searched upstairs rooms including a bedroom, where he emptied a number ofjewellery boxes, taking approximately $10,000 worth of jewellery. The victim was anelderly woman, and some of the jewellery had been bought for her by her late husbandover 50 years ago. The jewellery has been recovered.[4] On that charge, the summary of facts initially recorded that this burglaryoccurred overnight, and that the elderly occupant was asleep in the bedroomMr Cleghorn took the jewellery from. However, the Judge accepted that the summaryof facts had been amended so as to make it a daytime burglary, where the victim wasnot present.[5] The third charge of burglary relates to events that occurred on the afternoon of7 May 2017, when Mr Cleghorn went to a residential address in Pencarrow Street,Caversham, Dunedin. He prised a rear window, causing the window latches to break.He entered the address through the window and uplifted a PlayStation 3 console andcontroller, and four PlayStation games. The property has been recovered.[6] The fourth charge of burglary relates to events that occurred on the afternoonof 11 May 2017, when Mr Cleghorn went to a residential address in Edwin Street,Caversham, Dunedin, an address known to him. He removed a key from a locked keypress which he used to gain access to the address. Inside he searched a bedroom,uplifting a DVD player, an electronic tablet, and a handycam camera. The propertyhas been recovered.[7] On 5 May 2017, Mr Cleghorn entered Rockgas on Hillside Road, Dunedin.While alone in the unattended shop he moved behind the counter and found the key tothe till. He used the key to open the till and removed $380 of cash which he placed inhis pocket and, when confronted by a staff member, he ran off, taking the cash withhim. The cash has not been recovered. This resulted in the charge of theft.[8] On 24 April 2017 Mr Cleghorn entered The Warehouse at 64 Hillside Road,South Dunedin, in breach of a trespass notice issued on 7 September 2016. Hereturned and entered The Warehouse again on 27 April 2017. The two charges oftrespass arose from these facts.District Court decision[9] The Judge approached sentencing by setting a starting point for the lead charge,being the burglary at Forbury Road, and then uplifting it for the other burglaries.[10] The Judge considered that the Forbury Road burglary involved "a propertyowned by an elderly resident, targeted, determined entry, damage done, [and] a largeamount of property taken (albeit later recovered)", and set a "merciful" starting pointof three years' imprisonment. In reaching the starting point the Judge made referenceto the decision of Arahanga v R.1 The Judge also took note of the decision inWaipouri v R, where a starting point of four years was not disturbed on appeal forburglary offending.2[11] The Judge added 18 months to the starting point in relation to the remainingburglaries. In respect of the theft and trespasses, the Judge added two months, beforeadding a further eight months for Mr Cleghorn's "appalling history", including the factthat he was subject to release conditions at the time of this offending. This took theoverall starting point to five years and four months' imprisonment.[12] "Somewhat reluctantly", the Judge allowed a 10 per cent discount for personalfactors relating to Mr Cleghorn's difficult upbringing. Mr Cleghorn's guilty pleascame late, so the Judge allowed a further 10 per cent discount. That took the sentenceto one of four years and three months' imprisonment. Standing back, the Judge1 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.2 Waipouri v R [2015] NZHC 2029.decided that four years' imprisonment would be an appropriate end point for all theoffending, and decided not to impose a minimum period of imprisonment.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3 As the Court of Appeal stated in Tutakangahau v R, "an appellate courtwill not intervene where the sentence is within the range that can be properly bejustified by accepted sentencing principles".4 It is only appropriate for this Court tointervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.5SubmissionsAppellant's submissions[14] Mr Stephenson, for Mr Cleghorn, submits that the starting point of four yearsand six months' imprisonment for the four burglaries was too high. He submits that itwas inconsistent with appropriate sentencing levels for spree residential burglaries,and that the Judge made unreasonable inferences from the summary of facts about thelevel of planning of the burglaries.[15] While the Judge approached sentencing by taking a lead offence and upliftingto reflect the other burglaries, counsel considers that a global starting point for all fourburglaries could have been adopted, given the burglaries all similarly serious, eachpart of a one week spree in the area. With reference to three cases from theHigh Court6 and one from the Court of Appeal,7 counsel submits that an appropriateglobal starting point for the spree would be three years and six months' imprisonment.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Ripia v R [2011] NZCA 101 at [15].6 Taylor v Police HC Whangarei CRI 2006-488-37, 29 August 2006; Waipouri v R, above n 2;Anderson v Police [2013] NZHC 2632.7 Swinburne v R [2010] NZCA 568.While Mr Stephenson acknowledges that a wide discretion is afforded to thesentencing Court in assessing and weighing the case-specific facts and setting astarting point, meaning that appellate authority can often be of limited assistance,nevertheless he submits that the cases do establish an appropriate sentencing range foroffending of this kind.[16] Mr Stephenson submits that the cases he refers to reveal that the Court tendsto impose starting points in the range of three years to three years and six months'imprisonment for multiple (six or fewer) spree residential burglaries, where items ofvalue were taken. He submits that the Judge erred in setting a starting point whichwas a year more than the top of this range.[17] Mr Stephenson also submits that the Judge made unreasonable inferences fromthe summary of facts relating to the level of planning involved in the burglary. Inrelation to the occupant of the Forbury Road address, his Honour noted that "She had,I think, been a person that you became aware of as perhaps having items in her housethat you could readily dispose of" and that "I think you have knowledge of where thejewellery was". His Honour also concluded that the burglaries were planned andpremeditated.[18] Counsel submits that it is unclear what the Judge relied on to draw theseinferences. There is no suggestion in the summary of facts that Mr Cleghorn had beenin the Forbury Road address previously, or that he knew the occupant. Mr Stephensonsubmits that this is a material error as the Judge's conclusions as to the degree ofplanning, premeditation and determined entry involved, strongly informed the startingpoint he took for all four burglaries.[19] Counsel submits that these errors led to the Judge imposing a final sentencethat was manifestly excessive.Respondent's submissions[20] Counsel for the respondent, Mr Power, submits that the Judge did not err in theexercise of his sentencing discretion, that the sentence was not manifestly excessive,and that this appeal should be dismissed.[21] Mr Power submits that the starting points for both the Forbury Road burglary,and overall, were within range. While he acknowledges that the Court of Appeal inArahanga v R noted that starting points for dwelling house burglaries at the relativelyminor end of the scale tended to be between 18 months and two years and six months'imprisonment,8 he submits that Mr Cleghorn's offending was not at the minor end ofthe scale.[22] The respondent submits that the analysis of burglary categories set out inSenior v Police is still of assistance.9 In that case, the High Court identified threecategories appropriate for applying tariff sentencing levels: first time burglar;recidivist burglar; and spree burglar. Mr Cleghorn has 10 prior convictions for burglaryin 1998, 1999, 2000, 2004, 2005, 2010 and 2011, and two prior convictions for beingunlawfully in a building in 2005 and 2008. Counsel submits that this offendingstraddled the categories of recidivist and spree burglars.[23] The respondent submits that the starting point for a defendant with 10 priorburglary convictions, the uplift of 18 months for a further three burglaries, and theother uplifts were all within range.[24] While counsel for the appellant had referred to a number of burglary cases withstarting points lower than that which the Judge imposed, the respondent submits thesecan be distinguished each case on its facts. For example, Taylor and Waipouri bothinvolved only three burglaries, not four, and the value of property taken was less.[25] Finally, counsel submits that the inferences drawn by the Judge relating to thelevel of planning involved in the burglary were justified, or at least are of nosignificance.[26] As such, the respondent submits the appeal should be dismissed.8 Arahanga v R, above n 2.9 Senior v Police (2000) 18 CRNZ 340.Discussion[27] As stated by the Court of Appeal in Arahanga v R:10[78] This Court has deliberately not set a tariff for burglary because therange of circumstances in which the offence can be committed is so varied.Burglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants.Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months to two year and six monthsimprisonment.[28] An issue raised by Mr Cleghorn is whether the Judge was right to take one ofthe four burglaries as a lead charge, and then uplift that to reflect the other burglaries,or whether the Judge should have considered the four burglaries at the same time andset a global starting point.[29] While I do not consider that the Judge was wrong to approach sentencing inthe way he did, I do accept that on reviewing recent cases of multiple burglary charges,it does appear that a global starting point is almost invariably used.11 In the end,however, whether a starting point for sentence on multiple burglaries is arrived atthrough selecting a lead burglary and then uplifting for the balance, or adopting aglobal starting point for the total number of burglary charges, the focus must be onwhether the sentence as a whole is manifestly excessive.[30] The Judge set a starting point of three years' imprisonment for theForbury Road burglary. This is outside the general parameters set out in Arahanga fordwelling house burglaries at the relatively minor end of the scale but the respondentconsiders this is justified because it does not see this offending as in that category.However, in my view, there is little in this burglary that would elevate it beyond astandard burglary, particularly as the jewellery was recovered. There was no actualviolence, nor real risk of that, and there was only one offender. The key aggravatingfactors were that there was damage done and property of high value was taken,10 Arahanga v R, above n 2.11 For example, in addition to the cases cited by Mr Stephenson I note this approach was used inRule–Winiata v Police [2014] NZHC 894; Bell v R [2014] NZHC 3105; Eneliko v Police [2014]NZHC 3330; Te Whata v Police [2016] NZHC 1293; and Lamatoa v R [2017] NZHC 2375.Stewart v Police [2014] NZHC 2026 and Tuifua v Police [2015] NZHC 2426 are examples ofcases where the Judge has set a starting point by picking the lead burglary charge then upliftingfor the balance of the burglary charges.although it was recovered. On this approach, I do not consider that the Forbury Roadburglary would warrant a starting point of more than two years' imprisonment.[31] I am reinforced in this view by the fact that in Tuifua v Police, Asher J notedthat, in cases involving a single residential burglary, sentences range "from as low as15 months for a simple residential burglary not involving any confrontation withoccupants, to as high as two years and three months".12 For that reason, Asher Jdecided that the starting point for the residential burglary in that case of two and ahalf years' imprisonment was too high and should have been 18 months'imprisonment, noting that "the premeditation for the offending was limited, it was adaylight entry, there were no occupants, and there was something close to completerecovery of the stolen items".13[32] For the other three burglary offences in this case, the Judge made an uplift of18 months to reach a global starting point of four years and six months' imprisonmentfor the burglary charges.[33] Counsel for the respondent considered this was warranted having regard to theanalysis of burglary offending in Senior v Police.14 In that case the High Court set outthree categories of burglary offenders: first time burglars, recidivist burglars and spreeburglars.[34] In relation to recidivist burglars, who may have perhaps 20 or 30 previousconvictions for burglary and who plead guilty to say a single offence or even two orthree offences "is unlikely to receive a sentence which exceeds 3 years".15[35] In relation to spree burglars, the High Court said:[38] This burglar will appear for sentence on a large number of burglariesall committed within a short space of time and usually having admitted atinterview a number of burglaries which the police, without such admissions,would not have been able to solve.12 Tuifua v Police, above n 11, at [22].13 At [23].14 Senior v Police, above n 9.15 At [36].[36] Mr Cleghorn's offending straddles these two categories. He has 10 priorconvictions for burglary, and while the most recent of those was in 2011, he hasaccumulated numerous other dishonesty convictions since then. While he committedfour burglaries within eight days, the spree cases referred to in Senior involve between13 and 37 offences. It does not appear that Mr Cleghorn assisted the authorities in anymeaningful way either.[37] The reference to a likely maximum sentence of three years for a recidivistburglar pleading guilty to perhaps three offences, is, of course, a reference to the finalsentence, after credit for guilty pleas has been given. As such, a starting point in thatsituation could be closer to four years. However, this wording takes into account arecidivist burglar's criminal history.[38] Here, after setting a global starting point of four years and six months'imprisonment, the Judge added a further eight months for Mr Cleghorn's criminalhistory. This uplift takes the sentence to five years and two months for the burglaryoffending, which I consider to be out of step with decided cases including thefollowing cases which Mr Stephenson drew to the Court's attention.[39] In Taylor v Police, three offenders committed three residential burglaries inreasonably close proximity on a single day.16 Each burglary involved forced entrywith consequential damage to the properties, with minor items of alcohol and otherproperty taken but later restored. On appeal, the High Court rejected a starting pointof three years and six months' imprisonment, replacing it with a starting point oftwo years and nine months' imprisonment. Simon France J held that "a starting pointof three years six months would normally represent more burglaries than the present,or a combination of more aggravating features such as risk to the occupants, and valueof goods taken and not recovered".17[40] In Waipouri v R, Mr Waipouri committed three burglaries of residential housesover approximately six weeks.18 One burglary was committed at night whilst the16 Taylor v Police, above n 6.17 At [27].18 Waipouri v R, above n 2.occupant slept. The others were committed during the day. Each burglary involvedtaking items of value, with a total loss of around $7000. The District Court imposeda starting point of four years' imprisonment, which the Judge here used to support hisreasoning. However, while the starting point was not challenged on appeal, Duffy Jin the High Court considered it to be at the "very upper limit"19 and she "would haveadopted a starting point of between two and a half to three years' imprisonment for thethree burglaries".20[41] In Swinburne v R, Mr Swinburne committed four residential burglaries onseparate days over the course of two weeks.21 Each burglary involved entry bysmashing a glass panel, each were committed during the day and they all involved thetaking of valuable items totalling $13,531, none of which was recovered. The Courtof Appeal upheld a starting point of three years and six months. Swinburne bearsparticular similarity to Mr Cleghorn's offending. It justifies a global starting point ofthree years and six months, particularly given that much of the stolen property hasbeen restored.[42] While counsel for the respondent submitted that Mr Cleghorn's offending wasmore serious than that in Waipouri, because it involved three burglaries not four and alower value of property taken, against that needs to be factored in that there were otheraggravating features in Waipouri, including the loss of property that had sentimentalvalue, and that one of the burglaries took place at night when the victim was at homeasleep. Furthermore, the appellate Judge expressed strong reservations about thestarting point adopted as set out in [40] above.[43] Mr Cleghorn also raised concerns about inappropriate inferences being drawnby the Judge relating to the level of preparation involved in the burglaries. Havingread the summary of facts I accept that the Judge has overstated the level ofpremeditation and preplanning and this in all likelihood influenced the starting pointhe adopted. There was no evidence to support the bald statement that "the burglarieswere all planned, I think they were all premeditated, I think all the properties were19 At [34].20 At [40].21 Swinburne v R, above n 7.selected", nor is there evidence to support that he had "knowledge of where thejewellery was". I accept, however, that the Judge was correct to say that Mr Cleghornwas determined to get in and the burglaries were prompted by his need to satisfy hishabits and addictions. However, the concern that the level of planning of the burglarieswas overstated is addressed by reducing the overall starting point for the four burglarycharges as I have proposed, to three years and six months.[44] Mr Cleghorn does not challenge the other adjustments made by the Judge, andthey are appropriate. Thus, an uplift of two months is imposed for the theft andtrespass charges, and a further eight months is imposed to reflect Mr Cleghorn'scriminal history. This takes the sentence to four years and four months' imprisonment.With a 10 per cent discount for personal circumstances and then a 10 per cent discountfor the guilty pleas, the end sentence is one of three years and six months'imprisonment.Result[45] Having accepted that the starting point adopted for the burglary offences wastoo high, and that, if corrected, would result in an end sentence that is six months less,I accept that the sentence imposed was manifestly excessive, and that the appealshould be allowed.[46] The sentence of four years' imprisonment is quashed. Instead, a sentence ofthree years and six months' imprisonment is imposed.Solicitors:RPB Law, DunedinPublic Defence Service, Dunedin