Connell-McDowell v Police

[2019] NZHC 3370

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 there was a degree of planning and premeditation in my view …

[7]    The sentencing  Judge  considered  the  submissions,  made  on  behalf  of  Mr Connell-McDowell, for a non-custodial sentence. He rejected those, saying:

[11] … The reality of the situation Mr Connell-McDowell is that you committed two burglaries not one, they were by night and they were of dwelling houses. Plainly you targeted those and you certainly targeted them the next night when you were caught in possession of burglary tools.

[8]Against that background, the Judge adopted:

(a)A starting point for the overall offending of two years and two months’ imprisonment;4

(b)An uplift of three months for the personal aggravating factor of offending while on a sentence of intensive supervision;5

(c)An uplift of four months for previous convictions;6 and

(d)A deduction of 20 per cent for guilty pleas.7

4 At [12].

5      At [12] and [14]. That sentence was imposed at the end of April 2018 for two burglaries, theft from a car, wilful damage, common assault on a taxi driver.

6      At [12] and [14]. Mr Connell-McDowell has “previous convictions for burglary in very recent times, and other dishonesty in very recent times”.

7 At [15].

[9]The Judge imposed the following sentences, to be served concurrently:8

(a)For the first burglary charge, two years and two months’ imprisonment and payment of $2,000 in reparation;

(b)For the second burglary charge, two years and two months’ imprisonment and payment of $500 in reparation; and

(c)For the possession of instruments charge, three months’ imprisonment.

Submissions

[10]   Mr Tomlinson, for Mr Connell-McDowell, submits that there has been an error in the sentence imposed and that a different sentence should have been imposed. In particular, he submits that the starting point of two years and two months was manifestly excessive. He says that a starting point in the range of 15 to 18 months is appropriate in this case. Mr Tomlinson does not dispute the uplifts imposed.

[11]   In the alternative, Mr Tomlinson submits that, if the sentence of imprisonment is upheld, the award of reparation was not appropriate.

[12]   While not a ground of appeal in the notice of appeal, Mr Tomlinson made an oral submission that credit should have been given for remorse. He submitted that “five per cent at most” would be appropriate.

[13]   In reply, the Crown submits that the end sentence of two years and two months’ imprisonment was at the high end of, but nevertheless within, the available range. This is so having regard to the fact that the offending involved two burglaries of residential homes (albeit that the victims were not at home at the time), a third charge of returning to the property the next day with burglary instruments, the victims’ loss of items of financial and sentimental value, Mr Connell-McDowell’s criminal record and the fact that the offending took place whilst he was subject to a sentence of intensive supervision.

8 At [16].

Approach to appeals against sentence

[14]   Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow the appeal if it is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.

[15]   In determining whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.9 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.10 The focus is on the end result rather than the process by which the sentence was reached.11

Discussion

Setting the starting point in burglary cases

[16]   There is no guideline decision for burglary offending. As noted by this Court, choosing a starting point for a burglary sentence is perplexing.12 And the Court of Appeal has specifically declined to provide sentencing tariffs for this offending.13 The range of circumstances in which a burglary can be committed are too varied — it can range from “well planned and executed heists of valuable property to the opportunistic taking of a low value item by entry through an open window or unlocked door”.14

[17]   In Senior v Police, the Full Court of the High Court identified three categories of burglars: the first-time burglar, recidivist burglar and spree burglar.15 However, in R v Southon, it was noted that the analysis of sentencing patterns provided in Senior should not be regarded as providing indicative sentencing levels for the different categories of burglars.16 Senior appears to imply that the starting point should be fixed by reference not only to the current offence but also to the offender’s previous history.17 However, this is contrary to the usual methodology for fixing a starting

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

10     At [30]–[35]; and Te Aho v R [2013] NZCA 47 at [10].

11     Tutakangahau v R, above n 9, at [36].

12     Blissett v Police [2013] NZHC 156 at [27].

13     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

14     Blissett v Police, above n 12, at [27].

15     Senior v Police (2000) 18 CRNZ 340 (HC) at [25], [27] and [38].

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

17     Simon France (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SAC10.01].

point, which is to determine the sentence appropriate for the offending, prior to considering aggravating and mitigating factors relevant to the offender. Thus, as the Court of Appeal noted, in sentencing for burglary, as for other offences, the circumstances of the offending predominate when fixing the starting point.18

[18]   In assessing the criminality of the particular offending, relevant considerations include:19

(a)the degree of planning and sophistication;

(b)the nature of the premises entered;

(c)the kind and value of property stolen;

(d)damage done;

(e)the impact and potential impact upon occupants or owners of the property entered; and

(f)the extent of the offending, where multiple burglaries are involved.

Was the sentence manifestly excessive?

[19]   As noted, Mr Tomlinson only disputes the starting point, not the uplifts. He submits that a starting point in the range of 15 to 18 months was appropriate, and the starting point of two years and two months was therefore manifestly excessive.

[20]Mr Tomlinson cites a number of, what he says are, comparable cases:

(a)Luke v Police: That case involved two burglaries, receiving and possession of cannabis.20 This Court considered the fact that there was no destruction of property, lack of danger to occupiers and lack of

18     R v Columbus [2008] NZCA 192 at [14].

19     R v Nguyen CA110/01, 2 July 2001 at [17]; and Luke v Police [2013] NZHC 3175 at [13]–[14].

20     Luke v Police, above n 19.

sophistication in planning. Having referred to a number of comparable cases, the court adopted a starting point of 15 months’ imprisonment.21

(b)Tafengatoto v Police: That case involved burglary of a residence by pulling out slats in a secure window.22 The occupant was asleep in the bedroom. The appellant searched the residence and stole $12,500 worth of property. He had 23 historic convictions for burglary. There, this Court adopted a starting point of two years’ imprisonment.

(c)Bates v R: That case involved a single unpremeditated burglary, involving the taking of an iPhone and $15,000 worth of jewellery (the latter of which was never recovered).23 A starting point of 18 months’ imprisonment was fixed.24 The Court of Appeal did not disturb the starting point but quashed the sentence of imprisonment and substituted it with a sentence of home detention.

[21]   In reply, the Crown submits that the starting point, and consequently the end sentence, were within the appropriate range. In particular, the Crown notes the following aggravating factors relating to the offending:

(a)Residential premises: domestic burglary is regarded as a serious offence.25 It may involve considerable loss to the victim. The loss of material possessions is only part of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their homes.

The Crown submits that whilst there was minimal risk of confrontation given that the premises were unoccupied being under renovation, the offending nevertheless undermined the victim’s sense of privacy and security of their homes. In his victim impact statement, one of the

21     At [10], [11] and [17].

22     Tafengatoto v Police [2018] NZHC 2452.

23     Bates v R [2016] NZCA 456.

24 At [9].

25     R v Brewster [1998] 1 CR App R 20 as cited in Senior v Police, above n 15, at [18].

victims states that the incident has made him second guess whether he has locked his doors and has made him think someone is breaking in when he hears noises.

(b)Loss of items of significant financial and sentimental value: the items taken from the first unit entered included a Casio watch valued at approximately $2,000, a Breville coffee machine and items of jewellery. The coffee machine and some of the jewellery have been returned.26 The watch remains missing. The watch is close to 70 years old and has sentimental value to the victim in that it was passed down to him from his grandfather.

The items from the second unit entered included historical military figurines, spray cans and medals. Some of the property has been returned. But in the victim impact statement it is said that two boxes have not been returned. One contained personal papers including old school prizes and awards of high sentimental value; the other contained lead miniature figures worth approximately $500.

(c)The extent of offending: two properties were targeted on more than one night. The Crown submits that the offending must be considered globally. The appellant gained entry into, and stole property from, two units. The next day, he returned to the same address in possession of instruments for burglary, thus aggravating the offending.

[22]   As to mitigating factors of the offending, the Crown submits that any lack of premeditation is not a mitigating factor. And, in any event, it is counter-balanced by the continuation of the offending by entering a second unit and the fact that the appellant returned to the address the next day with burglary instruments.

[23]   In Arahanga v R, the Court of Appeal indicated that starting points between 18 and 30 months were appropriate for relatively unsophisticated burglaries of

26     The appellant provided the items mentioned in [21](b)] above to Mr Tomlinson. Arrangements are underway for the Police to collect those items.

residential properties, described as “dwelling house burglaries at the relatively minor end of the scale”.27 More recently, in Nelson v Police, this Court, following a review of a significant number of cases involving burglaries of a dwellinghouse, found that starting points of less than 18 months were common.28 It then suggested that a more realistic range might be between one year and two-and-a-half years.

[24]   Like the appellant, the Crown also cites a number of cases.29 However, those cases all involve multiple offenders. Of those cases, I find Taylor v Police to be of assistance. That case involved three offenders burgling three dwelling houses on the same day, each involving forced entry (and damage to the door) and relatively minor thefts, with a total property taken being around $4,000.30 The instant case is, in my view, less serious: there was only one offender, a lesser risk of occupants being present and no damage to property. A starting point of two years and nine months was considered appropriate in Taylor v Police. In doing so, Simon France J noted that “burglaries of houses in quick succession in reasonably isolated areas require a stern response”.31

[25]    Having regard to the above, in my view, the starting point is at the higher end, but is not outside of the appropriate range, when viewing the offending holistically.

[26]   Next, I turn to whether some recognition should have been given for remorse. As noted, Mr Tomlinson’s oral submission was that any credit would be five per cent at the most. I accept that the Mr Connell-McDowell’s act of returning some of the property might have warranted some recognition. However, not all of it was returned. At the most, an allowance of one month would have been appropriate. That is approximately five per cent rounded down in Mr Connell-McDowell’s favour. When such a discount is deducted (doing so before the 20 per cent deduction for a guilty plea) that would bring the end sentence to one of two years and one month’s imprisonment, as opposed to the two years and two months imposed.

27 Arahanga v R, above n 13, at [78].

28     Nelson v Police [2019] NZHC 2434 at [28]–[33].

29 Arahanga v R, above n 13 (four years’ starting point); Skipper v R [2011] NZCA 250 (four years and six months’ starting point); and Taylor v Police HC Whangarei CRI-2006-488-37, 29 August 2006 (two years and nine months’ starting point).

30 Taylor v Police, above n 29, at [1]–[3].

31 At [28].

[27]   To allow the appeal in those circumstances would be tinkering. The Court will rarely allow appeals on the basis of small deductions absent unusual circumstances. There are none here. There being no issue as to the uplifts and having determined that the starting point adopted was an available starting point, the end sentence was within range and not manifestly excessive.

[28]It follows that the question of home detention does not arise.

Was the award of reparation appropriate?

[29]   I now turn to Mr Tomlinson’s second main submission, namely, that the award of reparation was not appropriate.

[30]Reparation is provided for in s 12 of the Sentencing Act 2002:

12       Reparation

(1)If a court is lawfully entitled under Part 2 to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.

…

(2)A sentence of reparation may be imposed, in relation to any particular offence, on its own or in addition to any other sentence.

(3)If a court does not impose a sentence or order of reparation in a case where it is lawfully entitled to do so, it must give reasons for not doing so.

(4)In this section, order  of  reparation  means  an  order  under section 106(3)(b), 108(2)(b), or 110(3)(b).

[31]   Mr Tomlinson submits that, at the time of sentencing, Mr Connell-McDowell was only doing part time work for the owner of the lodge where he was living. He was doing maintenance work. If granted an electronically monitored sentence, he could have maintained that employment. However, given that he has been sentenced to imprisonment, Mr Tomlinson submits that ordering reparation was inappropriate as it cannot be said that employment is waiting for Mr Connell-McDowell on release.

[32]   Mr Tomlinson relies on the fact that some items have, in fact, been recovered. However, the amount of reparation reflects only the items not recovered.

[33]   For the reasons he advances, Mr Tomlinson submits that ordering reparation would cause Mr Connell-McDowell undue hardship. Mr Tomlinson also refers to the fact that the sentencing Judge ordered reparation without a reparation report. However, the Court has a discretion to proceed in the absence of such a report.32 In any event, Mr Tomlinson did not oppose some reparation being ordered in the event Mr Connell-McDowell received a sentence short of imprisonment.

[34]   The word “undue” in s 12 indicates that something more than the ordinary concept of hardship is intended, such as excessive hardship or hardship greater than the circumstances warrant.33 But the fact that a sentence of reparation is imposed on an offender who is also sentenced to imprisonment is not, in itself, “undue hardship”.34

[35]   There is no evidence of undue hardship or special circumstances before this Court that would justify a departure from the requirement to order reparation.

Result

[36]The appeal is dismissed.

Gordon J

32     Sentencing Act 2002, s 33(2).

33     Hunt v Police HC Wellington AP232/99, 29 September 1999. See also Simon France (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA12.02].

34     Stewart v R [2018] NZCA 375 at [11].