Costello v Police - [2021] NZHC 2796

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-376

[2021] NZHC 2796

BETWEEN
BRIGID COSTELLO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 October 2021

Appearances:

B So and C Megala for Appellant A Mackenzie for Respondent

Judgment:

19 October 2021

JUDGMENT OF LANG J

[on appeal against refusal to grant discharge without conviction]

This judgment was delivered by me on 19 October 2021 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

COSTELLO v NEW ZEALAND POLICE [2021] NZHC 2796 [21 October 2021]

[1] Ms Costello pleaded guilty to a charge of driving a motor vehicle whilst under the influence of cannabis. On 23 July 2021 Judge B A Gibson declined an application for an order that she be discharged without conviction under s 106 of the Sentencing Act 2002.1 Ms Costello appeals against the Judge’s decision.

The offending

[2] The summary of facts records that on the afternoon of 25 March 2021 Ms Costello was driving her motor vehicle in a southerly direction on Orakei Road, Remuera. She lost control of the vehicle and it mounted the footpath and collided with a metal safety barrier.

[3] Ms Costello was taken to hospital with minor injuries after the incident. When a policer officer spoke to her at the hospital Ms Costello admitted having smoked cannabis earlier in the day before driving. A sample of her blood was taken and this was found to contain traces of cannabis.

Relevant principles

[4] An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:

106 Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

…

[5] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

1 New Zealand Police v Costello [2021] NZDC 14848.

[6] A court considering an application for discharge under s 106 must consider three issues.2 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.3 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.4 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a…

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 Police

Details

AGLC: Costello v Police [2021] NZHC 2796
Case: [2021] NZHC 2796
Decision Date: 19 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Ms Brigid Costello appealed against the decision of Judge B A Gibson who had declined to grant her discharge without conviction under s 106 of the Sentencing Act 2002. Ms Costello had pleaded guilty to driving a motor vehicle while under the influence of cannabis. She had lost control of the vehicle and it collided with a metal safety barrier. Ms Costello had admitted to having smoked cannabis earlier in the day before driving, and a sample of her blood was found to contain traces of cannabis.

The court was required to decide whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. Ms Costello advanced two grounds for discharge without conviction: the effect that a conviction may have on her chosen career as a teacher, and the effect that a conviction would have on her underlying mental health issues. The Judge had declined to grant a discharge without conviction, considering the overall culpability of the offending to be towards the lower end of the scale and that the consequences of a conviction were not out of all proportion to the gravity of the offending.

The court considered the overall culpability of the offending to be low, taking into account Ms Costello's lack of previous convictions and her early guilty plea. The court assessed the direct and indirect consequences of a conviction to be moderate. While the consequences for her employment as a teacher were considered to be low, the existence of a conviction was likely to make her ongoing therapy more difficult, potentially affecting her ability to continue her career as a teacher. The court found that the statutory criteria for discharge without conviction had been met and that there was no justification for declining to make such an order. The appeal was allowed and the conviction was quashed, with the court discharging Ms Costello without conviction under s 106 of the Sentencing Act 2002. The Registrar of the Court was directed to notify the Teaching Council that the conviction had been quashed.

Orders