The Queen v Costello - [2009] NZCA 403

IN THE COURT OF APPEAL OF NEW ZEALAND
CA506/2009
[2009] NZCA 403
THE QUEEN
v
ADAM COSTELLO
Hearing:10 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ
Counsel:S K Green for Appellant

M D Downs for Crown

Judgment:14 September 2009 at 10 am

JUDGMENT OF THE COURT

A The appeal is allowed.
B The sentence of imprisonment imposed on the charge of being an accessory after the fact is quashed and replaced with a sentence of three months’ imprisonment.
CThe sentence of imprisonment imposed with respect to non-payment of fines is quashed. The matter is remitted to the District Court with a direction that it reconsider the report of the District Court Registrar, made under s 88(2)(b) of the Summary Proceedings Act 1957 and dated 14 May 2009.
DThe appellant’s fines, which were purportedly remitted, are reinstated.

____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
[1]       On 31 July last the appellant was sentenced to two terms of imprisonment to be served cumulatively. He was sentenced to four months imprisonment as an accessory after the fact to an offence by his brother of escaping from lawful custody. He was sentenced to six months imprisonment for non-payment of fines of approximately $60,000, most, if not all of which, were traffic related infringements. He appeals against the sentence of four months as manifestly excessive and the sentence of six months as being imposed without jurisdiction.
[2]       In respect of the sentence imposed for non-payment of fines Mr Downs, for the Crown, conceded that the Judge had no power to imprison in the light of s 106E(2) of the Summary Proceedings Act 1957, which provides:
106E    Restrictions on alternative sentences
…
(2)       Subject to section 83 of this Act, a District Court Judge shall not direct the issue of a warrant of commitment for the imprisonment of the defendant under this Part of this Act for non-payment of a fine unless —
(a)A statement of means has been completed by the defendant within the immediately preceding 14 days; and
(b)The defendant has had the same opportunity for legal representation as is available to a defendant who is liable to a sentence of imprisonment under section 30 of the Sentencing Act 2002; and

(c) The defendant is before a District Court Judge; and
(d)The defendant's last completed statement of means has been considered by the District Court Judge; and
(e)The warrant of commitment can be executed immediately; and
(f)The Judge is satisfied that all other methods of enforcing the fine have been considered or tried and that they are inappropriate or unsuccessful; and
(g)The Judge is satisfied that the defendant has the means to pay the fine.

[3] The Judge could not be satisfied that the defendant had the means to pay the fines. The appellant was only 21 years old, had no assets, and, prior to his imprisonment, was earning $360 a week. We accept that concession by counsel for the Crown. In fairness to Judge Tompkins, it appears s 106E(2)(g) was…

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 The Queen v Costello

Details

AGLC: The Queen v Costello [2009] NZCA 403
Case: [2009] NZCA 403
Decision Date: 14 September 2009

CaseChat Overview and Summary

The case before the Court of Appeal of New Zealand involved an appeal by Adam Costello against his sentence. Costello had been sentenced to two terms of imprisonment, one for being an accessory after the fact to his brother's escape from lawful custody, and the other for non-payment of fines. The appeal centred on the argument that the sentences were manifestly excessive and had been imposed without jurisdiction. The Crown accepted that the District Court had no power to imprison Costello for non-payment of fines due to the requirements set out in section 106E(2) of the Summary Proceedings Act 1957.

The Court of Appeal found that the District Court had indeed no jurisdiction to imprison Costello for non-payment of fines as the necessary conditions under section 106E(2) had not been satisfied. The Court accepted that Costello was unable to pay the fines and that this fact had not been properly considered by the District Court. The Court quashed the six-month sentence for non-payment of fines and reinstated the fines. The Court also directed the District Court to reconsider the report of the District Court Registrar under section 88(2)(b) of the Summary Proceedings Act 1957.

Regarding the sentence for being an accessory after the fact, the Court found that the original four-month sentence was manifestly excessive given the circumstances of the case. The Court noted that Costello had not actively assisted his brother to remain at large but had rather acquiesced to the situation. The Court also considered the fact that Costello had a reliable employment history and the support of his employer, which made a community detention order more appropriate. The Court reduced the sentence for being an accessory from four months to three months imprisonment.

Orders