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

MUCALO-CONNOLLY v NEW ZEALAND POLICE [2021] NZHC 3476 [15 December 2021]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-441-31[2021] NZHC 3476BETWEEN ETHAN MUCALO-CONNOLLYAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2021Appearances: A McPherson for AppellantA V Bryant for RespondentJudgment: 15 December 2021JUDGMENT OF ISAC J[Sentence appeal]Introduction[1] Mr Mucalo-Connolly appeals a sentence of 16 months' imprisonment imposedon one charge of unlawfully taking a motor vehicle,1 and a charge of possession ofinstruments 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).[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 homedetention at his mother's address.Background[5] At 3.07am on 16 September 2021, while New Zealand was at Alert Level 4and in a nationwide lockdown, Mr Mucalo-Connolly and a companion gained entryinto 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 avoidbeing heard by its owner while they attempted to start it. Police were notified by apasser-by, and shortly after Police confronted Mr Mucalo-Connolly who was foundsitting in the driver's seat attempting to start the vehicle with the ignition barrel pulledout.[7] He was also found in possession of a set of vice grips and a screwdriver, toolsgenerally used by car thieves.[8] Caught in the act of stealing the car, the appellant unsurprisingly pleaded guiltyto the charges.District Court sentencing decision[9] Having outlined the relevant facts,3 Judge R J Collins noted the appellant'sextensive 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 whereDowns J observed that a single unlawful taking charge can give rise to a starting point3 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 aggravatingfeature 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 thecompany of another offender, and while Mr Mucalo-Connolly was inpossession of tools to convert cars;7 and(b) damage to the vehicle. A window was smashed and the ignition barrelpulled out.8[12] Taking these matters into account, a starting point of 16 months was settledon.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 forthe appellant's guilty plea. This was despite the Judge's observation that a guilty pleaseemed inevitable given the appellant was "caught absolutely red handed."11 Thatbrought up an end sentence of 16 months' imprisonment.[14] The Judge then considered home detention. The address proffered wasMr Mucalo-Connolly's mother's home. As the Judge noted,12 in June 2021 theappellant committed three offences against his mother and a family friend —threatening to kill and speaking threateningly. The Judge considered that it would beinappropriate for the defendant to serve a sentence of home detention in the home ofa recent victim of Mr Mucalo-Connolly's family violence. While declining to granthome detention, he granted the appellant leave to apply for home detention if a suitableaddress 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 tosubstitute a sentence of home detention at an alternative address. The Judge acceptedthe recommendation of the Department of Corrections that the address was unsuitableand declined the application. It follows that Mr Mucalo-Connoly has been serving aprison sentence since sentencing on 7 October 2021.Approach on appeal[16] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldhave been imposed.14 A court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles.15 It is only appropriatefor this Court to intervene and substitute its own view if the sentence being appealedis "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.17DiscussionWas the starting point too high?[18] For Mr Mucalo-Connolly, Ms McPherson argues that the District Court'sreliance on Wood v Police18 was misplaced. She says that the cases considered in Woodare 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 "asignificant aggravating feature or features".19 Ms McPherson says that is simplylacking here. She points to a series of cases where relatively significant aggravating13 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 resultedin starting points between 12 and 18 months.20[19] In light of this, the appellant submits that a starting point of no more than12 months was the very top of the appropriate range.[20] For the respondent, Ms Bryant submits there was no error in approach. Herethe aggravating features were the degree of premeditation and the damage caused tothe 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 ontwo charges, not one. A discrete uplift to reflect the charge of possession of instrumentswas appropriate. No separate uplift was applied by the Judge. Accordingly, the startingpoint of 16 months' imprisonment was "generous".[21] There is no sentencing guideline judgment for theft of a motor vehicle. Counselreferred me to several previous decisions of this Court.21 All of them involved moreserious offending, and commonly additional serious charges arising from an effort toevade police and arrest, sometimes under the influence of alcohol or drugs. Thesefeatures are no doubt what led Downs J to observe in Wood that a starting point of atleast 18 months' imprisonment arises where the offence has a significant aggravatingfeature or features.22 The real question in this case is whether the aggravating featuresidentified 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. Twooffenders were involved, and the presence of tools to hotwire the car confirm the Judgewas correct to conclude that the offending involved premeditation. And, as the Judge20 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 ignitionbarrel 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 isnot unusual for car thieves to commit the offence at night using some form of tool orinstrument. 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. Givenstarting points of 12 months have been adopted in some cases involving an arguablymore 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 ofthe offending, including the separate charge of possession of instruments.[25] The question remains whether the identified error resulted in a final sentencethat 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 convictionswas warranted, it is said that a four-month uplift was disproportionate.[27] For the respondent, it is argued that the appellant's lengthy history ofoffending, and in particular persistent dishonesty offending since 2016, demonstratesthe failure of deterrence inherent in the previous sentences and the need for an upliftto 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 hasalready amassed 39 convictions, of which 21 had been committed since the start of2019. He was convicted of unlawfully taking a motor vehicle on 31 August 2020, theftfrom a vehicle the same day, and has other dishonesty convictions for offences23 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 islikely to have been significant.including burglary. The current offences appear to have been committed while the hewas still subject to release conditions for offending committed against his mothercommitted 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 aggravatingfactors was not disproportionate. It simply reflects the failure of previous sentences todeter Mr Mucalo-Connolly from serious criminal offending. Subject to an arithmeticalcorrection to reflect the lower starting point I have adopted, I can see no error in theoverall 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.24Moreover, it is submitted that in addition to his plea, the defendant's cooperation withpolice on arrest and remorse were also relevant to the level of credit that ought to havebeen provided. Overall, it is said that a further 5 to 10 per cent discount to reflectgenuine remorse as expressed in the PAC report was required, suggesting a totaldiscount between 30 and 35 per cent from the starting point.[32] The respondent submits the discount provided was entirely appropriate in lightof the individual circumstances of the case. In particular, the level of discount for theguilty 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 hispersistent 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 theappellant did not resist arrest and was generally cooperative with police is neither amitigating factor, nor evidence of remorse. Nor can I identify any error on the part ofthe Judge in his assessment of the discounts to be applied.[34] Given the circumstances of the appellant's arrest, the Court was entitled toconsider 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 theCourt said:Guilty pleas are often the result of understandings reached by accusedand prosecutors on the charges faced and facts admitted. To give thesame percentage credit invariably for an early guilty plea in sentencingwithout regard to the circumstances can amount to giving a doublebenefit. For example if the Crown agrees to accept a plea tomanslaughter and drops a charge of murder in relation to offending, theacceptance of the plea can be a concession in itself. If the full credit foran early plea is then also given, the sentence may not properly reflectthe offending. The only way in which the many variable circumstancesof individual cases which are relevant to a guilty plea can properly beidentified is by requiring their evaluation by the sentencing judge, andallowing that judge scope in light of the conclusion he or she reaches togive the most appropriate recognition of the guilty plea in fixing thesentence.[35] In relation to a discrete credit for remorse, the pre-sentence report briefly notedthat a letter of apology was to be tendered to the victim. It was open to the Judge tofind 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 Courtwas in error. Given the effect of the reduction in starting point I have adopted, theresulting end point sentence is, in my view, manifestly excessive.[37] Applying the approach in Moses,26 the personal mitigating discounts arecalculated from the adjusted starting point, without uplifts for personal aggravating25 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 asfollows:(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 guiltyplea, resulting in an adjusted starting point nine months' imprisonment;(c) I then apply an uplift of three months to reflect aggravating factorspersonal to the defendant, namely his relevant previous criminalhistory;(d) this leaves an end point sentence of 12 months' imprisonment.[38] The remaining question is whether the defendant should, as he submits, nowbe admitted to home detention.Home detention[39] While the Judge was open to imposing a sentence of home detention, he foundthat the proposed address — the appellant's mother's home — was not a suitable givenshe 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 sentencingis concerned. Despite the serious offending against your very own mother inJuly of this year, to her extraordinary credit she continues to give to you theunconditional love of a mother and has said that you could come back into herhome and serve a sentence of home detention there. That is her prerogative tooffer that. But I have other considerations. That has to be what I consider tobe an appropriate address. And quite frankly, Mr Mucalo-Connolly, I am notprepared, given the responsibilities that I have, to put your mother in thatposition of risk, even if she is prepared to take it herself. In fact, I considerthat to impose that sentence on you and compel you to live with her and giveher no choice that that is where you have to live once you are there, would bein 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 anythingunsuitable about your mother, I suspect that she is an extraordinary woman,but it is unsuitable because of the unpredictability that you represent. If therewas another suitable address available today then that is what I would havesentenced you to, so for that reason leave will be reserved pursuant to s 801of the Sentencing Act 2002 that if another suitable address was to becomeavailable you can make application and home detention would then besubstituted 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 restrictiveoutcome available.[41] In response, Ms Bryant submits that the Judge's conclusion that the proposedaddress was unsuitable was both correct and well-founded. The Department ofCorrections did not support the proposed address due to "welfare and safety concerns"for the appellant's mother. The Department referred to the appellant's previousconvictions for offending against his mother, together with information received frompolice about the "extensive family harm history". The summary of facts relating to theoffending against the appellant's mother records that there have been 25 previousepisodes.[42] There was no error in the Judge's approach. I agree that it would beinappropriate to grant home detention at the appellant's mother's address with all therisk that entails. It is clear that the combination of the volatile home environmentcombined with the strictures of the sentence, and the risk of drug relapse all indicatean alternative address would be required.[43] For these reasons I am satisfied that home detention at the address proposedwas not a sentence available to the District Court. I note that leave to apply for homedetention was granted, but at the date of hearing the appeal the appellant had not founda suitable alternative address.Result[44] For the foregoing reasons, the appeal is allowed in part, and a sentence of12 months' imprisonment is substituted for the sentence of 16 months'. The appealinsofar as it relates to admission to a home detention is dismissed.[45] The same standard and special release conditions as imposed by the DistrictCourt are to apply for six months following sentence expiry.Isac JSolicitors:Crown Solicitor, Napier for Respondent