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Curtis v R

Curtis v R

Case [2007] NSWCCA 11 5 February 2007

Sentencing

Aggravating Circumstances

Mitigating Features

Re-sentencing

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Curtis v R [2007] NSWCCA 11
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 November 2006

JUDGMENT DATE:
5 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 6; Rothman J at 81

DECISION: (i) leave to appeal against sentences granted; (ii) appeal allowed, sentences quashed and the applicant re-sentenced - see para 80

CATCHWORDS: CRIMINAL LAW - sentencing - sentencing remarks - purpose of sentencing remarks - explanation for alteration of sentence - need for economy in sentencing remarks - application to appeal against severity of sentence - five counts - pleas of guilty - use of offensive weapon - assault - intimidation - resist police officer - stab police dog - deliberate act - threaten police - vulnerability of victim - aggravating circumstances - whether sentence manifestly excessive - whether gratuitous cruelty in stabbing dog an aggravating factor - assessment of objective gravity - whether offence in worst category of cases - subjective circumstances - mitigating features - rehabilitation - whether error to regard knifing of dog as gratuitous cruelty - objective seriousness - circumstance of aggravation - starting point for sentence not maximum sentence available - individual sentences not manifestly excessive - extent of accumulation of sentences excessive - re-sentence

LEGISLATION CITED: Crimes Act 1900, s33B(1) (a), s58, s61, s562AB
Crimes (Sentencing Procedure) Act 1999, Part 4, Division 1A, s21A, s44(2)

CASES CITED: Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Bottin [2005] NSWCCA 254
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
R v Keen [2004] NsWCCA 86
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Luke Graham Curtis - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/1711

COUNSEL: C Smith - Applicant
P Barrett - Respondent

SOLICITORS: SE O'Connor - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/2003

LOWER COURT JUDICIAL OFFICER: Gibb DCJ

LOWER COURT DATE OF DECISION: 6 April 2006

2006/1711

McCLELLAN CJ at CL
SIMPSON J
ROTHMAN J
Monday 5 February 2007

Luke Graham CURTIS v REGINA

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the draft judgment of Simpson J. I agree with the orders which her Honour proposes and generally with her reasons.

2 In my view the sentencing judge erred in regarding the stabbing as an act of gratuitous cruelty. The fact that the police dog was killed was a relevant circumstance of the offence, although the part it should play in the sentencing process is less apparent. The evidence was that the dog was trained to restrain but not physically injure a person the police were seeking to apprehend. Whether such a person would…

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 Curtis v R

Details

AGLC: Curtis v R [2007] NSWCCA 11
Case: [2007] NSWCCA 11
Decision Date: 5 February 2007

CaseChat Overview and Summary

The case of Curtis v R involved the appellant, Curtis, who had entered guilty pleas to five separate charges. The charges related to incidents involving the use of an offensive weapon, assault, intimidation, resisting a police officer, and stabbing a police dog. The appellant was sentenced to a total of eight years and three months in prison. The primary issue in this appeal was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that the trial judge had erred in considering the stabbing of a police dog as an instance of gratuitous cruelty, which was an aggravating factor. Additionally, the appellant contended that the trial judge had not properly assessed the objective seriousness of the offences and had not adequately considered mitigating factors such as the appellant's prospects of rehabilitation.

The court examined the purpose of sentencing remarks, which is to provide an explanation for any alteration of sentence and to ensure economy in the remarks. The court also considered the need for a sentence to reflect the gravity of the offence and the culpability of the offender. In assessing whether the sentence was manifestly excessive, the court examined both the objective and subjective circumstances of the case. The court noted that while the individual sentences for each offence were not excessive, the cumulative effect of the sentences imposed was excessive. The court found that the trial judge had erred in treating the stabbing of the police dog as an instance of gratuitous cruelty, which was not an appropriate aggravating factor. However, the court concluded that the objective seriousness of the offences and the circumstances of aggravation warranted a substantial sentence.

The court ordered a re-sentencing of the appellant. The court emphasised that the starting point for sentencing should not be the maximum sentence available for each offence, but rather a sentence that reflects the gravity of the offence and the culpability of the offender. The court also noted that mitigating factors such as the appellant's prospects of rehabilitation should be considered in determining the appropriate sentence. The court did not specify the exact sentence to be imposed but ordered that the appellant be re-sentenced by the trial judge or another appropriately qualified sentencing judge.

Orders