Costigan v Police
[2019] NZHC 425
•12 March 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2019-409-000014
[2019] NZHC 425
BETWEEN JONATHAN SIMON COSTIGAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 March 2019 Appearances:
C M Yardley for Appellant
J H Whitcombe for Respondent
Judgment:
12 March 2019
ORAL JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Mr Costigan was sentenced to two years, five months’ imprisonment by Judge Couch in the District Court on 17 January 2019 on charges of injuring with reckless disregard and wilful damage. The appellant appeals against that sentence on the basis that it is said to be manifestly excessive.
Facts
[2] Turning to the factual background in this matter, the first charge arose from an incident at the appellant’s parents’ house. At 5:00 a.m. on the morning of 5 August 2017, the appellant who was heavily intoxicated arrived at the home and woke his
JONATHAN SIMON COSTIGAN v NEW ZEALAND POLICE [2019] NZHC 425 [12 March 2019]
parents. They were disturbed by his behavior and his father responded by putting the appellant outside the house. He then repeatedly kicked the doors, breaking a glass panel. That constituted the charge of willful damage.p
[3] The second offence occurred on 9 August 2018. The appellant was staying with a friend after the incident involving his parents. He spent the evening at the friend's home drinking alcohol with him and another person. The friend went to bed and became frustrated at the appellant who continued playing music through the night. At 5:30 a.m., the friend told the appellant to turn the music off and apparently insulted him. The appellant responded by striking his friend over the head repeatedly with a large glass bottle. When the victim fell to the ground and tried to crawl away the appellant continued to hit him with the bottle. The appellant was initially charged with assault with a weapon, this charge was amended to one of wounding with reckless disregard and then to a charge of injuring with reckless disregard for the safety of the victim.
District Court decision
The sentence indication
[4] Turning now to matters in the District Court, I address first a sentence indication which was given in this matter. The appellant received a sentence indication on 20 February 2018. The indication was given on a charge of wounding with reckless disregard. Judge Garland who gave the sentence indicated noted the starting point at seven years’ imprisonment. He stated that there were no tariff cases but that it was useful to consider aggravating and mitigating factors as set out in Taueki.1 His Honour considered the aggravating factors of the offending were the extreme violence, the use of a bottle as a weapon, the continued violence while the victim was attempting to crawl away, that the attack was directed at the victim’s head, and the significant loss, harm and damage inflicted by the defendant. There were no mitigating factors except for provocation (which his Honour regarded as minor given the operative cause of the offending was intoxication).
1 R v Taueki [2005] 3 NZLR 372.
[5] His Honour canvassed the submissions of Crown and Defence counsel, and the cases they referred to.2 In his Honour’s view the appropriate starting point was two and a half years’ imprisonment. He then considered aggravating and mitigating factors personal to the appellant. He considered the appellant’s prior history of violence as an aggravating factor, he gave an uplift of three months for that. In mitigation, his Honour stated that he would allow a reduction of six months from the sentence if the indication was accepted and a guilty plea entered. The end sentence would thus be two years and three months’ imprisonment.
The sentence
[6] Turning now to the actual sentence imposed, the appellant did not accept that sentence indication. Sometime after the indication, the charge was amended from wounding with reckless disregard to one of injuring with reckless disregard. At that point, the appellant promptly pleaded guilty.
[7] At sentencing for the injuring with reckless disregard, Judge Couch considered the following aggravating factors:
(a)The use of a bottle as a weapon;
(b)The prolonged nature of the attack;
(c)The harm to the victim, which has aggravated an existing neurological condition;
(d)That the victim was vulnerable by his intoxication and by his body position and disability due to previous blows;
[8] The Judge took a starting point of three years’ imprisonment. In terms of personal factors, the Judge noted that the appellant was on bail when the assault was committed and he added three months for that. His Honour also noted his criminal history, for which he applied an uplift of three months.
2 Hannay v P [2014] NZHC 2015; Nuku v R [2012] NZCA 584.
[9] Judge Couch then turned to mitigating factors. It was clear that alcohol abuse had been a major factor in the offending. His Honour had regard to the appellant’s attempts toward rehabilitation but considered any reduction limited by a recent bout of offending. He reduced the sentence by four months on this account. His Honour also gave a discount for a guilty plea of nine months.
[10]That left a final sentence of two years and five months’ imprisonment.
Principles on appeal
[11] Turning now to the principals to be applied on this appeal, appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “…court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
Submissions
Appellant’s submissions
[12] Turning now to submissions I have received in this appeal and in particular the appellant’s submissions, Ms Yardley for the appellant submits that the appellant was initially charged with assault with a weapon carrying a maximum period of imprisonment of five years. This charge was amended to one of wounding with reckless disregard which carries a maximum sentence of seven years’ imprisonment, and then amended again to one of injuring with reckless disregard, which carries a maximum sentence of five years’ imprisonment.
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
[13] She submits the uplift of three months to reflect that the defendant was on bail for wilful damage, committed a few days beforehand, was unwarranted here. Counsel accepts that there can be no argument with three months’ further uplift for his previous violence history.
[14] Ms Yardley maintained the discount of four months for engaging in rehabilitation and achieving sobriety for seven months did not fully recognize the significant steps the appellant had taken in undergoing comprehensive counselling which he had arranged himself.
[15] The appellant says here there should have been an allowance given for his willingness to take part in restorative justice although a conference was not convened. Further Ms Yardley suggested the appellant and the complainant have met and they have made peace.
[16] The appellant further contends that the victim impact statement did not accurately reflect the nature of the injuries sustained in the attack. The medical report provided to the Court, it is submitted, do not bear out claims that were made.
[17] It is suggested too that the Judge in sentencing did not make any reference to the mens rea element of recklessness. There is no indication that was taken into account in assessing culpability here.
[18] Next, in submissions advanced by counsel it is said it is impossible to reconcile the sentencing indication which related to the more serious charge with the higher sentence finally imposed for a lower charge.
[19] Lastly, the appellant submitted that his appeal ought to be allowed and suggested that a sentence of two years or less should be imposed here with leave provided for home detention.
Respondent’s submissions
[20] Turning now to submissions advanced for the respondent, the Crown accepts here the starting point taken by Judge Couch could be considered a stern one, however
it is suggested the Judge did allow more generous discounts overall than were provided by Judge Garland in his sentencing indication. Before me Mr Whitcombe submitted that if the Court is minded to adjust the sentence downwards, it should be reduced no further than to the level indicated by Judge Garland in his sentencing indication.
[21] In considering the appeal, the respondent pointed to what was said to be the following aggravating factors:
(a)Extreme violence: it was noted that the defendant, using a heavy glass bottle as a weapon, targeted the victim's head in a sustained attack. It was noted the attack continued even after the victim went to the ground and was attempting to crawl away from the defendant.
(b)The question of serious injury: the victim suffered a fractured skull, which required surgery to remove numerous bone fragments from his brain and to insert a titanium plate into his head to repair. The defendant had used a heavy glass alcohol bottle as a weapon to inflict the blows sustained to the victim’s head.
(c)Attacking the head: the appellant here targeted the victim's head and inflicted a number of serious blows.
(d)Lastly, the Crown referred to the extent of any loss, damage or harm resulting from the offence and noted that the victim here has suffered significant emotional harm as a result of the offending coupled with the physical injuries he sustained.
[22] Before me, Mr Whitcombe for the respondent submitted that there were no mitigating features.
[23] He went on to say that on his review of the cases the ordinary range of starting points for injuring with reckless disregard can range from between one and a half years’ and two and a half years’ imprisonment.6
[24] Notwithstanding that observation, the injuries sustained by the victim in this particular case, it is said, were far more serious than any of those sustained in the other cases cited of injuring with reckless disregard.
(a)In Waitohi and AL, the fact that the offending was committed against a vulnerable baby and child increased the starting point. In Waitohi, two ribs were broken resulting in a starting point of two and a half years.
(b)Looking at the decisions in Filipo and Chok, they both involved instances of street violence. Neither instance involved the use of a weapon, however, the attacks did target the heads of the particular victims involved. As a result, both victims suffered concussions. Starting points in those cases of 18 months’ and 21 months’ imprisonment were adopted respectively.
[25] Mr Whitcombe, for the respondent, goes on to say that he has been unable to locate any other cases involving injuring with reckless disregard charges where a similar level of injuries as are present in this case arose. The injuries standing alone here, without reference to what might be seen as exacerbating seizures the victim had previously experienced, must be seen as serious. The principle that a penalty near to the maximum should be imposed if the offending is near to the most serious of cases for which that penalty is prescribed, according to the respondent, applies in this case.7 The respondent contends that an appropriate starting point in this case, given the particularly serious injuries sustained by the victim, is in the vicinity of two and a half years’ imprisonment.
6 See Waitohi v Police [2014] NZCA 614 where there was a sentence of 30 months; Police v Filipo [2016] NZHC 2620 where there was a sentence of 18 months; AL v Police HC Invercargill CRI- 2011-425-44, 29 November 2011 where there was a sentence of 24 months; Walker v Police [2018] NZHC 1388 where there was a sentence of 18 months; Chok v Police [2017] NZHC 1738 where there was a sentence of 21 months.
7 Sentencing Act 2002, ss 8(c) and (d).
[26] In terms of factors personal to the appellant, Mr Whitcombe maintains that the appellant has18 previous convictions in the District Court which must be taken into account. Particularly relevant, he says, was a conviction for injuring with intent to injure committed in 2010, for which the appellant received a sentence of two years, two months’ imprisonment. Also significant, according to Mr Whitcombe, are two convictions for common assault committed by the appellant in 2001 and 2002. The appellant too was on bail for the wilful damage charge at the time he committed the injuring with intent to injure offence. He further breached his bail on 6 October 2017 when he was located severely intoxicated at the bus exchange. An uplift is appropriate, according to the respondent, to recognise these factors.
[27] In terms of mitigating factors, Mr Whitcombe submits the discounts afforded were generous. Judge Couch, allowed a discount in the range of 10 per cent for the efforts the appellant had made to rehabilitate himself and almost a 25 per cent credit was allowed for the guilty plea, notwithstanding the fact that it could not be considered to come at the first reasonable opportunity which was available to the appellant.
Analysis
[28] Turning now to my analysis in this matter, at the outset, I note that the Court here is not bound by the sentence indication given by Judge Garland. That sentence was two years and three months’ imprisonment on a charge of wounding with reckless disregard. The sentence appealed against was one of two years and five months’ imprisonment for a charge of injuring with reckless disregard, a less serious offence than wounding with reckless disregard. While the former has a maximum sentence of a period of imprisonment of seven years, the latter charge has a maximum sentence of five years’ imprisonment. It is somewhat difficult to reconcile the two judgments, given the lesser charge received a greater sentence. Different Judges will place different weight on the evidence and it is clear that as between the indication and final sentence, each judge had regard to different factors.
[29] There is no tariff decision for offending of this type. Some Judges have drawn on the guideline decision of Nuku v R, expressly noting the need to make an
appropriate adjustment for the lesser charge of injuring with reckless disregard, rather than that of having an intention to injure.8 The bands in Nuku are:9
(a)Band 1: Where there are few aggravating features, the level of violence is relatively low and the sentencing Judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
(b)Band 2: A starting point of up to three years will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
(c)Band 3: A starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within Band 3, even if there are few other aggravating features.
[30] On these matters, I accept the submission advanced before me by Mr Whitcombe that at least four aggravating factors apply here. In my view, this offending would fall within Band 3. The aggravating factors are the presence of extreme violence; serious injury; use of a weapon; attacking the head; and the vulnerability of victim. Taueki foresees provocation as a mitigating factor but I place little weight on that here and agree the catalyst was intoxication, which itself is not a mitigating factor.10
[31] I accept that the nature of the charge means a lower start point should be adopted than in Nuku because of the lesser mens rea. As stressed by the Court of Appeal, the application of the bands is an evaluative exercise.
[32] Judge Couch took a starting point of three years’ imprisonment. I have reviewed the relatively scarce case law in the area. In my view a starting point of three years is stern but not altogether outside of the sentence appropriate for this type of offending. I would, however, have taken a starting point of thirty months’ imprisonment which is two and a half years.
8 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
9 At [38].
10 Sentencing Act, s 9(3)
[33] The Judge noted that the appellant was on bail when the assault was committed and he added an uplift of three months for that. His Honour also noted the appellant’s criminal history, for which he applied an uplift of three months. In my view, the uplift for the appellant’s criminal history ought to have been higher. The appellant has 18 previous convictions in the District Court, some of that is violent offending. I would add four months for the prior history and maintain three months for the breach of bail. That gives a figure of 37 months.
[34] In my view a 10 per cent reduction for rehabilitation here is an adequate amount. As I see it, the guilty plea here was not entered altogether at the earliest opportunity. The offence the appellant pleaded guilty to was no more serious than the initial charge, which he did not plead guilty to. I accept that it was made promptly when changed to its current form so would still, in all the circumstances here, give a discount of 20 per cent.
[35] That means a final sentence arrived at of around of 27 months which is two years and three months’ imprisonment. This is a reduction of only two months from the sentence imposed. In my view, allowing this appeal and reducing the sentence by two months would amount to mere tinkering and can only realistically be described as such. I find, therefore, that this appeal does not attract sufficient merit and should be dismissed.
Conclusion
[36]The appeal against sentence is dismissed.
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Gendall J
Solicitors:
Clare Yardley, Barrister, Christchurch Raymond Donnelly & Co, Christchurch
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