McCallum v The Queen - [2012] NZCA 150

IN THE COURT OF APPEAL OF NEW ZEALAND

CA518/2011
[2012] NZCA 150

BETWEEN VAUGHAN STEWART MCCALLUM
Appellant

AND THE QUEEN
Respondent

Hearing: 21 March 2012

Court: Wild, Chisholm and MacKenzie JJ

Counsel: C D Eason for Appellant
S B Edwards for Respondent

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCallum v The Queen

Details

AGLC: McCallum v The Queen [2012] NZCA 150
Case: [2012] NZCA 150
Decision Date: 17 April 2012

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Vaughan Stewart McCallum appealed against his sentence. McCallum was found guilty by a jury in the District Court at Timaru of causing grievous bodily harm with intent and theft. He was sentenced to five years' imprisonment and appealed the sentence. The Court of Appeal heard the appeal on 21 March 2012 and delivered its judgment on 17 April 2012. The appeal was dismissed, and the sentence was upheld.

The legal issues before the court were whether the starting point for the sentence was too high and whether the mitigating factor of the appellant's youth warranted a greater discount. The appellant argued that insufficient credit was given for his youth and that the starting point was too high. The Crown argued that the combined effect of the aggravating features warranted a starting point at the top of band 1 and that the appellant's criminal history and failure to take advantage of rehabilitative sentences and opportunities afforded to him in the past warranted a greater discount than the Judge allowed.

The Court of Appeal found 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 and was appropriate to the circumstances of the grievous bodily harm offending. The uplift of six months for the appellant's previous record was justified, and the discount for youth was within the available range. The end sentence was not manifestly excessive when viewed in the light of all the relevant circumstances.

In conclusion, the Court of Appeal dismissed the appeal and upheld the sentence of five years' imprisonment for the grievous bodily harm with intent count and two months' imprisonment for the theft count, to run concurrently.

Orders