CASHMORE v NZ POLICE [2017] NZHC 105

CASHMORE v NZ POLICE [2017] NZHC 105 [9 February 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI-2016-485-000091[2017] NZHC 105BETWEEN JOHN RAYMOND CASHMOREAppellantAND NEW ZEALAND POLICEDefendantHearing: 7 February 2017Appearances: S Fraser for AppellantH K Goodhew for DefendantJudgment: 9 February 2017JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 9 February 2017 at ..pursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate.Introduction[1] John Raymond Cashmore appeals the sentence imposed by Judge Johnston in the Porirua District Court on one charge of burglary.1 Mr Cashmore asserts that the sentence was manifestly excessive as a result of:(a) the starting point being too high;(b) the uplift to reflect previous convictions was too high;(c) no discount for remorse being given;(d) the Judge failing to take into account a comprehensive alcohol and drug report; and(e) the Judge failing to consider the best interests of Mr Cashmore'schildren.Sentencing in the District Court[2] Between 19 and 20 August 2016 Mr Cashmore smashed the laundry window at a private residential property and entered. The occupants, a woman with four young children were asleep inside. Mr Cashmore stole numerous items of property including electronic equipment, computers and a mobile phone. The occupants were not disturbed. Later Mr Cashmore used information he had obtained during theburglary to access the victim's personal bank accounts and transferred $4,870 into anaccount belonging to his partner.[3] The occupant of the address that Mr Cashmore burgled was insured so that the direct loss to her was limited to her insurance excess. Of course, the existence of insurance merely transferred the loss from the victim to the insurance company. The money taken from the victim's bank account was recovered. The victim impact1 Police v Cashmore [2016] NZDC 22533. A concurrent sentence of one month's imprisonment,which is not appealed, was imposed on one charge of possession of cannabis.statement described the impact on both her and her young children who were still traumatised from the event.[4] Judge Johnston noted Mr Cashmore's previous convictions, nearly 50 dishonesty convictions including 20 for burglary, 16 for receiving and 10 for theft. There were many other minor driving and other offences. The Judge identified the aggravating features of the offending as the unlawful entry into the dwelling house atnight, the value of the property stolen, the victims' vulnerability. He characterised Mr Cashmore as a recidivist burglar and, referring to (unspecified) authorities, took astarting point of three years' imprisonment which he uplifted by 12 months to reflect the aggravating factors.[5] In terms of mitigating factors, the Judge referred to matters raised by counsel; the last burglary prior to the current offences was in 2010, Mr Cashmore was remorseful, that he had young children and was receptive to having drug and alcohol counselling. The Judge noted that Mr Cashmore claimed to have no recollection of the offence as a result of being intoxicated at the time but also referred to a letter that Mr Cashmore had written for the victim. He allowed a credit of 12 months (equivalent to 25 per cent) for the guilty plea and mitigating factors, which led to the end sentence on the burglary charge of three years' imprisonment.Starting point and uplift[6] Mr Fraser, for Mr Cashmore, submitted that the starting point taken was too high because the Judge put too much weight on the previous convictions and wrongly treated Mr Cashmore as a recidivist burglar.[7] Because of the wide variety of circumstances arising in burglary cases there is no guideline case for such offending.2 However, burglaries of residential dwelling houses are generally regarded as serious, particularly those committed at night, which carry the risk of confrontation with occupants.3 Of general assistance is theCourt of Appeal's statement in R v Nguyen regarding the factors relevant to assessing2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].3 R v Southon [2003] 20 CRNZ 104 (CA).culpability for burglary.4 The Court of Appeal identified specifically the degree of planning and sophistication of the offending, the nature of the premises entered, the kind and value of property stolen, damage done, impact and potential impact upon occupants or owners of property and the extent of the offending where multiple burglaries are involved.[8] In the present case, the Judge rightly identified as aggravating factors the fact that the burglary was of a residential dwelling at night when occupants were sleeping inside and that a number of items of substantial value were stolen. In addition, theuse of personal information to access the victim's bank account was an unusual andparticularly aggravating factor. The overall level of criminality in this burglary was moderately high.[9] In terms of an appropriate starting point Mr Fraser relied heavily on the Courtof Appeal's decision in R v Stepanicic5 where the Court observed that dwelling house burglaries at the relatively minor end of the scale tended to attract a starting point of approximately 18 months to 2½ years and in that case the appropriate starting point was two years. Stepanicic involved two burglaries at night where occupants were sleeping and a number of personal items were stolen.[10] The difference between Stepanicic and this case is that the Judge in the present case treated the starting point of three years as reflecting not only the offending before him but also Mr Cashmore's extensive history of burglary offences that he was a recidivist burglar.6 That aspect did not arise in Stepanicic because the last of the previous convictions were in 1998, 13 years before the offending for which Mr Stepanicic was being sentenced.[11] Mr Fraser argued that the age of previous convictions meant that the Judge was wrong to treat Mr Cashmore as a recidivist burglar and ought not have taken into account his previous convictions. Ms Goodhew, for the Crown, however, responded that the length of time (five years) between the most recent previous offence and the current offending was not especially long and, furthermore, some of4 R v Nguyen CA110/01, 2 July 2001.5 R v Stepanicic [2015] NZCA 211.6 A reference to R v Senior.the intervening period was explicable through Mr Cashmore being imprisoned on charges that included burglary.[12] It is evident that Mr Cashmore was back in the community by about 2014 because he was convicted of other kinds of offences in September and December 2014. As a result, it is at least possible to say that he has not accumulated any further convictions for burglary for at least two years. I also accept that the much older convictions, for example those that pre-date 2005, ought to be accorded little weight. However, this still leaves a reasonably consistent history of burglaryoffending that justified the Judge's description. In my view, looking at the nature of the offending coupled with Mr Cashmore's history over the last ten years, a three- year starting point was not too high.[13] However, in sentencing on the basis that an offender is a recidivist offender care is needed to ensure that the purpose of taking previous convictions into account in fixing the starting point is limited to an assessment of culpability and does not go further so as to effectively punish the previous offending twice over. In R v Columbus the Court of Appeal acknowledged the justification of taking previous convictions into account but went on to observe:7Sentencing judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending:R v Ward [1976] 1 NZLR 588 (CA) and Power.8 The terms "recidivist" or "habitual", while convenient descriptions, are not of themselvesdeterminative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living; Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of the persistent offending and the crime itself.[14] I accept (as does the Crown) that, having taken into account Mr Cashmore'sprevious burglary convictions in fixing the three-year starting point, the uplift of one year was too high and resulted in a degree of double counting. It is clear from Mr Cashmore's overall criminal history (even setting aside the much older convictions), that some uplift was inevitable. However, an uplift of six months would have been adequate. I therefore find that the Judge did make an error in this7 R v Columbus [2008] NZCA 192 at [15].8 Power [1973] 2 NZLR 617 at 618 (CA).regard and that the adjusted starting point ought to have been three years six months rather than four years.Discounts for guilty plea and mitigating factors.[15] The Judge's discount of 25 per cent was said to take in both the guilty pleaand the mitigating factors that had been raised by counsel. The latter included aletter written by Mr Cashmore which the Judge said "demonstrated insight",expressions of remorse reported in the comprehensive alcohol and drug assessment and has agreed to a restorative justice conference. Mr Fraser submitted that Mr Cashmore should have been entitled to a 25 per cent discount for the early guilty plea alone so that, although the Judge referred to other factors, in reality he was not accorded a proper discount for them.[16] The Supreme Court made it clear in Hessell v R that discount for a guilty plea should reflect all of the relevant circumstances including the strength of the prosecution case.9 Responding to the Crown's point that a 25 per cent discountcould not necessarily have been expected in this case in any event because of the strength of the prosecution case, Mr Fraser argued that the prosecution case in relation to the misuse of the victim's personal information was not necessarilystrong. He went further, to suggest that it might not have even supported the burglary charge. I do not accept either submission. The coincidence of the victim'spersonal information being used to benefit Mr Cashmore's partner, Mr Cashmorehaving admitted to the burglary meant that the Crown case was strong. Nor, having admitted to this aspect of the summary of facts, is it now open for Mr Cashmore to resile from his guilty plea in relation to it.[17] Although Mr Cashmore's plea was entered at an early stage it wasnevertheless open to the Judge to allow less than 25 per cent for that plea. However, because a single discount was given it is not possible to say whether the Judge allowed a lesser discount and failed to recognise the other factors or, if he recognised all the factors, the extent of the respective discounts. I therefore turn to consider the issue of discount afresh.9 Hessell v R [2010] NZSC 135 at [74].[18] I consider that a discount of 20 per cent for the guilty plea would have been appropriate, for the reasons already noted. The real issue is the extent of any discount given for the other mitigating factors. There was sufficient material before the Judge to indicate remorse and an effort to show that remorse through practical steps. The letter to the victim and offer to attend a restorative justice conference and engagement with the statements of remorse given during that assessment would have justified a specific discount of 5 per cent. In addition, I accept that a further discount of 5 per cent was justified to reflect and encourage his stated intention to seekrehabilitative help. This is particularly so in light of Mr Cashmore's very troubledpersonal history.[19] Appropriate discounts would therefore have been 5 per cent for remorse, 5 per cent for personal factors and twenty percent for the guilty plea, a total discount of 30 per cent. This would have brought the end sentence to two years five months.Failure to consider the interests of Mr Cashmore's children[20] Mr Cashmore has the support of his partner. They have two young children together, though it appears from the pre-sentence report that they are not planning to live together. Mr Cashmore's partner has the children in her care.[21] Mr Fraser argued that the Judge failed to sentence on the basis of what was in the best interests of the children and the effect of imprisoning Mr Cashmore on them. In essence, he argued that a community-based sentence which would enable Mr Cashmore to have contact with his children would have been in their best interests and ought to have been considered.[22] Ms Goodhew accepted that the interests of an offender's child or childrencould be a relevant factor when considering sentencing levels and the form of the end sentence.10 In Harlen the Court of Appeal said: The wellbeing of children will always be among the personal circumstances to which regard is had by a sentencing judge What,however, must be recognised is that the family situation of an offender,including the wellbeing of the offender's children, is only one of a number of10 Ransom v R [2010] NZCA 390; R v Harlen [2001] 18 CRNZ 582.relevant factors. How much weight it can be accorded in any particular case depends on its circumstances.[23] In this case the sentencing Judge was responding to a serious offence for which the appropriate sentence was one of imprisonment. Mr Cashmore was not the sole carer of his young children and, although imprisonment will undoubtedly have an impact on them, they will continue to enjoy the day-to-day care of their usual primary caregiver. In these circumstances there was no basis on which a non- custodial sentence could have been justified.Conclusion[24] I accept that the Judge made an error in the uplift applied to the provisional starting point. I also consider that the appropriate level of discount was higher thanwhat was allowed. The appeal is therefore allowed. The sentence of three years'imprisonment is quashed and substituted with a sentence of two years five months'imprisonment.____________________P Courtney J