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Cleghorn v Police

Cleghorn v Police

Case [2018] NZHC 2553 28 September 2018

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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…

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.

Continue reading Cleghorn v Police

Details

AGLC: Cleghorn v Police [2018] NZHC 2553
Case: [2018] NZHC 2553
Decision Date: 28 September 2018

CaseChat Overview and Summary

The appeal in Cleghorn v Police concerns the sentence imposed on Brent Cleghorn for multiple burglaries, a theft, and two trespasses. The sentencing Judge set a starting point of three years' imprisonment for the most serious burglary and uplifted that starting point for the other offences, resulting in a final sentence of four years' imprisonment. The appellant submits that the starting point was too high and that the Judge made unreasonable inferences about the level of planning involved in the burglaries. The respondent submits that the sentence was within the appropriate range and should be upheld. The court found that the starting point was too high and that the sentence was manifestly excessive, allowing the appeal. The court substituted a sentence of three years and six months' imprisonment. This case highlights the importance of setting an appropriate starting point for multiple burglary offences and the need for the sentencing Judge to properly consider the facts of each case to ensure the sentence imposed is justified.

Orders