Curry v R - [2010] NZCA 491

IN THE COURT OF APPEAL OF NEW ZEALAND
CA444/2010
[2010] NZCA 491
BETWEENMICHAEL JAMES CURRY

Appellant

ANDTHE QUEEN

Respondent

Hearing:19 October 2010

Court:Hammond, Chisholm and MacKenzie JJ
Counsel:M I Sewell for Appellant

M F Laracy for Respondent

Judgment:28 October 2010 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by MacKenzie J)
[1]        The appellant appeals against a sentence of 18 months imprisonment imposed after trial on one count of burglary by Judge Crosbie in the District Court at Christchurch on 30 June 2010.[1]
[1]      R v Curry DC Christchurch CRI-2009-009-9050, 30 June 2010.
[2]        The appellant and an associate were both involved in the burglary of a residential property at about 7.45pm on 13 June 2009. They drove to the address. One waited by the car while the other entered the property and stole a 42 inch plasma television and two stereo speakers valued at approximately $2,500 in total. The items were placed in the boot of the vehicle and the two offenders drove off. A neighbour had observed events and phoned Police, who stopped the offenders as they were leaving the street.
[3]        The co-offender Mr Karatai pleaded guilty. He was sentenced by Judge Farish, on 18 November 2009, for the burglary and some unrelated offending.[2] The summary of facts upon which the plea was entered indicated that it was Mr Karatai who entered the house. However, in sentencing Mr Karatai the Judge accepted his counsel’s submission that he was the driver of the vehicle and that he was not the principal offender. After referring in some detail to mitigating personal circumstances for Mr Karatai, Judge Farish said that, given his background, nine months imprisonment would be appropriate. She then allowed a full discount of 30 per cent for an early guilty plea, to reach an end sentence of six months.
[2]      R v Karatai DC Christchurch CRI-2009-009-11614, 18 November 2009.
[4]        In sentencing the appellant, Judge Crosbie noted this discrepancy as to the respective roles of the offenders. He said:
[18]… [Mr Karatai] was also sentenced on the basis that he was the driver and there rather seems to have been, as there often is in my experience, an offender getting in first and he got in first and was, on that basis, able to effectively characterise his own involvement first. It does not sit that well with the facts that came out in the hearing but then the facts will not be entirely known, as far as your participation is concerned, because from your side the evidence that was given was quite unreliable. I think it is fair to characterise your participation as being a person who assisted the person who broke into the house and stole the television but, as the Crown says, it does not make you any less a party to the offending. …

[5] The Judge adopted a starting point of 15 months. He treated as an aggravating feature of the offending that it was…

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 Curry v R

Details

AGLC: Curry v R [2010] NZCA 491
Case: [2010] NZCA 491
Decision Date: 28 October 2010

CaseChat Overview and Summary

In the case of Curry v R, Michael James Curry appeals against his 18-month imprisonment sentence imposed for a single count of burglary by Judge Crosbie in the Christchurch District Court. Curry and his associate were involved in the burglary of a residential property, where they stole a television and speakers. The co-offender, Mr Karatai, had previously pleaded guilty and was sentenced to six months imprisonment. Curry's counsel argues that there was a significant discrepancy between the starting points adopted by the trial judge and the judge who sentenced Mr Karatai, leading to a manifestly excessive sentence.

The court needed to decide whether the discrepancy in starting points between the sentences of Curry and Mr Karatai was significant and unjustified, and whether the sentence imposed on Curry was manifestly excessive. The court also had to consider the appropriate starting point for Curry's sentence and whether there was a marked difference in culpability between the two offenders.

The Court of Appeal found that there was no significant discrepancy between the starting points adopted by the two judges. The starting point of 15 months for Curry was within the appropriate range for the circumstances of the offending. The court also noted that both Curry and Mr Karatai carried out essential roles in the burglary, and their culpability was not significantly different. As such, the court dismissed the appeal, finding that the sentence imposed on Curry was not manifestly excessive.

This decision reinforces the importance of considering the specific circumstances of each case when determining appropriate sentencing, and highlights the need for consistency in the sentencing process. It also emphasises that both primary and secondary offenders in a burglary case can have similar levels of culpability, and should be treated accordingly.

Orders