JONATHAN SIMON COSTIGAN v NEW ZEALAND POLICE [2019] NZHC 425

JONATHAN SIMON COSTIGAN v NEW ZEALAND POLICE [2019] NZHC 425 [12 March 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2019-409-000014[2019] NZHC 425BETWEEN JONATHAN SIMON COSTIGANAppellantAND NEW ZEALAND POLICERespondentHearing: 12 March 2019Appearances: C M Yardley for AppellantJ H Whitcombe for RespondentJudgment: 12 March 2019ORAL JUDGMENT OF GENDALL JIntroduction[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 ofinjuring with reckless disregard and wilful damage. The appellant appeals against thatsentence 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 anincident at the appellant's parents' house. At 5:00 a.m. on the morning of 5 August2017, the appellant who was heavily intoxicated arrived at the home and woke hisparents. They were disturbed by his behavior and his father responded by putting theappellant outside the house. He then repeatedly kicked the doors, breaking a glasspanel. That constituted the charge of willful damage.p[3] The second offence occurred on 9 August 2018. The appellant was stayingwith a friend after the incident involving his parents. He spent the evening at thefriend's home drinking alcohol with him and another person. The friend went to bedand 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 insultedhim. The appellant responded by striking his friend over the head repeatedly with alarge glass bottle. When the victim fell to the ground and tried to crawl away theappellant continued to hit him with the bottle. The appellant was initially charged withassault with a weapon, this charge was amended to one of wounding with recklessdisregard and then to a charge of injuring with reckless disregard for the safety of thevictim.District Court decisionThe sentence indication[4] Turning now to matters in the District Court, I address first a sentenceindication which was given in this matter. The appellant received a sentence indicationon 20 February 2018. The indication was given on a charge of wounding with recklessdisregard. Judge Garland who gave the sentence indicated noted the starting point atseven years' imprisonment. He stated that there were no tariff cases but that it wasuseful to consider aggravating and mitigating factors as set out in Taueki.1 His Honourconsidered the aggravating factors of the offending were the extreme violence, the useof a bottle as a weapon, the continued violence while the victim was attempting tocrawl 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 exceptfor provocation (which his Honour regarded as minor given the operative cause of theoffending was intoxication).1 R v Taueki [2005] 3 NZLR 372.[5] His Honour canvassed the submissions of Crown and Defence counsel, and thecases they referred to.2 In his Honour's view the appropriate starting point was twoand a half years' imprisonment. He then considered aggravating and mitigating factorspersonal to the appellant. He considered the appellant's prior history of violence as anaggravating factor, he gave an uplift of three months for that. In mitigation, his Honourstated that he would allow a reduction of six months from the sentence if the indicationwas accepted and a guilty plea entered. The end sentence would thus be two years andthree months' imprisonment.The sentence[6] Turning now to the actual sentence imposed, the appellant did not accept thatsentence indication. Sometime after the indication, the charge was amended fromwounding with reckless disregard to one of injuring with reckless disregard. At thatpoint, the appellant promptly pleaded guilty.[7] At sentencing for the injuring with reckless disregard, Judge Couch consideredthe 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 neurologicalcondition;(d) That the victim was vulnerable by his intoxication and by his bodyposition and disability due to previous blows;[8] The Judge took a starting point of three years' imprisonment. In terms ofpersonal factors, the Judge noted that the appellant was on bail when the assault wascommitted and he added three months for that. His Honour also noted his criminalhistory, 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 abusehad been a major factor in the offending. His Honour had regard to the appellant'sattempts toward rehabilitation but considered any reduction limited by a recent boutof offending. He reduced the sentence by four months on this account. His Honouralso 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 againstsentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and mustbe determined in accordance with s 250 of that Act. An appeal against sentence mayonly be allowed by this Court if it is satisfied that there has been an error in theimposition of the sentence and that a different sentence should be imposed.3 As theCourt 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 properlybe justified by accepted sentencing principles".4 It is only appropriate for this Courtto intervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.5SubmissionsAppellant's submissions[12] Turning now to submissions I have received in this appeal and in particular theappellant's submissions, Ms Yardley for the appellant submits that the appellant wasinitially charged with assault with a weapon carrying a maximum period ofimprisonment of five years. This charge was amended to one of wounding withreckless disregard which carries a maximum sentence of seven years' imprisonment,and then amended again to one of injuring with reckless disregard, which carries amaximum 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 bailfor wilful damage, committed a few days beforehand, was unwarranted here. Counselaccepts that there can be no argument with three months' further uplift for his previousviolence history.[14] Ms Yardley maintained the discount of four months for engaging inrehabilitation and achieving sobriety for seven months did not fully recognize thesignificant steps the appellant had taken in undergoing comprehensive counsellingwhich he had arranged himself.[15] The appellant says here there should have been an allowance given for hiswillingness to take part in restorative justice although a conference was not convened.Further Ms Yardley suggested the appellant and the complainant have met and theyhave made peace.[16] The appellant further contends that the victim impact statement did notaccurately reflect the nature of the injuries sustained in the attack. The medical reportprovided 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 tothe mens rea element of recklessness. There is no indication that was taken intoaccount in assessing culpability here.[18] Next, in submissions advanced by counsel it is said it is impossible to reconcilethe sentencing indication which related to the more serious charge with the highersentence finally imposed for a lower charge.[19] Lastly, the appellant submitted that his appeal ought to be allowed andsuggested that a sentence of two years or less should be imposed here with leaveprovided for home detention.Respondent's submissions[20] Turning now to submissions advanced for the respondent, the Crown acceptshere the starting point taken by Judge Couch could be considered a stern one, howeverit is suggested the Judge did allow more generous discounts overall than were providedby Judge Garland in his sentencing indication. Before me Mr Whitcombe submittedthat if the Court is minded to adjust the sentence downwards, it should be reduced nofurther 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 thefollowing aggravating factors:(a) Extreme violence: it was noted that the defendant, using a heavy glassbottle as a weapon, targeted the victim's head in a sustained attack. Itwas noted the attack continued even after the victim went to the groundand 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 hisbrain and to insert a titanium plate into his head to repair. The defendanthad used a heavy glass alcohol bottle as a weapon to inflict the blowssustained to the victim's head.(c) Attacking the head: the appellant here targeted the victim's head andinflicted a number of serious blows.(d) Lastly, the Crown referred to the extent of any loss, damage or harmresulting from the offence and noted that the victim here has sufferedsignificant emotional harm as a result of the offending coupled with thephysical injuries he sustained.[22] Before me, Mr Whitcombe for the respondent submitted that there were nomitigating features.[23] He went on to say that on his review of the cases the ordinary range of startingpoints for injuring with reckless disregard can range from between one and a halfyears' and two and a half years' imprisonment.6[24] Notwithstanding that observation, the injuries sustained by the victim in thisparticular case, it is said, were far more serious than any of those sustained in the othercases cited of injuring with reckless disregard.(a) In Waitohi and AL, the fact that the offending was committed against avulnerable baby and child increased the starting point. In Waitohi, tworibs were broken resulting in a starting point of two and a half years.(b) Looking at the decisions in Filipo and Chok, they both involvedinstances of street violence. Neither instance involved the use of aweapon, however, the attacks did target the heads of the particularvictims 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 tolocate any other cases involving injuring with reckless disregard charges where asimilar level of injuries as are present in this case arose. The injuries standing alonehere, without reference to what might be seen as exacerbating seizures the victim hadpreviously experienced, must be seen as serious. The principle that a penalty near tothe maximum should be imposed if the offending is near to the most serious of casesfor which that penalty is prescribed, according to the respondent, applies in this case.7The respondent contends that an appropriate starting point in this case, given theparticularly serious injuries sustained by the victim, is in the vicinity of two and a halfyears' 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 wherethere 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 theappellant has18 previous convictions in the District Court which must be taken intoaccount. Particularly relevant, he says, was a conviction for injuring with intent toinjure committed in 2010, for which the appellant received a sentence of two years,two months' imprisonment. Also significant, according to Mr Whitcombe, are twoconvictions for common assault committed by the appellant in 2001 and 2002. Theappellant too was on bail for the wilful damage charge at the time he committed theinjuring with intent to injure offence. He further breached his bail on 6 October 2017when 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 affordedwere generous. Judge Couch, allowed a discount in the range of 10 per cent for theefforts the appellant had made to rehabilitate himself and almost a 25 per cent creditwas allowed for the guilty plea, notwithstanding the fact that it could not be consideredto 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 Courthere is not bound by the sentence indication given by Judge Garland. That sentencewas two years and three months' imprisonment on a charge of wounding with recklessdisregard. The sentence appealed against was one of two years and five months'imprisonment for a charge of injuring with reckless disregard, a less serious offencethan wounding with reckless disregard. While the former has a maximum sentence ofa period of imprisonment of seven years, the latter charge has a maximum sentence offive years' imprisonment. It is somewhat difficult to reconcile the two judgments,given the lesser charge received a greater sentence. Different Judges will placedifferent weight on the evidence and it is clear that as between the indication and finalsentence, each judge had regard to different factors.[29] There is no tariff decision for offending of this type. Some Judges have drawnon the guideline decision of Nuku v R, expressly noting the need to make anappropriate adjustment for the lesser charge of injuring with reckless disregard, ratherthan 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 ofviolence is relatively low and the sentencing Judge considers theoffender's culpability to be at a level that might have been betterreflected in a less serious charge, a sentence of less than imprisonmentcan be appropriate.(b) Band 2: A starting point of up to three years will be appropriate wherethree or fewer of the aggravating factors listed at [31] of Taueki arepresent.(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 wherethree or more of the aggravating features set out in Taueki are presentand the combination of those features is particularly serious. Thepresence of a high level of or prolonged violence is an aggravatingfactor of such gravity that it will generally require a starting pointwithin Band 3, even if there are few other aggravating features.[30] On these matters, I accept the submission advanced before me byMr Whitcombe that at least four aggravating factors apply here. In my view, thisoffending would fall within Band 3. The aggravating factors are the presence ofextreme violence; serious injury; use of a weapon; attacking the head; and thevulnerability of victim. Taueki foresees provocation as a mitigating factor but I placelittle weight on that here and agree the catalyst was intoxication, which itself is not amitigating factor.10[31] I accept that the nature of the charge means a lower start point should beadopted than in Nuku because of the lesser mens rea. As stressed by the Court ofAppeal, the application of the bands is an evaluative exercise.[32] Judge Couch took a starting point of three years' imprisonment. I havereviewed the relatively scarce case law in the area. In my view a starting point of threeyears is stern but not altogether outside of the sentence appropriate for this type ofoffending. 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 committedand he added an uplift of three months for that. His Honour also noted the appellant'scriminal history, for which he applied an uplift of three months. In my view, the upliftfor the appellant's criminal history ought to have been higher. The appellant has18 previous convictions in the District Court, some of that is violent offending. Iwould add four months for the prior history and maintain three months for the breachof bail. That gives a figure of 37 months.[34] In my view a 10 per cent reduction for rehabilitation here is an adequateamount. As I see it, the guilty plea here was not entered altogether at the earliestopportunity. The offence the appellant pleaded guilty to was no more serious than theinitial charge, which he did not plead guilty to. I accept that it was made promptlywhen changed to its current form so would still, in all the circumstances here, give adiscount of 20 per cent.[35] That means a final sentence arrived at of around of 27 months which is twoyears and three months' imprisonment. This is a reduction of only two months fromthe sentence imposed. In my view, allowing this appeal and reducing the sentence bytwo months would amount to mere tinkering and can only realistically be described assuch. I find, therefore, that this appeal does not attract sufficient merit and should bedismissed.Conclusion[36] The appeal against sentence is dismissed....................................................Gendall JSolicitors:Clare Yardley, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch