Mucalo-Connolly v Police

[2021] NZHC 3476

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-441-31

[2021] NZHC 3476

BETWEEN

ETHAN MUCALO-CONNOLLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 December 2021
Appearances:	A McPherson for Appellant A V Bryant for Respondent
Judgment:	15 December 2021

JUDGMENT OF ISAC J

[Sentence appeal]

Introduction

[1]    Mr Mucalo-Connolly appeals a sentence of 16 months’ imprisonment imposed on one charge of unlawfully taking a motor vehicle,1 and a charge of possession of instruments to be used in the conversion of a motor vehicle.2

[2]The grounds of appeal advanced are:

(a)the starting point adopted by the District Court was too high;

(b)the uplift applied for previous convictions was disproportionate; and

(c)the credit for personal mitigating factors was insufficient.

1      Crimes Act 1961, s 226(1) (maximum penalty of seven years’ imprisonment).

2      Section 227 (maximum penalty one year’s imprisonment).

MUCALO-CONNOLLY v NEW ZEALAND POLICE [2021] NZHC 3476 [15 December 2021]

[3]All of this is said to have led to a manifestly excessive sentence.

[4]    Finally, Mr Mucalo-Connolly says he ought to have been admitted to home detention at his mother’s address.

Background

[5]    At 3.07am on 16 September 2021, while New Zealand was at Alert Level 4 and in a nationwide lockdown, Mr Mucalo-Connolly and a companion gained entry into a Mazda Demio motor vehicle by smashing a quarterlight window.

[6]    Once the pair had gained entry, they pushed the vehicle down the road to avoid being heard by its owner while they attempted to start it. Police were notified by a passer-by, and shortly after Police confronted Mr Mucalo-Connolly who was found sitting in the driver’s seat attempting to start the vehicle with the ignition barrel pulled out.

[7]    He was also found in possession of a set of vice grips and a screwdriver, tools generally used by car thieves.

[8]    Caught in the act of stealing the car, the appellant unsurprisingly pleaded guilty to the charges.

District Court sentencing decision

[9]    Having outlined the relevant facts,3 Judge R J Collins noted the appellant’s extensive criminal history for dishonesty, including convictions for burglary and “multiple convictions for theft”.4

[10]   The Judge referred to the decision of this Court in Wood v Police,5 where Downs J observed that a single unlawful taking charge can give rise to a starting point

3      New Zealand Police v Mucalo-Connolly [2021] NZDC 19990 at [2].

4 At [3].

5      Wood v Police [2018] NZHC 1629.

of at least 18 months’ imprisonment “if the offence has a significant aggravating feature or features”.6

[11]The aggravating features of the offending were identified as:

(a)premeditation: the offence occurred at 3.00 am in the morning, in the company of another offender, and while Mr Mucalo-Connolly was in possession of tools to convert cars;7 and

(b)damage to the vehicle. A window was smashed and the ignition barrel pulled out.8

[12]   Taking these matters into account, a starting point of 16 months was settled on.9 An uplift of four months was warranted for the defendant’s extensive, and recent, criminal history.10

[13]   From the adjusted starting point the Judge applied a 20 per cent reduction for the appellant’s guilty plea. This was despite the Judge’s observation that a guilty plea seemed inevitable given the appellant was “caught absolutely red handed.”11 That brought up an end sentence of 16 months’ imprisonment.

[14]   The Judge then  considered  home  detention.  The  address  proffered  was Mr Mucalo-Connolly’s mother’s home. As the Judge noted,12 in June 2021 the appellant committed three offences against his mother and a family friend — threatening to kill and speaking threateningly. The Judge considered that it would be inappropriate for the defendant to serve a sentence of home detention in the home of a recent victim of Mr Mucalo-Connolly’s family violence. While declining to grant home detention, he granted the appellant leave to apply for home detention if a suitable address could be found.

6 At [24].

7      New Zealand Police v Mucalo-Connolly, above n 3, at [11].

8 At [11].

9 At [13].

10 At [13].

11 At [14].

12     At [16]–[17].

[15]   Finally, in November 2021, Judge Matenga13 considered an application to substitute a sentence of home detention at an alternative address. The Judge accepted the recommendation of the Department of Corrections that the address was unsuitable and declined the application. It follows that Mr Mucalo-Connoly has been serving a prison sentence since sentencing on 7 October 2021.

Approach on appeal

[16]   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 be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.14 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.15 It is only appropriate for this Court to intervene and substitute its own view if the sentence being appealed is "manifestly excessive”.16

[17]   The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.17

Discussion

Was the starting point too high?

[18]   For Mr Mucalo-Connolly, Ms McPherson argues that the District Court’s reliance on Wood v Police18 was misplaced. She says that the cases considered in Wood are clearly distinguishable, involving far more serious offending and a raft of charges. To qualify for a starting point of 18 months’ imprisonment or more requires “a significant aggravating feature or features”.19 Ms McPherson says that is simply lacking here. She points to a series of cases where relatively significant aggravating

13     Department of Corrections v Mucalo-Connolly [2021] NZDC 22037.

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

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

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

17 At [15].

18     Woods v Police, above n 5.

19 At [24].

features — mainly in the form of dangerous driving to evade Police — have resulted in starting points between 12 and 18 months.20

[19]   In light of this, the appellant submits that a starting point of no more than    12 months was the very top of the appropriate range.

[20]   For the respondent, Ms Bryant submits there was no error in approach. Here the aggravating features were the degree of premeditation and the damage caused to the vehicle. Wood, and the cases cited in it suggest that a starting point of 16 months’ imprisonment was within range. Moreover, Mr Mucalo-Connolly was for sentence on two charges, not one. A discrete uplift to reflect the charge of possession of instruments was appropriate. No separate uplift was applied by the Judge. Accordingly, the starting point of 16 months’ imprisonment was “generous”.

[21]   There is no sentencing guideline judgment for theft of a motor vehicle. Counsel referred me to several previous decisions of this Court.21 All of them involved more serious offending, and commonly additional serious charges arising from an effort to evade police and arrest, sometimes under the influence of alcohol or drugs. These features are no doubt what led Downs J to observe in Wood that a starting point of at least 18 months’ imprisonment arises where the offence has a significant aggravating feature or features.22 The real question in this case is whether the aggravating features identified by the Judge can be described as “significant”.

[22]   I accept that there was an element of professionalism involved in the offending. It occurred at night and was carried out covertly in order to avoid detection. Two offenders were involved, and the presence of tools to hotwire the car confirm the Judge was correct to conclude that the offending involved premeditation. And, as the Judge

20 O’Sullivan v Police [2015] NZHC 2032 (12 month starting point adopted); Ratahi v Police [2014] NZHC 2394 (18 month starting point adopted); Edwards v Police HC Auckland CRI-2010-404- 103, 11 May 2010 (15 month starting point adopted); De Seymour v Police [2013] NZHC 2232 (12 month starting point adopted).

21     In addition to the decisions at n  20 above, I was also referred to  R v Gurnick CA 286/05,        8 December 2005, and Wood v Police, above n 5.

22 Wood v Police, above n 5, at [24].

noted, there was damage to the vehicle; a quarterlight was broken, and the ignition barrel removed from the dash.23

[23]   While undoubtedly these factors were correctly identified as aggravating, nevertheless I do not consider they are “significant” in the sense used in Wood. It is not unusual for car thieves to commit the offence at night using some form of tool or instrument. In virtually all cases, some damage to the vehicle is likely.

[24]   For these reasons I am satisfied that there was an error of approach. Given starting points of 12 months have been adopted in some cases involving an arguably more serious cluster circumstances, I consider that a starting point of 12 months’ imprisonment was the top of the appropriate range taking into account the totality of the offending, including the separate charge of possession of instruments.

[25]   The question remains whether the identified error resulted in a final sentence that is manifestly excessive, a matter to which I will return later.

Uplift for personal aggravating factors too high?

[26]   While the appellant acknowledges that an uplift to reflect previous convictions was warranted, it is said that a four-month uplift was disproportionate.

[27]   For the respondent, it is argued that the appellant’s lengthy history of offending, and in particular persistent dishonesty offending since 2016, demonstrates the failure of deterrence inherent in the previous sentences and the need for an uplift to reflect the increased need for personal deterrence.

[28]   Although a 25 per cent uplift for previous convictions was a serious response, it was warranted in my view. Mr Mucalo-Connolly is only 22 years old, but has already amassed 39 convictions, of which 21 had been committed since the start of 2019. He was convicted of unlawfully taking a motor vehicle on 31 August 2020, theft from a vehicle the same day, and has other dishonesty convictions for offences

23 It is unclear from the material before the Court what the value of the damage to the vehicle was. While undoubtedly inconvenient, the summary of facts does not suggest that the cost to repair is likely to have been significant.

including burglary. The current offences appear to have been committed while the he was still subject to release conditions for offending committed against his mother committed in June 2021.

[29]   In my view, given the seriousness and frequency of the appellant’s offending, particularly over the last two years, a 25 per cent uplift to reflect personal aggravating factors was not disproportionate. It simply reflects the failure of previous sentences to deter Mr Mucalo-Connolly from serious criminal offending. Subject to an arithmetical correction to reflect the lower starting point I have adopted, I can see no error in the overall 25% uplift adopted by the Judge.

[30]   Given I have found the appropriate starting point was 12 months’ imprisonment, a proportionate uplift for previous convictions would be three months.

Insufficient credit for mitigating factors

[31]   The Judge applied  a 20 per cent discount for the appellant’s guilty plea.     Ms McPherson argues the guilty plea, coming at the first reasonable opportunity, qualified for the full discount recognised by the Supreme Court in Hessell v R.24 Moreover, it is submitted that in addition to his plea, the defendant’s cooperation with police on arrest and remorse were also relevant to the level of credit that ought to have been provided. Overall, it is said that a further 5 to 10 per cent discount to reflect genuine remorse as expressed in the PAC report was required, suggesting a total discount between 30 and 35 per cent from the starting point.

[32]   The respondent submits the discount provided was entirely appropriate in light of the individual circumstances of the case. In particular, the level of discount for the guilty plea reflected that the defendant had been “caught absolutely red handed”, and, accordingly, there was no realistic prospect of any other plea. In relation to remorse, it is said the Judge was entitled to assess the appellant’s remorse in light of his persistent recidivism.

24     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[33]   I consider the discount of 20 per cent was, if anything, generous. The fact the appellant did not resist arrest and was generally cooperative with police is neither a mitigating factor, nor evidence of remorse. Nor can I identify any error on the part of the Judge in his assessment of the discounts to be applied.

[34]   Given the circumstances of the appellant’s arrest, the Court was entitled to consider a credit for plea less than the generally accepted maximum of 25 per cent. That approach is supported by the Supreme Court’s decision in Hessell,25 where the Court said:

Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

[35]   In relation to a discrete credit for remorse, the pre-sentence report briefly noted that a letter of apology was to be tendered to the victim. It was open to the Judge to find this was insufficient to warrant discrete credit for genuine remorse.

Outcome

[36]   For the reasons given, I find that the starting point adopted by the District Court was in error. Given the effect of the reduction in starting point I have adopted, the resulting end point sentence is, in my view, manifestly excessive.

[37]   Applying the approach in Moses,26 the personal mitigating discounts are calculated from the adjusted starting point, without uplifts for personal aggravating

25 At [62].

26     Moses v R [2020] NZCA 246, (2020) 29 CRNZ 381.

factors.27 The appellant’s sentence of 16 months’ imprisonment is therefore quashed. In its place, a sentence of 12 months’ imprisonment is substituted calculated as follows:

(a)I adopt a starting point of 12 months’ imprisonment;

(b)from that a credit of 20 per cent is given to reflect the defendant’s guilty plea, resulting in an adjusted starting point nine months’ imprisonment;

(c)I then apply an uplift of three months to reflect aggravating factors personal to the defendant, namely his relevant previous criminal history;

(d)this leaves an end point sentence of 12 months’ imprisonment.

[38]   The remaining question is whether the defendant should, as he submits, now be admitted to home detention.

Home detention

[39]   While the Judge was open to imposing a sentence of home detention, he found that the proposed address — the appellant’s mother’s home — was not a suitable given she is a recent victim of the appellant’s offending. The Judge noted:28

[16]      Then we get to the really difficult matter as far as today’s sentencing is concerned. Despite the serious offending against your very own mother in July of this year, to her extraordinary credit she continues to give to you the unconditional love of a mother and has said that you could come back into her home and serve a sentence of home detention there. That is her prerogative to offer that. But I have other considerations. That has to be what I consider to be an appropriate address. And quite frankly, Mr Mucalo-Connolly, I am not prepared, given the responsibilities that I have, to put your mother in that position of risk, even if she is prepared to take it herself. In fact, I consider that to impose that sentence on you and compel you to live with her and give her no choice that that is where you have to live once you are there, would be in fact on my part grossly irresponsible.

27     Gray v R [2020] NZCA 548 at [31].

28     New Zealand Police v Mucalo-Connolly, above n 3, at [16] and [17].

[17]      So the address in my view is unsuitable. Not because there is anything unsuitable about your mother, I suspect that she is an extraordinary woman, but it is unsuitable because of the unpredictability that you represent. If there was another suitable address available today then that is what I would have sentenced you to, so for that reason leave will be reserved pursuant to s 801 of the Sentencing Act 2002 that if another suitable address was to become available you can make application and home detention would then be substituted for the sentence of imprisonment.

[40]   Ms McPherson argues that the Judge ought to have admitted Mr Mucalo- Connolly to home detention at his mother’s address as that is the least restrictive outcome available.

[41]   In response, Ms Bryant submits that the Judge’s conclusion that the proposed address was unsuitable was both correct and well-founded. The Department of Corrections did not support the proposed address due to “welfare and safety concerns” for the appellant’s mother. The Department referred to the appellant’s previous convictions for offending against his mother, together with information received from police about the “extensive family harm history”. The summary of facts relating to the offending against the appellant’s mother records that there have been 25 previous episodes.

[42]   There was no error in the Judge’s approach. I agree that it would be inappropriate to grant home detention at the appellant’s mother’s address with all the risk that entails. It is clear that the combination of the volatile home environment combined with the strictures of the sentence, and the risk of drug relapse all indicate an alternative address would be required.

[43]   For these reasons I am satisfied that home detention at the address proposed was not a sentence available to the District Court. I note that leave to apply for home detention was granted, but at the date of hearing the appeal the appellant had not found a suitable alternative address.

Result

[44]   For the foregoing reasons, the appeal is allowed in part, and a sentence of    12 months’ imprisonment is substituted for the sentence of 16 months’. The appeal insofar as it relates to admission to a home detention is dismissed.

[45]   The same standard and special release conditions as imposed by the District Court are to apply for six months following sentence expiry.

Isac J

Solicitors:

Crown Solicitor, Napier for Respondent