Curry v The Queen - [2021] NZHC 3277

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…

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 The Queen

Details

AGLC: Curry v The Queen [2021] NZHC 3277
Case: [2021] NZHC 3277
Decision Date: 1 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Inia Curry, the appellant, brought an appeal against his sentence of nine months of home detention, imposed following his conviction for selling cannabis, conspiring to sell cannabis, and offering to supply methamphetamine. The appeal was heard on 30 November 2021, with Mr. Curry appearing in person and P. F. Lee representing the respondent, the Queen. The judgment was delivered by Justice Muir on 1 December 2021. The central issue in this appeal was whether the sentence imposed by the District Court was manifestly excessive or wrong in principle. The appellant contended that the sentence failed to adequately account for the three years he spent on bail before his sentencing, during which he was subject to a curfew from 9:00 pm to 7:00 am, which he argued significantly restricted his social life. He also argued that the District Court should have considered community detention as a possible sentence.

Justice Muir found that the appellant's appeal was not successful because the sentence was neither manifestly excessive nor wrong in principle. The court observed that the appellant had pleaded guilty to the charges shortly before the trial, following a sentence indication of a three-year custodial starting point. Justice Muir found that the appellant's position was generously recognised in terms of discounts. The court awarded a 25 per cent discount for guilty pleas, a 20 per cent discount for cultural factors, and a five per cent discount for restrictive bail conditions. The court concluded that the total discounts of 50 per cent were conspicuously generous. The court also noted that the District Court had appropriately prioritised rehabilitative prospects and potential within the appellant's family and community context, imposing the least restrictive outcome possible. The court found that the sentence was not manifestly excessive, nor did it proceed on the basis of an error of principle.

In light of the above, Justice Muir dismissed the appeal. The court found that the sentence imposed by the District Court was appropriate and did not engage the grounds of manifestly excessive or wrong in principle. The appellant's argument that the sentence failed to adequately recognise the extended period he spent on bail was not successful. The court found that the total discounts of 50 per cent were conspicuously generous and that the District Court had appropriately prioritised rehabilitative prospects and potential within the appellant's family and community context. The court concluded that the sentence was not manifestly excessive, nor did it proceed on the basis of an error of principle. Therefore, the appeal was dismissed.

Orders