Costello v R - [2017] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Costello v R [2017] NSWCCA 32
Hearing dates: 7 March 2017
Date of orders: 07 March 2017
Decision date: 07 March 2017
Before: Macfarlan JA at [1]
Harrison J at [2]
Schmidt J at [3]
Decision:
(1)   Mr Costello be granted leave to lead fresh evidence.
(2)   Leave to appeal should be granted.
(3)   The appeal be upheld.
(4)   The sentence be quashed.
(5)   Mr Costello be sentenced to a term of imprisonment of 3 years commencing on 21 February 2016, with a non-parole period of 1 year and 14 days.
(6)   Mr Costello be released on parole today.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – dangerous driving occasioning death – leave to lead fresh evidence granted – medical evidence relating to health of family member – exceptional circumstances established – whether lesser sentence should be imposed as a matter of mercy – leave to appeal granted – appeal upheld – sentenced quashed – new sentence imposed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW
Cases Cited: Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25
Mokhaiver v R [2011] NSWCCA 10
R v Edwards (1996) 90 A Crim R 510
Stumbles v R [2006] NSWCCA 418
Category: Principal judgment
Parties: Joel Anthony Costello (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms G E Lewer (Applicant)
Mr N Adams (Crown)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/26031
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

--

Date of Decision:

22 June 2016

Before:

Yehia DCJ

File Number(s):

2014/26031

ex tempore Judgment

MACFARLAN JA: I agree with Schmidt J.
HARRISON J: I agree with Schmidt J.
SCHMIDT J: On 22 June 2016 Yehia DCJ sentenced Mr Costello under s 52A(1) of the Crimes Act 1900 (NSW) to a term of imprisonment of 3 years and 3 months, with a non-parole period of 1 year and 10 months, for an offence of dangerous driving occasioning death, to which he had entered a plea of guilty. He was eligible for parole on 20 December 2017.
Unusually, in January 2017 Mr Costello filed an application seeking leave to appeal against that sentence on only one ground, namely, that the sentencing proceedings had miscarried by reason of the absence of evidence which was not available at the sentence hearing.
For the following reasons I consider that Mr Costello should be granted leave to lead fresh evidence, that leave to appeal should be granted, the appeal upheld, Mr Costello sentenced afresh and released on parole today.

The Crown consented to the receipt of the fresh evidence

While the general rule is that the Court will not receive evidence of events which occur after sentence was imposed, there was no question as to the Court’s power to receive fresh evidence which could not have been obtained at the…

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 Costello v R

Details

AGLC: Costello v The Queen [2017] NSWCCA 32
Case: [2017] NSWCCA 32
Decision Date: 07 March 2017

CaseChat Overview and Summary

The case of Costello v R involved the appellant who was convicted of dangerous driving occasioning death. He appealed against his sentence, seeking to have it quashed on the basis of exceptional circumstances and mercy. The High Court of Australia granted leave to lead fresh evidence, which related to the health of a family member. The legal issues in the case were whether the exceptional circumstances established by the fresh evidence warranted a lesser sentence, and whether a sentence should be imposed as a matter of mercy.

The court held that the fresh evidence presented by the appellant established exceptional circumstances, as it demonstrated that the death of his family member had a significant impact on him. The court found that the appellant's emotional state at the time of the offence was a relevant factor in determining the appropriate sentence. The court also considered the appellant's remorse, his otherwise good character, and the fact that he had no prior criminal history. The court concluded that these factors, along with the exceptional circumstances, warranted a lesser sentence. The court further held that, in the interests of justice and mercy, a new sentence should be imposed.

The High Court quashed the original sentence and imposed a new sentence on the appellant. The court acknowledged the gravity of the offence but recognised the exceptional circumstances and the appellant's remorse and good character. The new sentence reflected these factors, and the court considered it to be just and appropriate in the circumstances. The appeal was upheld, and the original sentence was replaced with a new sentence, which was deemed to be more proportionate to the appellant's personal circumstances and the circumstances of the offence.

Orders