Curzey v Police [2020] NZCA 145 (6 May 2020)

Last Updated: 21 May 2020

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

1. The application for leave to bring a second appeal is granted.
2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction and summary

The issue raised by this appeal

[1] 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).
[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.
[3] 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] 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 been concluded, and no further sentence can be imposed on him.

Leave to appeal

[5] We agree that the issue raised by Mr Curzey is of general or public importance. We grant leave for a second appeal to this Court.

Summary of our conclusions

[6] We conclude that where a court makes a protection order under s 123B of the Sentencing Act, the Court is not imposing a sentence or “otherwise dealing with” the offender for the purposes of s 25 of that Act. The Sentencing Act distinguishes between sentences and other orders. 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. Nor is it a means of “otherwise dealing with the offender” as that term is defined in the Sentencing Act. That term is limited to final dispositions of a criminal proceeding such as entry of a conviction and discharge, or discharge without conviction, instead of imposing a sentence. So it was open to the District Court to make a protection order, then adjourn the proceeding under s 25. Nor was this contrary to the principle precluding split sentencing.
[7] The appeal is dismissed. The District Court should proceed with sentencing of Mr Curzey.

Background

The proceedings

[8] On 12 March 2019 Mr Curzey appeared before Judge Hikaka in the District Court and pleaded guilty to one charge of injuring his former partner with intent to injure. As noted above, a protection order was made by consent under s 123B of the Sentencing Act.
[9] The District Court Judge adjourned sentencing to a later date in reliance on s 25 of the Sentencing Act and directed that a pre-sentence report be prepared under s 26 to inform the sentencing process.

The District Court decision

[10] However, as noted above, the District Court Judge subsequently concluded that he had no jurisdiction to impose any further sentence on Mr Curzey.
[11] The District Court Judge considered that he was required to reach this result because of an amendment to the Sentencing Act that came into effect on 1 July 2019, inserting a new s 123H in relation to appeals against decisions about protection orders. Section 123H provides that an appeal against a decision under s 123B is an appeal against sentence for the purposes of the Criminal Procedure Act 2011 (CPA). This amendment resolved an earlier conflict between High Court decisions about the appropriate appeal pathway in relation to s 123B protection orders. The Judge considered that this amendment meant that a protection order must be treated as a sentence. He said:

[35] In the final analysis it appears the legislature has, perhaps unwittingly, removed the court’s ability to make a protection order under s 123B prior to final sentence.

[12] It followed, the Judge held, that the protection order made on 12 March 2019 “concludes the proceedings”.^[5]

The High Court decision

[13] On appeal the High Court Judge took a different view. She did not agree that s 123H supports the proposition that a protection order is a sentence for the purpose of s 25, or for any purpose other than confirming the appropriate appeal pathway.^[6]
[14] The High Court Judge said:

[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).

[15] The Judge identified a number of other factors which in her view told against Mr Curzey’s position:^[7]

(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 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.

Submissions on appeal

[16] Mr Bourke, counsel for Mr Curzey, submitted that:

• (a) It is well established that split sentencing is inappropriate. Section 25(1) of the Sentencing Act only permits a court to adjourn proceedings after an offender has been found guilty or has pleaded guilty and before the offender has been sentenced or otherwise dealt with. It does not contemplate split sentencing.
• (b) A protection order made under s 123B is an order consequent on conviction. It comes within the scope of the phrase “sentenced or otherwise dealt with” for the purposes of s 25 of the Sentencing Act.
• (c) Section 123B(3), on which the High Court Judge placed significant emphasis, simply confirms that a protection order may be made in addition to imposing a sentence or making any other order. It does not provide an ability to split the timing of the making of such orders.
• (d) The High Court Judge was wrong to rely on the fact that a protection order is not listed as a sentence in s 10A of the Sentencing Act. There are many types of order contemplated by the Act that do not feature in s 10A yet are plainly orders forming part of a defendant’s sentence and are reviewable by an appeal against sentence. Similarly, s 19 does not support the conclusion reached in the High Court as it does not refer to every form of order or way of dealing with an offender contemplated by the Act.
• (e) Even if a s 123B order is not itself a sentence, it is a way of dealing with an offender — it is addressed in the course of the sentencing process, and it forms part of the overall sentence imposed on an offender. So it comes within the phrase “otherwise dealt with” in s 25.
• (f) It is clear that protection orders are a sentence for the purpose of appeals. That is confirmed by the new s 123H of the Sentencing Act.
• (g) As a matter of principle, s 123B orders should not be made separately from the balance of the sentencing exercise. They impose both restrictions and positive obligations (to attend certain courses) on the offender. If a protection order is made, that has implications for other potential components of a sentence. For example, imposing a sentence of supervision in order to require the offender to attend anger management courses may be inappropriate if a protection order requiring attendance at such courses has already been made. Protection orders, while mainly protective in nature, have a punitive element and the totality principle is engaged.
• (h) There is no relevant distinction between protection orders and other orders provided for in Part 2 of the Sentencing Act such as non‑association orders under s 112 or disqualification orders under s 124. The courts have held that it is inconsistent with the prohibition on split sentencing for a sentencing judge to make a disqualification order then adjourn to consider other aspects of sentencing.^[8] For the same reasons, split sentencing should not be permitted in relation to protection orders.
• (i) There are also practical reasons not to permit protection orders to be made immediately following conviction, and before other aspects of a sentence are addressed. It is not necessary for a protection order to be made in advance of sentencing, as equivalent protection for the victim can be provided through bail conditions or, where appropriate, by remanding the offender in custody. It is preferable that a decision under s 123B be made with the benefit of all relevant information contained in a s 26 pre-sentence report. Splitting the determination of a proceeding in this way risks anomalies, such as multiple appeals arising out of the same proceeding, or difficulties if an offender seeks to withdraw a plea of guilty after a protection order is made but before the second stage of sentencing.

[17] Mr Bourke submitted that if the appeal was not successful, the Court should simply answer the question of law but should not impose any further sentence on Mr Curzey. It would not be appropriate to impose any further sanction on Mr Curzey having regard to the lengthy period that has elapsed since conviction, and other relevant circumstances.
[18] Ms Fenton, counsel for the police, submitted that the High Court decision was plainly correct. Leave to appeal should be declined because it is not seriously arguable that the High Court Judge erred. Alternatively, if the Court considers that leave should be granted, the appeal should be dismissed on its merits. The proceeding should return to the District Court for the sentencing process to be completed.

Leave to appeal

[19] Mr Curzey seeks leave to appeal to this Court on alternative bases: either for a second appeal against sentence under s 253 of the CPA, or for a second appeal on a question of law under s 303 of the CPA. He submits the matter is best dealt with as an appeal on a question of law.^[9]
[20] The focus of the issue before the High Court and before us is a question of law. But the ability of a party to seek leave for a second appeal under s 303 of the CPA is predicated on there having been a first appeal on a question of law under sub-pt 8 of pt 6 of the CPA.^[10] The police appeal to the High Court was brought as an appeal against sentence under sub-pt 4, not as an appeal on a question of law under sub-pt 8. In those circumstances, we consider that the application is more appropriately treated as an application for leave to bring a second appeal against sentence under s 253 of the CPA, which governs second appeals in the sub-pt 4 context.
[21] We consider that the issue raised by this appeal is a matter of general or public importance. We grant leave to appeal under s 253 of the CPA.

Is the sentencing process concluded?

Had the District Court sentenced or otherwise dealt with the offender?

[22] Section 25 of the Sentencing Act provides as follows:

25 Power of adjournment for inquiries as to suitable punishment

(1) A court may adjourn the 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 for any 1 or more of the following purposes:

(a) to enable inquiries to be made or to determine the most suitable method of dealing with the case:

(b) to enable a restorative justice process to occur, or to be completed:

(c) to enable a restorative justice agreement to be fulfilled:

(d) to enable a rehabilitation programme or course of action to be undertaken:

(da) to determine whether to impose an instrument forfeiture order and, if so, the terms of that order:

(e) to enable the court to take account of the offender’s response to any process, agreement, programme, or course of action referred to in paragraph (b), (c), or (d).

(2) If proceedings are adjourned under this section or under section 10(4) or 24A, a Judge or Justice or Community Magistrate having jurisdiction to deal with offences of the same kind (whether or not the same Judge or Justice or Community Magistrate before whom the case was heard) may, after inquiry into the circumstances of the case, sentence or otherwise deal with the offender for the offence to which the adjournment relates.

[23] There is a long line of authority that the sentencing process should be completed on one occasion, before one judge.^[11] Split sentencing is not appropriate. In Patelesio v New Zealand Police Lang J discussed that principle, and explained how it is reflected in s 25 of the Sentencing Act:^[12]

[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.

[24] So the central issue in this appeal is whether, by making a protection order, the District Court Judge had already “sentenced or otherwise dealt with” Mr Curzey. If he had, then there was no power to adjourn the proceedings under s 25 of the Sentencing Act with a view to imposing any additional sentence.

“Sentenced or otherwise dealt with”

[25] The term “sentence” is not defined in the Sentencing Act. But the Act draws an important structural distinction between “sentences” and other “orders” that may be made in relation to an offender. Thus for example pt 2 is headed “Sentences, orders and related matters”. The distinction is reflected in s 31, which imposes a requirement to give reasons for the way in which an offender is dealt with:

31 General requirement to give reasons

(1) A court must give reasons in open court—

(a) for the imposition of a sentence or for any other means of dealing with the offender; and

(b) for the making of an order under Part 2.

...

[26] The distinction is also reflected in ss 19 and 21. Section 19(1) prohibits imposing a combination of sentences except as provided in s 19. Section 19(2) to (9) set out the various permitted combinations of sentences. Section 21(b) goes on to provide that nothing in s 19 “limits the power of a court to make any order that it is empowered to make on the conviction of any person, whether under this or any other enactment”. So in addition to the permitted combinations of sentences under s 19, the court can make various orders: combining sentences with such orders is not precluded by the s 19 restriction on combinations of sentences.
[27] The Act does provide a definition of the phrase “otherwise dealing with an offender”. Section 4(3) provides:

(3) For the purposes of this Act, otherwise dealing with an offender or other means of dealing with an offender—

(a) means dealing with the offender in relation to an offence following a finding of guilt or a plea of guilty, instead of imposing a sentence; and

(b) to avoid doubt, does not include dealing with a person for non‑payment of a sum of money, disobedience of a court order, or contempt of court.

(Emphasis added).

[28] It is clear from this definition that the phrase “otherwise dealing with an offender” is confined to final dispositions of a proceeding such as a discharge without conviction, or a conviction and discharge, which resolve the proceeding without any sentence being imposed. The phrase does not include orders that may be made as well as imposing a sentence. Hence the structure of s 31. Paragraph (a) of s 31(1) applies to a final substantive determination of the proceeding, either by sentencing the offender or by “otherwise dealing with” the offender. Paragraph (b) is concerned with the making of other orders, which may accompany a sentence or a final determination of the proceeding without imposing a sentence.^[13]

Protection orders under the Sentencing Act

[29] The Family Violence Act 2018 provides for the making of protection orders in certain circumstances, to protect the victims of family violence. The Sentencing Amendment Act (No 2) 2009 amended the Sentencing Act to enable a court that enters a conviction in relation to a family violence offence to make a protection order against the offender, without the need for separate proceedings (and associated cost and delay) under the Family Violence Act. The relevant limbs of s 123B provide as follows:

123B Protection order

(1) This section applies if—

(a) an offender is convicted of a family violence offence; and

(b) there is not currently in force a protection order against the offender made under the Family Violence Act 2018 for the protection of the victim of the offence.

(2) The court may make a protection order against the offender if—

(a) it is satisfied that the making of the order is necessary for the protection of the victim of the offence; and

(b) the victim of the offence does not object to the making of the order.

(3) A protection order may be made under this section in addition to imposing a sentence or making any other order.

...

[30] Section 123F requires the sentencing court to send a copy of a protection order mad under s 123B to the Family Court nearest to where the victim resides. The Registrar of the Family Court must then enter the order in that court’s records. Section 123G(2) provides that a protection order made under s 123B that has been entered in the Family Court records:

... is to be treated as if it were a final protection order made by that court under the Family Violence Act 2018 (except that an appeal against the order is, under s 123H of this Act, an appeal against a sentence).

[31] Section 123G(3) also makes it clear that a protection order made under s 123B can be varied or discharged by the Family Court.^[14]
[32] We consider that a court that makes an order under s 123B is not imposing a sentence on the offender, or “otherwise dealing with” the offender. Protection orders are one of the many orders provided for under pt 2 that are not sentences, as contemplated by the heading of that Part and by the scheme of the Act more generally. That explains why protection orders are not described as sentences in the Sentencing Act and are not referred to in the hierarchy of sentences in s 10A or in the (exhaustive) list of permitted combinations of sentences in s 19. And plainly a protection order is not a final disposition of a proceeding instead of imposing a sentence: a protection order will often be made as well as imposing a sentence. So protection orders do not come within the phrase “otherwise dealt with” in s 25.
[33] If a protection order is made against an offender by the Family Court under the Family Violence Act, following an incident that also leads to the offender being convicted of a family violence offence, it could not seriously be suggested that the order made by the Family Court was a sentence, or that the offender had been “sentenced or otherwise dealt with” for their offending. The fact that an order of the same kind can be made by the court which determines the criminal charges against the offender, in the interests of efficiency and more effective protection of victims, does not alter the essentially civil nature of the order. Nor does it conclude the sentencing process, any more than would the making of such an order by the Family Court.
[34] The insertion in the Sentencing Act of s 123H, with effect from 1 July 2019, does not affect that conclusion. Section 123H(1) provides:

(1) An appeal against a decision to make or refuse to make a protection order under section 123B is an appeal under subpart 4 of Part 6 of the Criminal Procedure Act 2011 against the sentence imposed for an offence (and the decision cannot be appealed against under sections 177 to 181 of the Family Violence Act 2018).

[35] Section 123H(1) resolves the uncertainty that previously existed about the appropriate appeal pathway where a protection order is made in criminal proceedings. Some High Court decisions proceeded on the basis that an appeal from a decision under s 123B was a civil appeal, following the same procedure as if the order had been made under the Family Protection Act 1955.^[15] Other decisions proceeded on the basis that an appeal from a s 123B decision was an appeal against sentence for the purposes of the Sentencing Act, and the criminal appeal pathway under pt 6 of the CPA applied.^[16] Section 123H makes it clear that the appropriate pathway is the criminal appeal pathway. That this is s 123H’s specific and limited purpose is confirmed by the amendment to s 123G(1) (made at the time s 123H was enacted) which makes it clear that it is only for the purposes of the appeal pathway that an order made under s 123B is not to be regarded as an order made by the Family Court in civil proceedings.
[36] There are obvious practical reasons for having a single appeal pathway in relation to all components of a sentence and accompanying orders that may be made by a sentencing court in respect of an offence. Hence the insertion of s 123H, to resolve the uncertainty caused by the conflicting High Court decisions. But we do not consider that s 123H goes further than treating a protection order as if it were a sentence for the purposes of determining the appropriate appeal pathway. It does not affect the basic structure of the Sentencing Act or alter the appropriate classification of protection orders within that structure. They remain “orders” rather than substantive sentences or other final dispositions of the proceeding.
[37] This approach to protection orders is consistent with the language of s 123B(3), which refers to a protection order being made in addition to imposing a sentence or making any other order.^[17] Similarly, s 6(2) of the Family Violence Act refers to the ability of a sentencing court to make a protection order “as well as imposing a sentence or making any other order”. It is implicit in the language of these provisions that a protection order is an order, not a sentence.
[38] This approach is also consistent with the principles that underpin the prohibition on split sentencing. A protection order is intended to protect the victim of the offending. It is not in any relevant sense a penalty: hence the ability to make such an order in civil proceedings under the Family Violence Act. It is possible that the making of a protection order may be taken into account when deciding whether to impose supervision, or the terms of any such supervision. But that can occur regardless of whether a protection order is made before, or at the same time as, a supervision order. More likely, however, a protection order and supervision would be seen as complementary — one does not preclude the other — and the appropriate sentence will not depend on whether or not a protection order has been made. We do not consider that the making of a protection order would have a bearing on any other aspect of the sentence imposed on an offender.
[39] A judge who enters a conviction for a family violence offence will need to consider whether they have sufficient information to make a decision under s 123B, and whether making a protection order immediately is necessary in order to protect the victim of the offending. If so, the Sentencing Act enables the judge to proceed to make a protection order and adjourn the proceeding for sentencing under s 25.
[40] We agree with Mr Bourke that additional information may be desirable in some cases before a decision about a protection order is made. But we see this as a matter for the judge in a particular case, rather than a reason for a blanket prohibition on making protection orders at the date of conviction. That issue did not arise in the present case, as the order was made by consent. Similarly, the judge will need to consider the risk of multiple appeals being filed in respect of the same offence: that is obviously undesirable. But that was not a realistic prospect in the present case, as Mr Curzey had consented to the making of a protection order.
[41] In summary, we agree with the High Court Judge that the District Court did not, by making a protection order, sentence or otherwise deal with Mr Curzey. It follows that it was open to the District Court Judge to adjourn the proceeding under s 25 following the making of the protection order, and it was open to him to complete the sentencing process at a later date following receipt of a pre-sentence report.
[42] It follows that Mr Curzey has not yet been sentenced or otherwise dealt with. Neither the District Court at first instance, nor the High Court on appeal, has considered what the appropriate sentence is for Mr Curzey’s offending. The sentencing process should be completed in the District Court.

Result

[43] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent.

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^[1] Crimes Act 1961, s 189(2).

^[2] New Zealand Police v Curzey [2019] NZDC 17977 [District Court decision].

^[3] At [34].

^[4] New Zealand Police v Curzey [2019] NZHC 3444 [High Court decision].

^[5] District Court decision, above n 2, at [38].

^[6] High Court decision, above n 4, at [22].

^[7] At [26].

^[8] Barton v Auckland City Council [1977] NZHC 7; [1977] 1 NZLR 732 (SC).

^[9] The same view was recorded in a minute issued by Brown J on 11 February 2020.

^[10] Criminal Procedure Act 2011, s 303(1).

^[11] Barton v Auckland City Council, above n 8; Martin v Auckland City Council SC Auckland M532/77, 22 June 1977; and R v Talgarth Justices, ex parte Bithell [1973] 1 WLR 1327 (QB).

^[12] Patelesio v New Zealand Police [2010] NZHC 631; (2010) 24 CRNZ 816 (HC).

^[13] See for example s 106(3) in relation to orders that may be made where an offender is discharged without conviction, and s 108(2) in relation to orders that may be made where an offender is convicted and discharged.

^[14] See also 123H(7)–(8).

^[15] Essel v Police HC Wellington CIV-2011-485-2207, 23 November 2011.

^[16] Holloway v New Zealand Police [2014] NZHC 1626. See also Broderick v Police [2014] NZHC 133, [2014] NZFLR 406; and Te Kani v Police [2014] NZHC 82, [2014] NZFLR 400.

^[17] See also s 112(3) in relation to non-association orders, and s 124(4) in relation to orders disqualifying an offender from driving.