1995 Appellate Court decisions

Contents
R v Carmichael CA521/94, 23 March 1995
E v Police (1995) 13 FRNZ 139, [1995] NZFLR 433 (HC)
Timo v Police [1996] 1 NZLR 103 (HC)
R v Karoa, Afoa and Charlie HC Auckland T17-18/95, T76/95, 28 August 1995
R v C CA 332/95, 28 September 1995
U v R [1995] NZFLR 966 (HC)

R v Carmichael CA521/94, 23 March 1995

Court of Appeal
File number: CA 521/94
Date: 23 March 1995
Judge: Eichelbaum, Gault, Williamson JJ
Key Title: Sentencing in the adult courts: Sexual violation by rape; Sentencing in the adult Courts - application of Youth Justice Principles; Reports - Psychological

Summary:
Application by Solicitor-General for leave to appeal against 2 years imprisonment suspended for 2 years with 2 years supervision. Defendant (15 at time of offence) sexually violated 15 year old girl who lived at the same home for youth at risk; victim traumatised. Defendant had severely limited intellectual capacity; no previous convictions but history of aggressive and inappropriate behaviour; no remorse. Psychologist reports conclude prison inappropriate as this would heighten defendant's criminal tendencies. Exceptional case; rehabilitative approach in defendant's and community's interests. Precedents for regarding youth of offender or offender's limited mental development as grounds for sentence markedly below the usual tariff listed: R v Kircher CA 239/87, 30 September 1987; R v Accused [1989] 1 NZLR 656 (CA); R v Accused [1989] 1 NZLR 643; R v McKay CA 131/93, 11 June 1993; R v Hodder T 58/91, 29 September 1991 per Roper J. These cases all prior to increase of the maximum for rape but this increased maximum would not have affected the broad approach of the Courts that the youth or mental state of the accused may justify an exceptional response. Here youth and mental retardation present and thus Judge's view was within the range of his discretion; selection of shortest time possible in accordance with Art 37(b) 1985 United Nations Convention on the Rights of the Child. As to suspension Judge entitled to regard that situation as within the principles laid down in R v Peterson [1984] 3 NZLR 533, 538.

Decision:
Solicitor-General's application for leave dismissed.

Back to contents


E v Police (1995) 13 FRNZ 139, [1995] NZFLR 433 (HC)

Case summary provided by BROOKERS

Name: E v Police
Reported: (1995) 13 FRNZ 139; [1995] NZFLR 433
File number: AP328/94
Date: 2 March 1995
Court: High Court, Christchurch
Judge: Williamson J
Key Title: Appeal to High Court/Court of Appeal: Jurisdiction, Jointly charged with Adult; Orders - type: Conviction and transfer to the District Court for sentence - s 283(o): Other, Victims, Reports: Psychiatric, Sentencing - General Principles (e.g. Parity/Jurisdiction).

Summary:
Youth justice - Jurisdiction - Appeal from decision of Youth Court that young person be dealt with in District Court - Burglary charges - Adult co-offenders received strict sentences - Appellant had been through process required in Youth Court - Whether appropriate to insist on uniformity between co-offenders - Persons of appellant's age entitled to special consideration under Children, Young Persons, and Their Families Act - Order wrong in principle - Incorrect weight given to some factors - Children, Young Persons, and Their Families Act 1989, s 351.

Appeal:
This was an appeal from the decision of a Youth Court Judge making an order that the appellant, a 16-year-old woman, be dealt with in the District Court. The order appealed from was made under ss 283(o) and 290(1)(c) Children, Young Persons and Their Families Act 1989.

The appellant faced criminal charges for the first time. She initially appeared in the Youth Court on six charges of burglary and one charge of making a false statement. She was remanded for a family group conference. Seven of the victims of the offences attended the conference and concluded that they did not want the appellant punished further, but wanted her helped. At the conference the appellant had apologised and undertaken to try to recover some of the stolen property. A psychiatric report under s 333 was recommended, and the psychiatrist concluded that it was important for the appellant to receive ongoing help. He thought it important for the appellant to continue her work and that any sentence imposed should not affect that work.

The family group conference was reconvened, and recommended that the appellant make a donation to each victim, and be subject to informal supervision for 6 months. During this time she was to perform community work, have counselling with a psychiatrist, take any further treatment recommended by her social worker or psychiatrist, and not to reoffend.

The appellant appeared in the Youth Court again following that conference and was remanded so that further updates could be obtained on the victim impact and social work reports. When the appellant subsequently appeared in the Youth Court, the Judge made the decision appealed from. The reasons expressed for that decision were that the charges were very serious, the appellant was heavily involved in the offending, the co-offenders had been sent to prison and there was a need for consistency and parity, and no sufficient penalty was available in the Youth Court. The most important of those reasons was the need for uniformity between the co-offenders.

The appellant argued that the District Court Judge failed to give sufficient weight to the new and enlightened policy of youth justice. The appellant contended that Parliament deliberately created a different system for offenders under age 17, and that to equate the sentences of persons under 17 with those over 17 was wrong in principle. The appellant also submitted that the District Court Judge had not given sufficient weight to several other relevant factors.

Held, allowing the appeal and quashing the order made in the Youth Court:

  1. The Crown submitted that the District Court Judge was entitled to have exercised his discretion in the way he did and that it had not been dependent only on questions of parity. However, the Crown's submission that the fact that the female co-offender was only 3 months older than the appellant created an injustice if there was not parity between them was not supported by authority. That submission appeared contrary to authority, which stated that persons of the appellant's age were entitled 'to the special consideration reflected in the philosophy underlying the Children, Young Persons, and Their Families Act 1989'. (p 143). R v Brown CA347/94, 29 November 1994 considered, R v Le Marquand CA17/91, 16 May 1991 considered.
  2. The order made by the District Court Judge was wrong in principle, and in arriving at it he gave undue weight to some factors and insufficient weight to others. It was relevant that the appellant had undergone the process required in the Youth Court, and that positive and thoughtful recommendations had been made by the conferences which accorded with the report obtained from a specialist. (p144).

Back to contents


Timo v Police [1996] 1 NZLR 103 (HC)

Case summary provided by LEXISNEXIS NZ

Name: Timo v Police
Reported: [1996] 1 NZLR 103
File number: not available
Date: 8 August 1995
Court: High Court, Christchurch
Judge: Williamson J
Key Title: Bail (ss 238(1)(b)), Orders - type: Conviction and transfer to the District Court for sentence - s 283(o): Aggravated robbery

Summary:
Criminal law - Bail - Appeal against refusal of bail in District Court - Youth Court previously finding unrelated charge against accused proved - Whether finding of Youth Court a conviction for specified offence under s 318(6) of Crimes Act 1961 - Whether accused having burden of proof in application for bail - Crimes Act 1961, s 318(6) - Children, Young Persons, and Their Families Act 1989, s 283(o) - Summary Proceedings Act 1957, ss 2, 68(1) and 70(1).

The appellant (T) was refused bail on serious charges in the District Court. On T's appeal to the High Court, the Crown argued that in applying for bail T bore the burden of proving he would not reoffend as he had previously been convicted for a specified offence under s 318(6) of the Crimes Act 1961, namely a charge of aggravated robbery "found proved" against him in the Youth Court. The issue was whether the Youth Court's finding was a conviction. The Crown did not oppose bail if s 318 did not apply.

Held:
Unless a Youth Court specifically entered a conviction under s 283(o) of the Children, Young Persons, and Their Families Act 1989, a finding that a charge was proved was not a conviction within s 318(6) of the Crimes Act 1961 since (a) the 1989 Act referred to a charge being proved rather than that the young person had been convicted; (b) ss 2, 68(1) and 70(1) of the Summary Proceedings Act 1957 were excluded from the 1989 Act; and (c) it was unnecessary to deem Youth Court findings to be convictions for the purpose of a rehearing application under s 75 of the 1957 Act if they were in fact convictions. Accordingly, s 318 of the 1961 Act did not apply and bail would be granted subject to conditions (see p 104 line 51, p 105 line 13).

Kohere v Police (1994) 11 CRNZ 442 followed.

Appeal allowed.

Back to contents


R v Karoa, Afoa and Charlie HC Auckland T17-18/95, T76/95, 28 August 1995

File Number: T17-18/95; T76/95
Date: 28 August 1995
Court: High Court, Auckland
Judge: Anderson J
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Nominated Person, Admissibility of statements to police (ss 215-222): Explanation of rights; Admissibility of statements to police (ss 215-222): Reasonable compliance, Rights

Summary:
Accused (16) and others arrested; rights explained to accused; accused indicated he understood but did not make a request for a support person or to contact family members; officer explained that he could have support person or family member present during interview; officer's evidence is that accused said "no"; duty solicitor discussed matters with accused relating to his rights and gave another officer instructions that the accused did not wish to give samples or answer questions without lawyer present; after solicitor left the station the young person was interviewed; the next morning the accused indicated that he wishes to confess. Judge says that ordinarily the evidence would be admissible but he has to consider CYPFA; following the requirements of the Act the accused was entitled to know that he could nominate a family member for the purpose of the interview; or to have a solicitor present; Judge finds that he was not made aware of this; not compliance to have a stranger in the room and to be informed that this is the young person's nominated person; no "reasonable compliance" and evidence is inadmissible.

Decision:
Evidence inadmissible.

Back to contents


R v C CA 332/95, 28 September 1995

Court of Appeal
File number: CA 332/95
Date: 28 September 1995
Judge: Richardson, Thorp, Williamson JJ
Key Title: Sentencing in the adult courts: Sexual violation by rape; Sentencing in the adult Courts - application of Youth Court principles

Summary:
Appeal against sentence of 18 months supervision with special conditions. C (14 years and 3 months at time of offending) charged with sexual violation by rape of 4 year old cousin; C motivated by a desire to "get back at his aunt", his previous caregiver, who, he felt, had not been giving him enough attention; victim and her family badly affected. YC Judge refused YC jurisdiction as serious charge and supervision, if appropriate, should be for 2 years, not the 6 months available to the Youth Court. C had emotionally deprived childhood, recent attempt at suicide.

Reports recommended C stay in the SAFE programme he was attending; High Court Judge imposed 18 months supervision given that it was appropriate in the special circumstances of the offending, the victim and the offender. 12 months had elapsed since offending, the youth had performed well at the SAFE programme and prison would be inappropriate. Crown agreed to supervision for 18 months on specified conditions but argued this should be underpinned by a sentence of imprisonment suspended under s 21A of the Criminal Justice Act 1985 for deterrence, public interest.

Section 5 of the Criminal Justice Act 1985 and s 128B of the Crimes Act 1961 both create a statutory presumption in favour of full time custodial sentences displaced where having regard to the particular circumstances of the offence or the offender including the nature of the conduct constituting the offence, the Court is of the opinion that the offender should not be sentenced to imprisonment. Youth alone does not justify leniency: R v Accused [1989] 1 NZLR 645, 655, but it may be a highly relevant consideration and the younger the defendant, the more significant its relevance: R v Cuckow CA 312/91, 17 December 1991.

Held:
Lower Court Judge did not err in principle in declining to impose a suspended sentence of imprisonment, because: (1) age of offender; (2) special circumstances of offending and offender, C's motivation for offending and his unfortunate family circumstances; (3) C had performed well to date on programmes devised for him; (4) deterrent effect unlikely 1 year after event.

Decision:
Application for leave to appeal dismissed.

Back to contents


U v R [1995] NZFLR 966 (HC)

Case summary provided by LEXISNEXIS NZ

Name: U v R
Reported: [1995] NZFLR 966
File number: T 27/94
Date: 7 September 1995
Court: High Court
Location: Auckland
Judge: Tompkins J
Charge: Rape
CYPF no: s 5
Key Title: Delay; Objects; Reports - Psychological

Summary:
Children and young persons - Criminal proceedings - Delay in trial - Reason for delay systemic - Application for order that no indictment be presented and that proceedings be stayed - Whether accused's right to a trial without undue delay had been breached - Relevant legal principles - New Zealand Bill of Rights Act 1990, s 25; Children, Young Persons, and Their Families Act 1989, ss 5, 275.

The applicant, who had been aged 16 years 9 months at the time of the alleged offence, had been awaiting trial on a charge of rape for just over 13 months. The main cause of delay was the lack of judicial resources in the High Court at New Plymouth. However the Government was aware of the problem and was taking steps to deal with it, including making more judicial time available.

The applicant applied for an order that no indictment be presented on the ground of undue delay in the trial. Evidence was given by a psychologist as to the disadvantages suffered by the applicant if giving evidence in Court after this length of time.

Held (dismissing the application)

  1. Weighing up the relevant factors, that was the length of the delay, waiver, the reasons for the delay and prejudice to the accused, and having particular regard to the applicant's age and the consequences of a 13 month delay in trial on him, it could not be said that his right to be tried without undue delay had been breached. Although the applicant had found the period stressful and the time that had elapsed was going to make the difficult experience of giving evidence more difficult than it would have been had the trial taken place earlier, there was doubt that these characteristics were due solely to delay beyond what might otherwise have been regarded as reasonable.
  2. The means being taken by Government to address the lack of adequate resources was a factor to be weighed in deciding whether delay can fairly be described as undue.

Cases referred to in judgment:
Martin v Tauranga District Court [1995] 2 NZLR 419
Mills v Queen (1986) 26 CCC (3d) 481
Queen v Morin (1992) CCC (3d) 1
R v Queen (1992) 71 CCC (3d) 1

Application:
This was an application for an order under s 25(6) of the New Zealand Bill of Rights Act 1990 that no indictment be presented and that the proceedings be stayed.

Back to contents