Filed under: ABC v Police
File number: CRI-2010-409-000060
Court: High Court, Christchurch
Date: 13 May 2010
Judge: Chisholm J
Key titles: Appeals to High Court/Court of Appeal: Jurisdiction, Appeals to High Court/Court of Appeal: Timing, Media reporting (s 438).
Originally an appeal of Youth Court decision. Heard instead as an application for judicial review following concerns over jurisdiction for an appeal.
NZ Herald reported that a 16 year old had appeared in Court, as well as the nature of the charge, the circumstances of his arrest, other facts and a comment from the Police. No leave was granted under s 438 for this report. A objected.
Youth Court (YC) decided to allow publication of the fact of the appearance, the request for a psychologist’s report, and the final disposition of the case. This decision was embargoed for 24 hours, in which time A appealed. YC Judge subsequently disclosed that he had known about the report in the Herald before making the abovementioned ruling.
Court found that all matters of concern to A were before the YC Judge and were presumed to have been taken into account.
Court also held that the YC decision did not bind any future YC Judge dealing with the matter but 'common-sense might suggest that the horse has bolted'.
Result:
Application for judicial review dismissed.
Filed under: Fonua v Police
File number: CRI-2009-404-000341
Court: High Court, Auckland
Date: 22 February 2010
Judge: Allan J
Key titles: Sentencing in the adults courts: Aggravated robbery, Sentencing - General Principles (e.g. Parity/Jurisdiction)
Appeal from sentence of 2.5 years imprisonment. Charges arose after events of one evening when TF (16 years old) and others stole 2 cars and left the owners of these cars with injuries. One of the stolen cars was crashed into a police car, and later abandoned. TF was apprehended 2 weeks later driving another stolen car with a high blood alcohol level.
Convicted in Youth Court and transferred to District Court.
Initially plead not guilty, but changed plea just before trial, and as a result of the prosecution reducing the charge for stealing one of the cars from aggravated robbery (purely indictable) to robbery (not purely indictable). Starting point of 3.5 years for one count of aggravated robbery, increased by 12 months for second robbery. 10% discount for late guilty plea plus 30% for youth and other personal mitigating factors.
The Court held that the sentencing Judge was wrong to uplift the starting point in relation to the robbery charge, as robbery is not purely indictable. Section 18 of the Sentencing Act 2002 precludes sentences of imprisonment being imposed on young people aged under 17 years if the charge is not purely indictable.
The Court agreed that this case was broadly comparable to Police v Siafa HC Auckland 12 October 2006 per Randerson J.
The Court declined to interfere with the 45% overall discount given by the sentencing Judge, and declined to accept that TF had a limited role in the offending.
The Court returned to the original starting point and the original discount, ending in a sentence of 2 years imprisonment.
The Court also considered the disparity between TF’s sentence and that of two of his co-accused, who received combinations of intensive supervision, community detention and community work. TF had already served 5 months of his prison sentence at the time of the appeal, and had his family home assessed as a suitable venue for home detention.
Result:
Original sentence quashed. 6 months home detention substituted.
Filed under: Harris v R
File number: CRI-2009-470-000031
Court: High Court, Tauranga
Date: 24 March 2010
Judge: White J
Key titles: Sentencing in the adult courts: Arson
H appealed from sentence of 2 years imprisonment (starting point of 5 years), after being convicted and transferred to District Court, following a guilty plea in the Youth Court.
H (first offender, aged 15) lit fires at Te Puke High School and destroyed classrooms and property worth $5 million. H appealed on the grounds that he did not intend to burn down the whole building, intensive supervision was not considered by the Court, and he had successfully been on restrictive bail for 11 months. H relied on similar cases R v Torstonson and Ham DC Hamilton CRI-2006-219-000233, 24 November 2006, and Police v SR DC Tauranga CRI-2009-270-000075, 6 November 2009.
Court not persuaded that starting point was incorrect due to difficulties with accepting that H did not intend to burn the whole of the school building.
Court held that there must be real doubt whether a sentence of intensive supervision was considered by the sentencing Court, and that principles in the Sentencing Act 2002 and in s 208 of the CYPFA mean that intensive supervision with appropriate conditions should be considered. The Court also referred to R v Cuckow CA 312/91, 17 December 1991.
Result:
Appeal allowed. Two years imprisonment quashed. Two years intensive supervision with community detention and 400 hours community work substituted.
Filed under: L v R [2010] NZCA 131
File number: CA533/2009, CA792/2009
Court: Court of Appeal
Date: 30 June 2010,
Judges: Glazebrook, Winkelmann and Venning JJ
Key titles: Sentencing in the adults courts: Sexual violation by rape, Evidence (not including admissibility of statements to police/police questioning), Youth Court Procedure.
Appeal of conviction for rape. Issue whether defence counsel at trial should have agreed to admit portions of police video interview of L (14 years old at the time of the offence) into evidence. Also whether trial judge should have given a direction to the jury to disregard the interviewing officer's opinions that L was lying.
Obiter that the police officer was, in effect, cross examining L during the interview (in contravention of the Chief Justice's Practice Note), and that his interviewing style was confrontational, overbearing, and gave L no opportunity to answer the allegations. The CA said this was entirely inappropriate in any circumstances, but particularly where the person interviewed was a 14 year old suspected of serious sexual offending.
Result:
Appeal allowed. Conviction quashed. Retrial ordered.
Filed under: MRW v Police
File number: CRI-2010-404-000058
Court: High Court, Auckland
Date: 11 May 2010
Judge: Venning J,
Key titles: Appeals to the High Court/Court of Appeal: Jurisdiction, Orders - type: Reparation - s 283(f).
This is an appeal decision from the High Court in relation to Youth Court orders for reparation (s283(f)) in response to two burglaries committed by MRW. The Youth Court Judge had ordered one payment of $250, one payment of $500 (both payable immediately), and $4250 to be paid at the rate of $20 per week.
MRW challenged the reparation orders on the grounds that—
On the first ground, the Court held that reparation was the appropriate outcome because it was consistent with the objects and principles of the CYPF Act and because community work and supervision orders were not open to the Youth Court, MRW having already attained the age of 17 years and six months (s 296).
On the second ground, the Court held that there was little difference between the imposed order of $20 per week over five years, and an order requiring $5000 to be paid in full in five years time. It considered that the Youth Court had considered the need for the least restrictive outcome.
On the third ground, the Court held that despite MRW being a full-time student with a substantial student loan, and the fact that the instalments will cause some difficulty and hardship, that does not mean that the reparation payment cannot be met. The Court referred to the possibility that MRW obtain part-time employment.
On the fourth ground, the Court held that the reparation orders were not made against the mother or sister. It noted that the Youth Court Judge had referred to the need for MRW to acknowledge responsibility for his actions.
Result:
The appeal was dismissed on all grounds.
Filed under: Police v NJ
File number: CRI-2010-404-000309
Court: High Court, Auckland
Date: 22 September 2010
Judge: Ellis J
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 14 mentally impaired/unfit to stand trial, Criminal Procedure (Mentally Impaired Persons) Act 2003: disposition if unfit.
This was an opinion of the High Court after Judge Fitzgerald of the Youth Court stated a case under s 78 of the Summary Proceedings Act 1957 asking two questions:
It has been the Ministry of Health’s practice to reassess the finding as to intellectual disability at the second step (the needs assessment under Part 3 IDCCR Act). If that second diagnosis contradicts the earlier finding of the Court as to intellectual disability, it potentially calls into question the determination of unfitness to plead and curtails the disposition options available to the Court. The Court may then have no choice but to discharge the offender into the community.
The High Court held that a finding of intellectual disability may be made at the earlier s 14 stage. Such a finding is reviewable. Diagnostic involvement at the Part 3 stage is inconsistent with the statutory scheme. Any practical problems can be resolved by ensuring that where intellectual disability is the central issue at the s 14 stage, one or both of the health assessors is a specialist assessor under the IDCCR Act.
Result:
The Court’s opinion is ‘yes’ to the first question and ‘no’ to the second question.
Filed under: Pouwhare v R
File number: CRI-2010-483-000011
Court: High Court, Wanganui
Date: 16 April 2010
Judge: Miller J
Key title: Sentencing in the adult courts: Application of Youth Justice Principles, Sentencing - General Principles (e.g. Parity/Jurisdiction)
Appeal from District Court sentence of 2.5 years imprisonment following s 283(o) conviction and transfer from Youth Court for aggravated robbery (see R v Hosay DC Wellington CRI-2009-283-000059, 19 November 2009).
Issue whether Court is bound to follow tariff decisions such as, in this case, R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA) when sentencing young people in an adult court.
District Court below followed R v Patea-Glendinning [2006] DCR 505 (HC) which held that youth justice principles do not necessarily apply in the adult court. District Court Judge commented that he would have chosen a rehabilitative and less restrictive sentence had he not been bound by Mako and differentiated the sentencing principles in the Sentencing Act 2002 from those in ss 4 and 208 of the CYPFA 1989, which he described as 'fundamentally different'. 25% discount for youth given in District Court plus another 15 months for guilty plea.
Miller J repeated his view in Patea-Glendinning that the fact of a person’s youth enters the sentencing analysis primarily as a mitigating factor. Mako and the Sentencing Act represent the same approach.
Held that there is no authority that limits discounts for youth to 25%, but recognised that recent cases have tended to stop at 50% total deduction for youth and plea.
Held 25% discount in District Court not wrong, due to poor prospects for rehabilitation, and final sentence not manifestly excessive.
Result:
Appeal dismissed.
Court of Appeal File number: CA227/2010
Date: 2 July 2010
Judge: William Young P, Chisholm and Keane JJ
Key titles: Appeals to the High Court/Court of Appeal: Jurisdiction, Sentencing in the adult courts: Application of Youth Justice Principles, Sentencing — General Principles (e.g. Parity/Jurisdiction).
Appeal from the decision in Pouwhare v R HC Wanganui CRI-2010-483-000011, 16 April 2010
Appeal on the question whether youth justice principles provided for in the CYPFA are required to be taken into account when sentencing a young person transferred to the District Court or the High Court, by the Youth Court:
'Section 283(o) is to be taken literally. Once a young person is transferred for sentence to the District Court, or the High Court for that matter, the Sentencing Act [2002] will apply. The plain implication has to be that Sentencing Act purposes, principles and aggravating and mitigating factors will then effectively displace the s 208 principles that would have applied but for transfer. We consider, moreover, that unless that were so, the analysis that the Sentencing Act then calls for, would be rendered incoherent.'
The Court held that whenever a young person is sentenced, in whichever court, the sentencing judge exercises a discretion. In the Youth Court the primary focus in the balance to be struck between the offence and the offender, is the young person. By contrast, in the District or High Courts under the Sentencing Act by contrast, the Judge is obliged to begin with the offence in its objective seriousness, and only then to look to the offender.
Under the Sentencing Act, a Judge must always weigh the young person’s age and the reason why he or she offended, against the seriousness of his or her offending and prospects of rehabilitation. Sometimes the young person’s age will be a mitigating factor of high, perhaps decisive, significance not to be circumscribed by any fixed outer percentage. Equally, it cannot be said that youth of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.
When a young person is sentenced in the District Court or High Court, having been transferred for sentence by the Youth Court, the sentencing Judge is not required to take into account the youth justice principles provided for in the CYPF Act.
Result:
Appeal dismissed.
File number: CRI-2008-009-019959
Court: High Court, Christchurch
Date: 10 March 2010
Judge: French J
Key titles: Sentencing in the adult courts: Murder/manslaughter
High profile murder of Christchurch taxi driver, in which BW used a knife to inflict a number of wounds, including the fatal one, on the victim. Pathologist's description was of an on-going and determined assault.
BW pleaded not guilty initially, then indicated a desire to plead guilty and accept blame as principal offender.
BW (16 years old at time of the offending) had an unhappy childhood, left school at a very early age, but was in fulltime employment at the time of the attack. Numerous previous history in the Youth Court, including violence. BW reported being drunk at the time of the offending. He later expressed remorse and wrote an impressive letter to the victim’s family.
Court held statutory minimum non-parole period of 17 years would be manifestly unjust, and that a discount for age and guilty plea would attract a discount.
Result:
Life imprisonment with minimum non-parole of 15 and a half years.
File number: CRI-2009-204-000507
Court: High Court, Auckland
Date: 18 May 2010
Judge: Harrison J
Key titles: Sentencing in the adult courts: Serious assault (including GBH), Sentencing in the adult courts: Aggravated burglary.
Home invasion with three others. Attacked occupiers with golf clubs and metal bars. Serious injuries to victims. Tariff band 3. On Youth Court bail at the time. Offending worst of its kind. Starting point of 14 years imprisonment.
Mitigating factors:
55% discount.
Result:
Six and a half years imprisonment.
File number: CRI-2009-043-004845
Court: High Court, New Plymouth
Date: 29 April 2010 Judge: Asher J
Key titles: Sentencing in the adult courts: Murder/manslaughter.
M had pleaded guilty to manslaughter caused by dangerous driving. M and others, including the victim, had taken his caregiver’s car without permission. M held a learner’s licence. M drove the car erratically at speeds of 100kph in town and 180kph on the open road. The passengers were yelling at M to slow down and stop. M finally lost control of the car, which slid then crashed head on with a dirt bank. All occupants of the car suffered major injuries. The passenger who died was not wearing a seatbelt. M suffered severe head and leg injuries and was found to be more than twice the legal blood alcohol limit.
In assessing culpability and aggravating factors, the Court referred to R v Skerrett CA 236/86, 9 December 1986. The Court found that M’s driving and the injuries suffered by the passengers were more serious than in R v MacSwain CA 37/05, 26 May 2005. Consequently the starting point was fixed at 7 and a half years imprisonment.
Consideration of personal mitigating factors resulted in:
M pleaded guilty at the first opportunity after his case was transferred to the High Court. The Court held that anything less than the full one third discount would be unfair.
Result:
Three years 10 months imprisonment, and disqualified from driving for 5 years.
Filed under:
R v Walker and Others
File number: CRI-2009-485-000086
Court: High Court, Wellington
Date: 10 February 2010
Judge: Wild J
Key titles: Sentencing in the adult courts: Murder/manslaughter
W (15 years 4 months) and two others chased and attacked the victim with kicks and stomps to the head. The Judge described the attack as vicious, gratuitous and cowardly violence.
W was a first offender, with a good upbringing, who had gone off the rails. W had serious problems with alcohol and drugs.
W was remorseful and motivated to change. The Court made allowances for these factors.
Result:
Life imprisonment with minimum non-parole term of 11 years.
File number: CRI-2010-476-000009
Court: High Court, Oamaru
Date: 10 June 2010
Judge: French J
Key titles: Bail (s 238(1)(b))
Appeal of DC decision not to grant electronic bail. S, 16 years old, charged with murder. History of 42 charges in Youth Court, including violence, dishonesty, arson, driving and drugs. History of 19 offences committed while on bail. Police believed S's offending had escalated.
Parents (S's proposed bail address) had struggled to manage his behaviour and stop him from offending. Parents attitude not good, and S also violent while in the custody of CYF. S diagnosed with severe form of ODD at age 9, which remained unmanaged. S likely to be supplied with alcohol and drugs by friends while at proposed bail address.
Court agreed with DC decision that there was a real and substantial risk of further offending, despite positive effectiveness report.
Result:
Appeal dismissed.
File number: CRI-2009-488-000048
Court: High Court, Whangarei
Date: 24 March 2010
Judge: Gendall J
Key titles: Appeals to the High Court/Court of Appeal: Jurisdiction, Appeals to the High Court/Court of Appeal: Timing, Family Group Conferences: Timeframes/limits: Court-ordered
Appeal (brought substantially out of time) against conviction and sentence for five offences including burglary, conversion, escaping, and intentional damage. Appeal on the basis that Family Group Conference (FGC) time limits were not met. Court considered that this was a challenge to the procedure and should better have been brought as judicial review.
FGC not held because Christmas holidays intervened, delaying notice that needed to be given to W‟s mother and solicitor. Original appeal in District Court rejected with the view that s 249 of the CYPFA timeframes are not mandatory, and that delays were caused by W defending various charges, and that the delay was relatively limited.
Court agreed with reasoning in Police v V and L [2006] NZFLR 1057 (HC) and other authorities that say timeframes are not mandatory depending on the circumstances. Court also considered that delay might also be dealt with under s 440 of the CYPFA.
Court held that a technical breach of time requirements arising out of W's remand in custody were minimal and of little consequence. Court also held that a delay in completion of FGCs of 2.6 months (compared to that contemplated by statute of 1 month) was not inordinate or unreasonable in the circumstances. Delay here not the result of serious systemic failure. The consequences of the delay do not outweigh the entry of convictions, and do not enable the appellant to claim disadvantage.
Result:
Appeal dismissed.
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