Curtis-Smith v The King
[2025] NZHC 511
•13 March 2025
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2024-476-34
[2025] NZHC 511
BETWEEN COURTNEY ROBERT CURTIS-SMITH
Appellant
AND
THE KING
Respondent
Hearing: 13 March 2025 Appearances:
J B Lovely for Appellant
C J Mitchelmore for Respondent
Judgment:
13 March 2025
ORAL JUDGMENT OF EATON J
(appeal against sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CURTIS-SMITH v R [2025] NZHC 511 [13 March 2025]
Introduction
[1] Courtney Robert Curtis-Smith pleaded guilty to a charge of injuring with intent to injure,1 and a second charge of breaching a protection order.2 He was sentenced by Judge Savage on 27 November 2024 to two years and four months’ imprisonment.3 He now appeals this decision on the grounds the sentence was manifestly excessive.
Facts
[2]I adopt the following facts from the prosecution’s summary of facts.
[3] Mr Curtis-Smith and the victim were in a relationship for approximately five years. In September 2015, the victim obtained a protection order against Mr Curtis-Smith. In November 2018, the victim was visiting Mr Curtis-Smith’s house, checking up on her horse. In the evening, they purchased a large bottle of bourbon from Geraldine and began drinking it together.
[4] In the early hours of 25 November, both were intoxicated and an argument developed. When the victim went to leave the kitchen, Mr Curtis-Smith slammed her head into the wall with sufficient force to knock her unconscious, fracture her eye socket and cause her nose to bleed heavily. She was briefly unconscious. The next thing she remembers is the appellant lifting her to the point where her feet were no longer on the ground. At some point, Mr Curtis-Smith took her by the arms and threw her out the front door, locking her outside.
District Court Decision
[5] The Judge found that Mr Curtis-Smith’s offending fell within band three of Nuku v R,4 as three aggravating features were present, an attack to the head, the level of violence which the Judge initially described as serious and then as extreme, and serious injury.
1 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
2 Domestic Violence Act 1995, ss 19(1)(a) or (b), and 49(1)(b) and 49(3); maximum penalty three years imprisonment.
3 R v Curtis-Smith [2024] NZDC 28968.
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[6] The Judge adopted a starting point of three years and nine months’ imprisonment, which took into account that the victim was named as the protected person in a protection order at the time of the offending. A two-month uplift was imposed for previous convictions. A 20 per cent reduction was allowed for guilty pleas and 10 per cent for rehabilitation. No allowance was made for remorse including, in particular, an offer to pay harm reparation.
[7] An end sentence of two years and four months’ imprisonment was imposed. A concurrent term of six months’ imprisonment was imposed for the breach of the protection order.
Principles on appeal
[8] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal stated in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
Submissions
Appellant’s submissions
[9] Mr Lovely, for the appellant, with reference to authorities, submits the Judge adopted a starting point that was too high. He submits the Judge was wrong to take into account the breach of the protection order in fixing the starting point on the assault because the Judge intended to impose a concurrent sentence for that breach. Further, he submits the Judge erred in failing to take into account the emotional harm reparation offer.
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
[10] Mr Lovely submits the end sentence could be reduced to between 18 months and two years’ imprisonment and commuted to a sentence of home detention.
Respondent’s submissions
[11] Mr Mitchelmore, for the respondent, opposes the appeal. He submits the starting point was within range given the aggravating features the Judge identified. Indeed, he submits there was a further aggravating feature of victim vulnerability that was relevant in assessing the starting point, highlighting that not only was the victim a protected person, but she was also at a relatively isolated property, being the rural address of the appellant. He submits that the cases advanced by Mr Lovely as supporting a lower starting sentence are easily distinguished.
[12] Mr Mitchelmore submits that the Judge was quite right to refer to the breach of the protection order in setting the starting point for the assault. He refers to s 9(ca) of the Sentencing Act 2002 that expressly requires the Court to take into account as an aggravating factor in a family violence offence that a protection order is in place. Counsel acknowledges the position may have been different if the Judge had then applied an uplift for the breach of the protection order. The Judge did not.
[13] Overall, Mr Mitchelmore submits the end sentence was not manifestly excessive.
Analysis
Starting point
[14] Mr Lovely does not take issue with the Judge’s classification of this offending as falling within band three of Nuku v R.8 As I have observed, the Judge described the level of violence initially as serious. I have no difficulty agreeing with that assessment. The Judge then described the level of violence as extreme, which is the language of R v Taueki9 when identifying the aggravating factors of violent offending. I have some doubt as to whether the offending did engage extreme violence. At sentencing and in
8 Nuku v R, above n 4.
9 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 at [31].
argument this morning, Mr Mitchelmore has submitted the offending was prolonged. That is a factor that is relevant in assessing whether violence is extreme. But, in reality, I think this was a single act of violence described as slamming the victim’s head into the wall. It caused her to briefly become unconscious. She was then picked up and thrown outside. The injuries were inflicted through the act of slamming her head against the wall. No weapon was used. The injuries suffered were serious but, again by reference to Taueki, they were not “potentially fatal or are such as to cause long term or permanent disability impacting on the victim’s quality of life.10
[15] Consequently, I am of the view that it would have been open to the Judge to adopt a slightly lower starting point. Overall, I am of the view that it was properly described as stern, but not outside the available range. In reaching that view, I agree with Mr Mitchelmore that the cases advanced by Mr Lovely11 are of little assistance because they either pre-date the tariff case of Nuku or involve a level of violence or injuries that are significantly less than inflicted by Mr Curtis-Smith.
Protection order
[16] I do not accept Mr Lovely’s submission that the Judge double counted the relevance of the protection order. There was no error in describing the fact of the protection order as an aggravating factor of the assault; that much is clear from the provisions of s 9(ca) of the Sentencing Act. The Judge did not impose a discrete uplift for the breach of the protection order, and appropriately, in my view, imposed a concurrent sentence for that offence.
Emotional harm payment
[17] Mr Lovely submits the Judge erred in not allowing a one-to-two-month deduction to recognise the offer to pay emotional harm in the sum of $500.
[18] This offer was declined by the victim. The discount for this offer was expressly acknowledged by the sentencing Judge. While s 10(1) of the Sentencing Act provides
10 R v Taueki at [31].
11 Nand v R [2011] NZCA 566; Wilson-McAlister v NZ Police [2021] NZHC 800; and Bracken v NZ Police [2012] NZHC 225.
the Court must take that offer into account, s 10(2)(b) states in considering this, the Court must take into account whether or not it has been accepted by the victim as expiating or mitigating the wrong. Given the offer was declined by the victim, and the Judge did not consider there was any other evidence of remorse from the appellant, I do not find any error in declining to make a discrete discount for an emotional harm payment.
Previous convictions
[19] Mr Lovely had, in his written submissions, contended that the Judge had erred in imposing an uplift for previous convictions, but he did not pursue that submission on appeal. Properly so in my view.
Delay
[20] As I have discussed with counsel this morning, what I consider to be the most striking feature of this appeal is the delay between the admitted offending and the charges being laid. The offence date was 25 November 2018. The charging document was not filed on 30 August 2023, nearly five years later.
[21] At the outset of his sentencing notes, the Judge acknowledged there had been a delay, but neither the sentencing notes nor counsel’s submissions filed on appeal address that significant issue. On 4 March this year I issued a minute asking counsel to explain the delay. Mr Lovely was unable to offer any explanation. Mr Mitchelmore, in a memorandum, confirmed that a police file was opened on 29 November 2018 and that the complainant made a statement the following day. The complaint was made in Masterton where the complainant was living. The file was not transferred to Timaru Police until March 2019. No explanation is offered for that delay. Mr Mitchelmore says the file was first assigned for investigation in July 2019. That delay was a consequence of workloads. He says that the file was then not actioned, again due to high workloads. It was not until October 2021 that a suspect interview was tasked to Greymouth Police, from which I infer that the police had learnt that Mr Curtis-Smith was by then living on the West Coast. Mr Mitchelmore says that because Mr Curtis-Smith’s exact location was not known, the file was then
“essentially inactivated”. It was not until June 2023 that Mr Curtis-Smith was interviewed.
[22] There is no suggestion that Mr Curtis-Smith took any steps to avoid the police. It is clear that he had no knowledge whatsoever that a complaint had been made to the police and that he was the subject of an investigation that had been stalled for many years. I have been provided with no information as regards what steps the police took to locate Mr Curtis-Smith. There is no reason to think that the most basic inquiry would have revealed his whereabouts.
[23] Criminal matters should be dealt with and disposed of promptly.12 Section 9(2)(fb) of the Sentencing Act gives “statutory recognition to, and extends, the existing practice of reducing the sentence when undue delay in the disposal of the case can be attributed to the prosecution or the court system”.13 But, if the delay is not caused by a failure by the prosecution to comply with a procedural requirement, then it can be taken account under what might be described as the catch-all provision of s 9(4) of the Sentencing Act which confirms the Court is entitled to take into account any other aggravating or mitigating factor that the Court thinks fit.14
[24] Alternative to the statutory remedy, pre-charge delay can be dealt with under the Court’s inherent jurisdiction.15
[25] Delay since the offence was committed does not, in itself, entitle a defendant to any special consideration in regard to sentence16 and where the delay causes adverse effects on the defendant, any remedy must be reasonable and proportionate. But that can include a reduction in the sentence imposed.17 Whether there has been undue delay is determined by reference to time, cause and circumstance.18
12 R v MacDonald (1990) 52 A Crim R 349 (CCA, NSW).
13 Mathew Downs (ed) Adams on Criminal Law — Sentencing Act 2002 (online ed, Thomson Reuters) at [SA9.22B].
14 McDonald v Crown Law [2016] NZHC 339 at [43].
15 H v R HC Rotorua CRI-2011-019-2091, 2 December 2011 at [8].
16 R v Fissenden CA364/95, 21 February 1996.
17 Williams v R [2009] NZSC 41, [2009] 2 NZLR 750; and Downs, above n 13, at [SA9.25(4)].
18 At [12].
[26] One example of a sentence deduction to reflect pre-charge delay is R v O’Keefe, where the prosecution commenced a perjury charge 11 months after false evidence was given in court.19 This delay was not the offender’s fault. It was described as “attributable to factors which are understandable; but…very unfortunate”.20 On appeal, the Court noted that despite the seriousness of the charge of perjury, the prosecution delay was emphasised by counsel, as was “the good and hopeful aspects of the appellant’s life”.21 The appellant’s conduct and situation had stabilised considerably since the offending. Considering these factors, the Court reached the “merciful view that in the particular circumstances the sentence should be reduced” to six months’ imprisonment.22
[27] In other jurisdictions, sentencing for a “stale crime” has been said to require a considerable measure of understanding and a flexibility of approach.23 Even where the delay is caused by the actions of the offender (e.g., leaving the country), a consideration of the background and circumstances of the offending, and of fairness to the offender in their current situation may result in a more lenient sentence than otherwise would have been appropriate.24
[28] In R v Togo, in dismissing an appeal against six years’ imprisonment for rape and burglary which had occurred over five years earlier, the Court of Appeal stated:25
There are occasions on which evidence of a considerable period of good behaviour since offending warrants a reduction in penalty. That is a more cogent consideration when the offender comes forward to admit his original default and express his remorse for it, than in a case such as this, where the delay is ended by the efforts of the police and the offender then denies his involvement.
[29] As is recognised in Hall’s Sentencing “[t]he existence of a good record, both before and after the offending is clearly a mitigating factor.”26 In R v Ashwell, Ellis J acknowledged that the fact the offender suffered guilt of the undetected offences for
19 R v O’Keefe CA41/85, 14 March 1985.
20 R v O’Keefe, at 4.
21 At 5.
22 At 6.
23 Geoff Hall Hall’s Sentencing (online ed, LexisNexis) at [I.7.7].
24 R v Todd [1982] 2 NSWLR 517 (CCA); applied in R v Suckling (1983) 33 SASR 133 and
Murrell v R (1985) 58 ALR 203 (FCA).
25 Hall, above n 24, at [I.7.7(a)]; and R v Togo CA392/91, 14 May 1992.
26 Hall, above n 24, at [I.7.7.(b)(i)].
many years, that guilt was admitted at the first available opportunity, and that there had been no repetition were all factors to be properly considered.27 Similarly, in R v Taylor, Penlington J noted the rationale of delay as a mitigating factor is obvious, as:28
The greater the time between the offending and sentence the greater the time the prisoner has had to live with his guilt and contemplate its detection and ultimate punishment. This is a form of punishment in itself.
[30]Finally, I observe that the Court of Appeal in Carruthers held:29
[W]here in the years that have intervened the offender has demonstrated that he has overcome his earlier proclivities, and has settled into a normal and law-abiding life, that fact must be recognised. For events have shown that one of the objectives of sentencing, deterrence of the specific offender, is unnecessary. The man to be sentenced today is not the same man who committed the offences. Moreover, the interests of the new family unit, of other children, may need to be considered.
[31] Carruthers involved sexual offending against a young person leading the Court to observe that a non-custodial sentence “could not generally be justified, even when a relatively long period of time has gone by. For the general deterrence and denunciatory aspects of sentencing will still have relevance”. The cessation of offending, the plea of guilty and the voluntary undertaking of treatment after police inquiries commenced in that case, resulted in the Court reducing sentence from two years to 18 months’ imprisonment.
Consequence of delay in this case
[32] In my view, no reasonable explanation has been offered for the delay in charging Mr Curtis-Smith. I would describe the delay as extraordinary and contrary to the interest of justice. The complainant had made a prompt complaint to the police. Effectively the police then sat on their hands for nearly five years before approaching Mr Curtis-Smith with the allegation.
[33] The material presented to the sentencing Judge confirms that in the five years since the offending, Mr Curtis-Smith has a new and more stable life. He has a new
27 R v Ashwell HC Wanganui, 22 March 1991.
28 R v Taylor HC Hamilton AP50/91, 12 September 1991.
29 R v Carruthers CA401/94, 10 April 1995.
partner of three years duration. He has taken on the role of a father to her three daughters. There is no indication or suggestion he has offended since 2018. He says, and there is nothing to dispute it, that he has abstained from alcohol since the offending.
[34] The author of the pre-sentence report assessed Mr Curtis-Smith as having a low risk of re-offending. The report described him as living with his partner and her three children on the same property as his parents and brother, with a sister who lives very close by. The report says another sister was going to shortly move to live with the family. Mr Curtis-Smith is described as being very close to his family who are said to be of great support to him.
[35] I have read a carefully written reference from Mr Curtis-Smith’s mother confirming that he has taken on the role of father to his partner’s three children. She confirms that as a family unit they have been living together in the 18 months prior to sentencing. She describes the incident involving the victim as having been a major wake up call for Mr Curtis-Smith. She describes Mr Curtis-Smith as having worked very hard to put his life in order and to become a better person.
[36] I am satisfied Mr Curtis-Smith has progressed his life in a law abiding and pro-social manner over the past five years. It is clear his focus is on his new partner, on her children and on his own family. He told the pre-sentence report writer he is committed to a family life. He is in regular seasonal employment. He is in the progress of building a home for his partner and her children.
[37] The progress that Mr Curtis-Smith has made over the five years prior to being charged, in my view, largely addresses the sentencing purpose of personal deterrence. I am also satisfied the broader interests of justice require the Court to recognise the delay as operating unfairly to Mr Curtis-Smith. Had this prosecution been advanced in a timely manner, any sentence that might have been imposed would have been served and completed many years ago.
[38] The Judge commenced his sentencing notes observing that “[o]ne fact that cannot be ignored today” was the passage of time between the assault and
sentencing.30 Thereafter the Judge did not refer to delay but did allow a 10 per cent deduction to reflect “a degree of rehabilitation”.31 I am satisfied that the significant delay in charging Mr Curtis-Smith requires a discrete and more substantial deduction, one I fix at 20 per cent.
[39] Applying the uplift for previous convictions and the guilty plea and rehabilitation deductions that were fixed by the Judge, I arrive at a net deduction of 45 per cent, giving rise to an end sentence of 21 months’ imprisonment.
Home detention
[40] Having arrived at a short-term sentence, I must consider whether the sentence ought to be commuted to one of home detention. I am quite satisfied that a sentence of home detention is the least restrictive appropriate sentence. That is primarily because of the delay in prosecuting this case and the significant progress and positive steps that have been taken by Mr Curtis-Smith.
[41] If the sentence is to be commuted, the Court must take into account that Mr Curtis-Smith has served approximately 3.5 months of the current sentence which equates to a seven-month term of imprisonment. Deducting that seven-month period from the 21-month adjusted end sentence, I would have arrived at a final sentence of 14 months’ imprisonment.
[42] However, the complicating factor which was not addressed in the written submissions is that the pre-sentence report made it clear that the address where Mr Curtis-Smith was living at the time of sentencing is not feasible for an electronically monitored sentence. In my view, that is frustrating and operates unfairly to Mr Curtis-Smith.
[43] Mr Lovely tells me that there is an address which the family are investigating in Greymouth that should be feasible and assessed as suitable. That sounds very hopeful. In my view an address that is in close proximity to his family would be a positive factor.
30 R v Curtis-Smith, above n 3, at [2].
31 At [28].
[44] In those circumstances, I consider it appropriate that I grant leave to Mr Curtis-Smith under s 80I of the Sentencing Act 2002, to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.
Result
[45] The appeal is allowed. The sentence of two years and four months’ imprisonment is quashed. In substitution, on the charge of injuring with intent to injure, I impose a sentence of 21 months’ imprisonment and I grant leave to Mr Curtis-Smith to apply for home detention under s 80I.
...................................................
Eaton J
Solicitors:
Crown Solicitor, Timaru JRJ Lawyers Ltd, Timaru
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