2014 Appellate Court decisions
C v R  NZCA 376
File number: CA378/2014
Date: 7 August 2014
Court: Court of Appeal
Judges: Harrison, Goddard, Andrews JJ
Key titles: Admissibility of statements to police/police questioning (ss 215-222): Nominated persons, Admissibility of statements to police/police questioning (ss 215-222): Explanation of rights, New Zealand Bill of Rights Act 1990
This appeal arose from a challenge in the District Court to the admissibility of a statement made by a young person (aged 16) when interviewed by police officers investigating his alleged offending. The appellant was charged with causing grievous bodily harm with intent, attempted rape and indecent assault.
At 7.45 pm on 1 July 2013, the appellant (C) was arrested at his parents’ home by two police officers on a charge of assaulting S. Shortly thereafter he made a statement to the officers at the Manakau Police Station. In summary he admitted punching S about four times but asserted that it was in retaliation to provocation. He denied sexually assaulting S.
C challenged the admissibility of this statement, alleging that the statement was obtained in breach of his rights under the Children, Young Persons and Their Families Act 1989 (the CYPF Act), or alternatively under the New Zealand Bill of Rights Act 1990 (NZBORA), or unfairly under s 30 of the Evidence Act 2006 or at common law.
Following a defended hearing at which evidence was led from the police officers who conducted the interview, Judge Treston ruled that C’s statement was admissible at trial (R v Campbell DC Manakau CRI-2013-292-203, 4 July 2014). C challenged this determination.
Was there a breach of the CYPF Act?
It was submitted that the police officers had breached C’s rights under s 215 of the CYPF Act, which provides that a police officer must explain to a child or young person their entitlement to consult with, or be accompanied by, a barrister or solicitor or any nominated person when being questioned by police.
Within five minutes of police arriving at C’s home, C was arrested. The detective had what he described as an aide memoir for explaining C’s rights to him before conducting any questioning. It contained a series of bullet point statements which the detective asked C to explain back to him in his own words. By that means the officer would gauge C’s understanding of what had been said. Among those rights was the right to consult with and make or give any statement in the presence of a lawyer or nominated person.
The detective explained C’s rights to him while at the family home. The s 215 right was described as “to have your lawyer and/or nominated person with you while you are making a statement or answering any questions”. In answer to the detective’s question “would you like to nominate a person to support you?”, C answered “my dad”. The detective was satisfied that C fully understood his explanations of each statutory right.
C and his father arrived together at the police station and conferred together before the interview started, approximately 30 minutes later. The detective commenced by explaining and obtaining a response to each of C’s statutory rights as he had done from his aide memoir earlier at the family home.
It was submitted that the detective’s advice of C’s right to have a “nominated person and/or lawyer” present during the interview was wrong or at least confusing, and that C was under an apparent misapprehension that he was entitled to either a nominated person or a lawyer but not both.
It was accepted that the detective’s use of the phrase “and/or” was arguably ambiguous; and that two of C’s answers suggest that he understood the rights to a nominated person or a lawyer as alternatives, not cumulative. However, it was satisfied that any confusion was rectified when the detective advised C that the police had a list of lawyers to whom he may speak for free. The officer emphasised that it would not cost C’s father any money if he was to speak with a lawyer. It was determined that C clearly understood that right as a standalone right which was available if and whenever — before, during or after making a statement — he wished to exercise it, regardless of the presence of his father.
Was the assistance given by C’s “nominated person” inadequate?
It was further submitted that the police officer gave inadequate assistance to C’s nominated person, his father. It was accepted that the police officers gave written information to C’s father but said that it did not satisfy the provisions of the CYPF Act because they must have known that due to his passivity and inadequacies he was of little or no use as a nominated person. Namely, it was submitted that C’s father:
- did not ask any questions of the police in circumstances where his son was entitled to have a nominated person who acted in his best interests;
- did not seek to engage a lawyer despite the changing circumstances in the interview;
- offered, without prompting, his son's DNA sample; and
- took very little time to consult with his son.
The appellant relied on R v Z  3 NZLR 342 to support the proposition that police are subject to a positive obligation to ensure that an effective nominated person who is willing and able to assist the young person is available:
"Under s 222(4) of the CYPF [Act], the role of a nominated person includes taking reasonable steps to ensure that the child or young person understands the rights explained to the child or young person and providing support to the child or young person during questioning and the making of a statement. The nominated person is not merely a cipher. To carry out their role, the nominated adult needs to know the jeopardy faced by the child or young person they are to support. If in this case Z's father had known of the peril his son was in, he may have urged his son to obtain legal advice. He may also not have been so insistent that Z tell the truth and that he not exercise his right to silence …"
However, in this case, it was accepted that C’s father confirmed that he had read and understood his son’s rights. In contrast to R v Z, C and his father were allowed an extended period to confer before commencing the interview. Furthermore, the statutory duty on a nominated person under s 222(4)(a) of the CYPF Act is “to take reasonable steps” to ensure that the child or young person understands” the matters set out in s 221(2)(a). It was determined that s 222(4) does not require a best interests approach on the part of the support person.
Ultimately, it was decided that in any event, there was no evidence C’s father failed to discharge this duty. The fact that he did not ask questions of the police or did not seek to engage a lawyer or offered his son's DNA sample did not mean that C’s father did not take reasonable steps to ensure that the police officers had explained to his son his various statutory rights. In this respect the Court held that the legislature did not envisage that a comprehensive judicial enquiry is required into the nature and quality of the support given in any particular case.
Was there a duty to explain?
It was submitted that police officers were under a duty to explain to C the role of a lawyer in the context of police questioning. In R v Z, the Court of Appeal were supportive of the Canadian approach of handing out a brochure at the time of questioning to parents and guardians which positively encourages them to ensure legal advice is obtained for their children. However, the Court in R v Z did not go as far as to impose a positive obligation on a police officer to take this step.
It was held that the detective’s statutory duty under s 215(1)(f), was to explain to C before questioning him that he was entitled to consult with and make or give any statement in the presence of a lawyer. It was noted that whatever might be regarded as best practice, this provision settles the nature and extent of an interviewing officer's duties.
Was there a breach of NZBORA?
Finally, it was submitted that the police officers breached C’s rights under NZBORA by deliberately not disclosing the sexual aspect of S’s complaint until a late stage in the interview, leading C to incrementally incriminate himself. After obtaining admissions of violent offending, it was contended that the officers “were keeping the sexual allegation up their sleeves” with the intention that C would further incriminate himself on the sexual offending.
The Court accepted that the Judge at first instance had a proper ground for accepting that the police were not obliged to advise C that he was at risk on sexual charges. That was because when starting the interview the officers were not in possession of the full facts relevant to the sexual element of S's complaint. They properly advised him that he was being questioned about a serious assault which left S unconscious and caused her hospitalisation. C unconditionally acknowledged that he was responsible for the attack when asked about it but explained that he had acted in retaliation to provocation.
The Court was not satisfied that C’s statement should be inadmissible at trial for failure to comply with any of the statutory requirements under the NZBORA.
The appeal was dismissed.
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P v Police  NZHC 2040
File number: CRI-2014-463-000037
Date: 27 August 2014
Court: High Court, Tauranga
Judge: Woolford J
Key titles: Sentencing in the adult courts: Application of Youth Justice principles, Sentencing in the adult courts: Aggravated robbery.
P appealed a sentence of four years and nine months imprisonment on one charge of aggravated robbery relating to a group attack of two German tourists while they were camping, and one charge of kidnapping. P was aged 16 years old at the time of the offending but was transferred to the District Court for sentencing. P appealed on the grounds that he was given an inadequate discount for his youth; that his sentence was disproportionate to the other co-offenders; and that the cumulative part of the sentence was wrong in principle.
District Court sentencing
At sentencing in the District Court (Police v P and Others DC Whakatane CRI-2013-287-000081, 16 May 2014) Judge Bidois fixed a starting point for six and a half years imprisonment for all of the offenders. With respect to P, a 25 percent discount was given for a guilty plea, however the Judge noted no visible remorse, motivation to address issues or victim empathy. Despite being a youth, it was considered that P had led a lifestyle effectively of an adult, including previous serious offending. Furthermore, P had not taken advantage of the rehabilitative aspects of Youth Court orders, including custodial orders. A further discount of 5 per cent was given as a result of P’s father offering to pay emotional harm reparation to the victim. The final sentence on the charge of aggravated robbery was four years and six months imprisonment.
As well as the charge of aggravated robbery, which had been transferred to the District Court, P faced a number of other charges in the Youth Court. These were discharged under s 283(a), except for the charge of kidnapping, which was transferred to the District Court under s 283(o). Judge Bidois imposed a cumulative sentence of three months on the aggravated robbery.
High Court appeal
P’s counsel submitted that there should have been a further discount for P’s youth per Churchwood v R  NZCA 531, somewhere in the region of 10 per cent or an additional 6 months. Woolford J noted that in the District Court, it was acknowledged that credit needed to be given to all of the offenders on account of their youth, but that it would be tempered by either their previous convictions and/or the charges they were facing. Recognition of the offenders’ youth was given when setting the starting point of six and a half years. At sentencing, it was noted that P had previously been dealt with leniently in the Youth Court for other serious offending but had failed to respond to the initiatives in the Youth Court and benefit of being treated as a youth. Woolford J was satisfied that Judge Bidois took sufficient account of P’s youth by giving credit, in particular, when he set the starting point at six and a half years.
It was also submitted that a further discount of ten per cent was given to P for his youth, this would bring his outcome into line with his co-offenders’. It was noted that all co-offenders received a starting point of six and a half years. By contrast to his co-offenders, P received a bleak pre-sentence report and his risk or reoffending was assessed as high. Woolford J was of the view that the different end sentences could not be criticised. It was his view that a sentencing judge is able to differentiate between offenders, particularly having regard to the prospects of rehabilitation. If an offender has no insight and no motivation to change, then it follows that he will receive less of a discount than others.
It was finally submitted that a cumulative sentence of three months imprisonment was wrong in principle. It was observed that Judge Bidois dealt with all other Youth Court matters, except for the kidnapping charge, by discharge without further order or penalty under s 283(a). On the kidnapping charge, which related to an earlier incident, Judge Bidois exercised his power under s 283(o) and ordered that P be brought before himself, sitting as a District Court judge, for sentence. This was a resentencing in respect of this charge, as P had failed to comply with the original sentence of six months’ supervision with residence, followed by supervision. Woolford J held that there could be no complaint about the manner in which the charge of kidnapping was dealt with, or the end sentence.
Woolford J dismissed the appeal. His Honour concluded that:
“… Judge Bidois dealt with the appellant’s case and those of his co-offenders in a reasonable, measured, fair and comprehensive manner, trying to balance both the interests of the community and the interests of the offenders, while giving due recognition to the horrific circumstances of the attack on innocent foreign tourists.”
Sentence upheld. Appeal dismissed.
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R v Kelekolio  NZHC 1791
File number: CRI-2012-209-000476
Date: 31 July 2014
Court: High Court, Timaru
Judge: Panckhurst J
Key titles: Sentencing in the adult courts: murder/manslaughter, Sentencing in the adult courts: Sexual violation by unlawful sexual connection.
The defendant, Ale Kelekolio (K) pleaded guilty to the murder and sexual violation of Sina Solomon (S) in 2012. At the time of offending, the defendant was 15 years old.
S, a 22 year old mother, was well known to K. S’s father and K’s mother lived together in an extended family and K was a frequent visitor to that home. In the early morning of 15 December 2012, S returned from work to an empty house. Sometime thereafter, K arrived at S’s house and attacked her, stabbing her repeatedly with a kitchen knife. S’s throat was cut with a serrated breadknife. There was evidence of a sexual assault by way of digital penetration.
At sentencing, it was undisputed that a sentence of life imprisonment was inevitable. The issue was to determine a minimum period of imprisonment. A starting point of 17 years was fixed after considering aggravating factors, including that the crime involved a high level of brutality, there was unlawful entry into S’s home and that the murder was committed in the course of another offence, namely the sexual assault.
When considering the appropriate minimum term of imprisonment, Pankhurst J made the following observations:
- Age and maturity must be seriously considered as required by s 9(2)(a) of the Sentencing Act 2002, and s 25(i) of the New Zealand Bill of Rights Act 1990, which states that children have the right to be dealt with in a manner that takes account of their age.
- The Court of Appeal in Churchwood v R  NZCA 531 recognised that there are at least three dimensions relevant to age and immaturity that require consideration. The first is that the brain development of young people is ongoing, often into early adulthood. As a result of immature brain development, adolescents may be impulsive, display immature judgment and lack insight and restraint; traits which are likely to be compounded by the use of alcohol and drugs. Also recognised was the greater capacity for the rehabilitation of young people, because of the maturing process. The third consideration is that long sentences for young people can be “crushing”, especially when a sentence matches or even exceeds their present lifetime.
- K’s age, immaturity and development deficits were significant. Although K had no history of mental health or formal intellectual impairment, psychological assessment revealed significant learning disabilities. It was accepted that he had an incredibly difficult upbringing. He had been expelled from school, was involved in binge-drinking, had come to police notice a number of times and was leading an anti-social life. There was no doubt that K is a vulnerable adolescent, lacking in judgment, self-discipline and the ability to “think straight”.
- K entered guilty pleas, although only a month before trial. Pankhurst J noted that K had since rescinded his guilty plea, but considered that this would probably be due to an inability to deal with the gravity of the offending. It was noted that a series of quite disturbing evidence was produced about K’s severely depressive state since being detained in a secure youth facility following his arrest.
Pankhurst J ultimately decided that a minimum period of 17 years would be manifestly unjust. K was sentenced to a minimum period of 14 years and six months imprisonment.
Sentence of life imprisonment, with a minimum period of 14 years six month imprisonment.
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R v M  NZHC 1848
File number: CRI-2013-090-005265
Date: 7 August 2014
Court: High Court, Auckland
Judge: Winklemann J
Key titles: Sentencing in the adult courts: serious assault (including GBH), Sentencing in the adult courts: application of Youth Justice principles.
This sentencing decision follows on from R v Q  NZHC 550 and concerns the older brother M who, along with his younger brother Q, assaulted Steven Dudley at a school rugby practice. In both cases a discharge without conviction was granted. At the time of the offending M was 17 years old and consequently outside the Youth Court’s jurisdiction.
In this case, one of the considerations weighed by Winkelmann J was M’s age. It was determined that M’s youth was relevant when assessing culpability and a relevant factor in sentencing for two principal reasons:
- Society has a particular interest in ensuring that young offenders are rehabilitated to be contributing members of society; and
- The law recognises that young people may in some circumstances be less culpable for their offending. This is because young people are less able than adults to make good choices as to their actions and to control impulses. Adolescents, and particularly boys, do not reach full development of their brain functioning until their early to mid-20s. The part of the brain which governs planning, appreciation of consequences and impulse control is not fully developed for many boys prior to the age of 19. When this factor is combined with the higher levels of testosterone in young men, it frequently produces flawed decision making.
After consideration of all the relevant factors, M was granted a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.
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R v P  NZHC 1445
File number: CRI-2014-290-000072
Date: 25 June 2014
Court: High Court, Auckland
Judge: Lang J
Key titles: Media reporting (s 438).
P, aged 13 years old, was charged with murder in connection with the fatal stabbing of a West Auckland dairy owner. At the criminal callover in the High Court a three week trial was set down, commencing on 24 November 2014.
An order for name suppression under s 200 of the Criminal Procedure Act 2011 was granted.
When assessing whether publication would be likely to cause extreme hardship to P, or would be likely to create a real risk of prejudice to a fair trial under s 200(2), the following factors were considered:
- P is aged 13 years old. Lang J adopted the reasoning in R v N  NZHC 2042, namely that a youth defendant who is to be dealt with outside the jurisdiction of the Youth Court does not automatically enjoy the statutory name suppression prescribed by s 483(3) of the Children, Young Persons and their Families Act 1989. However, the youth of a defendant is still relevant in determining whether name suppression should be granted.
- As recognised by the Court of Appeal in R v M  NZCA 673, where a youth defendant is to be tried in the District or High Court, the rules of procedure of those courts will apply. However, the provision to account for age in a criminal proceeding in article 40 2(b) (ii) of the United Nations Convention on the Rights of a Child must be recognised.
- The particular circumstances and best interests of the defendant must be a primary consideration. The Court must also give consideration to any challenges a young person may face in receiving a fair trial, and any additional hardship they may suffer by virtue of their youth.
- In this case, there had already been intense media interest in the case, beginning the day of the defendant’s arrest and expected to continue until the end of the trial process. Publication of P’s identity would place enormous pressure on a very young defendant.
- The Court should proceed cautiously given that there were concerns about P’s ability to adequately instruct counsel. An enquiry into fitness to plead would be made after a psychological report is obtained.
- The Crown accepted that there was a real risk that publication of P’s identity would jeopardise a fair trial at this stage.
Suppression order granted under s 200 of the Criminal Procedure Act 2011.
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R v Q  NZHC 550
File number:  NZHC 550
Court: High Court, Auckland
Judge: Winkelmann J
Key title: Sentencing in the adult courts: Serious Assault (including GBH), Sentencing in the adult courts: Application of Youth Justice principles, Media Reporting (s 438).
The sentencing judgment of Winkelmann J is particularly important as it confirms that proceedings that would ordinarily have been conducted in the Youth Court, but which are conducted in the adult jurisdiction, should apply the youth justice principles, including those principles contained in the Children, Young Persons and their Families Act 1989 (CYPF Act) and relevant international conventions.
Q, his brother and the victim, Stephen Dudley, were students at the same school and were involved in a fight after a rugby training session. Q and the victim were both 15 years old at the time. After punching the victim a number of times in the torso, Q and his brother left the scene, under the impression that the victim seemed okay. The victim subsequently lost consciousness and died. His death was caused by an undiagnosed heart condition which made him vulnerable in times of traumatic stress. There was no clear link between Q’s offending and the victim’s death. Q was charged with manslaughter in the High Court. This charge was later amended to assault.
Winkelmann J acknowledged that she was bound by the principles of the Sentencing Act 2002. However, citing Pouwhare v R  NZCA 268, the Chief Judge proposed to take into account youth justice principles underlying the youth justice provisions of the Children Young Persons and their Families Act 1989. Winkelmann J also noted that, were it not for the fact that Q was initially charged with manslaughter, which automatically brought him within the jurisdiction of the High Court, the assault charge would have been handled within the jurisdiction of the Youth Court and youth justice principles would have been applied.
When assessing the appropriateness of a discharge without conviction under s 106 of the Sentencing Act, Winkelmann J made the following observations:
- Q’s youth was highly relevant to assessing culpability. It was accepted that the adolescent brain is far from fully developed and consequently, teenagers have impaired decision-making and a tendency to impulsive conduct. Adolescents are also particularly subject to peer pressure. Science now confirms “… what any parent could tell us about the behaviour of teenagers in their household”.
- Because Q, as a 16 year old, is at a critical point in his development, youth is relevant in assessing the consequences of conviction. Citing the s 208 CYPFA principles and their emphasis on rehabilitation and reintegration, it was stated that “the outcome of court proceedings such as these for young offenders has an enhanced, even exaggerated capacity to contribute either constructively or destructively to a young person’s future.”
- It was material that had this case been dealt with in the Youth Court, it would have almost certainly resulted in a discharge without conviction.
- When addressing the need to hold Q accountable for the harm caused and to denounce schoolyard fighting, the sentencing process itself was sufficient denunciation for the purposes of deterrence.
- Emphasis was placed on the importance of encouraging Q’s rehabilitation and reintegration into both his education and the community. Q’s young age, lack of previous offending or violent behaviour, lack of continuing threat to the community and genuine determination to complete secondary education and gain entrance into University were mitigating considerations.
- When these factors were weighed against the seriousness of offending, the consequences of conviction would be disproportionate to the gravity of offending. Q, and the community, have a vested interest in his reintegration into education and the community
On the issue of permanent name suppression, it was material that Q would have been had the benefit of automatic name suppression under the CYPF Act. Both the Crown and the Chief Judge accepted that automatic name suppression under the CYPF Act is an implicit acknowledgment of the degree of hardship a young person will suffer as opposed to an adult if their name was published.
International instruments were taken into account, including the International Covenant on Civil and Political Rights (1966), at 14(4); the United Nations Convention on the Rights of the Child, at 40(1). Namely, the rights of young people under various international conventions to have their need for rehabilitation and reintegration respected thorough the criminal justice system.
There was no countervailing consideration which outweighed the potential damage caused to Q by being identified, which would inhibit of prevent h rehabilitation.
Name suppression granted for Q. It was also conceded that permanent name suppression would need to be granted to Q’s brother in order to protect Q’s identity.
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