The Queen v Columbus [2008] NZCA 192 (27 June 2008)

Last Updated: 3 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA608/07

[2008] NZCA 192

THE QUEEN

v

GAVIN JAMES COLUMBUS

Hearing: 28 May 2008

Court: William Young P, Randerson and Harrison JJ

Counsel: A J Davis for Appellant
S B Edwards for Crown

Judgment: 27 June 2008 at 12 noon

JUDGMENT OF THE COURT

1. The appeal against the sentence of two years and three months imprisonment is allowed.
2. A 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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[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. He noted that Mr Columbus’ last previous burglary conviction was in June 2002 when he received a sentence of two years imprisonment but observed that he had been convicted of other dishonesty offences in the interim.
[9] The Judge weighed Mr Columbus’ plea that he had turned around his life in the six months following commission of the offences against ‘his prior form’. He decided that a term of imprisonment was appropriate. He allowed a credit of one year and three months or 35 per cent against the starting point in fixing a final sentence on the burglary charge of two years and three months. He imposed a concurrent term of three months imprisonment for theft of the lawnmower. He convicted and discharged Mr Columbus on the three other offences.
[10] In a written synopsis filed before the hearing of Mr Columbus’ appeal, Mr Davis submitted that Judge Cadenhead erred in principle in not sentencing Mr Columbus to home detention. He did not press that submission orally and we are satisfied that the Judge had proper grounds for concluding that home detention was not appropriate.

Decision

[11] The ultimate question is whether or not the end sentence of two and a quarter years was excessive but within that evaluation it is necessary to examine both the starting point adopted by the Judge of three-and-a-half years imprisonment and his discount for mitigating factors of one and a quarter years.
[12] The starting point traditionally adopted in sentencing burglars who have a number of previous burglary or related dishonesty convictions sits in a distinct category. As this Court has previously observed in R v Lowe CA62/05, 4 July 2005 at [31]:

The normal meaning of “starting point” is the sentence appropriate for the offending, prior to considering aggravating and mitigating factors relevant to the offender. Relevant prior convictions are, if taken into account at all, taken into account by way of uplift on the starting point. In the case of recidivist burglars, however, this Court appears frequently to have taken the appellant’s prior history into account when fixing the actual “starting point”. This is not the occasion to try to sort out this inconsistent use of language. In discussing whether the Judge adopted an appropriate starting point, we shall take into account the appellant’s prior convictions, as the other appellate authorities which were cited to us appear to have done.

[13] We agree that it is not the function of a divisional Court to resolve apparent inconsistencies in approaches to starting points between burglary and other offending. Nevertheless, we may be able to offer some guidance in this difficult area. As a Full Court of this Court has emphasised, the starting point identifies the culpability inherent in the offending by reference to its circumstances: R v Taueki [2005] 3 NZLR 372 at [42]-[44] (CA). The same principle applies in burglary sentencing, where “the intrinsic nature and gravity of the offence charged” is the primary consideration: R v Power [1973] 2 NZLR 617 at 618 (CA). The dual purposes of transparency and of providing a basis for assessing consistency between cases are served by this approach.
[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police (2000) 18 CRNZ 340 at [27]-[30] (HC).
[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[16] Applying those principles here, the burglary committed by Mr Columbus was as the Judge noted “at the minor end of the scale”. It was apparently opportunistic or spontaneous because Mr Columbus wanted quick money. The mountain bike was later recovered. The owner suffered a natural sense of emotional violation and distress and limited financial loss. While we do not in any way diminish the effect on the victim, the circumstances of the burglary would not themselves justify a starting point of more than one years imprisonment.
[17] The Judge was entitled to adjust the starting point upwards by applying the totality principle. Mr Columbus committed multiple offences shortly after the burglary. His theft of petrol and a lawnmower, and possession of a cannabis pipe and leaf, though minor in themselves, were committed while on bail. That component would justify adding another six months imprisonment to the starting point.
[18] A further increase is appropriate to recognise Mr Columbus’ previous dishonesty offences. He was 35 years of age when he committed these offences. Ms Edwards for the Crown advises that he had 89 previous convictions, of which 13 were for burglary and another 34 for property related offences. He has been sentenced to imprisonment on 15 occasions since 1989, most recently for two years for burglary and related offences in January 2003.
[19] The nature and extent of Mr Columbus’ dishonesty history relates directly to his burglary. Previous sentences of imprisonment have not served to deter Mr Columbus. The community requires continued protection from him. However, it is relevant that Mr Columbus’ offending was of a spontaneous nature and his habitual or recidivist tendencies do not suggest a professional disposition to burglary, although they still reflect a significant degree of culpability. His history shows a risk of re-offending at the same reasonably minor end of the scale that characterised this crime. That is the risk of prevention to which past offending is relevant.
[20] In our judgment Mr Columbus’ previous history justified a further increase of one year against the adjusted starting point of one-and-a-half years imprisonment. The appropriate end starting point for his sentence of burglary was thus two-and-a-half years imprisonment. It follows that the starting point adopted by the Judge of three-and-a-half years was excessive.
[21] However, we are also satisfied that the discount of 35 per cent applied by the Judge to the starting point was unduly generous. Even allowing for evidence of positive rehabilitative steps taken by Mr Columbus, his later plea (a week before the trial) could not justify more than eight months reduction (just above 25 per cent). In our judgment the appropriate end sentence for the charge of burglary is one year and 10 months.
[22] Mr Columbus is thus eligible to apply for the sentence of home detention: s 57 Sentencing Amendment Act 2007. Mr Davis did not address argument expressly to the result of a successful appeal which might reduce the final sentence to below the two year threshold of eligibility for home detention. But we are prepared to treat his substantive argument on appeal that the Judge erred in rejecting a sentence of home detention as applying to this particular question.
[23] We are not prepared to impose a sentence of home detention. There is some evidence that Mr Columbus made attempts at rehabilitation before sentencing. However, as Ms Edwards points out, they are entitled to limited weight given that Mr Columbus committed fraud and shoplifting offences in May and July 2007 after enrolling on the methadone treatment programme in April 2007, said to signal the change in his life’s direction. We are not satisfied that Mr Columbus has demonstrated a real commitment to change: compare R v Hill [2008] NZCA 41 at [39]. And home detention would not serve the sentencing purposes of deterrence of and protection from a recidivist burglar.

Result

[24] The sentence of two-and-a-half years imprisonment imposed on Mr Columbus on one charge of burglary is set aside and replaced by 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.

Solicitors:
Clark Boyce, Christchurch, for Appellant
Crown Law, Wellington