Cleghorn v Police [2018] NZHC 2553 (28 September 2018)

Last Updated: 15 October 2018

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000020 [2018] NZHC 2553

BETWEEN	BRENT DOUGLAS CLEGHORN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 September 2018
Appearances:	B Stephenson for Appellant C Power for Respondent
Judgment:	28 September 2018

_{JUDGMENT 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 of theft. He now appeals this sentence on the basis that the global starting point was too high, 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 of

3 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 but the door was dead bolted and he was unable to gain access. He then went to the rear of the house where he smashed the glass pane at the top of the back door. This door was also deadbolted and he remained unable to gain access. He then climbed up and through the smashed pane in the door and entered the house. While inside he uplifted

_{Lotto tickets, courier tickets and prescription medication. He was disturbed by the}

CLEGHORN v NEW ZEALAND POLICE [2018] NZHC 2553 [28 September 2018]

arrival of the home owner and exited the address through the back door and over a fence. None of the property was recovered.

[3] The second charge of burglary relates to events that occurred between 4 and

5 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. He then reached in through the smashed pane and unlocked the door, gaining entry to the house. Inside he searched the ground floor, uplifting two 750ml bottles of spirits. He also searched upstairs rooms including a bedroom, where he emptied a number of jewellery boxes, taking approximately $10,000 worth of jewellery. The victim was an elderly woman, and some of the jewellery had been bought for her by her late husband over 50 years ago. The jewellery has been recovered.

[4] On that charge, the summary of facts initially recorded that this burglary occurred overnight, and that the elderly occupant was asleep in the bedroom

Mr Cleghorn took the jewellery from. However, the Judge accepted that the summary of facts had been amended so as to make it a daytime burglary, where the victim was not present.

[5] The third charge of burglary relates to events that occurred on the afternoon of

7 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 and controller, and four PlayStation games. The property has been recovered.

[6] The fourth charge of burglary relates to events that occurred on the afternoon of 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 key press 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 property has 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 to

the till. He used the key to open the till and removed $380 of cash which he placed in his pocket and, when confronted by a staff member, he ran off, taking the cash with him. 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. He returned and entered The Warehouse again on 27 April 2017. The two charges of trespass 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 property owned by an elderly resident, targeted, determined entry, damage done, [and] a large amount of property taken (albeit later recovered)”, and set a “merciful” starting point of three years’ imprisonment. In reaching the starting point the Judge made reference to the decision of Arahanga v R.¹ The Judge also took note of the decision in Waipouri v R, where a starting point of four years was not disturbed on appeal for burglary offending.²

[11] The Judge added 18 months to the starting point in relation to the remaining burglaries. In respect of the theft and trespasses, the Judge added two months, before adding a further eight months for Mr Cleghorn’s “appalling history”, including the fact that he was subject to release conditions at the time of this offending. This took the overall starting point to five years and four months’ imprisonment.

[12] “Somewhat reluctantly”, the Judge allowed a 10 per cent discount for personal factors relating to Mr Cleghorn’s difficult upbringing. Mr Cleghorn’s guilty pleas came late, so the Judge allowed a further 10 per cent discount. That took the sentence to one of four years and three months’ imprisonment. Standing back, the Judge

¹ 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 the offending, 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 Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.³ As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.⁴ It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.⁵

Submissions

Appellant’s submissions

[14] Mr Stephenson, for Mr Cleghorn, submits that the starting point of four years and six months’ imprisonment for the four burglaries was too high. He submits that it was inconsistent with appropriate sentencing levels for spree residential burglaries, and that the Judge made unreasonable inferences from the summary of facts about the level of planning of the burglaries.

[15] While the Judge approached sentencing by taking a lead offence and uplifting to reflect the other burglaries, counsel considers that a global starting point for all four burglaries could have been adopted, given the burglaries all similarly serious, each part of a one week spree in the area. With reference to three cases from the High Court⁶ and one from the Court of Appeal,⁷ counsel submits that an appropriate global 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 the sentencing Court in assessing and weighing the case-specific facts and setting a starting point, meaning that appellate authority can often be of limited assistance, nevertheless he submits that the cases do establish an appropriate sentencing range for offending of this kind.

[16] Mr Stephenson submits that the cases he refers to reveal that the Court tends to 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 of value were taken. He submits that the Judge erred in setting a starting point which was a year more than the top of this range.

[17] Mr Stephenson also submits that the Judge made unreasonable inferences from the summary of facts relating to the level of planning involved in the burglary. In relation 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 house that you could readily dispose of” and that “I think you have knowledge of where the jewellery was”. His Honour also concluded that the burglaries were planned and premeditated.

[18] Counsel submits that it is unclear what the Judge relied on to draw these inferences. There is no suggestion in the summary of facts that Mr Cleghorn had been in the Forbury Road address previously, or that he knew the occupant. Mr Stephenson submits that this is a material error as the Judge’s conclusions as to the degree of planning, premeditation and determined entry involved, strongly informed the starting point he took for all four burglaries.

[19] Counsel submits that these errors led to the Judge imposing a final sentence that was manifestly excessive.

Respondent’s submissions

[20] Counsel for the respondent, Mr Power, submits that the Judge did not err in the exercise 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 in Arahanga v R noted that starting points for dwelling house burglaries at the relatively minor 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 of the scale.

[22] The respondent submits that the analysis of burglary categories set out in Senior v Police is still of assistance.⁹ In that case, the High Court identified three categories appropriate for applying tariff sentencing levels: first time burglar; recidivist burglar; and spree burglar. Mr Cleghorn has 10 prior convictions for burglary in 1998, 1999, 2000, 2004, 2005, 2010 and 2011, and two prior convictions for being unlawfully in a building in 2005 and 2008. Counsel submits that this offending straddled the categories of recidivist and spree burglars.

[23] The respondent submits that the starting point for a defendant with 10 prior burglary convictions, the uplift of 18 months for a further three burglaries, and the other uplifts were all within range.

[24] While counsel for the appellant had referred to a number of burglary cases with starting points lower than that which the Judge imposed, the respondent submits these can be distinguished each case on its facts. For example, Taylor and Waipouri both involved 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 the level of planning involved in the burglary were justified, or at least are of no significance.

_{[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 the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two year and six months imprisonment.

[28] An issue raised by Mr Cleghorn is whether the Judge was right to take one of the 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 and set a global starting point.

[29] While I do not consider that the Judge was wrong to approach sentencing in the 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 at through selecting a lead burglary and then uplifting for the balance, or adopting a global starting point for the total number of burglary charges, the focus must be on whether the sentence as a whole is manifestly excessive.

[30] The Judge set a starting point of three years’ imprisonment for the Forbury Road burglary. This is outside the general parameters set out in Arahanga for dwelling house burglaries at the relatively minor end of the scale but the respondent considers 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 a standard burglary, particularly as the jewellery was recovered. There was no actual violence, nor real risk of that, and there was only one offender. The key aggravating factors 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 in

Rule–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 of cases where the Judge has set a starting point by picking the lead burglary charge then uplifting

for the balance of the burglary charges.

although it was recovered. On this approach, I do not consider that the Forbury Road burglary 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 noted that, in cases involving a single residential burglary, sentences range “from as low as

15 months for a simple residential burglary not involving any confrontation with occupants, to as high as two years and three months”.¹² For that reason, Asher J decided that the starting point for the residential burglary in that case of two and a half years’ imprisonment was too high and should have been 18 months’ imprisonment, noting that “the premeditation for the offending was limited, it was a daylight entry, there were no occupants, and there was something close to complete recovery of the stolen items”.¹³

[32] For the other three burglary offences in this case, the Judge made an uplift of

18 months to reach a global starting point of four years and six months’ imprisonment for the burglary charges.

[33] Counsel for the respondent considered this was warranted having regard to the analysis of burglary offending in Senior v Police.¹⁴ In that case the High Court set out three categories of burglary offenders: first time burglars, recidivist burglars and spree burglars.

[34] In relation to recidivist burglars, who may have perhaps 20 or 30 previous convictions for burglary and who plead guilty to say a single offence or even two or three 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 burglaries all committed within a short space of time and usually having admitted at interview 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 prior convictions for burglary, and while the most recent of those was in 2011, he has accumulated numerous other dishonesty convictions since then. While he committed four burglaries within eight days, the spree cases referred to in Senior involve between

13 and 37 offences. It does not appear that Mr Cleghorn assisted the authorities in any meaningful way either.

[37] The reference to a likely maximum sentence of three years for a recidivist burglar pleading guilty to perhaps three offences, is, of course, a reference to the final sentence, after credit for guilty pleas has been given. As such, a starting point in that situation could be closer to four years. However, this wording takes into account a recidivist 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 criminal history. This uplift takes the sentence to five years and two months for the burglary offending, which I consider to be out of step with decided cases including the following cases which Mr Stephenson drew to the Court’s attention.

[39] In Taylor v Police, three offenders committed three residential burglaries in reasonably close proximity on a single day.¹⁶ Each burglary involved forced entry with consequential damage to the properties, with minor items of alcohol and other property taken but later restored. On appeal, the High Court rejected a starting point of three years and six months’ imprisonment, replacing it with a starting point of two years and nine months’ imprisonment. Simon France J held that “a starting point of 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 value of goods taken and not recovered”.¹⁷

[40] In Waipouri v R, Mr Waipouri committed three burglaries of residential houses over approximately six weeks.¹⁸ One burglary was committed at night whilst the

occupant slept. The others were committed during the day. Each burglary involved taking items of value, with a total loss of around $7000. The District Court imposed a starting point of four years’ imprisonment, which the Judge here used to support his reasoning. However, while the starting point was not challenged on appeal, Duffy J in the High Court considered it to be at the “very upper limit”¹⁹ and she “would have adopted a starting point of between two and a half to three years’ imprisonment for the three burglaries”.²⁰

[41] In Swinburne v R, Mr Swinburne committed four residential burglaries on separate days over the course of two weeks.²¹ Each burglary involved entry by smashing a glass panel, each were committed during the day and they all involved the taking of valuable items totalling $13,531, none of which was recovered. The Court of Appeal upheld a starting point of three years and six months. Swinburne bears particular similarity to Mr Cleghorn’s offending. It justifies a global starting point of three years and six months, particularly given that much of the stolen property has been restored.

[42] While counsel for the respondent submitted that Mr Cleghorn’s offending was more serious than that in Waipouri, because it involved three burglaries not four and a lower value of property taken, against that needs to be factored in that there were other aggravating features in Waipouri, including the loss of property that had sentimental value, and that one of the burglaries took place at night when the victim was at home asleep. Furthermore, the appellate Judge expressed strong reservations about the starting point adopted as set out in [40] above.

[43] Mr Cleghorn also raised concerns about inappropriate inferences being drawn by the Judge relating to the level of preparation involved in the burglaries. Having read the summary of facts I accept that the Judge has overstated the level of premeditation and preplanning and this in all likelihood influenced the starting point he adopted. There was no evidence to support the bald statement that “the burglaries were all planned, I think they were all premeditated, I think all the properties were

selected”, nor is there evidence to support that he had “knowledge of where the jewellery was”. I accept, however, that the Judge was correct to say that Mr Cleghorn was determined to get in and the burglaries were prompted by his need to satisfy his habits and addictions. However, the concern that the level of planning of the burglaries was overstated is addressed by reducing the overall starting point for the four burglary charges as I have proposed, to three years and six months.

[44] Mr Cleghorn does not challenge the other adjustments made by the Judge, and they are appropriate. Thus, an uplift of two months is imposed for the theft and trespass charges, and a further eight months is imposed to reflect Mr Cleghorn’s criminal 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 discount for 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 was too 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 appeal should be allowed.

[46] The sentence of four years’ imprisonment is quashed. Instead, a sentence of three years and six months’ imprisonment is imposed.

Solicitors:

RPB Law, Dunedin

Public Defence Service, Dunedin