McCallum v The Queen
[2012] NZCA 150
•17 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA518/2011 [2012] NZCA 150 |
| BETWEEN VAUGHAN STEWART MCCALLUM |
| AND THE QUEEN |
| Hearing: 21 March 2012 |
| Court: Wild, Chisholm and MacKenzie JJ |
| Counsel: C D Eason for Appellant |
| Judgment: 17 April 2012 at 11 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by MacKenzie J)
The appellant was, on 4 August 2011, found guilty by a jury following trial in the District Court at Timaru on one count of causing grievous bodily harm with intent to cause grievous bodily harm and one count of theft. On the same day, he was sentenced by Judge Doherty to five years’ imprisonment. He appeals against that sentence.
On 2 December 2010, the 17 year old victim was at the house that the appellant shared with his partner. The victim decided to leave. He had earlier in the evening lent his cellphone to the appellant and asked for it back before he left. At that point a 15 year old friend of the appellant started punching the victim in the head and the appellant joined in. After being punched a number of times the victim fell to the ground where the appellant, who was wearing boots, repeatedly kicked him in the stomach and chest area. When he got up, the victim was bleeding from a cut above his eye. He went to clean himself up. While the victim was in the bathroom the appellant’s friend took the victim’s wallet and gave it to the appellant, who returned some of the contents to the victim but kept the wallet and an eftpos card. He refused to return them when asked by the victim. The victim left the house, but he collapsed while walking to the bus stop and an ambulance was called. He suffered, as a direct result of the assault, a collapsed lung caused by the kicks to the body, bruising to his chest and both eyes, and a cut above one eye. He also suffered a cut to his left knee when he collapsed in the street. He spent two nights in hospital but did not suffer any long-term physical damage. The co-offender pleaded guilty in the Youth Court to assault on the victim.
The Judge was able to sentence on the day of the verdict because he had available to him a full pre-sentence report dated 29 January 2010, and a home detention re-sentencing report dated 8 November 2010, prepared for earlier offending.
In his sentencing remarks, the Judge noted that the appellant had a number of previous convictions including an assault conviction in 2008, a male assaults female conviction in 2009 and a recent count of threatening to kill, for which the appellant had initially been sentenced to 10 months imprisonment in August 2010 but subsequently re-sentenced to home detention. He had been serving that sentence of home detention at the time of the present offending. The Judge noted that the probation reports had identified as underlying factors in the offending difficulties over the abuse of drugs and alcohol. The appellant was assessed as having a low level of motivation to change and had shown a lack of compliance with a rehabilitative sentencing regime. The risk of reoffending was assessed as high. The Judge noted that since his remand in custody the appellant had explored a number of possible rehabilitative programmes and now recognised his alcohol problem.
The Judge assessed the grievous bodily harm offending as being at the top of band 1 or bottom of band 2 of R v Taueki.[1]He noted a number of aggravating features: first, violence at the extreme end of the spectrum in that he kicked the victim hard and with big boots on for, in the victim’s estimation, at least some two or three minutes; second, an attack to the head by way of punching but not kicking; third, multiple attackers, namely the appellant and the youth co-offender; fourth, the vulnerability of the victim once he hit the ground. The Judge adopted a starting point which he described as “at the top of band 1” of five years’ imprisonment. He uplifted that by six months to reflect the previous convictions for violence, and that the offending occurred within a few weeks of being sentenced to home detention. In mitigation, the Judge gave some credit for the appellant having made amends with the victim and having been proactive in doing so. He also noted that the appellant was still a young man at only 20 years of age. He allowed a reduction of six months, leading to an end sentence of five years’ imprisonment. On the theft count, he imposed a concurrent sentence of two months’ imprisonment.
[1] R v Taueki [2005] 3 NZLR 372 (CA).
In submitting that the sentence is manifestly excessive, counsel for the appellant submits:
(a) that insufficient credit was given for the mitigating factor of youth; and
(b) that the starting point was too high.
As to youth, counsel refers to R v Mako,[2] R v K,[3] and R v Chankau.[4] Counsel notes that the six months reduction for youth, and for the amends that had been made by the appellant to the victim, simply cancelled the uplift of six months for the previous offending. He submits that the Judge was not prevented from allowing a greater and more significant reduction and submits that he should have done so.
[2] R v Mako [2000] 2 NZLR 170 (CA) at [65].
[3] R v K (CA345/02) (2003) 20 CRNZ at [22].
[4]. R v Chankau [2007] NZCA 587 at [25]–[27].
As to the starting point, counsel refers to the evidence of the doctor on the effect of the collapsed lung. He notes that the effects on the victim were short-term. He submits that the seriousness of the injury is not so significant that it requires the starting point of the sentence to be five years. He submitted that an appropriate starting point should have been four years, and that there should have been a net discount of six months for youth (after the uplift of six months), leading to an end sentence of three and a half years.
Counsel for the respondent submits that the combined effect of the various aggravating features warranted a starting point at the top of band 1. She submits that in terms of the injuries sustained the Judge’s focus was properly on the appellant’s culpability in repeatedly kicking the victim in the chest while wearing heavy boots. She notes that the cardiothoracic surgeon had observed that the significance of the lung collapse could have been much worse and that a blow of that force to the chest and heart area could have been life-threatening. She submits that the fact that the consequences are short-term does not reduce the degree of culpability on the part of the appellant.
As to youth, counsel for the respondent notes that age is a mitigating factor that must be taken into account to the extent that it is applicable. She notes that youth is linked to rehabilitative potential and that coupled with an absence of previous convictions and a genuine motivation to reform, it may warrant a significant reduction in sentence. Counsel notes that the appellant was 19 at the time of the offending (20 when sentenced) and that he has 17 previous District Court convictions and had 33 proven charges in the Youth Court before he turned 17. She notes that he was serving a sentence of home detention imposed less than a month before. She submits that in the circumstances the Judge was entitled to conclude that any discount due for the appellant’s youth was in effect overridden by his criminal history and his failure to take advantage of the rehabilitative sentences and opportunities afforded to him in the past. Counsel submits that the starting point was within the available range and that further leniency on account of youth was not warranted.
This was a vicious and unprovoked attack. We consider that the Judge was correct in assessing the offending as being at the top of Taueki band 1 or the bottom of band 2. The starting point which he adopted was within the overlap between those two bands. In our view, it was appropriate to the circumstances of the GBH offending. We note that the Judge did not uplift to reflect the criminality involved in the theft count, on which he imposed a concurrent sentence. We consider that the uplift of six months for the appellant’s previous record was justified.
We also consider that the discount for youth was within the available range. At 19 years of age, and with his extensive previous history, coupled with his low level of motivation towards rehabilitation, the appellant was beyond the point where he could expect that a lenient approach might be taken because of his youth. Neither the need to consider rehabilitation and integration, nor the need to adopt the least restrictive outcome, nor the need to avoid a crushing sentence required a greater discount than the Judge allowed.
When the end sentence is viewed in the light of all the relevant circumstances, the sentence imposed was not manifestly excessive.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondents
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