CONNELL-McDOWELL v POLICE [2019] NZHC 3370

CONNELL-McDOWELL v POLICE [2019] NZHC 3370 [17 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-474[2019] NZHC 3370BETWEEN EMELYN CONNELL-McDOWELLAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2019Appearances: P Tomlinson for the AppellantD Taylor for the RespondentJudgment: 18 December 2019JUDGMENT OF GORDON JThis judgment was delivered by meon 18 December 2019 at 12.30 pmRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandCounsel: P Tomlinson, AucklandIntroduction[1] The appellant, Emelyn Connell-McDowell, was sentenced to two years andtwo months' imprisonment, together with reparation, on two counts of burglary1 anda single count of possession of instruments for burglary.2 He now appeals against thatsentence 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-McDowellwent to an apartment complex in Hepburn Street, Freemans Bay, Auckland. Heentered 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. Heuplifted a Breville coffee machine and a significant amount of jewellery from that unitand left. He then entered a second unit. From there, he uplifted historical militaryfigurines, spray cans and medals, and left.[4] The next day, on 14 July 2019, at around 4.40 am, Mr Connell-McDowellreturned to the property. He looked into the building by poking his head through ahole 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 boltcutters, 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 AucklandDistrict Court.3[6] The sentencing Judge first outlined the background facts, as I have done. TheJudge 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 himto consume alcohol with a friend. He said that he was then biking home when henoticed a hole in the fence, which he used to go inside. The sentencing Judge rejectedthat explanation, saying:[7] In my view you are entirely failing to take responsibility for theburglaries of two separate flats on that night. The reality is you tooled up thenext night and went back with burglary tools.[10] I find your explanation quite implausible that you simply got drunkand went and burgled these properties. The lie to that is given by the fact thatas 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 ofMr Connell-McDowell, for a non-custodial sentence. He rejected those, saying:[11] The reality of the situation Mr Connell-McDowell is that youcommitted two burglaries not one, they were by night and they were ofdwelling houses. Plainly you targeted those and you certainly targeted themthe 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 ofoffending 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.74 At [12].5 At [12] and [14]. That sentence was imposed at the end of April 2018 for two burglaries, theftfrom 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 recenttimes, 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' imprisonmentand 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 errorin the sentence imposed and that a different sentence should have been imposed. Inparticular, he submits that the starting point of two years and two months wasmanifestly excessive. He says that a starting point in the range of 15 to 18 months isappropriate in this case. Mr Tomlinson does not dispute the uplifts imposed.[11] In the alternative, Mr Tomlinson submits that, if the sentence of imprisonmentis upheld, the award of reparation was not appropriate.[12] While not a ground of appeal in the notice of appeal, Mr Tomlinson made anoral 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. Thisis so having regard to the fact that the offending involved two burglaries of residentialhomes (albeit that the victims were not at home at the time), a third charge of returningto the property the next day with burglary instruments, the victims' loss of items offinancial and sentimental value, Mr Connell-McDowell's criminal record and the factthat the offending took place whilst he was subject to a sentence of intensivesupervision.8 At [16].Approach to appeals against sentence[14] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow theappeal if it is satisfied that there is an error in the sentence imposed on conviction andthat a different sentence should be imposed.[15] In determining whether to impose a different sentence, the Court does notsimply substitute its own view for that of the original sentencing Judge.9 Rather, itmust be shown that the sentence is manifestly excessive or wrong in principle.10 Thefocus is on the end result rather than the process by which the sentence was reached.11DiscussionSetting 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 ofAppeal has specifically declined to provide sentencing tariffs for this offending.13 Therange of circumstances in which a burglary can be committed are too varied — it canrange from "well planned and executed heists of valuable property to the opportunistictaking 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 categoriesof burglars: the first-time burglar, recidivist burglar and spree burglar.15 However, inR v Southon, it was noted that the analysis of sentencing patterns provided in Seniorshould not be regarded as providing indicative sentencing levels for the differentcategories of burglars.16 Senior appears to imply that the starting point should be fixedby reference not only to the current offence but also to the offender's previoushistory.17 However, this is contrary to the usual methodology for fixing a starting9 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 toconsidering aggravating and mitigating factors relevant to the offender. Thus, as theCourt of Appeal noted, in sentencing for burglary, as for other offences, thecircumstances of the offending predominate when fixing the starting point.18[18] In assessing the criminality of the particular offending, relevant considerationsinclude: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 theproperty 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. Hesubmits that a starting point in the range of 15 to 18 months was appropriate, and thestarting 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 andpossession of cannabis.20 This Court considered the fact that there wasno destruction of property, lack of danger to occupiers and lack of18 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 comparablecases, the court adopted a starting point of 15 months' imprisonment.21(b) Tafengatoto v Police: That case involved burglary of a residence bypulling out slats in a secure window.22 The occupant was asleep in thebedroom. The appellant searched the residence and stole $12,500worth 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 (thelatter of which was never recovered).23 A starting point of 18 months'imprisonment was fixed.24 The Court of Appeal did not disturb thestarting point but quashed the sentence of imprisonment and substitutedit with a sentence of home detention.[21] In reply, the Crown submits that the starting point, and consequently the endsentence, were within the appropriate range. In particular, the Crown notes thefollowing aggravating factors relating to the offending:(a) Residential premises: domestic burglary is regarded as a seriousoffence.25 It may involve considerable loss to the victim. The loss ofmaterial possessions is only part of the reason why domestic burglaryis a serious offence. Most people, perfectly legitimately, attachimportance to the privacy and security of their homes.The Crown submits that whilst there was minimal risk of confrontationgiven that the premises were unoccupied being under renovation, theoffending nevertheless undermined the victim's sense of privacy andsecurity of their homes. In his victim impact statement, one of the21 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 hehas locked his doors and has made him think someone is breaking inwhen he hears noises.(b) Loss of items of significant financial and sentimental value: the itemstaken from the first unit entered included a Casio watch valued atapproximately $2,000, a Breville coffee machine and items ofjewellery. The coffee machine and some of the jewellery have beenreturned.26 The watch remains missing. The watch is close to 70 yearsold and has sentimental value to the victim in that it was passed downto him from his grandfather.The items from the second unit entered included historical militaryfigurines, spray cans and medals. Some of the property has beenreturned. But in the victim impact statement it is said that two boxeshave not been returned. One contained personal papers including oldschool prizes and awards of high sentimental value; the other containedlead miniature figures worth approximately $500.(c) The extent of offending: two properties were targeted on more than onenight. The Crown submits that the offending must be consideredglobally. The appellant gained entry into, and stole property from, twounits. The next day, he returned to the same address in possession ofinstruments for burglary, thus aggravating the offending.[22] As to mitigating factors of the offending, the Crown submits that any lack ofpremeditation is not a mitigating factor. And, in any event, it is counter-balanced bythe continuation of the offending by entering a second unit and the fact that theappellant returned to the address the next day with burglary instruments.[23] In Arahanga v R, the Court of Appeal indicated that starting points between18 and 30 months were appropriate for relatively unsophisticated burglaries of26 The appellant provided the items mentioned in [21](b)] above to Mr Tomlinson. Arrangementsare underway for the Police to collect those items.residential properties, described as "dwelling house burglaries at the relatively minorend of the scale".27 More recently, in Nelson v Police, this Court, following a reviewof a significant number of cases involving burglaries of a dwellinghouse, found thatstarting points of less than 18 months were common.28 It then suggested that a morerealistic 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, thosecases all involve multiple offenders. Of those cases, I find Taylor v Police to be ofassistance. That case involved three offenders burgling three dwelling houses on thesame day, each involving forced entry (and damage to the door) and relatively minorthefts, with a total property taken being around $4,000.30 The instant case is, in myview, less serious: there was only one offender, a lesser risk of occupants being presentand no damage to property. A starting point of two years and nine months wasconsidered 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 sternresponse".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 centat the most. I accept that the Mr Connell-McDowell's act of returning some of theproperty 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 isapproximately five per cent rounded down in Mr Connell-McDowell's favour. Whensuch a discount is deducted (doing so before the 20 per cent deduction for a guiltyplea) that would bring the end sentence to one of two years and one month'simprisonment, 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 yearsand six months' starting point); and Taylor v Police HC Whangarei CRI-2006-488-37, 29 August2006 (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 willrarely 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 thatthe starting point adopted was an available starting point, the end sentence was withinrange 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 awardof 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 ororder of reparation, it must impose it unless it is satisfied that thesentence or order would result in undue hardship for the offender orthe dependants of the offender, or that any other special circumstanceswould make it inappropriate.(2) A sentence of reparation may be imposed, in relation to any particularoffence, 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 casewhere it is lawfully entitled to do so, it must give reasons for not doingso.(4) In this section, order of reparation means an order undersection 106(3)(b), 108(2)(b), or 110(3)(b).[31] Mr Tomlinson submits that, at the time of sentencing, Mr Connell-McDowellwas only doing part time work for the owner of the lodge where he was living. Hewas doing maintenance work. If granted an electronically monitored sentence, hecould have maintained that employment. However, given that he has been sentencedto imprisonment, Mr Tomlinson submits that ordering reparation was inappropriate asit 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 reparationwould cause Mr Connell-McDowell undue hardship. Mr Tomlinson also refers to thefact 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 Inany event, Mr Tomlinson did not oppose some reparation being ordered in the eventMr Connell-McDowell received a sentence short of imprisonment.[34] The word "undue" in s 12 indicates that something more than the ordinaryconcept of hardship is intended, such as excessive hardship or hardship greater thanthe circumstances warrant.33 But the fact that a sentence of reparation is imposed onan 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 thisCourt that would justify a departure from the requirement to order reparation.Result[36] The appeal is dismissed.___________________________________Gordon J32 Sentencing Act 2002, s 33(2).33 Hunt v Police HC Wellington AP232/99, 29 September 1999. See also Simon France (ed) Adamson Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA12.02].34 Stewart v R [2018] NZCA 375 at [11].