Costello v R [2015] NZCA 512 (3 November 2015)

Last Updated: 13 November 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA10/2015 [2015] NZCA 512
BETWEEN	NICHOLAS ANTHONY COSTELLO Appellant
AND	THE QUEEN Respondent
CA70/2015
BETWEEN	JONATHAN JAMES COSTELLO Appellant
AND	THE QUEEN Respondent

Hearing:	13 October 2015 (further submissions received 23 October 2015)
Court:	Ellen France P, Asher and Collins JJ
Counsel:	M R Bott for Appellant N A Costello M J Bullock for Appellant J J Costello M H Cooke for Respondent
Judgment:	27 October 2015 at 11 am
Reasons:	3 November 2015

JUDGMENT OF THE COURT

A The appeals against sentence are allowed.

2. The sentence of three years imprisonment on the charge of obtaining by deception imposed on Nicholas Costello is quashed. In its place a sentence of 18 months imprisonment is substituted, to be served concurrently. The sentences of three years imprisonment, all concurrent, imposed on the other charges remain.

100. The sentence of three years and four months imprisonment on the charge of obtaining by deception imposed on Jonathan Costello is quashed. In its place a sentence of 15 months imprisonment is substituted, to be served concurrently. The sentences of three years four months imprisonment, all concurrent, imposed on the other charges apart from attempted theft remain. The term of one months imprisonment on the attempted theft charge remains, to be served concurrently.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] On 27 October 2015, we allowed appeals against sentence brought by Nicholas and Jonathan Costello (the appellants).^[1] We allowed Nicholas Costello’s appeal against the sentence of three years imprisonment for obtaining by deception^[2] and substituted that sentence with 18 months imprisonment. We allowed Jonathan Costello’s appeal against the sentence of three years four months imprisonment for obtaining by deception and substituted that sentence with 15 months imprisonment. This judgment explains the reasons for our decision.

Background

[2] On 30 April 2012 Nicholas Costello provided false information about his income to a finance company to enable him to receive $9,845 to purchase a secondhand car from a motor vehicle dealer. On the following day, Jonathan Costello provided false references to support Nicholas Costello’s application to the finance company.
[3] Between 2 May and 18 May 2012, Nicholas Costello and others used the car to carry out multiple burglary and dishonesty offences. The car was repossessed on 18 May 2012, by which time it had travelled more than 6,000 km since it was purchased by Nicholas Costello. The finance company incurred servicing costs and losses in relation to the resale value of the car.
[4] Nicholas Costello was arrested in late May 2012 in relation to a number of burglary charges. He was remanded in custody from 1 June 2012 until 18 October 2012 when he was granted bail. He was again remanded in custody from 5 February 2013 until 20 November 2013. The charge of obtaining by deception was laid against Nicholas Costello on 13 June 2013.
[5] On 6 September 2013, Nicholas Costello received a sentence indication of three years imprisonment from Judge Cameron in the Whanganui District Court in relation to six charges of burglary and the charge of obtaining by deception.^[3] He accepted that sentence indication on 2 October 2013 and was sentenced to three years imprisonment on 20 November 2013.^[4]
[6] Jonathan Costello was initially charged in July 2012 with two charges of burglary, one charge of cultivation of cannabis and two charges of possession of cannabis for sale. He was remanded in custody from 6 July 2012 until 1 March 2013 and from 1 April 2013 until 20 November 2013. In July 2012 it was anticipated further charges would be laid. The number of charges against Jonathan Costello changed on various dates through to 13 June 2013 at which time he was also charged with obtaining by deception.
[7] Jonathan Costello accepted a sentence indication^[5] and was also sentenced on 20 November 2013 by Judge Cameron.^[6] Jonathan Costello was sentenced to three years four months imprisonment in relation to 12 charges including the charge

of obtaining by deception.^[7] He was sentenced to one month imprisonment on a charge of attempted theft. All sentences were concurrent.

[8] The appellants appealed against their sentences because it became apparent they were likely to spend considerably longer in prison than would have been envisaged when the sentences were imposed by Judge Cameron. This is because of the way the Department of Corrections (the Department) has calculated the periods spent by the appellants on pre-sentence detention when determining their statutory release dates. The Department has calculated the appellants’ pre-sentence detention from the date they were detained in relation to the obtaining by deception charges. The Department’s calculations show Nicholas Costello is at risk of spending three years nine months in prison and Jonathan Costello is at risk of spending four years two months in prison. Counsel for the appellants submitted Judge Cameron did not appreciate this when he sentenced the appellants.
[9] At the time of hearing the appeal we observed Judge Cameron could not take into account the times spent on pre-sentence detention when he determined the length of the appellants’ prison sentences.^[8] We indicated the appellants needed to pursue the review and appeal process set out in s 92 of the Parole Act 2002 and that appeals against sentence were not the appropriate forum for challenging the calculation and application of periods of pre-sentence detention by the Department.
[10] Following the hearing of the appeal we sought further submissions on the appropriateness of the concurrent sentences imposed by Judge Cameron for the obtaining by deception charges. We received further written submissions from counsel for the appellants on 21 October 2015 and from Ms Cooke, counsel for the Crown, on 23 October 2015.
[11] Counsel for the appellants have now submitted the sentences imposed by Judge Cameron in relation to the obtaining by deception charges were manifestly excessive.
[12] Ms Cooke accepts the sentence of three years four months imprisonment imposed on Jonathan Costello for obtaining by deception was manifestly excessive. Ms Cooke also acknowledges the sentence of three years imprisonment imposed upon Nicholas Costello for obtaining by deception was “high”.
[13] We now carry out an analysis of the correct sentences for the deception charges. This is not an exercise that was carried out by Judge Cameron, who would have understandably thought no issue would arise by taking the approach he followed. In the particular circumstances of this case it is important the correct sentences be imposed in relation to the deception charges.

Analysis

[14] Those who seek to appeal against a sentence they have accepted following a sentence indication usually face an uphill battle. Section 245 of the Criminal Procedure Act 2011 recognises, however, that an appeal can be brought against a sentence that has been imposed following a defendant accepting a sentence indication. We have therefore considered the appeals by focusing upon whether or not the sentences Judge Cameron imposed in relation to the obtaining by deception charges were manifestly excessive.^[9]
[15] In R v Varjan, this Court provided the following general guidance when assessing a defendant’s culpability in fraud cases:^[10]

[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

[23] ... Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.

Nicholas Costello

[16] When we apply the Varjan criteria to Nicholas Costello, we conclude his culpability is at the lower end of the spectrum of offending of this kind. This was a one-off event. The loss was comparatively low when assessed against other cases of this kind and the victim was not particularly vulnerable. There was no obvious breach of trust involved in the offending. Nicholas Costello was, however, the lead offender.
[17] In our assessment, the appropriate starting point for Nicholas Costello for the obtaining by deception charge was 18 months imprisonment. We have then increased the sentence by six months to reflect Nicholas Costello’s previous convictions and the fact this offending occurred when he was on parole. We have then applied a discount in the order of 20 per cent to reflect Nicholas Costello’s guilty plea and rounded the sentence down to 18 months imprisonment. In our assessment, this sentence appropriately reflects Nicholas Costello’s culpability and the purposes and principles of the Sentencing Act 2002.

Jonathan Costello

[18] Applying the Varjan criteria to Jonathan Costello, we are satisfied his role in the offending was comparatively minor and confined to assisting by providing false references. This was a single act of dishonesty, the losses suffered were comparatively small and the victim was not particularly vulnerable. No breach of trust appears to have been involved in Jonathan Costello’s offending.
[19] In our assessment, the appropriate starting point when assessing Jonathan Costello for the obtaining by deception charge was 12 months imprisonment. From there we have applied a six month uplift to reflect Jonathan Costello’s previous criminal history and the fact his offending occurred when he was on bail. We have then applied approximately a 20 per cent discount to reflect his guilty plea.

Conclusion

[20] We have allowed the appellants’ appeals against sentence in relation to the obtaining by deception charges. Nicholas Costello is sentenced to 18 months imprisonment and Jonathan Costello is sentenced to 15 months imprisonment on the charge of obtaining by deception.
[21] All other sentences imposed in the Whanganui District Court remain in force.

Solicitors:
Bullock and Associates, Whanganui for Appellant J J Costello
Crown Law Office, Wellington for Respondent

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^[1] Costello v R [2015] NZCA 505.

^[2] Crimes Act 1961, s 241(a). Maximum sentence seven years imprisonment.

^[3] R v Costello DC Wanganui CRI-2012-67-326, 6 September 2013.

^[4] R v Costello DC Wanganui CRI-2012-067-198, 20 November 2013.

^[5] R v Costello DC Wanganui CRI-2013-83-827, 20 September 2013.

^[6] R v Costello, above n 4.

^[7] Cultivating cannabis, receiving, possession of cannabis for sale (x2), theft (x2), a representative charge of supplying or offering to supply a Class A drug, namely methamphetamine, a representative charge of selling or offering to sell cannabis, a representative charge of supplying or offering to supply cannabis to a person or persons under 18 years, conspiracy to supply a Class A drug (methamphetamine), supply of a Class B drug (cannabis oil) and obtaining by deception.

^[8] Sentencing Act 2002, s 82.

^[9] Crimes Act, s 385.

^[10] R v Varjan CA97/03, 26 June 2003.