Curry v The Queen
[2021] NZHC 3277
•1 December 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-135
[2021] NZHC 3277
BETWEEN INIA CURRY
Appellant
AND
THE QUEEN
Respondent
Hearing: 30 November 2021 Appearances:
Mr I Curry, Appellant in person P F Lee for the Respondent
Judgment:
1 December 2021
JUDGMENT OF MUIR J
This judgment is delivered by me on 1 December 2021 at 4:30 pm.
.....................................................
Registrar / Deputy Registrar
Solicitors:
Pollett Legal Limited, Crown Solicitors, Tauranga
And to:
The Appellant
CURRY v R [2021] NZHC 3277 [1 December 2021]
Introduction
[1] Mr Curry appeals against a sentence of nine months home detention imposed in respect of two charges of selling cannabis,1 one of conspiring to sell cannabis2 and one of offering to supply methamphetamine.3
[2] He pleaded guilty to the charges following a sentence indication by Judge P G Mabey QC in which he indicated a starting point of three years’ imprisonment.
[3] The sentence ultimately imposed recognised discounts of 25 per cent for guilty pleas, 20 per cent for cultural factors and five per cent on account of bail restrictions.
[4] The provisional sentence of 18 months’ imprisonment was then commuted to nine months’ home detention on the cannabis charges with one months’ concurrent home detention on the methamphetamine charge.
Appellant’s position
[5] The appellant argues that the sentence was manifestly excessive, primarily on the basis that it did not adequately recognise the extended (three year) period that he spent on bail prior to the sentencing. He says that he was subject to a curfew between
9.00 pm and 7.00 am which significantly restricted his social life. He says also that the Judge should have considered community detention as an available sentence.
Discussion
[6] To succeed on his appeal, Mr Curry must establish either that the sentence was manifestly excessive or wrong in principle.4
[7] I am satisfied that neither of these grounds are engaged. Mr Curry could scarcely have had an expectation of a community detention sentence when he pleaded
1 Misuse of Drugs Act 1975, s 6(1)(e) and (2)(c): carrying a maximum penalty of eight years’ imprisonment.
2 Section 6(1)(c) and (2A)(c): carrying a maximum penalty of seven years’ imprisonment.
3 Section 6(1)(c) and 6(2)(a): carrying a maximum penalty of life imprisonment.
4 The King v Brooks [1950] NZLR 658 (CA) at 659–660; and The Queen v Radich [1954] NZLR 86 (CA) at 87.
guilty following a sentence indication based on a three year custodial starting point. Nor in the generality of cases would such a sentence properly capture the relevant purposes and principles of sentencing in relation to commercial drug dealing, nor was there anything about this case to take it outside that construct.
[8] As to discounts, Mr Curry’s position was, in my view, generously recognised. For a start he was given a 25 per cent discount for guilty pleas albeit that such pleas were entered almost three years after the offending, effectively on the eve of trial and with no material change in the charges. Many other judges would have limited the discount to no more than 10 per cent. The discount for cultural factors was also generous at 20 per cent. The five per cent discount for restrictive bail conditions is likewise one which many judges would not have recognised.
[9] Under s 9(2)(h) of the Sentencing Act 2002, time spent on EM bail is a mitigating factor which the Court is obliged to take into account. In that context the Court will have regard to the period of time that the appellant has spent subject to EM bail conditions, the restrictiveness of those conditions and the extent of the appellant’s compliance. There is no rule regarding the extent of the discount to be given nor arithmetical formula to be applied.5 In any event the allowance is often no more than “modest”.6 All of this is however in the context of the EM bail regime to which Mr Curry was never subject. As his Honour stated:7
… Mr Roose reminds me that you have been on bail for a long time. It has not been restrictive bail and there is no statutory mandate that I take [this] into account as I must for someone who has been on [EM bail]. But the fact remains that you have been true to your bail conditions for a very long time and that indicates well for the future and I can increase that 45 per cent to 50 per cent.
[10] Although not mandated a court may nevertheless take restrictive or extended conditions of bail simpliciter into account in sentencing. That is what the Judge appears to have done by describing Mr Curry’s performance as “true … for a very long time”.8 That was in itself a generous description.
5 Rangi v R [2014] NZCA 524 at [10].
6 At [10]. See also Chea v R [2016] NZCA 207 at [110].
7 R v Curry [2021] NZDC 18374 at [7].
8 At [7].
[11] Mr Curry re-offended on two separate occasions while on bail (both involving male assaults female), failed on one occasion to present himself at the door in accordance with bail conditions, breached his curfew condition on one occasion and was ostensibly living for some time at an address other than that stipulated. Moreover the curfew restriction was removed approximately six months before sentencing.
[12] The total discounts of 50 per cent were, in my view therefore, conspicuously generous.
[13] In terms of final sentence, the Judge then went on to recognise the legislative requirement to impose the least restrictive outcome9 and to acknowledge rehabilitative prospects within his family and community context.10 He identifies Mr Curry as someone with potential, who is a good worker and whose interests were best served by a home detention sentence with an expressed hope that “you can keep your job”. Mr Curry confirms that he is currently in employment which is managed within the context of his home detention conditions. Again therefore, the Judge prioritised other sentencing requirements over deterrence and denunciation. He cannot be criticised for doing so but nor can it be suggested that Mr Curry did not receive the advantage of every mitigating circumstance possible.
[14] I conclude that the sentence was not manifestly excessive, nor did it proceed on the basis of an error of principle.
Result
[15]I dismiss the appeal.
Muir J
9 Sentencing Act 2002, s 8(g).
10 Section 8(i).