Police v Curzey
[2019] NZHC 3444
•19 December 2019
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 was made against him in favour of the complainant. Directions for final disposal by way of a sentence were made and a date of 27 May 2019 was set for sentence.
2 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
[9] On 27 May 2019, Mr Curzey did not appear. Judge Harrop, before whom Mr Curzey was to appear for sentence, decided not to issue a warrant to arrest because, as a result of his researches, he took the view the imposition of a protection order was the imposition of a sentence under s 123B of the Sentencing Act. Accordingly, in Judge Harrop’s view, there was no basis upon which the District Court could make any further orders in respect of Mr Curzey whether by bail, a warrant to arrest, or a sentence because the sentencing had been completed. Judge Harrop had intimated his view to the prosecution and Mr Curzey’s then counsel the previous week and, through the Registrar, asked whether they would like time to consider the situation and the possibility of an appeal on the basis a protection order, without more, was a manifestly inadequate sentence.3
[10] Although he considered the matter was concluded, and that he had no power to formally adjourn the hearing of the charge, Judge Harrop directed (informally) that the matter be reviewed in the District Court on 2 July 2019 with the Police to advise in advance of that date of the position they took. Judge Harrop asked also that counsel’s legal aid assignment be extended by the legal services agency for that limited purpose.4 It appears that at the informal review on 2 July 2019, submissions were timetabled for consideration of the question “whether further Sentencing Act 2002 provisions would be imposed”.
[11] At the hearing on 11 September 2019, Judge Hikaka took the view the protection order made on 12 March 2019 concluded the proceeding. The following are the key points to be taken from Judge Hikaka’s sentencing notes:5
(a)The provisional advice to courts recorded Mr Curzey had not re- offended. He had gained a good level of insight, shown remorse, expressed regret and had self-referred to anger management processes.6
3 New Zealand Police v Curzey DC Hawera CRI-2019-021-000069, 27 May 2019 (minute) at [7].
4 At [8]-[9].
5 New Zealand Police v Curzey, above n 1.
6 At [6].
(b)The issue was whether a protection order made upon conviction under s 123B of the Sentencing Act ended the sentencing process.7
(c)If the sentencing process was ended by the imposition of a protection order then the power to adjourn under s 25 of the Sentencing Act was unavailable as that would amount to splitting a sentence. If a protection order did not end the sentencing process then the proceedings could be adjourned for enquiries into the appropriate final sentence. 8
(d)The prosecution had submitted the protection order was a tool for the protection for the victim of family violence and was not a sentence. After obtaining instructions from him, Mr Curzey’s then counsel agreed with the police submissions. Counsel for both the prosecution and Mr Curzey submitted the sentencing process should continue.9
(e)Although at an earlier point Judge Hikaka had formed the view a protection order was not a sentence “but a device to provide additional future protection for victims of family violence (and their children) , as soon as possible in the criminal court process”, he reconsidered his view in light of amendments to the Domestic Violence Act (now Family Violence Act), which came into force on 1 July 2019. It appeared to Judge Hikaka that Parliament had “perhaps unwittingly” removed the court’s ability to make a protection order under s 123B prior to final sentence.10
(f)Section 6 of the Sentencing Act provides that if convicted of an offence in respect of which the penalty has varied between commission of the offence and sentencing, the offender has a right to the benefit of the lesser penalty. The legislative amendments clarified the position in relation to the conflicting authorities, Essel v New Zealand,11 Police
7 At [7].
8 At [8]–[9].
9 At [14].
10 At [27]–[29] and [35].
11 Essel v New Zealand Police HC Wellington CIV-2011-485-2207, 23 November 2011.
and Holloway v New Zealand Police12 and brought Patelesio v New Zealand Police13 back into focus. To continue the sentencing process at that stage would subject Mr Curzey to a greater response when s 6 of the Sentencing Act entitled him to the benefit of a lesser response.14
(g)Judge Hikaka determined that the protection order made on 12 March 2019 concluded the proceedings but that it was open to the prosecution to appeal the sentence but that would be a matter for the prosecution.
Approach to appeal
[12] An appeal against the imposition of a protection order is an appeal against sentence under s 244 of the Criminal Procedure Act 2011.15 Under s 250, the appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. The appellate court should only re-exercise the sentencing discretion if there is an error of principle. The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.16
Parties’ positions on appeal
[13] Simply stated, the appellant’s position is that the sentencing Judge erred in his interpretation of the law and a sentence can be imposed separately from a protection order. Mr Bourke submitted the case law is not conclusive and merely clarifies that an appeal against a protection order follows the same appeal pathway as an appeal against sentence. The definition of “sentence” considered in both Essell and Holloway was specific to the section of the Summary Proceedings Act providing for appeals. Section 123H of the Sentencing Act does not define a protection order as a sentence. Rather, it provides that an appeal against a s 123B protection order proceeds as if it were an appeal against sentence.
12 Holloway v New Zealand Police [2014] NZHC 1626.
13 Patelesio v New Zealand Police HC Invercargill CRI 2009-425-31, 23 April 2010.
14 New Zealand Police v Curzey, above n 1, at [37].
15 Sentencing Act 2002, s 123H.
16 Ripia v R [2011] NZCA 101 at [15].
[14] The respondent’s position is that a protection order is a sentence for the purpose of s 25. In support of the respondent’s position counsel relied on the interpretation provision in the Criminal Procedure Act 2011 (s 212), which provides that “sentence” “includes any method of disposing of a case following conviction”
[15] Mr Bourke argued the respondent’s position is also supported by s 123H of the Sentencing Act, which provides that an appeal against a decision to make a protection order under s 123B is an appeal against a sentence. Mr Bourke submitted that it was important not to get lost in the s 10A Sentencing Act hierarchy of sentences and orders. He regarded the case law as absolutely clear.
[16] In Patelesio, for example, Lang J observed that the s 25 requirement that a court may only adjourn a proceeding “before the offender has been sentenced or otherwise dealt with” reflects Parliament’s intention that all relevant inquiries should be completed before an offender is dealt with in any way at all.17
[17] Mr Curzey was “otherwise dealt with” when the protection order was made. Therefore, both District Court Judges were correct. The sentencing process is concluded and they are functus officio.
Discussion
[18] Section 25 of the Sentencing Act empowers a court, for any of the purposes set out in subs (1)(a)–(e), to adjourn proceedings in respect of any offence “after the offender has been found guilty or has pleaded guilty and before the offender has been sentenced or otherwise dealt with”.
[19] Proceedings may be adjourned, for example, to enable inquiries to be made or to allow for restorative justice processes to take place. Although the power to adjourn is wide, s 25 does not permit the court to impose only part of a sentence followed by an adjournment. All parts of the sentencing process are to be completed on the once occasion. Lang J discussed the function of s 25 in Patelesio v New Zealand Police:
17 Patelesio v New Zealand Police, above n 13, at [16].
[16] Importantly for present purposes, the Court may only adjourn a proceeding under s 25 “before the offender has been sentenced or otherwise dealt with”. This requirement clearly reflects Parliament’s intention that all relevant inquiries should be completed before an offender is dealt with in any way at all. The reason for this requirement is obvious. As the present case demonstrates, the sentence that is ultimately imposed on an offender will often have several components. Here those components were community work, supervision, disqualification and reparation. In order to impose an appropriate mix of sentences it is necessary to ensure that the ultimate combination of sentences is consonant with the gravity of the case, and the circumstances of the offender.
[17] A decision by the sentencer to impose one form of penalty may well affect the remaining penalties that are imposed. The fact that the offender is prepared to pay reparation may, for example, be regarded as a mitigating factor that operates to reduce the severity of the other penalties. For this reason it is essential that the end sentence is imposed in its entirety by the same Judge on the same occasion. If that does not occur, there is a risk that one or more components of the sentence will end up ‘out of synch’ with other components.
[20] Turning to protection orders, frequently such an order is made on application under s 60 of the Family Violence Act 2018. A person prejudicially affected may appeal the order under s 177 of the Family Violence Act. An appeal under s 177 is a a civil appeal and is conducted pursuant to the High Court Rules.
[21] Protection orders may also be imposed as part of the sentencing process under the Sentencing Act. Section 123B(1) of the Sentencing Act confers jurisdiction to make a protection order against the offender if the offender has been convicted of a family violence offence and the court is satisfied it is necessary for the protection of the victim and the victim of the offence does not object.18 A protection order may be made under s 123B in addition to a sentence or other order.19 Prior to amendments in 2019 there was confusion as to whether an appeal against a s 123B order was to be conducted pursuant to the Criminal Procedure Act or s 177 of the Family Violence Act. In July 2019, the position was clarified by the insertion of s 123H of the Sentencing Act, providing that an appeal against an order made under s 123B is an appeal against sentence.20
[22] Notwithstanding the implication the respondent draws from s 123H, and that the District Court Judges drew, I do not agree that s 123H supports the proposition that
18 Sentencing Act 2002, s 123B(2).
19 Section 123B(3).
20 Family Violence (Amendments) Act 2018, s 67.
a protection order is a sentence — for the purpose of s 25 or for any other purpose (except for the appropriate appeal pathway).
[23] Section 123B was part of a package of amendments aimed at strengthening the family violence regime to provide better protection for victims.21 I note in passing that where Judge Hikaka suggested Parliament had “perhaps unwittingly” removed the court’s ability to make a protection order under s 123B prior to final sentence, the explanatory note to the Domestic Violence Reform Bill shows the legislature in fact fully appreciated that a protection order could be made “in addition to imposing a sentence or making any other order”.
[24] With the enactment of s 123B, the criminal courts were empowered to make protection orders against offenders if satisfied it was necessary to do so and the victim did not object. In this way, victims of family violence could be afforded immediate and effective protection without having to resort to making applications under the Family Violence Act. That is the purpose and effect of s 123B. A protection order made under s 123B does not have effect as a sentence and thereby, of itself, conclude the sentencing process.
[25]The point is put beyond doubt, in my view, by s 123B(3), which provides:
A protection order may be made under this section in addition to imposing a sentence or making any other order. (Emphasis added).
[26]Other statutory indicators tell against the respondent’s position:
(a)In imposing a s 123B protection order, the Judge is not obliged to have regard to the purposes and principles of sentencing under ss 7 and 8 or the aggravating and mitigating factors under s 9.
(b)That a protection order is not a sentence is supported by the broader context of the Sentencing Act. A protection order does not appear as one of the sentences listed from the least to most restrictive in s 10A of
21 See Domestic Violence Reform Bill 2008 (301–1) (explanatory note) at 5; and Domestic Violence (Enhancing Safety) Bill 2009 (9–2) (Justice and Electoral Committee report) at 8.
the Sentencing Act To mention this point is not to “get lost” in the hierarchy of sentencing but to observe that s 10A is a further statutory indication of the fact that a protection order is not included in the Sentencing Act as a sentence.
(c)That point is reflected also in s 19 of the Sentencing Act, which provides for combinations of sentences that a court may impose. Unsurprisingly, a protection order does not appear as one of the sentences able to be imposed with another sentence.
[27] It follows that Judge Hikaka erred in law in determining that the protection order made on 12 March 2019 concluded the proceeding.
[28] The sentencing exercise is not concluded. The matter may be regarded as continuing to be adjourned pursuant to the District Court’s adjournment under s 25. The sentencing process must be concluded.
[29] I note for completion, that this judgment determines only the legal question about whether a protection order is a sentence. It cannot be taken as indicating any view as to the appropriateness of sentence in relation to Mr Curzey. All matters relevant to sentence remain for the District Court’s discretion.
Result
[30]The appeal is allowed.
[31] The matter is remitted back to the District Court to enable it to complete the sentencing process.
Clark J
Solicitors:
Crown Solicitor, New Plymouth for Appellant
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