Curzey v Police - [2020] NZCA 145

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA8/2020
[2020] NZCA 145

BETWEEN	GLEN DAVID CURZEY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 April 2020
Court:	Goddard, Mallon and Ellis JJ
Counsel:	N P Bourke for Appellant B F Fenton for Respondent
Judgment:	6 May 2020 at 11.00 am

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction and summary

The issue raised by this appeal

Mr Curzey pleaded guilty to a charge of injuring with intent to injure.[1] The victim was his former partner. The District Court entered a conviction, and by consent made a protection order in favour of the victim under s 123B of the Sentencing Act 2002. Judge Hikaka adjourned the sentencing to a later date relying on s 25 of the Sentencing Act. That section permits a court to adjourn criminal proceedings following a guilty plea or a finding of guilt “and before the offender has been sentenced or otherwise dealt with” for certain specified purposes (usually, to obtain further information relevant to sentencing).
[1]Crimes Act 1961, s 189(2).
Mr Curzey did not appear for sentencing on 27 May 2019. Judge Harrop, before whom Mr Curzey was to appear for sentence, decided not to issue a warrant for his arrest because he considered that the imposition of a protection order meant that the sentencing process was concluded. Submissions were subsequently timetabled for consideration of the question whether any further sentence would be imposed. This issue was argued before Judge Hikaka on 11 September 2019. Judge Hikaka held that the protection order he had made on 12 March 2019 ended the sentencing process. Mr Curzey had been “sentenced or otherwise dealt with” for the purposes of s 25 of the Sentencing Act. So on 12 March 2019 the Judge did not have jurisdiction to adjourn the proceeding under s 25.[2] Moreover, imposing a further sentence would be inconsistent with the well‑established principle that sentencing should take place before one judge on one occasion — “split sentencing” is not permitted.[3] The making of the protection order concluded the sentencing process.
[2]New Zealand Police v Curzey [2019] NZDC 17977 [District Court decision].
[3]At [34].
The police appealed. The High Court allowed the appeal, finding that a protection order is not a sentence for the purpose of s 25 of the Sentencing Act. The sentencing exercise had not been concluded. The District Court should determine an appropriate sentence.[4]
[4]New Zealand Police v Curzey [2019] NZHC 3444 [High Court decision].
Mr Curzey seeks leave to appeal to this Court. He says that the question whether the making of the protection order meant that he had been “sentenced or otherwise dealt with”, and precluded any further sentence being imposed, is a question of general or public importance. He submits that the District Court was right to find that the sentencing process had…

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.

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Details

Case: [2020] NZCA 145
Decision Date: 6 May 2020 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to determine whether a protection order made under section 123B of the Sentencing Act 2002 concludes the sentencing process and prevents the court from imposing any further sentence. Mr Curzey pleaded guilty to injuring with intent to injure his former partner. The District Court entered a conviction and made a protection order for the victim. The District Court Judge considered that the making of the protection order concluded the sentencing process and he had no jurisdiction to impose any further sentence. The police appealed to the High Court, which found that a protection order is not a sentence for the purposes of section 25 of the Sentencing Act. The sentencing exercise had not been concluded. Mr Curzey sought leave to appeal to the Court of Appeal on a question of law. The Court concluded that where a court makes a protection order under section 123B of the Sentencing Act, the Court is not imposing a sentence or "otherwise dealing with" the offender for the purposes of section 25 of that Act. A protection order is not a sentence for the purposes of the Sentencing Act, although it is treated as if it were a sentence for the purposes of appeals. The appeal is dismissed and the District Court should proceed with sentencing of Mr Curzey.

Orders