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New Zealand Police v Tilo [2022] NZDC 13461

Published 18 August 2022

Judge-alone trial — transfer from Youth Court — conviction and discharge — aggravated robbery — name suppression — rights of young people — Criminal Procedure Act 2011, s 200 — Oranga Tamariki Act 1989, ss 282, 283, 311, 314 & Sch 1A — New Zealand Bill of Rights Act 1990, s 25(i) — Sentencing Act 2002, s 7 — Criminal Procedure (Mentally Impaired Persons) Act 2003 — Criminal Records (Clean Slate) Act 2004, s 7 — UN Convention on the Rights of the Child — UN. Committee on the Rights of the Child General comment No. 24 (2019) on children’s rights in the child justice system UN Doc CRC/C/GC/24 (18 September 2019) — United Nations Standard Minimum Rules for the Administration of Juvenile Justice adopted by GA Res 40/33 (1985) — Youth Justice Indicators Summary Report December 2021 (Ministry of Justice, December 2020) — Ian Lambie What were they thinking? A discussion paper on brain and behaviour in relation to the justice system in New Zealand (Office of the Prime Minister’s Chief Science Advisor, 29 January 2020) — R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272 — Hughes-Watford v NZ Police [2021] NZHC 2373 — Tsyan v NZ Police [2021] NZHC 1264 — Kohere v Police (1994) CRNZ 442 — DP v R [2015] NZCA 476 — Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 — Diaz v R [2021] NZCA 426 — Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 — Solicitor General v Heta [2018] NZHC 2453 — TV3 v R HC Auckland CRI 2005-92-14652, 7 July 2006 — Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 — Derrick-Hardie v Police HC Auckland, CRI 2011-404-000286 15 September 2011 — R v K HC Whangarei, CRI 2008 027-2728, 27 January 2010 — R v Rawiri HC Auckland T014047, 3 July 2002 — R v Durham Constabulary [2005] UKHL 21, [2005] 2 All ER 369. The defendant, who was 18 years old, appeared in connection with an aggravated robbery that he had committed when he was 17. He applied for a conviction and discharge. The Court acknowledged the impact on the victim but determined that for an aggravated robbery, the offending was not of high gravity. In determining the gravity of the offending, the Court had declined to take account of the fact that the defendant had previously appeared in the Youth Court and had been discharged under s 282 of the Oranga Tamariki Act. The Court went on to observe that New Zealand law requires 17-year olds who commit aggravated robbery to be tried as adults, which is contrary to international law and to the New Zealand Bill of Rights Act. Further, the Court was of the opinion that the Sentencing Act was not an appropriate instrument for dealing with a person as young as the defendant. The defendant himself was particularly vulnerable as he had suffered a mental illness and a series of head injuries. From a sentencing start point of two years three months' imprisonment, the Court made reductions for the defendant's guilty plea, age-related factors (the defendant losing his rights at international law because of the requirements of New Zealand law), remorse, mental health difficulties, time spent on bail, and background of trauma. The discounts removed the entire two year three month start point. The Court convicted the defendant, finding this to be a sufficient penalty, and discharged him. The Court also granted him final name suppression. Judgment Date: 2 August 2022. * * * Note: names have been changed to comply with legal requirements. * * *