SUPREME COURT Gaol sentence quashed; $500 fine substituted

Press, Volume CXI, Issue 32679, 7 August 1971, Page 5

SUPREME COURT Gaol sentence quashed; $500 fine substituted

A term of nine months imprisonment imposed on Anthony Stephen Costigan, aged 34, in the Christchurch Magistrate’s Court on a charge of assaulting Hohepa Wareaitu with intent to injure, was quashed on appeal by Mr Justice Wilson in the Supreme Court yesterday. His Honour substituted a fine of $5OO.

Mr L. M. O’Reilly, for the appellant, said that although Costigan had committed a grave assault a . term of imprisonment should not have been imposed because of the serious provocation. There was overwhelming evidence that Costigan’s self-control was affected to a substantial degree by finding his wife and the complainant together after his wife had prdmised to break off the association. The complainant had indi-' cated that he was completely recovered and was most reluctant to have proceedings. It was not a premeditated offence because Costigan had not sought out the complainant, but had come across him and his wife by chance.

The magistrate had accepted that Costigan’s character and record were excellent. However, the magistrate in counsel’s submission, had, when imposing sentence, wrongly disregarded the extreme degree of provocation. Costigan had Ijeen severely punished by the amount of publicity the case had received. He was still determined to make his marriage work, Mr O’Reilly said. The appellant, quite by chance, caught sight of his wife and the man referred to in the charge standing close together in the doorway of a city shop, said his Honour. He picked up a starting handle from his car and hit the man three blows on the head, splitting his scalp. The wound required II stitches. After the man returned home he suffered some internal bleeding in the skull in the region of the brain. Quite serious complications followed and he had to receive hospital treatment for something like two months. It was, therefore, a - very serious and violent assault and the magistrate was clearly of that view, but he also held that the provocation that the appellant claimed to have caused him to commit the offence was irrelevant to the question of mitigation. The magistrate was, frankly, wrong. “Provocation is, and necessarily must be, a matter to be taken into consideration on sentence, even though it is

no defence to the offence itself,” said his Honour.. “The learned magistrate indicated that in any event be regarded the provocation in this case as of little moment. But I disagree, and disagree most empnatically with that view I think it is fair that I should say why,” his Honour said. “The appellant has been married to his wife, of whom he is extremely fond, for a number of years. They have two children/aged five and 11. The marriage had been a happy one. The appellant trusted his wife and had no reason to do otherwise. “Six days before this offence was committed he was profoundly shocked to find his wife actually committing adultery with the man named in the charge. For some three days they stayed apart while they did their best to overcome this terrible barrier that had arisen between them and to try to find some basis upon which the old foundation of trust and confidence could be restored. She undertook not to see the man again. “On the night the offence was committed she was returning from work when she met the man and they entered into what appeared to the appellant to be close proximity. The appellant came on the scene quite unexpectedly. The sight was such as to shatter completely the domestic confidence , which he had attempted to rebuild. "I can imagine no greater provocation to any man in those circumstances than that offered to the appellant, and i that is a matter which in mv 1

“I can imagine no greater provocation to any man in those circumstances than that offered to the appellant, and that is a matter which in my opinion should have weighed, and weighed heavily, with the learned magistrate on sentence,” his Honour said.

The appellant previously had a blameless record and a record of service to the

■ community, particularly the less fortunate members of )the community. Surely he : was entitled to some recogi nition of the fact. The likeli- » hood of a recurrence of the ■ offence was, he believed, ’ non-existent, his Honour : said. “I want to emphasise that in allowing this appeal I do ; so (only because this is a 1 man of impeccable character ' caught up in circumstances , which drove him to an act 1 quite foreign to his nature at a time when he was deprived, and reasonably deprived, of all power of selfcontrol,” his Honour said. Appeal allowed An appeal by Trevor Ronald Moore, aged 21, a crane driver (Mr * K. N. Hampton), against a sentence of detention centre training imposed in the Greymouth Magistrate’s Court • was allowed. Moore was charged that on April 4 he was deemed to be a rogue and a vagabond in that he was found by night without lawful excuse in a building in Boyle Street, Blaketown. His Honour quashed the sentence and ordered Moore to come up for sentence within three years if called upon. Moore was also ordered to refrain from liquor during that period, not to associate with persons disapproved of by the probation office, and to pay $5O towards the cost of prosecution. Appeal .dismissed An appeal by John Graeme Wall, aged 25, a barman, against a sentence of three years and three months imprisonment imposed on two charges of burglary, two bf unlawful taking of a motorvehicle, and one of dangerous driving, was dismissed. Mr J. R. Milligan appeared for the appellant.