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Connell-McDowell v Police

Connell-McDowell v Police

Case [2019] NZHC 3370 18 December 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-474

[2019] NZHC 3370

BETWEEN
EMELYN CONNELL-McDOWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 December 2019

Appearances:

P Tomlinson for the Appellant D Taylor for the Respondent

Judgment:

18 December 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 18 December 2019 at 12.30 pm

Registrar/Deputy Registrar Date:

Solicitors: Crown Solicitor, Auckland Counsel: P Tomlinson, Auckland

CONNELL-McDOWELL v POLICE [2019] NZHC 3370 [17 December 2019]

Introduction

[1] The appellant, Emelyn Connell-McDowell, was sentenced to two years and two months’ imprisonment, together with reparation, on two counts of burglary1 and a single count of possession of instruments for burglary.2 He now appeals against that sentence on the basis that the starting point adopted was manifestly excessive.

Factual background

[2] On Saturday, 13 July 2019, between 2 am and 7 am, Mr Connell-McDowell went to an apartment complex in Hepburn Street, Freemans Bay, Auckland. He entered the property through the fence from the eastern side bordering Western Park.

[3] Mr Connell-McDowell gained entry to a unit in the apartment complex. He uplifted a Breville coffee machine and a significant amount of jewellery from that unit and left. He then entered a second unit. From there, he uplifted historical military figurines, spray cans and medals, and left.

[4] The next day, on 14 July 2019, at around 4.40 am, Mr Connell-McDowell returned to the property. He looked into the building by poking his head through a hole in the wall. He left the address shortly after and was located by nearby police. The Police found tools capable of being used for burglary in his bag, including bolt cutters, a push bar, flat-head screwdrivers and a camouflage balaclava.

District Court decision

[5] On 6 November 2019, Mr Connell-McDowell was sentenced in the Auckland District Court.3

[6] The sentencing Judge first outlined the background facts, as I have done. The Judge then considered the pre-sentence report. That report recorded that Mr Connell-

1      Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.
2      Section 233(1)(a). Maximum penalty of three years’ imprisonment.
3      Police v Connell-McDowell [2019] NZDC 22361.

McDowell explained that that night he had argued with his partner which caused him to consume alcohol with a friend. He said that he was then biking home when he noticed a hole in the fence, which he used to go inside. The sentencing Judge rejected that explanation, saying:

[7] … In my view you are entirely failing to take responsibility for the burglaries of two separate flats on that night. The reality is you tooled up the next night and went back with burglary tools.

…

[10] I find your explanation quite implausible that you simply got drunk and went and burgled these properties. The lie to that is given by the fact that as I have now said twice, [you] tooled up the next night and went back.

…

[12] So…

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 Connell-McDowell v Police

Details

AGLC: Connell-McDowell v Police [2019] NZHC 3370
Case: [2019] NZHC 3370
Decision Date: 18 December 2019

CaseChat Overview and Summary

Emelyn Connell-McDowell appeals against his sentence for two counts of burglary and possession of instruments for burglary. The appellant was sentenced to two years and two months’ imprisonment, with a deduction for a guilty plea, and reparation orders. The appellant submits that the starting point of two years and two months was manifestly excessive and that the reparation orders were inappropriate. The Crown submits that the sentence was within the appropriate range and that the reparation orders were appropriate.

The court considered the nature of the offending, including the seriousness of the burglaries, the impact on the victims, and the appellant’s criminal history. The court found that the starting point, while at the higher end, was within the appropriate range. The court also found that the reparation orders were appropriate, as there was no evidence of undue hardship or special circumstances that would justify a departure from the requirement to order reparation.

The appeal is dismissed.

Orders