Curtis v R [2011] NZCA 200 (20 May 2011)

Court of Appeal of New Zealand

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Curtis v R [2011] NZCA 200 (20 May 2011)

Last Updated: 25 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA704/2010 [2011] NZCA 200

BETWEEN SHEM MICHAEL WYATT CURTIS Appellant

AND THE QUEEN Respondent

Court: Chambers, Venning and Courtney JJ

Counsel: J W Clearwater for Appellant B D Tantrum for Respondent

Judgment: 20 May 2011 at 11.30 am (On the papers)

JUDGMENT OF THE COURT

1. An extension of time for appealing against the conviction on count 4 is granted.
2. The appeal is allowed.

100. The conviction on count 4 is quashed and a verdict of acquittal on that count is entered.

4. The overall sentence imposed on the appellant of seven years eight months’ imprisonment is confirmed.
   

REASONS OF THE COURT

(Given by Chambers J)

[1] Shem Curtis, the appellant, pleaded guilty on 14 July 2010 to a number of charges. One of them, count 4, was a charge of aggravated robbery of Wendy Palenski. Judge Wilson QC subsequently sentenced him, with respect to all of the offending, to seven years eight months’ imprisonment. Mr Curtis appealed against his sentence.
[2] Shortly before that appeal was due to be heard, Mr Curtis abandoned his appeal against sentence. Mr Tantrum, for the Crown, had already prepared his submissions before he became aware of Mr Curtis’s abandonment. In those submissions, Mr Tantrum pointed out that Mr Curtis’s co-accused were all discharged on the count of the aggravated robbery of Ms Palenski, on the basis that the count had been included in the indictment in error. No items were in fact taken from Ms Palenski. Mr Tantrum submitted that the Court should quash Mr Curtis’s conviction in relation to count 4. He submitted it would have no effect on the overall sentence.
[3] Mr Clearwater, for Mr Curtis, on reading Mr Tantrum’s submissions, advised the Court that he did wish to have that conviction quashed. He immediately applied, on Mr Curtis’s behalf, for an extension of time in which to bring an appeal against the conviction on count 4. He sought to have that conviction quashed. Mr Curtis accepted that the quashing of that conviction should have no effect on the overall sentence Judge Wilson imposed.
[4] Because of the Crown’s consent, we have dealt with this matter on the papers. It is clearly appropriate in the circumstances that time should be extended for appealing against the count 4 conviction. We quash that conviction and enter a verdict of acquittal on that count. We agree with counsel’s assessment that the quashing of the conviction on count 4 should not affect the overall sentence imposed: it remains appropriate for all the other offending with which Judge Wilson was concerned.

Solicitors:
Clearwater & Associates, Takapuna for Appellant
Crown Law Office, Wellington for Respondent