Costigan v Police - [2019] NZHC 425

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…

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.

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Details

Case: [2019] NZHC 425
Decision Date: 12 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Costigan v Police saw the appellant, Mr Jonathan Simon Costigan, appeal against a sentence of two years and five months' imprisonment, imposed by Judge Couch in the District Court. The appellant was sentenced on charges of injuring with reckless disregard and wilful damage, and he argued that the sentence was manifestly excessive. The respondent, the New Zealand Police, defended the sentence.

The legal issues before the court included whether the sentence imposed was justified by accepted sentencing principles and if there was an error in the imposition of the sentence that warranted a different sentence. The court was to consider the principles of sentencing and the specific circumstances of the case, including the nature of the offending and the appellant's history.

The court, in its judgment, found that while the starting point for sentencing was appropriate, the overall uplift for the appellant's criminal history and breach of bail should have been higher. However, the court determined that the reduction for the guilty plea and rehabilitation efforts were adequate. The court concluded that the sentence was within the appropriate range for the type of offending and that reducing the sentence by two months would be mere tinkering. Therefore, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of two years and five months' imprisonment would stand.

Orders