Police v Curzey - [2019] NZHC 3444

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-443-000027

[2019] NZHC 3444

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

GLENN DAVID CURZEY

Respondent

Hearing: 17 December 2019

Counsel:

J E Bourke for the Appellant

N P Bourke for the Respondent

Judgment:

19 December 2019

JUDGMENT OF CLARK J

[1] The key issue raised by this appeal is whether a protection order is a sentence for the purpose of s 25 of the Sentencing Act 2002.

Factual background

[2] Although not strictly relevant to the legal issue for determination, I summarise the factual background because it was the nature of the offending that led the District Court Judge to the view the sentence he believed he was imposing was open to appeal on the grounds it was a manifestly inadequate response to the serious offending Mr Curzey acknowledged from the beginning.1

1 New Zealand Police v Curzey [2019] NZDC 17977 at [39].

NEW ZEALAND POLICE v CURZEY [2019] NZHC 3444 [19 December 2019]

[3] Mr Curzey had been in a relationship with the female victim for approximately four months. There have been eight previous family harm incidents between Mr Curzey and the victim.

[4] At around 8.15 pm on Friday 25 January 2019 Mr Curzey was with the victim at her home address. He asked to use her shower. She declined and asked him to leave the property. Mr Curzey remained on the section outside the house for approximately 30 minutes.

[5] The victim approached him and asked why he was still there. He asked her for a hug, but she refused. She turned to walk away. As she walked by the front doorway of her house, Mr Curzey approached her from behind and punched her twice on the back of her head. She turned to face him. He punched her twice more, striking her in the face and causing her to fall to the ground in a half sitting position. He grabbed her hair and pulled her head back and punched her several more times around her head and face. She fell to the ground. When she was lying on the ground Mr Curzey shoved her in the back with his foot, before leaving the scene.

[6] Mr Curzey was located a short time later. In explanation he stated that he never laid a hand on the victim and that she had caused the injuries to herself.

[7] The victim suffered heavy bruising to her face and the left side of her head, cuts to her lips and bruising to both arms. She received bruising to the left side of her scalp and lacerations to her face. She required stiches and staples to close the lacerations.

Sentencing process

[8] At his first appearance on 26 January 2019, Mr Curzey was remanded on bail. On 12 March 2019, he entered a guilty plea to one charge of injuring with intent to injure.2 Mr Curzey was convicted and by consent a protection order…

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: [2019] NZHC 3444
Decision Date: 19 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Police v Curzey concerned whether a protection order constitutes a sentence for the purposes of the Sentencing Act 2002. The appellant, the New Zealand Police, appealed against the District Court’s decision, arguing that a protection order made against the respondent, Glenn David Curzey, should not be considered a final sentence, as it believed the imposed protection order was manifestly inadequate in response to the serious offending. The respondent contended that the protection order was indeed a sentence, concluding the sentencing process.

The court had to determine the legal nature of a protection order under the Sentencing Act and its implications for the sentencing process. Specifically, the court needed to clarify whether a protection order, made under section 123B of the Sentencing Act, should be treated as a sentence for the purposes of section 25 of the Sentencing Act, which governs the adjournment of proceedings. The court examined the legislative framework and case law to resolve this issue.

Clark J held that a protection order is not a sentence for the purposes of section 25 of the Sentencing Act. The court reasoned that section 123B of the Sentencing Act, which allows for the making of a protection order, explicitly states that such an order may be made in addition to imposing a sentence or making any other order. This statutory language, along with other provisions of the Sentencing Act and relevant case law, supported the conclusion that a protection order does not conclude the sentencing process. Therefore, the District Court had the authority to impose further sentences after the protection order.

Accordingly, the appeal was allowed, and the matter was remitted back to the District Court to complete the sentencing process. This judgment did not address the appropriateness of the sentence but focused solely on the legal issue of whether a protection order is a sentence.

Orders