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Curle v Police

Curle v Police

Case [2017] NZHC 1194 2 June 2017

Rehabilitative Prospects

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000098

[2017] NZHC 1194

BETWEEN
SAMUEL CURLE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 May 2017

Appearances:

C Watkins for Appellant J Bull for Respondent

Judgment:

2 June 2017

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 2 June 2017 at 3.30pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/Counsel:
C Watkins, Barrister, Auckland Crown Solicitor, Auckland

CURLE v POLICE [2017] NZHC 1194 [2 June 2017]

Introduction

[1] The appellant, Mr Curle, appeals a sentence of three years’ imprisonment imposed by Judge Ronayne in the District Court at Auckland after Mr Curle had pleaded guilty to nine offences.1 The offences were unlawfully getting into a motor vehicle,2 unlawfully taking a motor vehicle,3 possession of instruments for conversion,4 receiving (property valued at over $1,000),5 theft (property valued at less than $500),6 possession of utensils for use with methamphetamine,7 dangerous driving,8 failing to stop for red and blue flashing lights,9 and possession of cannabis.10

[2] Mr Curle contends that the sentence is manifestly excessive. He says that both the starting points and the end sentence adopted by Judge Ronayne were too high, that the sentencing should not have been approached on a cumulative basis, that the discount for the guilty pleas was too low, and that the Judge gave insufficient consideration to his rehabilitative prospects.

[3] The respondent maintains that the Judge did not err in the approach he took to the sentencing, and that the end sentence is within the appropriate range for the offending here in issue, given Mr Curle’s criminal history.

Factual background

[4]There were four separate episodes of offending.

[5] On 11 February 2006, a vehicle that had been parked on a street was taken. The vehicle was later found by the police. A DNA profile from gloves found in the

1      Police v Curle [2017] NZDC 4863.
2      Crimes Act 1961, s 226(2); maximum term of imprisonment – two years.
3      Crimes Act 1961, s 226(1); maximum term of imprisonment – seven years.
4      Crimes Act 1961, s 227; maximum term of imprisonment – one year.
5      Crimes Act 1961, ss 246 and 247(a); maximum term of imprisonment – seven years.
6      Crimes Act 1961, ss 219 and 223(d); maximum term of imprisonment – three months.
7      Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3); maximum term of imprisonment – one year.
8      Land Transport Act 1998, ss 35(1)(b) and 35(2); maximum term of imprisonment – three months.
9      Land Transport Act 1998, ss 52(1)(c) and 52(4); maximum term of imprisonment – three months or a $10,000 fine.
10     Misuse of Drugs Act 1975, s 7(1)(a); maximum term of imprisonment – three months or a fine not exceeding $500, or both.

car matched Mr Curle’s DNA. Mr Curle was spoken to about the theft of the vehicle. He said that he had been directed to get into it. This resulted in the charge of unlawfully getting into…

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 Curle v Police

Details

AGLC: Curle v Police [2017] NZHC 1194
Case: [2017] NZHC 1194
Decision Date: 2 June 2017

CaseChat Overview and Summary

Samuel Curle appeals a sentence of three years’ imprisonment imposed by Judge Ronayne in the District Court after Mr Curle pleaded guilty to nine offences. Mr Curle contends that the sentence is manifestly excessive. The respondent maintains that the Judge did not err in the approach he took to the sentencing, and that the end sentence is within the appropriate range for the offending in issue, given Mr Curle’s criminal history.

The court must allow the appeal if it is satisfied that there is an error in the sentence imposed and that a different sentence should have been imposed. The focus is on the end sentence, and not on the process adopted in reaching that end sentence. If a Judge’s analysis was incorrect, but the end sentence was nevertheless within the appropriate range, the appellate Court should not “tinker” with the sentence imposed.

The court found that the Judge’s approach to the sentencing was difficult to follow from the incomplete sentencing notes that were available. However, it was clear that the Judge considered that the February 2016 offending should be considered on a discrete basis from the August 2016 offending. The Judge’s switch from cumulative sentences to concurrent sentences, without explanation, and the unexplained change from the starting point sentence to the final sentence imposed for the car conversion charge has produced the confusion. It does not, however, follow that the Judge erred. Rather, it seems that he was invoking s 85(4) of the Sentencing Act 2002.

The appeal is allowed. The sentence imposed by Judge Ronayne is quashed, and the court substitutes the following sentences: three months’ imprisonment in respect of the charge of unlawfully getting into a motor vehicle; eight months’ imprisonment in respect of the charge of receiving; two months’ imprisonment in respect of the charge of being in possession of utensils for use with methamphetamine; two years and seven months’ imprisonment in respect of the charge of unlawfully taking a motor vehicle; one months’ imprisonment in respect of the charge of theft; two months’ imprisonment in respect of the charge of dangerous driving, and one months’ imprisonment in respect of the charge of failing to stop for red and blue lights – a total of three months’ imprisonment; two weeks’ imprisonment in respect of the charge of possession of cannabis; and two months’ imprisonment in respect of the charge of possession of instruments for conversion. All of the sentences are to be served concurrently.

Orders