ATHE APPEAL AGAINST THE SENTENCE OF TWO YEARS AND THREE MONTHS IMPRISONMENT IS ALLOWED.
BA SENTENCE OF ONE YEAR AND 10 MONTHS IMPRISONMENT IS IMPOSED, TO BE SERVED CONCURRENTLY WITH THE OTHER TERMS OF IMPRISONMENT IMPOSED FOLLOWING CONVICTION ON THE OTHER CHARGES.
[1] Mr Gavin Columbus appeals against a sentence of two years and three months imprisonment imposed upon him in the District Court at Christchurch following his pleas of guilty to one charge of burglary, two charges of theft, one charge of possession of cannabis and one charge of possession of a pipe.
Factual Background
[2] The relevant facts fall within a narrow compass. Mr Columbus forced open the vehicle access door of a garage at a residential property in Christchurch during the afternoon on 30 March 2007 causing damage which cost $672 to repair. He stole a mountain bike together with gardening tools and a tool box. He pawned the bike later that day but it was recovered by the police.
[3] Mr Columbus stole a lawnmower from the rear of a residential property in Rangiora on 2 April 2007. The cost of its replacement was $479. He was charged with its theft following the execution of a search warrant at his property on 4 April. He appeared in the District Court and was granted bail.
[4] While on bail, Mr Columbus drove to a service station in central Christchurch on 14 April and pumped $68 worth of petrol into his vehicle but departed without paying. He was later charged with theft of the petrol.
[5] Mr Columbus’ property was searched again pursuant to a warrant on 19 April. He acknowledged that a cannabis pipe and some loose cannabis leaf found there belonged to him, and was charged with possession of both.
District Court
[6] Mr Columbus pleaded not guilty to all these charges and was committed for trial on the indictable charges of burglary and theft of the lawnmower. He later changed his pleas to guilty to those two charges together with the theft of the petrol charge and the cannabis offences. He was sentenced by Judge Cadenhead on 19 October 2007.
[7] The Judge treated the burglary charge as the lead or index offence. He acknowledged that it was “at the minor end of the scale” but took into account, first, the totality of Mr Columbus’ offending and, second, his history of dishonesty offending in fixing a global starting point of three-and-a-half years imprisonment.
[8] Judge Cadenhead allowed for the mitigating feature of Mr Columbus’ pleas of guilty and a favourable probation report. However, he took account, again, of the offsetting feature of Mr Columbus’ previous dishonesty offending.…
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 R v Columbus
Sign in free to access the full text
Details
AGLC
R v Columbus [2008] NZCA 192
Case
[2008] NZCA 192
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the case of R v Columbus was heard and decided. The appellant, Gavin Columbus, appealed against the sentence of two years and three months imprisonment imposed upon him in the District Court at Christchurch. He pleaded guilty to one charge of burglary, two charges of theft, one charge of possession of cannabis, and one charge of possession of a pipe. The primary legal issue was whether the sentence imposed by the District Court was excessive.
The Court of Appeal held that the starting point for sentencing adopted by the District Court was excessive. The Court agreed that it was not the function of a divisional Court to resolve apparent inconsistencies in approaches to starting points between burglary and other offending. However, the Court held that the starting point should identify the culpability inherent in the offending by reference to its circumstances. The Court found that the burglary committed by Columbus was at the minor end of the scale and would not justify a starting point of more than one year's imprisonment. The Court also found that the totality principle could be applied to increase the starting point to one-and-a-half years imprisonment, but a further increase of one year was appropriate to recognise Columbus' previous dishonesty offences. However, the Court found that the discount of 35 per cent applied by the Judge to the starting point was unduly generous. The Court concluded that the appropriate end sentence for the charge of burglary was one year and 10 months imprisonment.
The Court of Appeal allowed the appeal against the sentence of two years and three months imprisonment and imposed a sentence of one year and 10 months imprisonment, to be served concurrently with the other terms of imprisonment imposed following conviction on the other charges. The Court was not prepared to impose a sentence of home detention as there was insufficient evidence that Columbus had demonstrated a real commitment to change.