CURZEY v NEW ZEALAND POLICE [2020] NZCA 145

CURZEY v NEW ZEALAND POLICE [2020] NZCA 145 [6 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA8/2020[2020] NZCA 145BETWEEN GLEN DAVID CURZEYAppellantAND NEW ZEALAND POLICERespondentHearing: 8 April 2020Court: Goddard, Mallon and Ellis JJCounsel: N P Bourke for AppellantB F Fenton for RespondentJudgment: 6 May 2020 at 11.00 amJUDGMENT OF THE COURTA The application for leave to bring a second appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Introduction and summaryThe issue raised by this appeal[1] Mr Curzey pleaded guilty to a charge of injuring with intent to injure.1The victim was his former partner. The District Court entered a conviction, and by1 Crimes Act 1961, s 189(2).consent made a protection order in favour of the victim under s 123B of theSentencing Act 2002. Judge Hikaka adjourned the sentencing to a later date relyingon s 25 of the Sentencing Act. That section permits a court to adjourn criminalproceedings following a guilty plea or a finding of guilt "and before the offender hasbeen sentenced or otherwise dealt with" for certain specified purposes (usually, toobtain 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 forhis arrest because he considered that the imposition of a protection order meant thatthe sentencing process was concluded. Submissions were subsequently timetabled forconsideration of the question whether any further sentence would be imposed.This issue was argued before Judge Hikaka on 11 September 2019. Judge Hikaka heldthat 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 ofthe Sentencing Act. So on 12 March 2019 the Judge did not have jurisdiction toadjourn the proceeding under s 25.2 Moreover, imposing a further sentence would beinconsistent with the well-established principle that sentencing should take placebefore one judge on one occasion — "split sentencing" is not permitted.3 The makingof the protection order concluded the sentencing process.[3] The police appealed. The High Court allowed the appeal, finding that aprotection 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 determinean appropriate sentence.4[4] Mr Curzey seeks leave to appeal to this Court. He says that the questionwhether the making of the protection order meant that he had been "sentenced orotherwise dealt with", and precluded any further sentence being imposed, is a questionof general or public importance. He submits that the District Court was right to find2 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].that the sentencing process had been concluded, and no further sentence can beimposed 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 theSentencing Act, the Court is not imposing a sentence or "otherwise dealing with" theoffender for the purposes of s 25 of that Act. The Sentencing Act distinguishesbetween sentences and other orders. A protection order is not a sentence for thepurposes of the Sentencing Act, although it is treated as if it were a sentence for thepurposes of appeals. Nor is it a means of "otherwise dealing with the offender" as thatterm is defined in the Sentencing Act. That term is limited to final dispositions of acriminal proceeding such as entry of a conviction and discharge, or discharge withoutconviction, instead of imposing a sentence. So it was open to the District Court tomake a protection order, then adjourn the proceeding under s 25. Nor was this contraryto the principle precluding split sentencing.[7] The appeal is dismissed. The District Court should proceed with sentencing ofMr Curzey.BackgroundThe proceedings[8] On 12 March 2019 Mr Curzey appeared before Judge Hikaka in theDistrict Court and pleaded guilty to one charge of injuring his former partner withintent to injure. As noted above, a protection order was made by consent unders 123B of the Sentencing Act.[9] The District Court Judge adjourned sentencing to a later date in reliance ons 25 of the Sentencing Act and directed that a pre-sentence report be prepared unders 26 to inform the sentencing process.The District Court decision[10] However, as noted above, the District Court Judge subsequently concluded thathe had no jurisdiction to impose any further sentence on Mr Curzey.[11] The District Court Judge considered that he was required to reach this resultbecause 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 appealagainst sentence for the purposes of the Criminal Procedure Act 2011 (CPA).This amendment resolved an earlier conflict between High Court decisions about theappropriate appeal pathway in relation to s 123B protection orders. The Judgeconsidered that this amendment meant that a protection order must be treated as asentence. 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 tofinal sentence.[12] It followed, the Judge held, that the protection order made on 12 March 2019"concludes the proceedings".5The High Court decision[13] On appeal the High Court Judge took a different view. She did not agree thats 123H supports the proposition that a protection order is a sentence for the purposeof 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 empoweredto make protection orders against offenders if satisfied it was necessary to do5 District Court decision, above n 2, at [38].6 High Court decision, above n 4, at [22].so and the victim did not object. In this way, victims of family violence couldbe afforded immediate and effective protection without having to resort tomaking applications under the Family Violence Act. That is the purpose andeffect of s 123B. A protection order made under s 123B does not have effectas a sentence and thereby, of itself, conclude the sentencing process.[25] The point is put beyond doubt, in my view, by s 123B(3), whichprovides:A protection order may be made under this section in addition toimposing a sentence or making any other order. (Emphasis added).[15] The Judge identified a number of other factors which in her view told againstMr Curzey's position:7(a) In imposing a s 123B protection order, the Judge is not obliged to haveregard to the purposes and principles of sentencing under ss 7 and 8or the aggravating and mitigating factors under s 9.(b) That a protection order is not a sentence is supported by the broadercontext of the Sentencing Act. A protection order does not appear asone of the sentences listed from the least to most restrictive in s 10Aof the Sentencing Act To mention this point is not to "get lost" in thehierarchy of sentencing but to observe that s 10A is a further statutoryindication of the fact that a protection order is not included in theSentencing Act as a sentence.(c) That point is reflected also in s 19 of the Sentencing Act, whichprovides for combinations of sentences that a court may impose.Unsurprisingly, a protection order does not appear as one of thesentences 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 adjournproceedings after an offender has been found guilty or has pleadedguilty and before the offender has been sentenced or otherwise dealtwith. It does not contemplate split sentencing.7 At [26].(b) A protection order made under s 123B is an order consequent onconviction. It comes within the scope of the phrase "sentenced orotherwise dealt with" for the purposes of s 25 of the Sentencing Act.(c) Section 123B(3), on which the High Court Judge placed significantemphasis, simply confirms that a protection order may be made inaddition to imposing a sentence or making any other order. It does notprovide 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 protectionorder is not listed as a sentence in s 10A of the Sentencing Act. Thereare many types of order contemplated by the Act that do not feature ins 10A yet are plainly orders forming part of a defendant's sentence andare reviewable by an appeal against sentence. Similarly, s 19 does notsupport the conclusion reached in the High Court as it does not refer toevery form of order or way of dealing with an offender contemplatedby the Act.(e) Even if a s 123B order is not itself a sentence, it is a way of dealingwith an offender — it is addressed in the course of the sentencingprocess, and it forms part of the overall sentence imposed on anoffender. 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 ofappeals. 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 separatelyfrom the balance of the sentencing exercise. They impose bothrestrictions and positive obligations (to attend certain courses) on theoffender. If a protection order is made, that has implications for otherpotential components of a sentence. For example, imposing a sentenceof supervision in order to require the offender to attend angermanagement courses may be inappropriate if a protection orderrequiring attendance at such courses has already been made. Protectionorders, while mainly protective in nature, have a punitive element andthe totality principle is engaged.(h) There is no relevant distinction between protection orders and otherorders provided for in Part 2 of the Sentencing Act such asnon-association orders under s 112 or disqualification orders unders 124. The courts have held that it is inconsistent with the prohibitionon split sentencing for a sentencing judge to make a disqualificationorder then adjourn to consider other aspects of sentencing.8 For thesame reasons, split sentencing should not be permitted in relation toprotection orders.(i) There are also practical reasons not to permit protection orders to bemade immediately following conviction, and before other aspects of asentence are addressed. It is not necessary for a protection order to bemade in advance of sentencing, as equivalent protection for the victimcan be provided through bail conditions or, where appropriate, byremanding the offender in custody. It is preferable that a decision unders 123B be made with the benefit of all relevant information containedin a s 26 pre-sentence report. Splitting the determination of aproceeding in this way risks anomalies, such as multiple appeals arisingout of the same proceeding, or difficulties if an offender seeks towithdraw a plea of guilty after a protection order is made but before thesecond stage of sentencing.[17] Mr Bourke submitted that if the appeal was not successful, the Court shouldsimply answer the question of law but should not impose any further sentence onMr Curzey. It would not be appropriate to impose any further sanction on Mr Curzeyhaving regard to the lengthy period that has elapsed since conviction, and otherrelevant circumstances.[18] Ms Fenton, counsel for the police, submitted that the High Court decision wasplainly correct. Leave to appeal should be declined because it is not seriously arguable8 Barton v Auckland City Council [1977] 1 NZLR 732 (SC).that the High Court Judge erred. Alternatively, if the Court considers that leave shouldbe granted, the appeal should be dismissed on its merits. The proceeding should returnto 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 fora second appeal against sentence under s 253 of the CPA, or for a second appeal on aquestion of law under s 303 of the CPA. He submits the matter is best dealt with asan 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 ispredicated on there having been a first appeal on a question of law under sub-pt 8 ofpt 6 of the CPA.10 The police appeal to the High Court was brought as an appealagainst 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 treatedas an application for leave to bring a second appeal against sentence under s 253 ofthe 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 publicimportance. 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 afterthe offender has been found guilty or has pleaded guilty and beforethe offender has been sentenced or otherwise dealt with for any 1 ormore of the following purposes: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).(a) to enable inquiries to be made or to determine the mostsuitable method of dealing with the case:(b) to enable a restorative justice process to occur, or to becompleted:(c) to enable a restorative justice agreement to be fulfilled:(d) to enable a rehabilitation programme or course of action to beundertaken:(da) to determine whether to impose an instrument forfeiture orderand, if so, the terms of that order:(e) to enable the court to take account of the offender's responseto any process, agreement, programme, or course of actionreferred 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 havingjurisdiction to deal with offences of the same kind (whether or not thesame Judge or Justice or Community Magistrate before whom thecase was heard) may, after inquiry into the circumstances of the case,sentence or otherwise deal with the offender for the offence to whichthe adjournment relates.[23] There is a long line of authority that the sentencing process should becompleted 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 howit is reflected in s 25 of the Sentencing Act:12[16] Importantly for present purposes, the Court may only adjourn aproceeding under s 25 "before the offender has been sentenced or otherwisedealt with". This requirement clearly reflects Parliament's intention that allrelevant inquiries should be completed before an offender is dealt with in anyway at all. The reason for this requirement is obvious. As the present casedemonstrates, the sentence that is ultimately imposed on an offender will oftenhave several components. Here those components were community work,supervision, disqualification and reparation. In order to impose an appropriatemix of sentences it is necessary to ensure that the ultimate combination ofsentences is consonant with the gravity of the case, and the circumstances ofthe offender.[17] A decision by the sentencer to impose one form of penalty may wellaffect the remaining penalties that are imposed. The fact that the offender isprepared to pay reparation may, for example, be regarded as a mitigating factorthat operates to reduce the severity of the other penalties. For this reason it isessential that the end sentence is imposed in its entirety by the same Judge on11 Barton v Auckland City Council, above n 8; Martin v Auckland City Council SC AucklandM532/77, 22 June 1977; and R v Talgarth Justices, ex parte Bithell [1973] 1 WLR 1327 (QB).12 Patelesio v New Zealand Police (2010) 24 CRNZ 816 (HC).the same occasion. If that does not occur, there is a risk that one or morecomponents 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 ofthe 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 drawsan important structural distinction between "sentences" and other "orders" that maybe made in relation to an offender. Thus for example pt 2 is headed "Sentences, ordersand related matters". The distinction is reflected in s 31, which imposes a requirementto 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 ofdealing 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) prohibitsimposing 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 toprovide that nothing in s 19 "limits the power of a court to make any order that it isempowered to make on the conviction of any person, whether under this or any otherenactment". So in addition to the permitted combinations of sentences under s 19, thecourt can make various orders: combining sentences with such orders is not precludedby the s 19 restriction on combinations of sentences.[27] The Act does provide a definition of the phrase "otherwise dealing with anoffender". Section 4(3) provides:(3) For the purposes of this Act, otherwise dealing with an offender orother means of dealing with an offender—(a) means dealing with the offender in relation to an offencefollowing a finding of guilt or a plea of guilty, instead ofimposing a sentence; and(b) to avoid doubt, does not include dealing with a person fornon-payment of a sum of money, disobedience of a courtorder, or contempt of court.(Emphasis added).[28] It is clear from this definition that the phrase "otherwise dealing with anoffender" is confined to final dispositions of a proceeding such as a discharge withoutconviction, or a conviction and discharge, which resolve the proceeding without anysentence being imposed. The phrase does not include orders that may be made as wellas imposing a sentence. Hence the structure of s 31. Paragraph (a) of s 31(1) appliesto a final substantive determination of the proceeding, either by sentencing theoffender or by "otherwise dealing with" the offender. Paragraph (b) is concerned withthe making of other orders, which may accompany a sentence or a final determinationof the proceeding without imposing a sentence.13Protection orders under the Sentencing Act[29] The Family Violence Act 2018 provides for the making of protection orders incertain circumstances, to protect the victims of family violence. The SentencingAmendment Act (No 2) 2009 amended the Sentencing Act to enable a court that entersa conviction in relation to a family violence offence to make a protection order againstthe 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 theoffender made under the Family Violence Act 2018 for theprotection of the victim of the offence.13 See for example s 106(3) in relation to orders that may be made where an offender is dischargedwithout conviction, and s 108(2) in relation to orders that may be made where an offender isconvicted and discharged.(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 theprotection of the victim of the offence; and(b) the victim of the offence does not object to the making of theorder.(3) A protection order may be made under this section in addition toimposing a sentence or making any other order.[30] Section 123F requires the sentencing court to send a copy of a protection ordermad 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 beenentered in the Family Court records: is to be treated as if it were a final protection order made by that courtunder the Family Violence Act 2018 (except that an appeal against the orderis, 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 123Bcan 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 asentence on the offender, or "otherwise dealing with" the offender. Protection ordersare 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 moregenerally. That explains why protection orders are not described as sentences in theSentencing 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 plainlya protection order is not a final disposition of a proceeding instead of imposinga 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 theFamily Violence Act, following an incident that also leads to the offender being14 See also 123H(7)–(8).convicted of a family violence offence, it could not seriously be suggested that theorder 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 thesame kind can be made by the court which determines the criminal charges against theoffender, in the interests of efficiency and more effective protection of victims, doesnot alter the essentially civil nature of the order. Nor does it conclude the sentencingprocess, 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 protectionorder under section 123B is an appeal under subpart 4 of Part 6 of theCriminal Procedure Act 2011 against the sentence imposed for anoffence (and the decision cannot be appealed against undersections 177 to 181 of the Family Violence Act 2018).[35] Section 123H(1) resolves the uncertainty that previously existed about theappropriate appeal pathway where a protection order is made in criminal proceedings.Some High Court decisions proceeded on the basis that an appeal from a decisionunder s 123B was a civil appeal, following the same procedure as if the order had beenmade under the Family Protection Act 1955.15 Other decisions proceeded on the basisthat an appeal from a s 123B decision was an appeal against sentence for the purposesof the Sentencing Act, and the criminal appeal pathway under pt 6 of the CPAapplied.16 Section 123H makes it clear that the appropriate pathway is the criminalappeal pathway. That this is s 123H's specific and limited purpose is confirmed bythe amendment to s 123G(1) (made at the time s 123H was enacted) which makes itclear that it is only for the purposes of the appeal pathway that an order made unders 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 inrelation to all components of a sentence and accompanying orders that may be madeby a sentencing court in respect of an offence. Hence the insertion of s 123H, toresolve the uncertainty caused by the conflicting High Court decisions. But we do not15 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] NZHC133, [2014] NZFLR 406; and Te Kani v Police [2014] NZHC 82, [2014] NZFLR 400.consider that s 123H goes further than treating a protection order as if it were asentence for the purposes of determining the appropriate appeal pathway. It does notaffect the basic structure of the Sentencing Act or alter the appropriate classificationof protection orders within that structure. They remain "orders" rather thansubstantive 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 ormaking any other order.17 Similarly, s 6(2) of the Family Violence Act refers to theability of a sentencing court to make a protection order "as well as imposing a sentenceor making any other order". It is implicit in the language of these provisions that aprotection order is an order, not a sentence.[38] This approach is also consistent with the principles that underpin theprohibition on split sentencing. A protection order is intended to protect the victim ofthe offending. It is not in any relevant sense a penalty: hence the ability to make suchan order in civil proceedings under the Family Violence Act. It is possible that themaking of a protection order may be taken into account when deciding whether toimpose supervision, or the terms of any such supervision. But that can occurregardless of whether a protection order is made before, or at the same time as, asupervision order. More likely, however, a protection order and supervision would beseen as complementary — one does not preclude the other — and the appropriatesentence will not depend on whether or not a protection order has been made. We donot consider that the making of a protection order would have a bearing on any otheraspect of the sentence imposed on an offender.[39] A judge who enters a conviction for a family violence offence will need toconsider whether they have sufficient information to make a decision under s 123B,and whether making a protection order immediately is necessary in order to protectthe victim of the offending. If so, the Sentencing Act enables the judge to proceed tomake a protection order and adjourn the proceeding for sentencing under s 25.17 See also s 112(3) in relation to non-association orders, and s 124(4) in relation to ordersdisqualifying an offender from driving.[40] We agree with Mr Bourke that additional information may be desirable in somecases before a decision about a protection order is made. But we see this as a matterfor the judge in a particular case, rather than a reason for a blanket prohibition onmaking protection orders at the date of conviction. That issue did not arise in thepresent case, as the order was made by consent. Similarly, the judge will need toconsider the risk of multiple appeals being filed in respect of the same offence: that isobviously undesirable. But that was not a realistic prospect in the present case, asMr Curzey had consented to the making of a protection order.[41] In summary, we agree with the High Court Judge that the District Court didnot, 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 unders 25 following the making of the protection order, and it was open to him to completethe 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, hasconsidered what the appropriate sentence is for Mr Curzey's offending. Thesentencing process should be completed in the District Court.Result[43] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent.