R v Curry - [2018] NZHC 3188

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-020-1315

[2018] NZHC 3188

THE QUEEN

v

COURTNEY TREMAIN CURRY

Appearances: S B Manning for Crown E J Forster for Defendant

Sentenced:

5 December 2018

SENTENCING REMARKS OF CLARK J

Introduction

[1] Mr Curry, you appear for sentence this morning having pleaded guilty to one charge of sexual violation by rape. The maximum penalty for that offence is 20 years imprisonment.1

[2] I will be sentencing you in two stages. First, I will look at the circumstances of the offending and the effect on the victim so I can fix a starting point for your sentence. As part of the first stage I will look at your personal circumstances, along with other factors, and arrive at what I consider is an appropriate term of imprisonment.

1 Crimes Act 1961, ss 128 and 128B; maximum penalty 20 years imprisonment.

R v CURRY [2018] NZHC 3188 [5 December 2018]

[3] At the second stage, I will consider whether you should be sentenced to preventive detention.

[4]You may be seated. I will ask you to stand when I sentence you.

Three strikes warning

[5] Before dealing with sentencing, there is a preliminary matter. You have committed a “serious violent offence”.2 The Sentencing Act 2002 requires you to be warned of the consequence of committing another serious violent offence. Normally that warning is given when the offender is convicted.3 You have not previously been given a warning so this is your first.

[6] If you are convicted of any serious violent offence, except murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[7] If you are convicted of murder committed after this warning is given, you will be sentenced to life imprisonment, and serve that sentence without the possibility of parole unless that would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[8] That warning will be given to you in writing and your lawyer can explain it to you.

Circumstances of the offending

[9] You have pleaded guilty to the charge of rape on the basis of a summary of facts which sets out the circumstances of the offending.

[10] On the night of 28 April 2018 the 28 year old victim had been watching a band, with a friend, at a bar in Hastings. When the bar closed the victim went to an address nearby and continued drinking. In the early hours of the morning of 29 April she left

2 Sentencing Act 2002, s 86A.
3 Section 86B.

that address to walk to her vehicle. It was raining heavily. The victim was very intoxicated. She recalls taking shelter under the eaves of the shops at a nearby shopping centre. Her next recollection is “coming to” in the backseat of a car with you raping her. She was startled and…

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 R v Curry

Details

AGLC: R v Curry [2018] NZHC 3188
Case: [2018] NZHC 3188
Decision Date: 5 December 2018

CaseChat Overview and Summary

Courtney Tremain Curry was sentenced by Clark J in the High Court of New Zealand for the offence of sexual violation by rape. The court was required to determine an appropriate sentence and consider whether the defendant should be sentenced to preventive detention. The legal issues included the seriousness of the offence, the impact on the victim, the defendant's personal circumstances, and the risk of reoffending. The court considered the defendant's history of sexual offending, his personal background, and the recommendations of health assessors. The court determined that a sentence of preventive detention was necessary to protect the community from the defendant's high risk of committing another serious sexual offence. The defendant was sentenced to preventive detention with a minimum period of imprisonment of five years. The court emphasized the importance of the defendant engaging in treatment and rehabilitation to address the causes of his offending.

Orders