Kohere v Police (1994) 11 CRNZ 442 (HC)

Case summary provided by BROOKERS

Name: Kohere v Police
Reported: (1994) 11 CRNZ 442
File number: AP8/94
Date: 16 March 1994
Court: High Court, Rotorua
Judge: Anderson J
Key Title: Sentencing in the adult courts: application of Youth Justice Principles, Sentencing in the adult courts: Other

Summary:
Sentence - Sentencing Judge considered previous Youth Court proceedings - Youth Court not a Court of criminal record - However, Youth Court proceedings form part of offenders' behavioural history - May be relevant when determining sentence - Judge had not erred in principle - Children, Young Persons, and Their Families Act 1989, s 321(1) Summary Proceedings Act 1957, ss 71, 209.

Sentence - Suspended sentence - Two-tiered approach required - Sentencing Judge must first determine imprisonment term - Secondly, must determine whether suspension appropriate - Criminal Justice Act 1985, s 21A.

Appeal:
Appeal against sentence.

The appellant pleaded guilty to burglary, theft, and receiving charges. He did not have any previous convictions for burglary. The District Court Judge imposed a sentence of 6 months' imprisonment, suspended for 9 months. The appellant appealed against sentence, submitting that the sentencing Judge had erred in principle by taking previous Youth Court proceedings into consideration, and that the sentence was manifestly excessive or otherwise inappropriate.

Held:

1. The Youth Court is not a Court of criminal record to the extent that matters dealt within it do not constitute criminal convictions. However, Youth Court proceedings form part of the behavioural history of a person to be sentenced in the District Court and the High Court and may be relevant to determining the appropriate sentence. The District Court Judge had not erred in principle by taking previous Youth Court proceedings against the appellant into account when determining sentence.
2. Under s 21A of the Criminal Justice Act 1985 a two-tiered approach is required. First, the Court must identify the indications for a sentence of imprisonment and for the term being considered. Secondly, before making an order for the suspension of that sentence, the Court must identify the indications for such a suspension.
3. The District Court Judge had looked at the appropriate sentence for the appellant in the round rather than in the two-tiered approach required under s 21A of the Criminal Justice Act 1985. In the circumstances of the case it is highly unlikely that the Court would have sentenced the appellant to 6 months' imprisonment in the absence of a power to suspend.

Back to contents

H v Police (1994) 11 CRNZ 632 (HC)

Case summary provided by BROOKERS

Name: H v Police
Reported: (1994) 11 CRNZ 632
File number: AP16/94
Date: 26 May 1994
Court: High Court
Location: Invercargill
Judge: Tipping J
Charge: Possessing a knife in a public place without reasonable excuse; Threatening to injure a female complainant with intent to frighten her
CYPF no: s 322
Key Title: Delay

Summary:
Summary proceedings - Informations - Appeal against Youth Court findings - Uncertainty about date offence committed - No unnecessary delay in prosecution - No uncertainty concerning time for laying information - No material prejudice to appellant - Appeal dismissed - Children, Young Persons, and Their Families Act 1989,s 322 Summary Proceedings Act 1957, s 14; Summary Offences Act 1981, ss 13A, 21.

The Youth Court made findings against the appellant on charges of possessing a knife in a public place without reasonable excuse and threatening to injure a female complainant with intent to frighten her. The information alleged the offences to have been committed on 16 October 1993. There was uncertainty, resulting from the evidence of the complainant and two witnesses, as to whether the offence was committed on 15 or 16 October.

As a result of the uncertainty of the date, the appellant submitted that first, it was unknown whether s 322 Children, Young Persons, and Their Families Act 1989 applied because it was unknown whether there had been any unnecessary delay in prosecution. Secondly, that it was unclear whether the informations had been laid within the 6 month time limit pursuant to s 14 Summary Proceedings Act 1957. Finally, the appellant submitted that he was prejudiced in his defence when the Judge declined to amend the informations, and as he had no knowledge of the specific date of the offences.

Held,

1. Ordinarily the precise date of an offence is not a material ingredient of the offence. When an issue arises about the precise date, two questions usually arise: Is the precise date material for any reason? Is the defendant materially prejudiced by any uncertainty or inaccuracy in the alleged date?
2. The argument concerning the Children, Young Persons, and Their Families Act 1989 cannot succeed. Whether the offence took place on 15 or 16 October, there was no unnecessary or undue protraction of the hearing.
3. The argument concerning Summary Proceedings Act 1957 cannot succeed. Whether the offence took place on 15 or 16 October, the informations were laid within the time limit.
4. There was no miscarriage of justice in the circumstances. The appellant was not materially prejudiced by the uncertainty when no amendment was made to the date on the information.

Cases referred to:
R v Dean [1932] NZLR 753 (CA)
R v Dossi (1918) 13 Cr App R 158
R v Hartley [1972] 1 All ER 599 (CA)
R v Wae Wae Uatuku [1948] NZLR 648 (CA)

Appeal:
Appeal against Youth Court findings.

Back to contents

R v Kepa CA 35/94, 17 May 1994

Court of Appeal
File Number: CA 35/94
Date: 17 May 1994
Judge: McKay, Holland, Thorp JJ (Holland J delivered the judgment for the Court)
Key Title: Sentencing in adult Courts - Serious assault (including GBH); Jointly charged with adult (s 277)

Summary:
Appeal against 9 months imprisonment cumulative upon an existing sentence of 12 months; sentence followed conviction after trial on charge of assault with intent to injure; appellant just short of 18th birthday at time of offending; one co-offender dealt with in Youth Court but CA held disparity argument not relevant due to co-offender's age and the different considerations of sentencing in the Youth Court. R v Lawson [1982] 2 NZLR 219 considered: justice must be administered even-handedly but the test is objective 'whether a reasonably minded independent observer aware of all the circumstances of the offence and the offenders would think that something had gone wrong with the administration of justice'. Record of K's other offending meant that 21 months for the totality of the offending was correct.

Decision:
Appeal dismissed.

Back to contents

R v Maka and Tuipulotu HC Auckland S 98 & 96/94, 3 August 1994

File number: S 98 & 96/94
Date: 3 August 1994
Court: High Court, Auckland
Judge: Fisher J
Key Title: Sentencing in the adult courts - Aggravated Robbery

Summary:
Maka and Tuipulotu (both 15 at time of offence) planned and carried out an aggravated robbery on a service station; carried a knife and an iron bar; wore disguises; victims traumatised. Victims left Family Group Conference with impression that M and T not remorseful. If adults, a sentence of 5 to 7 years would be appropriate but defendants very young; guilty pleas. "It cannot be assumed that the mere youth of those who carry out aggravated robberies of this sort will be a ticket to freedom." Counsel argued for suspended prison sentence combined with a community-based sentence. Sentencing not solely about rehabilitation of offender but also about the need for public denunciation and deterrence. Cannot send message that you get one free aggravated robbery and on the next one you go inside.

Decision:
Twelve months imprisonment followed by supervision for 18 months (18 months then reduced to 12 months following submissions concerning the maximum supervision available under s 47(1)(a) of the Criminal Justice Act 1985).

Back to contents

T v District Court at Whangarei (1994) 12 FRNZ 619 (HC)

Case summary provided by BROOKERS

Name: T v District Court at Whangarei
Reported: (1994) 12 FRNZ 619
File number: CP10/94
Date: 12 October 1994
Court: High Court
Location: Whangarei
Judge: Barker J
Charge: Aggravated Robbery
CYPF no: s 275
Key Title: Jurisdiction of the Youth Court - s 275 offer/election; Justices of the Peace - Powers

Summary:
Youth justice - Jurisdiction - Aggravated robbery - Preliminary hearing by Justices - Plaintiff committed for trial under s 275 - Youth Court Judge ordered a family group conference to decide appropriate forum - Judicial review proceedings - Whether discretion to give young person an election under s 275 was exercised - Children, Young Persons, and Their Families Act 1989, ss 274, 275, 283.

The plaintiff was arrested in July 1993 and brought before the Youth Court on a charge of aggravated robbery. The information was laid indictably. Under s 246 Children, Young Persons, and Their Families Act 1989, the plaintiff consulted his counsel and indicated that he wished to deny the charge. As a result of a family group conference, an order was made that the plaintiff be released into the custody of his parents. It was noted that he continued to deny the aggravated robbery charge. In October 1993, a preliminary hearing of the indictable charge of aggravated robbery was held in the Youth Court at Whangarei presided over by two Justices of the Peace. At the conclusion of the hearing the Justices noted that the case was prima facie established, the defendant pleaded not guilty, and he was committed to the Youth Court at Whangarei under s 275 Children, Young Persons, and Their Families Act for trial.

The matter came before the Youth Court, where the Judge was concerned that the deposition hearing had been conducted before Justices of the Peace. The Judge ordered a family group conference to determine whether the plaintiff should be dealt with by the Youth Court or committed to the High Court for trial. At the conference no agreement was reached as to which Court should exercise jurisdiction to hear the trial.

The plaintiff commenced judicial review proceedings on the basis that once the Justices of the Peace had exercised their discretion under s 275 and had given the plaintiff an opportunity to be tried in the Youth Court, there was no jurisdiction on the Principal Youth Court Judge to order a family group conference to decide where the plaintiff was to be tried.

Held, adjourning the matter until a statement was obtained from Justices stating whether they realised they had a discretion:

1. A careful reading of the Children, Young Persons, and Their Families Act 1989 indicates that once the discretion under the Act has been exercised by the Court, whether the Court comprises a Youth Court Judge, a District Court Judge, or two Justices of the Peace, then the trial has to take place in the Youth Court without a preliminary family group conference to decide whether the Youth Court is the appropriate forum. The Youth Court Judge must hear the case as a defended matter and decide in accordance with ordinary principles whether the accused is guilty or not guilty. If the accused is found guilty, then there can be a family group conference to consider the penalty. [(1994) 12 FRNZ 619, 620]
2. The spirit of the legislation (s 274) would be met if it could be arranged legislatively that, where a young person denies a charge laid indictably, then some machinery be put in place for scheduling the depositions to be heard before a Youth Court Judge. The clear message of the legislation is that such preliminary hearings are normally to be presided over by a Youth Court Judge. The discretions that could be exercised under ss 275 and 276 provide reason for this view. The Justices of the Peace did not lack jurisdiction, but the subsequent decision of the Youth Court Judge to require a family group conference was not ordained by the statute.
3. In this case the Justices did not give reasons for their decision. It is important to obtain from the Justices a statement about whether they realised they had a discretion. If there was no exercise of the discretion, the matter may have to be referred back to the Justices for the exercise by them of their discretion under s 275.

Cases referred to:
C v District Court at Dunedin (1993) 10 FRNZ 416
Police v James (a young person) (1991) 8 FRNZ 628
Police v W 7/9/94, Judge Brown, YC Whangarei
R v M and C (1985) 1 CRNZ 694 (CA)
S v District Court at New Plymouth (1992) 8 CRNZ 241

Application:
This was an application for judicial review of a Youth Court decision ordering a family group conference to decide the appropriate forum for the plaintiff to be tried on a charge of aggravated robbery.

Back to contents