Connell v Police [2012] NZHC 200 (20 February 2012)

High Court of New Zealand

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Connell v Police [2012] NZHC 200 (20 February 2012)

Last Updated: 27 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000249 [2012] NZHC 200

NATHAN CONNELL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 20 February 2012

Counsel: D Dickinson for appellant

L Clancy for Respondent

Judgment: 20 February 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

CONNELL V NEW ZEALAND POLICE HC AK CRI-2011-404-000249 20 February 2012

[1] Mr Connell pleaded guilty in the District Court to a total of 22 charges. Some of these had been laid summarily, but the most serious, six charges of burglary, had been laid in the indictable jurisdiction of the District Court. The maximum sentence in respect of those charges was one of ten years imprisonment.

[2] Mr Connell also pleaded guilty in the summary jurisdiction of the District Court to a further charge of burglary, the maximum sentence for which was five years imprisonment. In addition, he had pleaded guilty to a raft of driving charges, including three charges of driving with excess blood alcohol, two charges of driving whilst disqualified (third or subsequent offence) and one charge of dangerous driving.

[3] On 2 June 2011, Judge Gittos sentenced Mr Connell to four years six months imprisonment on each of the burglary charges.[1] He imposed concurrent sentences of two years imprisonment on the remaining dishonesty charges. He imposed a cumulative sentence of nine months imprisonment on the driving charges. This led to an effective end sentence of five years three months imprisonment. In addition, the Judge disqualified Mr Connell from driving indefinitely.

[4] Mr Connell now appeals to this Court against the sentence that the Judge imposed. He maintains that the starting point that the Judge adopted in relation to the lead charges of burglary was too high. He also argues that the Judge applied a discount in respect of his guilty pleas that was too low. He contends that the end sentences were therefore manifestly excessive.

The facts

[5] The submission that the Judge applied a starting point that was too high needs to be viewed in context of the facts giving rise to Mr Connell’s offending.

[6] The bulk of the offending occurred after Mr Connell had already pleaded guilty to the burglary charge that had been laid in the summary jurisdiction of the

_{District Court. That charge had arisen as a result of a burglary that Mr Connell}

committed in 2009. Mr Connell was due to be sentenced on that charge on

31 August 2010, but he failed to appear for sentence on that date and remained in breach of his bail thereafter.

[7] On 4 December 2009, a Ford Utility motor vehicle valued at $28,000 was stolen from a commercial address in Penrose. Mr Connell was found driving that vehicle on the evening of 10 December 2009 in Penrose. On that occasion, Mr Connell approached a police checkpoint, but then did a U-turn and drove away at speed. After a brief pursuit Mr Connell abandoned his vehicle, but was located shortly thereafter. He returned a positive breath reading of 633 micrograms of alcohol per litre of breath. The original registration plates of the vehicle Mr Connell was driving had been changed, and false plates had been attached to the front and rear of the vehicle.

[8] On the morning of 13 December 2009 Mr Connell entered the yard of commercial premises in Otahuhu. There he got into, and drove away in, a Ford truck valued at approximately $1,500. He returned to the same premises approximately an hour later, and loaded a quantity of scrap metal into the truck and drove away. He took the scrap metal to a nearby scrap yard, where he sold it.

[9] On 12 January 2010 Mr Connell was walking along Marua Road in Ellerslie when he came across a Nissan motor vehicle parked at the entrance to a residential property. He noticed that the keys were in the ignition, and proceeded to get into the vehicle and drive away. For some reason, he attracted the attention of a police patrol and it stopped his vehicle in Onehunga. He exhibited signs of recent alcohol intake, and returned a positive result of 591 micrograms of alcohol per litre of breath. At the time of this incident he was a disqualified driver.

[10] The next series of offences occurred between 10 and 18 September 2010. On a date unknown over the weekend of 11 and 12 September 2010, Mr Connell went to commercial premises in Mount Wellington. There, he used a motor vehicle to ram open the gate of the yard. He then broke into a Mitsubishi truck valued at $35,000, and drove the truck away from the yard.

[11] Between 12 and 13 September 2010, Mr Connell went to other commercial premises situated in Mount Wellington. He cut the chains to the gate and entered the yard. Once inside he uplifted and removed three sets of metal loading ramps having a value of approximately $12,500.

[12] At or about the same time he went to commercial premises in Penrose. On this occasion he was driving the Mitsubishi truck that he had stolen over the weekend of 11 September. He went down the side of the building to a yard at the rear of the property. He then loaded machinery and equipment having a total value of approximately $10,000 onto the truck and then left the yard with it.

[13] On or about the same date, he went to an engineering yard in East Tamaki. Again, he was driving the stolen Mitsubishi truck. On this occasion, he cut through two fences to gain access to the yard. He proceeded to use the crane on the back of the truck to lift a 28 tonne piece of equipment onto the back of the truck, and drove away. That equipment was valued at approximately $20,000.

[14] Six days later, on 18 September 2010, Mr Connell went to commercial premises in Penrose. He removed the padlock securing the main entrance to the premises and then stole a Hino truck, having a value of approximately $120,000.

[15] On 22 December 2010, Mr Connell stole a Ford motor vehicle that he had found parked on Great South Road, Penrose. He then manually altered the registration plates on that vehicle so that they read differently.

[16] Then, on the morning of 23 December 2010, Mr Connell went to a residential address in St John. He entered the house and stole a number of items from it, including two computers, a printer, a violin and a quantity of wine. When he left the property, he stole a trailer, inflatable boat and outboard motor that had been parked outside the address.

[17] At about 7.10 pm on the same date, Mr Connell was found driving the stolen Ford vehicle on State Highway 20 in Manukau. He was towing the boat and trailer that he had stolen earlier that day. The police were alerted to Mr Connell’s vehicle

by his erratic driving. When a police patrol car activated its flashing lights and siren, Mr Connell sped away. He continued north on State Highway 20, reaching speeds of up to 150 kilometres per hour. This caused the police to abandon the pursuit, but they continued to maintain surveillance on him using a helicopter. He eventually abandoned the vehicle, and was apprehended after being pursued through neighbouring properties.

[18] Again, he was found to be under the influence of alcohol. On this occasion, an analysis of a sample of his blood was found to contain 99 micrograms of alcohol per 100 millilitres of blood.

[19] An analysis of Mr Connell’s offending reveals that it has several characteristics. First, much of it was planned. He targeted commercial premises and broke into them using force. Secondly, the net result of his activities was that a very substantial quantity of property was stolen. In all, Mr Connell stole around $300,000 worth of property. Much of this was recovered, but approximately $30,000 worth of property remains outstanding. Thirdly, the burglaries and other forms of dishonesty occurred over a reasonably significant period, between December 2009 and December 2010. All of the offending occurred whilst he knew that he was in breach of his bail and awaiting sentence on another charge of burglary.

Was the starting point too high?

[20] The Judge took a starting point of five years imprisonment on the burglary charges. Counsel for Mr Connell submits that he should not have adopted a starting point of beyond four years imprisonment. That submission needs, however, to be viewed in the light of the circumstances of the offending that I have identified. It involved serious offending over a sustained period, and involved the theft of property having a very significant value.

[21] In addition, Mr Connell presents as a recidivist offender, having been convicted of burglary on six previous occasions. He has already served sentences of four years and 18 months imprisonment in respect of two earlier instances on which he was convicted on that charge.

[22] In R v Southon,[2] the Court of Appeal upheld a starting point of six years imprisonment on one charge of attempted burglary of a pharmacy and another charge of burglary of commercial premises. The offender in that case was also a recidivist burglar, having amassed approximately 15 previous convictions for burglary, together with other convictions for receiving and attempted burglary. If a starting point of six years imprisonment was held to be appropriate in Southon, the starting point of five years imprisonment in the present case cannot be seen as being outside the available range.

[23] This issue needs, in any event, to be viewed in light of the overall manner in which the Judge structured his sentence. After taking a starting point of five years imprisonment, the Judge said that that starting point would need to be “enhanced” to reflect the remaining offending involving instances of dishonesty. Ultimately, however, he did not increase the sentence at all to reflect the remaining charges. The end starting point of five years imprisonment must therefore be regarded as encompassing Mr Connell’s culpability in respect of all charges other than the driving charges.

[24] Secondly, the Judge was obviously entitled to apply an uplift in respect of Mr Connell’s previous convictions, and also the fact that all this offending occurred whilst he was on bail awaiting sentence on similar charges.

[25] The Judge applied an uplift of six months imprisonment to reflect Mr Connell’s earlier convictions for similar offending. He did not, however, apply any uplift to reflect the fact that the offending had all occurred whilst Mr Connell was on bail. When I take those factors into account, I conclude that an end starting point of five years six months imprisonment was open to the Judge.

Did the Judge apply an inadequate discount to reflect the guilty pleas?

[26] The Judge made it clear that, although Mr Connell’s guilty pleas did not come at the earliest stage, nevertheless he would give a “full discount” for them.

_{From that, both counsel anticipated that, in line with the comments of the Supreme}

Court in R v Hessell,[3] the Judge would apply a discount of no less than 25 per cent. Ultimately, however, the Judge applied a discount of just 18 per cent to reflect this factor. Counsel for the respondent accepts that, in those circumstances, it may be appropriate to revisit this issue and to apply a discount of 25 per cent.

[27] I consider that that is appropriate, and that it is what the Judge intended. Applying that discount, an end sentence of four years one month imprisonment is produced on each of the burglary charges to which Mr Connell was sentenced to four years six months imprisonment.

Result

[28] The sentences that the Judge imposed on the burglary charges are accordingly quashed. In each case I impose a sentence of four years one month imprisonment.

[29] There is no challenge, however, to the cumulative sentence of nine months imprisonment that the Judge imposed in respect of the driving charges. For that reason, those sentences remain undisturbed. They are to be served cumulatively on the sentences of four years one month imprisonment that I have imposed on the

_{burglary charges.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland

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[1] R v Connell District Court Auckland CRI-2011-004-006034, 2 June 2011.

[2] R v Southon (2003) CRNZ 104(CA314/02).

[3] R v Hessell [2011] 1 NZLR 607.