Lenihan v R

[2020] NZHC 2543

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-18

[2020] NZHC 2543

BETWEEN

COLM FRANCIS LENIHAN

Appellant

AND

THE QUEEN

Respondent

Hearing:

21 September 2020

Appearances:

J A Westgate for Appellant

C J Bernhardt for Respondent

Judgment:

29 September 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 29 September 2020 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]    Colm Francis Lenihan pleaded guilty to two charges of burglary and was sentenced by Judge Phillips on 29 May 2020 to three years’ imprisonment.1 The maximum penalty on each charge was 10 years’ imprisonment. Mr Lenihan appeals his sentence on the basis the starting point was too high and that this resulted in an end sentence which was manifestly excessive.

1      R v Lenihan [2020] NZDC 9931.

LENIHAN v R [2020] NZHC 2543 [29 September 2020]

Facts

[2]    On Saturday 2 June 2018 at approximately midday Mr Lenihan and an associate drove into the car park behind the Wakari Shops in Dunedin. Mr Lenihan exited the vehicle, looked around, and retrieved an item from the boot. At about 12.30 pm Mr Lenihan and his associate drove next door to the rear carpark at the Balmac Pharmacy and parked adjacent to the cellar door. Mr Lenihan jemmied the padlock from the door and entered the cellar directly beneath the pharmacy dispensary. This triggered an alarm and Mr Lenihan and his associate left the area.

[3]    That evening some time after 4.30 pm and before 8 am the next morning Mr Lenihan climbed onto the roof of the Mornington Pharmacy, removed a solar dome, and climbed into the ceiling cavity. Mr Lenihan covered a motion sensor with insulation and avoided the other motion sensors and closed-circuit television (CCTV) cameras. Mr Lenihan broke through the ceiling and through walls to enter the pharmacy dispensary and jemmy the safe. He removed $3,700 worth of predominantly Class B drugs including morphine, oxycodone, and Ritalin. Mr Lenihan rang his associate who then picked him up.

[4]    Eight days later the police executed a search warrant and located 70-80 per cent of the stolen medicine under Mr Lenihan’s bed. Mr Lenihan initially claimed he was holding the drugs for his associate and was not involved in either of the burglaries.

District Court decision

[5]    Judge Phillips treated Mr Lenihan as the leader in the burglaries. He proceeded on the basis that the drugs were to be sold on the drug market rather than to feed Mr Lenihan’s drug habit. The Judge also rejected Mr Lenihan’s claim that the drugs were held by him for his associate.

[6]    The Judge rejected the submission that a commercial robbery was less serious than a domestic one. The Judge considered Arahanga v R2 and Pluim v Police3 and adopted a starting point of three years six months’ imprisonment, the same as the

2      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

3      Pluim v Police [2012] NZHC 1592.

starting point provided for Mr Lenihan’s associate, who had played a significantly lesser role.

[7]    The Judge provided an uplift of four months for Mr Lenihan’s prior history of relevant offending. Mr Lenihan has a history (2012–2017) of community burglaries of pharmacies for drugs, with separate sentences of imprisonment of 21 months (2015) and 13 months (2012), as well as 17 convictions for other crimes of dishonesty. The Judge provided an additional uplift of two months to reflect that Mr Lenihan was subject to a sentence related to a prior burglary at the time of the offending.

[8]    Upon considering the pre-sentence report, a report stated to be provided under s 27 Sentencing Act 2002 and Zhang v R4 the Judge allowed a 10 per cent reduction for personal factors and another 10 per cent for Mr Lenihan’s very late guilty plea. The personal factors included Mr Lenihan’s explanation that he had been burgling to fund his drug habit. This led to a sentence of 39 months.

[9]    The Judge made an additional reduction for the steps Mr Lenihan had taken whilst remanded in custody of three months. This had included Mr Lenihan’s breaking his drug habit. This led to an end sentence of 3 years’ imprisonment for the Mornington Pharmacy burglary, and two years’ imprisonment on the Balmac Pharmacy burglary to be served concurrently. The Judge cancelled Mr Lenihan’s remaining 32 hours of community work and remitted all his (significant) fines (without adding any compensatory period to Mr Lenihan’s term of imprisonment).

Principles on appeal

[10]   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.5 As the Court of Appeal indicated in Tutakangahau v R quoting the lower

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.6

[11]   It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.8

Submissions

Appellant’s submissions

[12]   Mr Westgate, for Mr Lenihan, submits the starting point for both charges should have been two years six months, Mr Bernhardt, for the Crown, submits a starting point of two years six months’ imprisonment would be in range for the second burglary charge in isolation, with an uplift of one year to reflect the first burglary charge, therefore a starting point of three years and six months on both charges was within range.

[13]   Mr Westgate, submits the starting point was excessive because the Judge incorrectly concluded that commercial burglaries are not less serious than residential burglaries and overstated the seriousness of pharmacy burglaries involving drugs.

[14]    Mr Westgate asserts that residential burglaries are more serious than commercial burglaries because an unlawful intrusion into a dwelling house is a specific aggravating factor identified in the Sentencing Act,9 there is an associated sense of violation and insecurity which does not attach in the same way to a commercial burglary,10 and there is a greater risk of confrontation.11

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

8      Skipper v R [2011] NZCA 250 at [28].

9      Sentencing Act 2002, s 9(1)(b).

10    R v Nguyen CA 110/01, 2 July 2001 at [18] which noted “[e]ntry into private homes…will have  an emotional impact giving rise to a sense of violation and insecurity…that may not arise in the case of commercial premises”; Senior v Police [2000] 18 CRNZ 340 (HC) at [18] which noted intruding into someone’s home leaves a “sense of violation and insecurity”.

11 Arahanga v R, above n 2, at [78].

[15]   Further, Mr Westgate submits the Judge should have taken into account the fact the burglary involved drugs to be on-sold. Mr Westgate submits this is similar to the theft of firearms as both likely result in “controlled substances” being distributed in the community. He refers to two cases (Otter v Police,12 R v Inia13) where the burglary of firearms attracted starting points of three years and 20 months respectively in circumstances which he submits were worse than the current offending.

[16]   Mr Westgate also refers to five commercial burglary cases which he submits illustrate the starting point adopted in the current case is excessive. These are:

(a)Shannon v Police where the appellant and associates committed two burglaries. In the first, using a crowbar, they smashed a window and stole cell phones at 1.20 am. In the second, they smashed a window before being deterred by an alarm. A starting point (before adjustment) of 18 months was considered to be (“easily”) within range.14

(b)Ikahihifo v Police where offenders forced open supermarket doors at 4 am stealing $20,000 worth of items. The offenders were arrested and all items were recovered. While the offending involved planning and premeditation it was unsophisticated, a starting point of 20 months was adopted.15

(c)Benson v Police where offenders broke into a closed Subway outlet, but found there was no money to take. A starting point of around 12 months was considered on appeal to be at the upper end of the range.16

(d)Jackson v Police the appellant faced two burglary charges, he and an associate entered a gated industrial park using a PIN and used bolt cutters to access a container. They stole goods worth over $3,000. The

12     Otter v Police [2015] NZHC 2857.

13     R v Inia [2015] NZHC 873.

14     Shannon v Police [2015] NZHC 1811 at [34].

15     Ikahihifo v Police [2012] NZHC 3553.

16     Benson v Police [2018] NZHC 296.

starting point of two years for the two commercial burglaries was considered on appeal to be unremarkable.17

(e)Pluim v Police18 a pharmacy was burgled at 4.15 am through a rear door. Drugs including morphine were taken. The appellant later stole copper from a derelict hospital. A starting point of two years taking into account the appellant’s history of burglaries was adopted. On appeal Clifford J considered an 18-month starting point was appropriate and stated “the two burglaries involved were not of domestic premises, although the burglary of the pharmacy does require particular deterrence and denunciation.”19 Mr Westgate submits Clifford J’s remarks illustrate both burglaries were less serious than the burglary of domestic premises.

[17]   Mr Westgate submits residential burglaries are more serious than commercial burglaries. He submits the case law supports a starting point of two years six months’ imprisonment, and that the appropriate sentence was one of 26 months’ imprisonment made up of:

(a)a starting point of 30 months;

(b)uplift of six months (for prior convictions);

(c)discount of 10% (for each of the guilty plea and s 27 cultural considerations)20; and

(d)a further discount of three months (or 8%).

17     Jackson v Police [2019] NZHC 1123 at [12].

18     Pluim v Police, above n 3.

19     At [15](c).

20     Moses v R [2020] NZCA 296.

Respondent’s submissions

[18]   Mr Bernhardt first addresses Mr Westgate’s submissions as to the difference between burglaries of dwelling houses and commercial premises. Mr Bernhardt accepts that burglaries of dwelling houses are particularly serious but submits that fact does not preclude other premises from raising serious matters of aggravation. Mr Bernhardt submits commercial premises such as banks, police stations, courts and pharmacies should attract similar starting points to those of domestic dwellings because there is a high public interest in ensuring the integrity of these buildings. A pharmacy burglary at the serious end of its scale is not comparable to a dwelling house burglary at the minor end.

[19]   Further, Mr Bernhardt submits the fact it was a pharmacy burglary involving entry in the evening or night, the use of a getaway driver, scoping of location, taking a jemmy, opening a safe, the removal of restricted drugs and the value of the items taken of $3,700, warranted a starting point in the vicinity of two years six months.

[20]    Mr Bernhardt did not accept Mr Westgate’s observations regarding Pluim.21 He submits the primary basis for the appellate court’s adjustment in Pluim was the District Court Judge’s mischaracterisation of the appellant as a “recidivist burglar”.22 The Court in Pluim also noted the low value of property taken, and the comparative lack of sophistication.23 Mr Bernhardt submits a sentencing for lower level burglaries ten years apart is not comparable to Mr Lenihan’s charges: two burglaries of pharmacies on the same day, stealing drugs worth thousands of dollars.

[21]   Finally Mr Bernhardt submits that, if a starting point of two years six months were accepted as justified for the second burglary, a starting point of 12 months’ imprisonment would be justified for the initial burglary and therefore the overall starting point of three years six months’ imprisonment adopted by Judge Phillips was in range.

21     Pluim v Police, above n 3, at [14].

22     At [15](a).

23 At [10].

Analysis

[22]   The crux of this appeal is whether the starting point for the two burglary charges of three years six months’ imprisonment was manifestly excessive. Therefore my analysis will consider the appropriate starting point for this offending.

Burglary: absence of a tariff approach

[23]   A sentencing Judge is required by the Court of Appeal’s express observation in Arahanga v R to treat burglary as offending for which there is no tariff decision.24 That said, the Court’s own approach in Arahanga involved a consideration of previous decisions in order to inform an appropriate starting point.25

[24]   Aggravating (and mitigating) features of the gravity of the case come into the assessment in the usual way.26 The Court, in Arahanga, recognised that burglary of a domestic residence is a significant aggravating feature.27

Burglary: relevant factors, including the nature of the premises

[25]   In the several cases to which counsel referred me, and others which I have reviewed, the Courts have considered in relation to the starting point for burglaries a range of factors drawn from earlier cases.

[26]   A very helpful analysis was undertaken by Muir J in Gorgus v Police.28 I respectfully adopt his Honour’s analysis based on a number of the cases most frequently cited in relation to sentencing for burglary, as set out in the following passage of the judgment:29

[34]      There is no tariff decision which governs sentencing for burglary offending. In Senior v Police, which predates the sentencing methodology laid down in Hessell v R30 and R v Taueki,31 the Full Bench of the High Court identified factors which had historically been regarded as aggravating in

24     Arahanga v R, above n 2, at [78].

25     At [80]–[82].

26 At [79].

27 At [78].

28     Gorgus v Police [2015] NZHC 3127.

29     At [34]–[40].

30     Hessell v R [2010] NZSC 135.

31     R v Taueki [2005] 3 NZLR 372 (CA), (2005) 21 CRNZ 769.

burglary offending, including behaviour which involves actual danger of confrontation with occupiers, behaviour which makes a victim feel targeted, wanton destruction of property, theft of high value or sentimental items, sophisticated planning, and offending while on bail, parole, or in close proximity to other burglary charges.32

[35]      In R v Nguyen the Court of Appeal drew on the factors identified in R v Mako33 (the aggravated robbery tariff case) in assessing the seriousness of burglary charges.34 It considered that the factors which were relevant to the criminality of the offending included the degree of planning and sophistication in the offending, the nature of the premises entered, the nature and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries were involved.35

[36]      In Arahanga v R, the Court of Appeal stated that burglary of a domestic residence is a significantly aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.36 The Court also stated that dwelling house burglaries at the relatively minor end of the scale tend to attract starting points of between 18 months’ to two and a half years’ imprisonment.

[37]      The High Court in Senior v Police identified three categories of burglary being: a first time burglar; a recidivist burglar; and a spree burglar. In respect of the recidivist burglar category, the Court found that a typical case may involve an offender with 20 or 30 previous burglary convictions, and who is probably a professional, in the sense that the offender burgles and steals to support a drug addiction.37 Regrettably Mr Gorgus, if not a recidivist burglar within this definition, is well on the way to being one.

[38]      In R v Southon, the Court of Appeal … noted that the categorisation in Senior should not be regarded as more than a helpful analysis of historic sentencing patterns for burglary offending.38

[39]In Blissett v Police Duffy J identified a recent trend toward using the

Taueki approach in sentencing for burglary. She said:39

[30]The appeal of Senior for the sentencing Judge is that it permits the adoption of a starting point that includes an assessment of the character of the burglar. The starting point adopted for a recidivist burglar who while out for a weekend stroll happens to carry out a low level opportunistic burglary (when walking by an unlocked motor vehicle the attraction of taking a camera seen lying on the front passenger’s seat proves irresistible) will, therefore, be different from that applied to a young teenager who yields to similar temptation. In this way, Senior reflects the recognition in Nguyen of the variable circumstances in which burglaries are committed.

32     Senior v Police, above n 10, at [19].

33     R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272.

34     R v Nguyen, above n 10, at [17].

35     At [l7].

36     Arahanga v R, above n 2, at [78].

37     Senior v Police, above n 10, at [30].

38     R v Southon (2003) 20 CRNZ 104 (CA) at [13].

39     Blissett v Police [2013] NZHC 156.

[31]However, since Senior was delivered, there has been a general change in sentencing that has been brought about by the Sentencing Act and the Court of Appeal’s decision in Taueki. The result of this development is that the choice of a starting point is determined by the circumstances of the offending, with the circumstances and characteristics of the offender forming part of any adjustment up or down depending on whether they are seen to be aggravating or mitigating features.

…

[40]      There is a tension therefore between the approach adopted in Senior and the modern sentencing approach, in which the circumstances relating to the offender form the basis of the Court’s analysis when setting the starting point, as opposed to the Court focussing on circumstances relating to the offender’s previous criminal history. The Court of Appeal’s comments in R v Columbus40 are helpful:41

[14]Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8(a) and 9(1)j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police (2000) 18 CRNZ 340 at [27]–[30] (HC).

[15]Sentencing 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. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. 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 persistent offending and the crime itself.

[27]   I have found that narrative discussion of assistance. An alternative approach, which I also have found of assistance, is to put into table form a range of factors identified in the case law divided as between aggravating and more or less neutral. I set these out in Table A.

40     R v Columbus [2008] NZCA 192.

41     Senior v Police, above n 10, at [18] and [34]; Pluim v Police, above n 3, at [14].

Table A

(a)Nature of offending

Planned/Sophisticated

Opportunistic/Basic

Vandalisim/Wontonness

Care in entry/nil damage

High value theft/ loss of sentimental items

Low value theft/ loss of non- sentimental items

Residential premises

Business premises

Actual danger to occupants

No confrontation

High risk of potential harm

–  Residence at night

–  Business during work hours

–  Property stolen eg Class A drugs

Low risk of potential harm

–  Residence at day

–  Business outside work hours

–  Stolen property unlikely to cause harm

Targeted

Random/untargeted

Premises where security is of public importance (eg Police Stations, Parliament)

Premises of no particular security significance

(b)Circumstances of offender

Recidivist offending	First-time offending
Bail offending	Offending while not subject to restrictions
Spree offending	Isolated offending

[28]   Setting out potentially relevant factors in the way I have at Table A serves to emphasise that a binary distinction between burglaries of commercial buildings and those of residential premises is likely to be unhelpful. What the Court of Appeal recognised in Arahanga is the significantly aggravating quality of the burglary of a domestic residence. The case is not authority for the proposition that commercial burglaries are uniformly less serious than those of residential premises. A burglary of residential premises is likely to involve numerous, relevant factors. A proper analysis flows from a consideration of all aggravating (and mitigating) factors relevant to

gravity and not through any presumption arising from one particular feature such as the nature of the premises entered.

Assessment of the gravity of Mr Lenihan’s offending

[29]   To assess the appropriate starting point I must consider the nature of the offending. Mr Lenihan scoped out both pharmacies before he attempted to enter. He spent approximately 20 minutes considering the best way to enter the first pharmacy and took with him a jemmy to carry out the burglary. As Mr Bernhardt notes he also ensured he had a getaway driver. This illustrates significant planning. The covering of the motion sensor at the Mornington Pharmacy reinforces the degree of sophistication.

[30]   Damage was caused at both pharmacies. Mr Lenihan broke a padlock at the first, and in the second burglary he broke through ceilings and walls.

[31]   I consider the fact Mr Lenihan targeted a pharmacy for drugs to be a significant aggravating factor in relation to the starting point. It is not in every case that a dwelling house burglary will be more serious than a burglary of a commercial building. The seriousness is fact-dependent.

[32]   I do not consider the District Court erred in considering in this specific context that, despite the fact the burglary was of a commercial building, it was nevertheless serious. The first burglary occurred in daytime when there could have been pharmacy staff in the shop, and indeed one of the victims was working that weekend in the pharmacy. I accept Mr Bernhardt’s submission that the nature of pharmacies is such as to make burglaries of them very serious. Courts have consistently noted the particular damage posed by burglaries of pharmacies and the need to deter such offending.42 This ought to be reflected in the starting point adopted.

[33]   I recognise that there was no evidence to suggest Mr Lenihan was going to manufacture Class A drugs as was the case in R v Harding.43 But it was open for the

42     Pluim, above n 3, at [15](c).

43     R v Harding HC Napier CRI-2004-41-831, 27 May 2004 affirmed by the Court of Appeal in R v Harding CA289/04, 26 October 2004.

District Court Judge to hold Mr Lenihan was intending to sell the drugs on the open market. In R v Harding, Gendall J noted the damage done where there are multiple burglaries of chemist shops or pharmacy premises to obtain pseudoephedrine-based products.44 The Judge there adopted a starting point for three pharmacy burglaries and a residential property burglary of six years which was confirmed on appeal.

[34]   Mr Lenihan stole $3,700 worth of drugs. The Mornington Pharmacy had to turn away vulnerable people reliant on the drugs that Mr Lenihan had stolen.

[35]   Mr Lenihan is correctly viewed as a recidivist burglar, with repeated convictions for that offence. Those include in 2012 (3), when he was 27 years old, including one involving property over $5,000 in value; 2015 (2, both for drugs); and 2017 (involving property over $5,000). He has in addition many other convictions for offences of dishonesty, including for being in an enclosed yard (2010).

[36]   Taking these factors into account I consider the two cases of most assistance are those of Pluim and Southon.45 I consider the burglary cases canvassed by Mr Westgate are of limited help. Shannon involved the burglary of two commercial buildings from which relatively low value, non-controlled substances were taken.46 A starting point significantly higher than the two and a half year starting point adopted in Jackson is warranted in this case given particularly the greater value of goods taken, the risk of interaction given the premises were retail pharmacy premises and that controlled goods were stolen.47

[37]   I do not consider comparisons with firearms offending add significantly in this case to the analysis of the offending here involving pharmacies and drug theft. There is an almost inevitable outcome in drugs burglaries that the stolen goods will fall into the hands of people with problems of drug use.

44 At [26].

45     Pluim, above n 3; R v Southon, above n 38.

46     Shannon, above n 14.

47     Jackson, above n 17.

[38]   I turn to the case of R v Southon.48 Mr Southon committed an attempted burglary of a pharmacy.49 Whilst on bail for the attempted burglary he burgled commercial premises, used a radio scanner and cut a phone line to prevent detection. He searched for cash, valuables and a video camera, but was apprehended by Police. In Southon the Judge, having regard to Mr Southon’s history of dishonesty convictions and his criminal associations, adopted a starting point of six years’ imprisonment. While the offending is similar, Mr Lenihan does not share a history of the same extent of offending. I take a starting point on both burglary charges having regard to Mr Lenihan’s previous offending history, as indicated is often done in burglary sentencing. Noting his 23 previous dishonesty convictions and six burglary convictions (two for burglary of pharmacies) I consider a starting point of four years six months’ imprisonment would be justified.

[39]    Without having regard to Mr Lenihan’s history of offending a starting point for both burglary offences of three years and six months was within range.

[40]   In Pluim v Police, Mr Pluim was sentenced for two burglary charges which occurred ten years apart (in 2002, and 2012). In 2002 Mr Pluim burgled a pharmacy at 4.15 am. He stole morphine sulphate tablets and pethidine and a safe worth approximately $600. In 2012 Mr Pluim stole $735 worth of copper from a disused hospital. The High Court Judge considered a starting point of 18 months was appropriate for both these offences.

[41]   I consider the offending in Mr Lenihan’s case is significantly more serious than in Pluim. I agree with Mr Bernhardt’s analysis. In Pluim, significant factors were the low value of property taken, the comparative lack of sophistication, the low risk of interaction with members of the public and the gap between the offences.

[42]   The factors I have identified in Mr Lenihan’s case (above at [29]–[35] mean a starting point of significantly more than 18 months is appropriate.

[43]   I consider a starting point of three years six months was within range. The most significant sentencing purpose for recidivist burglars must be deterrence and

48     R v Southon, above n 38.

49     This occurred only a few months after he was released from a sentence of one years’ imprisonment for two previous burglaries.

community protection. In Southon, the Court of Appeal observed “the seriousness of burglary is not to be underrated”.50 The Court considered Senior could not be relied upon to limit recidivist burglars’ sentences to three years’ imprisonment.

[44]I consider the District Court Judge did not err in his starting point.

Adjusted starting point

[45]   Judge Phillips adjusted the starting point  (upwards)  by  four  months  for  Mr Lenihan’s criminal history and two months for his being subject to a sentence when he offended. Mr Westgate responsibly did not challenge these uplifts. There is no doubling up through the four months’ adjustment for criminal history over and above taking into account Mr Lenihan’s recidivist offending. The former recognises (but to a limited extent) Mr Lenihan’s appalling criminal record. The latter recognises that when he offended on this occasion it was as an experienced and repeat offender, making the acts of burglary that much more serious.

Personal mitigating factors

[46]   Mr Westgate challenged neither the 10 per cent discount for Mr Lenihan’s late guilty plea nor the three months’ discount for Mr Lenihan’s progress while in custody. They were appropriate.

End sentence

[47]   I accordingly conclude that the end sentence of three years was appropriately arrived at. Standing back, it cannot be viewed as manifestly excessive.

Order

[48]I dismiss the appeal.

Osborne J

Solicitors:

Crown Solicitor, Dunedin

J A Westgate, Barrister, Dunedin

50     R v Southon, above n 38, at [12].