New Zealand Police v ML [2019] NZYC 335

Published 08 June 2020

Sentencing — aggravated robbery — unlawfully getting into a motor vehicle — whether to transfer to District Court — supervision with residence — supervision order — Oranga Tamariki Act 1989, ss 208, 283, 284, 334 & 335 — Sentencing Act 2002, ss 8 & 9. The young person, ML, appeared for sentencing on one charge of unlawfully getting into a motor vehicle and two charges of aggravated robbery. ML, along with a co-offender, had stolen a car and used it to flee after robbing two service stations. The social work report recommended a sentence of supervision with residence followed by attendance at a START programme during a post-residential supervision order. Counsel for the young person also submitted this was the appropriate sentence outcome, noting that opportunities to create change for ML were significantly greater in the Youth Court than in the District Court. The Crown submitted that due to ML's previous offending (three aggravated robberies) a sentence in the Youth Court would be inadequate to address his current offending. There was also a risk that ML would not be accepted to the START programme. The Judge considered relevant sentencing principles and compared the sentencing options available in each jurisdiction. In the District Court, the likely outcome would be imprisonment, which would result in ML being held in a Youth Justice Residence anyway, due to his young age. Home detention may also be an option, but this would place ML in the same negative environment that led to his offending. The ideal sentence would be a two year period of intensive supervision. However, there were limited resources and a chance that this outcome would be unfeasible. The Judge noted that there is often a deficit of resources when it comes to implementing appropriate sentences in the District Court as well as (and more often) in the Youth Court. The Judge looked at recommendations that previously been made to facilitate ML's rehabilitation and none of them had been implemented. This was attributed to the disconnect between Youth Justice principles and resources available to give meaningful effect to Youth Court sentences. It was unfortunate that considerable money had been spent in obtaining psychological reports and social work reports for ML yet very little intervention had actually occurred. In the absence of intense intervention, ML was likely to reoffend. ML's co-offender had been sentenced in the District Court to a period of 10 months' home detention. As parity of sentencing is relevant, the amount of "time served" by ML if sentenced in the District Court would not be significantly different in custodial terms when compared to the sentence that would likely be given if sentenced in the Youth Court. The community would not be protected for a longer period if ML was sentenced in the District Court and there would be less interventions and support available to ML. By a wide margin, the Judge decided it was best to sentence ML in the Youth Court. ML was sentenced to three months and two weeks' supervision with residence, followed by 12 months' supervision. This would allow ML to participate in a START programme. Judgment Date: 25 July 2019. * * * Note: names have been changed to comply with legal requirements. * * *