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Lenihan v R

Lenihan v R

Case [2020] NZHC 2543 29 September 2020

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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

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 Lenihan v R

Details

AGLC: Lenihan v R [2020] NZHC 2543
Case: [2020] NZHC 2543
Decision Date: 29 September 2020

CaseChat Overview and Summary

Colm Francis Lenihan appeals his sentence of three years' imprisonment for two charges of burglary, arguing that the starting point of three years six months' imprisonment was too high and resulted in an end sentence which was manifestly excessive. The District Court considered Mr Lenihan as the leader in the burglaries, rejected his claim that the drugs were held for his associate, and rejected the submission that commercial burglaries are less serious than residential burglaries. The District Court adopted a starting point of three years six months' imprisonment, which it adjusted upwards for Mr Lenihan's criminal history and downwards for his late guilty plea and progress while in custody. The High Court found that the District Court's starting point was within range and that the end sentence of three years was appropriately arrived at. It dismissed the appeal.

Orders