Costello v R - [2015] NZCA 512

IN THE COURT OF APPEAL OF NEW ZEALAND

CA10/2015
[2015] NZCA 512

BETWEEN	NICHOLAS ANTHONY COSTELLO Appellant
AND	THE QUEEN Respondent

CA70/2015
BETWEEN	JONATHAN JAMES COSTELLO Appellant
AND	THE QUEEN Respondent

Hearing:	13 October 2015 (further submissions received 23 October 2015)
Court:	Ellen France P, Asher and Collins JJ
Counsel:	M R Bott for Appellant N A Costello M J Bullock for Appellant J J Costello M H Cooke for Respondent
Judgment:	27 October 2015 at 11 am
Reasons:	3 November 2015

JUDGMENT OF THE COURT

A The appeals against sentence are allowed.

BThe sentence of three years imprisonment on the charge of obtaining by deception imposed on Nicholas Costello is quashed. In its place a sentence of 18 months imprisonment is substituted, to be served concurrently. The sentences of three years imprisonment, all concurrent, imposed on the other charges remain.
CThe sentence of three years and four months imprisonment on the charge of obtaining by deception imposed on Jonathan Costello is quashed. In its place a sentence of 15 months imprisonment is substituted, to be served concurrently. The sentences of three years four months imprisonment, all concurrent, imposed on the other charges apart from attempted theft remain. The term of one months imprisonment on the attempted theft charge remains, to be served concurrently.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 27 October 2015, we allowed appeals against sentence brought by Nicholas and Jonathan Costello (the appellants).[1] We allowed Nicholas Costello’s appeal against the sentence of three years imprisonment for obtaining by deception[2] and substituted that sentence with 18 months imprisonment. We allowed Jonathan Costello’s appeal against the sentence of three years four months imprisonment for obtaining by deception and substituted that sentence with 15 months imprisonment. This judgment explains the reasons for our decision.

Background

[1]Costello v R [2015] NZCA 505.

[2]Crimes Act 1961, s 241(a). Maximum sentence seven years imprisonment.

On 30 April 2012 Nicholas Costello provided false information about his income to a finance company to enable him to receive $9,845 to purchase a second‑hand car from a motor vehicle dealer. On the following day, Jonathan Costello provided false references to support Nicholas Costello’s application to the finance company.
Between 2 May and 18 May 2012, Nicholas Costello and others used the car to carry out multiple burglary and dishonesty offences. The car was repossessed on 18 May 2012, by which time it had travelled more than 6,000 km since it was purchased by Nicholas Costello. The finance company incurred servicing costs and losses in relation to the resale value of the car.
Nicholas Costello was arrested in late May 2012 in relation to a number of burglary charges. He was remanded in custody from 1 June 2012 until 18 October 2012 when he was granted bail. He was again remanded in custody from 5 February 2013 until 20 November 2013. The charge of obtaining by deception was laid against Nicholas Costello on 13 June 2013.
On 6 September 2013, Nicholas…

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 [2015] NZCA 512
Case: [2015] NZCA 512
Decision Date: 3 November 2015

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered appeals against sentences imposed on Nicholas and Jonathan Costello. Nicholas Costello was sentenced to three years imprisonment for obtaining by deception, while Jonathan Costello was sentenced to three years and four months imprisonment for the same offence. Both appellants argued that the sentences were manifestly excessive and did not adequately reflect the circumstances of their respective cases. The court was required to decide whether the sentences imposed were appropriate, and if not, to determine the correct sentences.

The court reviewed the circumstances of the offences and the culpability of the appellants. In assessing culpability, the court considered factors such as the nature of the offending, its magnitude and sophistication, the type and number of victims, the motivation for the offending, the amounts involved, the losses, the period over which the offending occurred, the seriousness of breaches of trust, and the impact on victims. The court also considered matters of mitigation such as reparation, co-operation with investigators, plea, remorse, and personal circumstances.

The court found that Nicholas Costello's culpability was at the lower end of the spectrum of offending of this kind. The offence was a one-off event, the loss was comparatively low, and there was no obvious breach of trust involved. The court concluded that the appropriate starting point for Nicholas Costello for the obtaining by deception charge was 18 months imprisonment. After applying discounts and increases based on the appellant's previous convictions and guilty plea, the court determined that an 18-month sentence was appropriate.

For Jonathan Costello, the court found his role in the offending was comparatively minor and confined to providing false references. The court concluded that the appropriate starting point for Jonathan Costello was 12 months imprisonment. After applying discounts and increases based on the appellant's previous criminal history and guilty plea, the court determined that a 15-month sentence was appropriate.

The Court of Appeal allowed the appeals against sentence in relation to the obtaining by deception charges. Nicholas Costello was re-sentenced to 18 months imprisonment, and Jonathan Costello was re-sentenced to 15 months imprisonment for the obtaining by deception charge. All other sentences imposed in the Whanganui District Court remained in force.

Orders