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 not brought to his attention.  The argument in the District Court had focused on a different issue, namely whether the District Court registrar had jurisdiction under s 88(1) and (2) to refer the appellant’s non-payment of fines to a judge in the first place.

[4]       The sentence of six months’ imprisonment imposed for the non-payment of fines is quashed.  The fines are reinstated.  Pursuant to s 385(3) of the Crimes Act 1961, we remit this matter to the District Court and direct it to reconsider the report of the District Court Registrar, made under s 88(2)(b) of the Summary Proceedings Act and dated 14 May 2009.

[5]       Turning to the sentence of four months imprisonment as an accessory, we start by setting out the facts.  Mr Costello’s brother was a sentenced prisoner at Waikeria Prison.  He escaped.  He was unlawfully at large for a period of some weeks.  The appellant and his partner had arranged to drive to Ohakune on 12 January 2008 to see family.  Discovering that arrangement Mr Costello’s brother prevailed upon the appellant to take him along.  The escapee was discovered in the car when it was stopped by the police.

[6]       It is plain from these facts that the appellant was not actively assisting his escapee brother to continue to remain at large.  In substance he was acquiescing to it, rather than taking the positive step of reporting his whereabouts to the police.  The pre-sentence report had recommended community detention for Mr Costello.

[7]       Counsel before us were agreed that it would appear that the prison sentence was imposed partly because of the conjunction with the imposition of the prison sentence in lieu of outstanding fines.  Given the error vitiating that latter sentence it seems to us that it is appropriate to revisit the sentencing as an accessory.  There is, on the particular facts, a good case for a community detention order partly because the appellant has the support of an employer.  For approximately six months prior to his imprisonment the appellant had been living and working on his employer’s farm.  His employer rates him as an efficient worker and reliable and the employer and his family are particularly reliant upon him in the busy season of calving cows.  It is the exception rather than the rule for the Court to be dealing with young offenders who have a reliable history of employment and the backing of their employers.  It is this particular factor that would warrant consideration of community detention rather than imprisonment for this young man.  However, he has now served seven weeks in prison.  It is a difficult exercise to consider substituting some proportion of community detention.  This is particularly so when he is likely to have a term of community work imposed for non-payment of fines when the matter is reconsidered by the District Court. 

[8]       For these reasons we think the appropriate response to this part of the appeal is to amend the sentence for the charge of accessory from four months’ imprisonment to three months’ imprisonment and so do.

Solicitors:
Crown Law Office, Wellington