Cashmore v Police - [2017] NZHC 105

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-000091 [2017] NZHC 105

BETWEEN
JOHN RAYMOND CASHMORE

Appellant

AND

NEW ZEALAND POLICE Defendant

Hearing: 7 February 2017

Appearances:

S Fraser for Appellant
H K Goodhew for Defendant

Judgment:

9 February 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney
on 9 February 2017 at …..

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

CASHMORE v NZ POLICE [2017] NZHC 105 [9 February 2017]

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’s

children.

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 the burglary to access the victim’s personal bank accounts and transferred $4,870 into an account 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 impact

1 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 at night, the value of the property stolen, the victims’ vulnerability. He characterised Mr Cashmore as a recidivist burglar and, referring to (unspecified) authorities, took a starting 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 105
Decision Date: 9 February 2017

CaseChat Overview and Summary

In Cashmore v Police, the High Court of New Zealand reviewed the sentence imposed on John Raymond Cashmore for burglary. The primary issue was whether the sentence, which was three years' imprisonment, was manifestly excessive. The appeal centred around the starting point of the sentence, the uplift for previous convictions, the discount for the guilty plea and mitigating factors, and the failure to consider the best interests of Cashmore’s children. The Court held that while the starting point of three years was not excessive, the uplift for previous convictions was too high, resulting in some double counting. The court found that a six-month uplift would have been more appropriate. Additionally, the Court held that the discount for the guilty plea and mitigating factors was insufficient, and should have been 30 per cent rather than 25 per cent. The Court found that a 20 per cent discount for the guilty plea, a 5 per cent discount for remorse, and a 5 per cent discount for personal factors would have been appropriate. The Court also held that while the best interests of the children could be a relevant factor, in this case, a non-custodial sentence could not have been justified due to the seriousness of the offence. The appeal was allowed, and the sentence was reduced to two years and five months’ imprisonment.

This case is a useful reminder of the importance of carefully considering the appropriate starting point and uplift for previous convictions, as well as the appropriate level of discount for a guilty plea and mitigating factors. The case also highlights the need to consider the interests of the offender’s children, but only where it is relevant to the circumstances of the case.

Orders