CASHMORE v POLICE [2017] NZCA 508

CASHMORE v POLICE [2017] NZCA 508 [10 November 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA325/2017[2017] NZCA 508BETWEEN JOHN RAYMOND CASHMOREApplicantAND NEW ZEALAND POLICERespondentCourt: Gilbert, Lang and Ellis JJCounsel: C J Tennet for ApplicantZ A Fuhr for RespondentJudgment:(On the papers)10 November 2017 at 4.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Cashmore seeks leave to bring a second appeal against a sentence of twoyears and five months imprisonment imposed on a charge of burglary.Background[2] On the night of 19 August 2016 Mr Cashmore burgled a residential propertywhilst the female occupant and her four children were asleep inside the address. Aftergaining entry by smashing a glass window in the laundry, Mr Cashmore stolenumerous items of personal property including electronic equipment, computers anda cellphone. The property stolen during the burglary was valued at several thousanddollars. Following the burglary Mr Cashmore used information he had obtained whilstin the address to transfer $4,870 from the occupant's personal bank accounts into abank account belonging to his partner.[3] The funds that Mr Cashmore transferred from the victim's bank accounts weresubsequently recovered, as was the bulk of the victim's property. Notwithstandingthat fact the victim impact statement provided at sentencing revealed that the offendinghas caused lasting trauma for the occupants of the address.The sentences imposed in the courts below[4] Mr Cashmore was sentenced in the District Court by Judge Johnston.1 TheJudge selected a starting point of three years imprisonment to reflect the overallculpability of the offending. He then applied an uplift of 12 months to reflect theaggravating factors, including Mr Cashmore's numerous previous convictions forburglary and offending involving dishonesty. These include 20 convictions forburglary between 1999 and 2010. The Judge then allowed a credit of 12 months toreflect mitigating factors including an early guilty plea. This led to an end sentence ofthree years imprisonment.[5] On appeal, Courtney J held that the starting point of three years' imprisonmentwas within the available range, but that the uplift of 12 months to reflect previousconvictions was excessive.2 The Judge then considered the appropriate discounts toreflect mitigating factors including remorse, other personal factors and the guilty plea.She concluded that these justified a total discount of 30 per cent. This produced anend sentence of two years and five months imprisonment.31 Police v Cashmore [2016] NZDC 22533.2 Cashmore v Police [2017] NZHC 105.3 At [19].Approach[6] The application for leave to bring a second appeal is governed by s 253 of theCriminal Procedure Act 2011. Leave may be granted where the proposed appealinvolves a matter of general public importance, or where a miscarriage of justice mayhave occurred or will occur if the appeal is not heard.4[7] As this Court confirmed in McAllister v R, the test for a second appeal is high.5Leave will not generally be granted where the application raises issues calling for afactual assessment specific to the circumstances of the case in question.6 Although themiscarriage test will extend to arguable errors by the court below, not every such errorwill give rise to a miscarriage of justice.7The proposed grounds of appeal[8] Mr Tennet advances three proposed grounds of appeal on Mr Cashmore'sbehalf.8 These are:(a) At what stage should the courts cease to regard an offender as being arecidivist burglar?(b) Where an end sentence is slightly greater than two years imprisonment,should the needs of the offender's children be recognised as a factorthat justifies further reduction of the sentence?(c) Should Mr Cashmore have received a sentence of home detention?[9] Mr Tennet acknowledges that the answers given in respect of the first twoissues will determine whether the Court needs to consider the third issue.4 Criminal Procedure Act 2011, s 253(3).5 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.6 At [36].7 At [38].8 In his written submissions Mr Tennet purports to advance three issues but then sets out eightquestions for determination. We have attempted to refine these to the three core issues raised bythe proposed appeal.Ground one: at what stage should the courts cease to regard an offender as beinga recidivist burglar?[10] Mr Tennet raises this issue because Mr Cashmore's last conviction for burglarywas in 2010. Mr Tennet contends that the lack of relevant offending since that timemeans that the courts should no longer regard Mr Cashmore as a recidivist burglar.Alternatively, they should give less weight to his previous convictions.[11] We do not consider it appropriate to grant leave in respect of this issue becausewe do not consider it can be determined as a proposition of general application.Previous convictions for similar offending are recognised as an aggravating factor bys 9(1)(j) of the Sentencing Act 2002. The weight to be given to relevant previousconvictions in any given case will depend largely on the circumstances of theoffending and the offender. All that can be said as a general proposition is that thegreater the period of time within which there is no relevant offending, the less weightthe courts are likely to give to previous convictions.[12] We have no doubt, however, that Mr Cashmore's extensive history ofdishonesty offending, and in particular his 20 convictions for burglary between 1999and 2010, remained an operative aggravating factor in respect of the present offending.Ground two: where an end sentence is slightly greater than two yearsimprisonment, should the needs of the offender's children be recognised as afactor that justifies further reduction of the sentence?[13] Mr Cashmore's counsel raised this issue in the appeal heard before Courtney J.Counsel then appearing for the Crown acknowledged that the interests of an offender'schildren could be relevant to both sentencing level and the form of the end sentence.9In the context of the present case, however, Courtney J concluded:10[23] In this case the sentencing Judge was responding to a serious offencefor which the appropriate sentence was one of imprisonment. Mr Cashmorewas not the sole carer of his young children and, although imprisonment willundoubtedly 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 nobasis on which a non-custodial sentence could have been justified.9 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163; R v Harlen (2001) 18 CRNZ 582 (CA).10 Cashmore v Police, above n 2.[14] Mr Tennet obviously seeks to raise the issue again in anticipation that thisCourt will accept his argument in relation to the first issue. Our approach taken inrespect of that argument means, however, that the issue is effectively moot becausethe end sentence imposed on Mr Cashmore remains significantly greater than twoyears imprisonment.[15] We consider in any event that the relevance of the needs of, or hardship on, anoffender's children in a sentencing context will always be highly fact and contextspecific. Another factor counting against leave being granted is that Mr Cashmore isnot the primary caregiver for his children. His children's needs are therefore not asignificant factor for sentencing purposes.[16] For these reasons we decline to grant leave to appeal in respect of the secondissue. It follows, as Mr Tennet recognises, that there is no basis for this Court toconsider the third issue.Result[17] The application for leave to bring a second appeal against sentence is declined.Solicitors:Crown Law Office, Wellington for Respondent