R v Mahoni (1998) 15 CRNZ 428 (CA)

Case summary provided by BROOKERS

Court of Appeal
File number: CA405-407/97; CA433/97
Date: 25 February 1998
Judge: Eichelbaum CJ, Richardson P, Gault, Keith, Tipping JJ
Key Title: Sentencing in the adult courts: Application of Youth Justice principles, Sentencing in the adult courts: Aggravated Robbery, Sentencing in the adult courts: Sexual violation by rape, Sentencing in the adult courts: Sexual violation by unlawful sexual connection, Sentencing - General Principles (e.g. parity/jurisdiction)

Summary:
Sentence - Sexual offences - Whether sentences manifestly excessive - Multiple defendants and multiple offences - Weight to be given to mitigating factors such as guilty plea and age of defendants.

Sentence - Youth offenders - Sexual offences - Whether sentences manifestly excessive - Multiple defendants and multiple offences - Weight to be given to mitigating factors such as guilty plea and age of defendants.

Appeal:
Appeal against sentence.

The four appellants were members of 'The Central Soldiers', a street gang with a stated objective of obtaining recognition and notoriety through committing crimes. The appellants appealed against sentences imposed for offences committed in a series of incidents. The gang targeted cars occupied by couples in vehicles parked at One Tree Hill, Bastion Point, and Mount Roskill in Auckland. Having selected their victims, they parked their own vehicle, and approached the target car simultaneously from both sides. Attacks were carried out with a wheel brace, a steering lock bar, or a tyre lever. They forced their way into the car and assaulted the male, robbing him of valuables. Simultaneously, in three of the four cases, the female was sexually harassed or assaulted. In the third (and the most serious case), the female victim was subjected to a brutal gang rape.

In the end, all appellants pleaded guilty to two counts of aggravated robbery, and three of sexual violation, by rape, oral sex, and digital anal penetration respectively. Tangitau and Tongotongo also pleaded guilty to two further charges of aggravated robbery, which took place at Mount Roskill.

The appellants Tangitau, Tongotongo, and Mahoni were 16 at the date of the offending and 17 when sentenced. The appellant Sinamoni was just over 15 at the date of the offending.

The sentencing Judge held that the only mitigating aspects were the age factor and some allowance for the pleas of guilty.

The appeal was based on the ground that the Judge's starting point was too high. It was not specified precisely, but if some of the Judge's remarks suggested it was 20 years, in the appellant's submission this was excessive. If on the other hand, as another passage might have suggested, the starting point was 15 years in the case of the three older offenders, and 13 years for Sinamoni, no sufficient allowance was made for mitigating factors.

Held:

1. because of the endless variety of circumstances that come before the Courts on sentencing, an absolute rule cannot be laid down relating to whether a cumulative or concurrent approach should be adopted, or how, as a matter of mechanics, the starting point is to be approached. In this case, the Judge did not have any real option but to fix sentences for the sexual offending which reflected the totality of each offender's culpability, and impose concurrent sentences for the lesser (although still serious) offending. (p 435, line 18)
2. As to the assessment of the head sentence, in situations akin to the present, the preferred mode is likely to be the familiar process of fixing a starting point and making deductions from it for the factors in mitigation. Here, although in the end result the longest sentences would be imposed in respect of the sexual violation counts, clearly the starting point would have to be influenced by the totality of the offending of the particular accused. Commencing with the sexual offending accompanying the third incident, this was a very bad case. It comes into the 'very severe and exceptional' group referred to in R v Morris. (p 435, line 25)
   R v Morris [1991] 3 NZLR 641; (1991) 7 CRNZ 26 (CA) referred to
   R v Pira  CA328/92, 9 December 1992
3. In the 'ordinary' case, where conviction for sexual violation by rape follows a trial where guilt has been contested, the conventional starting point is 8 years. In cases as the present, in the highest category, the figure does not have much more relevance than to remind the sentencer that that is the benchmark for cases of much lesser gravity. If here, as seems probable, the Judge took 20 years as the starting point, then this is not criticisable. (p 436, line 23)

R v A [1994] 2 NZLR 129 (CA) referred to

4. In relation to matters of mitigation, the Judge's remarks on sentencing appear to understate the weight to be given to a plea of guilty in the circumstances which occurred. Although on the face of things the pleas were delayed, there was still substantial benefit to the victims in not having to give evidence, and the avoidance of public time and expenditure on a lengthy trial. Although in the circumstances of this case the appellants could not expect to receive the most liberal allowance, nevertheless their pleas merited substantial recognition. (p 436, line 30)
5. In relation to the issue of allowance for youth, the principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is not an absolute principle and there are situations where it must yield to public interest. Also, an allowance would be made more readily in a case having features encouraging leniency. No such circumstances are present here. The attacks were planned, repeated, and in conformity with the creed of the gang from the outset. The sentencing Judge was not therefore required to make a large reduction on account of age. (p 436, line 44; p 437, line 3)

R v Wilson [1989] 2 NZLR 308; (1989) 5 CRNZ 165 (CA) referred to

6. In relation to Tangitau and Tongotongo, an effective reduction of 6 years made sufficient allowance for the totality of the factors discussed. It can be seen as including a 4-year allowance for the plea of guilty, and therefore the sentences were not manifestly excessive. (p 437, line 29)
7. Had Mahoni's offending stood alone, the 14-year sentence imposed on him might have been sustainable. The difficulty with the sentence is that when standing alongside those imposed on Tangitau and Tongotongo, there was no differentiation for the three additional incidents in which they were involved. Each was serious offending meriting a substantial prison sentence. Applying the conventional principle in disparity cases the objective observer, aware of all the facts, would have to conclude that justice had miscarried. In this case, the sentence of 14 years was quashed and 11 years' imprisonment substituted. That difference reflects the serious nature of offending to which he was not a party. (p 437, line 33)

R v Lawson [1982] 2 NZLR 219 (CA) applied

8. Sinamoni received substantial additional allowance for the fact that by a margin of some 18 months, he was the youngest of the offenders. Leaving his 12-year sentence to stand would create unjustifiable disparity between Mahoni and himself. His sentence of 12 years was replaced with a sentence of 11 years to reflect his youth and non-involvement in two of the four incidents. (p 437, line 44)

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R v N [1998] 2 NZLR 272, (1998) 15 CRNZ 481 (CA)

Case summary provided by BROOKERS

Court of Appeal
File number: CA499/97
Date: 21 April 1998
Judge: Richardson P, Henry, Thomas, Blanchard, Tipping JJ
Key Title: Sentencing in the adult Courts: Sexual Violation by rape; Sentencing in the adult Courts - Sexual violation by unlawful sexual connection; Sentencing in the adult courts: Indecent Assault/Indecent Act; Reports - psychological; Reports - psychiatric

Summary:
Sentence - Sexual violation - Youth offender - Appeal by Solicitor-General - Sentence of 2 years' imprisonment suspended for 2 years - Whether appellant's offending too serious for non-custodial sentence - Opportunities for treatment and counselling for respondent if in prison - Criminal Justice Act 1985, ss 5, 128B(2).

Sexual violation - Sentence - Youth offender - Appeal by Solicitor-General - Sentence of 2 years' imprisonment suspended for 2 years - Whether appellant's offending too serious for non-custodial sentence - Opportunities for treatment and counselling for respondent if in prison - Criminal Justice Act 1985, ss 5, 128B(2).

Application:
Application by Solicitor-General for leave to appeal against sentence.

The Solicitor-General sought leave to appeal against the sentence imposed on the respondent in the High Court. The respondent pleaded guilty to seven charges involving three complainants: one of sexual violation by rape, four of sexual violation by unlawful sexual connection, and two of indecent assault.

The respondent was sentenced to 2 years' imprisonment suspended for the maximum period of 2 years under s 21A of the Criminal Justice Act 1985. The respondent was also sentenced to supervision for a period of 2 years on the condition that he attend the SAFE Adolescent Sexual Offenders Treatment Programme or another programme recommended by the Probation Officer. Supervision was to be served concurrently with the suspended term of imprisonment. The Solicitor-General's argument was that the respondent's offending was simply too serious for a non-custodial sentence to be contemplated, and that while the respondent was entitled to a substantial discount on account of his age, the shortest sentence which could have been imposed in the circumstances was one of 4 years' imprisonment.

The respondent was 14 years 7 months of age at the time the offending began and 15 years 6 months old at the end of the period covered in the charges. The respondent sexually abused three complainants, an 8-year-old boy named A, a 5-year-old girl named L, and a 3-year-old infant named H, when he was residing in a foster home. When spoken to by the police, the respondent admitted the offending. As at that date, he had already received private counselling and then entered the SAFE programme. His explanation for his actions was that he had been sexually abused by his older brother when he was younger. Between the disclosure of the offending and pleading guilty when he was arraigned, the respondent continued to attend the SAFE programme. [(1998) 15 CRNZ 481,482].

The respondent was first referred to a Mr L, a clinical psychologist, working for the SAFE Adolescent Sex Offender Programme. Mr L completed two reports for the Court relating to the respondent's progress and treatment and his needs for future therapy. At the time of the first report, the respondent had only been receiving treatment for a short time. In his conclusion, Mr L confirmed that the respondent had made good progress in treatment up to that date and appeared genuinely motivated to change. He would need to remain in treatment at the SAFE programme for up to 2 years. The second report was written about 7 months later. Although still in the initial phases of treatment, the respondent had been making good progress. He made clear disclosures of his sexual offending and had accepted full responsibility for it. The respondent needed to continue in the SAFE programme so he received specialist counselling to address his sexually abusive behaviour. If he continued in the programme, his prognosis was positive.

Another clinical psychologist provided three reports. He expressed the view that, should the respondent receive a custodial sentence, he would not receive the appropriate treatment programme that was specifically designed to meet his development and social needs. The respondent had made good progress and if he continued treatment, the likelihood of reoffending was low.

Held:

1. the sentence of imprisonment of only 2 years was not open to the sentencing Judge in this case. Having regard to the seriousness of the offending and making due allowance for the offender's youth, his plea of guilty, and the other mitigating factors, it was not possible to arrive at a sentence as low as 2 years' imprisonment. That being the case, a suspended sentence under s 21A was not permissible. (p 493, line 3)
2. With the suspended sentencing option not available, the question the sentencing Judge was required to address if, in all the circumstances of the case he was still moved to impose a non-custodial sentence, was whether ss 5(1) and 128B(2) necessitated imprisonment. Before he could avoid the imposition of a prison term the Judge would have had to be satisfied that, because of the special circumstances of the offence or of the offender, he should not impose a full-time custodial sentence. (p 493, line 10)
3. The factors of the youth of the respondent, his own severe sexual abuse, the environment in which he was placed following his own trauma, and his progress toward and prospects of rehabilitation did not constitute special circumstances for the purposes of ss 5(1) and 128B(2) in this case. Whether taken in isolation or in conjunction with each other they were neither unusual or exceptional. While it is accepted that a combination of factors, including the youth of the offender and the desirability of rehabilitation for that particular offender, may at times amount to special circumstances, such a combination did not exist in this case. Even if there were special circumstances, the Court could not properly exercise its discretion under ss 5(1) and 128B(2) to depart from a non-custodial sentence in this case. The respondent's age and prospects of rehabilitation could not be viewed in isolation and the offending, especially the repeated rape of H, was too serious not to impose a sentence of imprisonment. It is a matter for Parliament whether that legislative direction requires review in the case of young sexual offenders. Therefore, ss 5(1) and 128B(2) do apply in this case. (p 495, line 17)
4. There were extensive mitigating factors to reduce the term of imprisonment imposed. Foremost among those were the factors put forward as special [(1998) 15 CRNZ 481,483] circumstances: the youth of the respondent, the apparent extensive abuse which he was subjected to in his own formative years, and the prospect of rehabilitation if he continues to receive satisfactory treatment. The plea of guilty, although delayed, must also count for something. Some importance must also be placed on the harshness of prison to a person of the respondent's age who has committed sexual crimes on child victims. However, nothing less than a significant custodial sentence is required to recognise the impact on the victims and the need to protect the public and mark society's denunciation of such violent sexual offending. (p 500, line 1)
5. Having regard to the age of the respondent, the appropriate sentence would be in the range of 4 to 5 years. However, to recognise the respondent's progress towards rehabilitation, a reduction should be allowed and therefore a sentence of 3.5 years' imprisonment is appropriate. (p 500, line 24)

Observation:

1. Courts must be cautious before acting on a psychiatrist's or psychologist's expression of opinion as to the relative seriousness of abuse. Psychiatry and psychology are not exact sciences, and psychiatrists and psychologists cannot guarantee that an offender who has received counselling and treatment will not reoffend. At most, the risk can be assessed as being low, even where good progress has been made. That is the situation in this case. The rehabilitative option open to the Court is an option to promote rehabilitation which, if successful, will reduce the risk of reoffending. While the task of achieving the right balance between the competing interests of the offender and potential victims is not without difficulty, the risk that an offender who is otherwise making good progress will reoffend outside the more ordered environment in which he is receiving treatment requires deliberate consideration. (p 494, line 28)
2. It is important that counselling and treatment services are available to the respondent in prison. If young offenders who have committed a violent sexual crime are to be given a custodial sentence in accordance with Parliament's intent as expressed in ss 5(1) and 128B(2), effective treatment is required in prison if they are not to emerge from custody hardened recidivist sex offenders with the consequence that other children or persons will be put at serious risk. (p 500, line 30)

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P v Police (1998) 17 FRNZ 33 (HC)

Case summary provided by BROOKERS

Name: P v Police
Reported: (1998) 17 FRNZ 33
File number: AP 40/98
Date: 21 April 1998
Court: High Court
Location: Auckland
Judge: Williams J
Charge: Aggravated Robbery
CYPFA: s 283(o); s 284, s 290
Key Title: Conviction and transfer to the District Court; Orders - Conviction and transfer to the District Court for sentence - s 283(o); General principles of sentencing eg Parity/Jurisdiction; Youth Court procedure

Summary:
Youth justice - Procedure - Jurisdiction - Appellant involved in aggravated robbery - Appellant convicted and sentenced in District Court jurisdiction - Co-accused dealt with in Youth Court - Not convicted - Failure by District Court Judge to follow family group conference recommendations - Children, Young Persons, and Their Families Act 1989, ss 4, 5, 6, 208, 284, 290.

In January 1998 the appellant ("P") and two other youths robbed a takeaway bar. They entered the premises disguised and armed with two weapons. P stood guard over the employees and threatened them with an air rifle, while his associates took chocolates and cigarettes. At the time P was 15 years old and his co-accused were 16 years old.

A family group conference was held. It was unanimously agreed by those present that both charges against P should be retained within the Youth Court jurisdiction. A detailed plan, designed to encourage his reformation in accordance with the principles of the Children, Young Persons, and Their Families Act 1989 was implemented. The social worker's report concurred with these recommendations.

However, when the matter came before him, Judge McElrea declined to accept the recommendations. He transferred P to the District Court and sentenced him to 8 months' imprisonment suspended for 8 months, together with 12 months' supervision, provided P carried out all of the family group conference's recommendations. P's co-offenders were dealt with by different District Court Judges on different days. In each of their cases the Court accepted the conference's recommendation that the charges against them be retained in the Youth Court.

P appealed on two grounds: that the charges against him should not have been transferred to the District Court, having regard to the principles of the Children, Young Persons, and Their Families Act 1989 (ss 4, 5, 6, 208, and 290); and that the Court was required to consider other alternatives before transferring the proceedings and the factors to be taken into account on sentencing.

Held, allowing the appeal and remitting the matter to the Youth Court for reconsideration:

1. The District Court Judge had considered the appropriate legal requirements before transferring the appellant's charges to the District Court. It was open to the District Court Judge and the Youth Court Judge to treat the appellant as being the major offender. The appellant was the only offender to carry an operable weapon. He played a major part in the robbery and continually threatened the takeaway occupants. His co-offenders played a lesser part. (p 35, line 35; p 37, line 13)[(1998) 17 FRNZ 33, 34]
   H v Police (1997) 15 FRNZ 678]
   R v Brown unreported, 29 November 1994, CA347/94]
   R v Cuckow unreported, 17 December 1991, CA312/91]
   R v Lawson [1982] 2 NZLR 219 (CA)]
   R E v Police (1995) 13 FRNZ 139; [1995] NZFLR 433 discussed]
2. Had the District Court Judge been aware of all the circumstances concerning the other two offenders, it is conceivable that he may have reached a different decision. He may have considered that it was demonstrably unfair for the appellant to have a conviction against his name, when the co-accused did not. Though the appellant was the major offender, his level of culpability did not seem to have been so substantially different as require treatment which would result in a conviction when he and his co-offenders must all comply with the agreements reached at their family group conferences. Because of these circumstances the Court concluded that the disparity between the sentences imposed on the appellant and those of the co-offenders invited reconsideration. (p 37, lines 29; 41)

Comments,
steps had since been taken to endeavour to overcome the difficulties faced by District Court and Youth Court Judges in circumstances such as these, where none of the three District Court Judges who dealt with each of the offenders was aware of all the details of the other two cases when they dealt with the offender before them. (p 37, line 21)

Statutes and regulations referred to:
Children, Young Persons and Their Families Act 1989, ss 4, 5, 6, 208, 284, 290

Cases referred to:
H v Police (1997) 15 FRNZ 678
R v Brown unreported, 29 November 1994, CA347/94
R v Cuckow unreported, 17 December 1991, CA312/91
R v Lawson [1982] 2 NZLR 219 (CA)
R E v Police (1995) 13 FRNZ 139; [1995] NZFLR 433

Appeal:
This was an appeal against the transfer of an aggravated robbery charge against the appellant from the Youth Court to the District Court and his subsequent conviction on that charge.

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R v Jury and Others HC Auckland S 17/98, 4 May 1998

File number: S 17/98
Date: 4 May 1998
Court: High Court, Auckland
Judge: Paterson J
Key Title: Jurisdiction of the Youth Court: s 276 offer/election

Four young people charged with robbery and GBH; indication that charges would not be denied; decision given declining YC jurisdiction and ordering that all cases be called in the HC; HC decided that the matter should be remitted back to the YC.

Held:
YC Judge elected not to give the young persons an opportunity of foregoing the right to trial by jury (s 276) but did not then ask the young people to plead; Judge has right to decide that the option of Youth Court jurisdiction not be given to young people but once that decision is made the Judge must take a plea from the young person; not done here; must deal with young person in accordance with Summary Proceedings Act 1957, s 153A. R v D (1989) 5 FRNZ 549 per Holland J. Young person must be given right to elect trial by jury or plead guilty; not done here so committals invalid and matter should be reconsidered by Youth Court.

Decision:
Matter remitted to Youth Court.

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F v Police [1998] NZFLR 910 (HC)

Case summary provided by LEXISNEXIS NZ

Name: F v Police
Reported: [1998] NZFLR 910
File number: AP98/98
Date: 5 August 1998
Court: High Court
Location: Auckland
Judge: Elias J
Charge: Burglary; Receiving; Resisting a Constable; Wilful Damage; Depositing Dangerous Litter; Disorderly Behaviour; Assault with Intent to Rob; Common Assault
CYPFA: s 352

Summary:
Youth Court - Appeal by parent against order of Court - Defendant had been sentenced to three months' supervision - No sentencing notes on Court file - Inability of Court to deal with appeal without sentencing notes - Mother distressed at being separated from son - Children, Young Persons, and Their Families Act 1989, s 352.

The defendant had been charged with burglary, receiving, resisting a constable, wilful damage, depositing dangerous litter, disorderly behaviour, assault with intent to rob and common assault. In accordance with the recommendations of the social worker the defendant had been sentenced to three months' supervision with activity on Great Barrier Island. A further supervision order was made with the Pacific Motu Trust to assist the rehabilitation of the defendant. The mother appealed against the orders of the Court pursuant to s 352 of the Act. She indicated distress that she had been separated from her son. It appeared that he was living in a tent and was unhappy. There were no sentencing notes on the file when the Court came to consider the appeal and the sentencing Judge could not remember the details of the matter.

Held (directing a rehearing):
The Court was unable to deal with the mother's appeal without the sentencing notes. The only option was to refer the matter to the Youth Court for a rehearing.

Appeal:
This was an appeal by the mother of the defendant against orders of the Youth Court pursuant to s 352 of the Children, Young Persons, and Their Families Act 1989.

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