T v Youth Court at Rotorua HC Rotorua M119/99, 15 March 2000

File number: M119/99
Date: 15 March 2000
Court: High Court, Rotorua
Judge: Robertson J
Key Title: Delay, Appeal to the High Court/Court of Appeal: Jurisdiction

Summary:
Unsuccessful application for judicial review of Court's refusal of s 322 CYPFA application.

Alleged offending took place in August/November 1998, hearing October 1999 after the prosecution applied for adjournments. Applicant argued mistake of law as New Zealand Bill of Rights Act 1990 principles applied rather than CYPFA policy, that the decision was unreasonable and that the Judge had considered irrelevant matters but had not regarded the effect of the delays on the applicant - a relevant consideration. Court obliged to balance individual rights against public interest.

Held:
Application dismissed. Court did not accept that s 5(f) CYPFA should be elevated above all other issues; s 322 requires a 2-step inquiry. First the Judge must determine whether the time between the date of the commission of the alleged offence and the hearing has been unnecessarily and unduly protracted. If it has, the Judge has the discretion as to whether or not to dismiss the complaint. Here, the Judge was not satisfied that the time had been unnecessarily and unduly protracted; reasons for the delay were explicable and thus not necessary for Judge to have considered exercise of discretion; no error to review. Judicial review is not an appeal mechanism or an opportunity for re-assessing factual matters.

Decision:
Application for judicial review declined.

Back to contents

R v Accused (2000) 17 CRNZ 300 (CA)

Case summary provided by BROOKERS

Court of Appeal
File number: CA518/99
Date: 6 March 2000
Judge: Tipping, Robertson, Baragwanath 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: application of Youth Court principles

Summary:
Sentencing - Allowance for youth - Appellant 14 years old - Age one factor relevant to substantial reduction from sentencing starting point - 'Callous and depraved' conduct required severe response.

Sentencing - Mitigating factors - Mitigating factors included history of abuse, appellant's age, negative influence of caregiver, and early guilty plea - Sentencing Judge properly considered these - Substantial reduction from starting point - Appellant's conduct 'callous and depraved', requiring severe response.

Appeal:
Appeal against sentence.

The appellant, who was 14 years old, raped a Wellington woman and threatened her with a knife while in the company of his caregiver, a Mongrel Mob member. He pleaded guilty to various charges arising from that incident and was sentenced to 7.5 years' imprisonment (from a starting point of '14 years or more'). He appealed.

[Note: Consistent with the format of the issued judgment, paragraph numbers rather than line numbers are used in this report.]

Held:

1. The starting point of '14 years or more' selected by the sentencing Judge was appropriate. (p 306, para 12)
2. Mitigating factors raised at the time of sentencing included past physical, emotional, and sexual abuse of the appellant, his age, the caregiver's negative influence, and a very early guilty plea. The sentencing Judge properly considered these matters, and a lower sentence was not justified. The appellant's conduct was 'callous and depraved', requiring a severe response to mark society's condemnation of such behaviour and act as a deterrent to others. (p 308, para 18)

R v Robinson CA404/97, 17 March 1998 applied.

Back to contents

R v Mako [2000] 2 NZLR 170 (CA)

Case summary provided by BROOKERS

Court of Appeal
Reported: (2000) 17 CRNZ 272
File number: CA446/99
Date: 23 March 2000
Judge: Richardson P, Gault, Thomas, Blanchard, Tipping JJ
Key Title: Sentencing in the adult Courts - application of Youth Justice Principles; Sentencing in the adult Courts - Aggravated Robbery

Summary:
Sentencing - Penalties - Guidelines - Aggravated robbery - Moananui reviewed and superseded - Criminal culpability should be focus, not target premises - Offence of aggravated robbery encompasses wide range of behaviour - Features additional to essential elements of offence considered - Criminality must be assessed by reference to such features - Starting point should be specified - Examples given in judgment informative not prescriptive - Minimal reference to other judgments required - Mitigating and aggravating factors considered - Suspended sentences rarely appropriate in aggravated robbery cases.

Sentencing - Aggravating factors - Aggravating factors included criminal history and offending while on bail or parole.

Sentencing - Allowance for youth - Young offenders with long histories of offending cannot expect leniency in serious aggravated robbery cases.

Sentencing - Guilty plea - Early guilty plea will usually warrant generous discount - Respondent failed to acknowledge totality of offending until start of trial - Modest discount appropriate.

Sentencing - Mitigating factors - Mitigating factors include guilty pleas, assistance to authorities, and age - In aggravated robbery cases, offending prompted by drug addiction not mitigating factor - Participants who do not confront victims not necessarily less culpable - Young offenders with long histories of offending cannot expect leniency.

Sentencing - Suspended sentence - Rarely appropriate in aggravated robbery cases.

Sentencing - Starting point - Should be determined and specified - Important means of ensuring consistency between cases.

Application:
Application for leave to appeal against sentence.This case involved the aggravated robbery of a public bar and TAB betting agency. The respondent pleaded guilty. The Court of Appeal reviewed the sentencing guidelines laid down in R v Moananui [1983] NZLR 537 (CA).

[Note: Consistent with the format of the issued judgment, paragraph numbers rather than line numbers are used in this report.]

Held:

1. In general, an early guilty plea will warrant a generous discount, because the plea reflects acknowledgement of wrongdoing, saves resources, and relieves [(2000) 17 CRNZ 272, 273]victims from the anxieties of trial. However, in this case the respondent entered an early guilty plea on the aggravated robbery charge but failed to acknowledge the totality of offending until the start of trial. A modest discount was appropriate. (p 277, para 14; p 277, para 18)
2. This was an armed robbery in the first category of R v Moananui [1983] NZLR 537 (CA). The categorisation of target premises such as banks was based on the number of people endangered and potential proceeds. A public tavern full of patrons, also operating as a TAB betting agency, met the same criteria. The offence was well planned, with firearms, disguises, money bags, and a getaway car. Threatening and aggressive behaviour was manifest towards bar patrons, staff, and ultimately the police. A sentence of 7 years' imprisonment was appropriate. (p 278, para 21). R v Moananui [1983] NZLR 537 (CA) applied
3. Since R v Moananui [1983] NZLR 537 (CA), too many sentencing Judges have categorised offending in aggravated robbery cases by reference to target premises rather than the culpability of each offender. In this respect categorisation by type of target premises has proved unsatisfactory, and a different approach is required. (p 278, para 25; p 279, para 31)
4. In each case of aggravated robbery, features additional to the essential elements of the offence will create variance in the criminality of the conduct. These features include: (p 280, para 34)
   1. The degree of planning and preparation; (p 280, para 36)
   2. The number of participants and the nature of their deployment; (p 280, para 37)
   3. Disguises and other means of concealing identity; (p 281, para 38)
   4. The number, type, and use of weapons; (p 281, para 39)
   5. Target premises or persons; (p 281, para 40)
   6. Presence of members of the public; (p 281, para 42)
   7. Violence (distinct from threats and intimidation); (p 281, para 43)
   8. Property stolen, and whether recovered; (p 282, para 44)
   9. Associated offending such as converting vehicles or taking hostages; (p 282, para 45)
   10. Victim impact; (p 282, para 46)
   11. Gang involvement (although not all criminal offending by gang members has a gang connection); (p 283, para 49)
   12. The need for deterrence; and (p 283, para 50)
   13. Multiple offending involving separate incidents. (p 283, para 51)
5. The criminality of any aggravated robbery offence must be assessed by reference to the particular combination of features listed above, without undue emphasis on any one feature such as the nature of the target premises. (p 283, para 52)
6. Once the offending is positioned on the scale of seriousness, it is important to determine and specify the starting point before taking into account individual aggravating and mitigating factors. (The Court of Appeal here illustrated appropriate starting points by reference to diverse examples of aggravated robbery.) (p 283, para 53)
7. The illustrations given are informative, not prescriptive. (p 284, para 60). The detail provided in the current judgment and its schedule should minimise the need to research large numbers of analogous sentencing decisions. (p 284, para 60)
8. Mitigating factors warranting an adjustment in sentence may include guilty pleas, assistance to authorities, age, and other personal circumstances. More specifically: (p 285, para 62)
   1. Robbery prompted by drug addiction is not a mitigating factor. (p 285, para 63)
   2. Participants who do not confront victims, such as a lookout or a getaway driver, are not necessarily less culpable. (p 285, para 64)
   3. Youth and rehabilitation prospects may be mitigating factors, but offenders who have accumulated long lists of prior convictions while still in their teens cannot expect leniency. (p 285, para 65) Cooper v Police 28/11/98, Eichelbaum CJ, Penlington J, HC Hamilton AP106/98; AP116/98; AP121/98; R v Henry (1999) 46 NSWLR 346; R v Smart 24/5/94, CA57/94 referred to
9. Aggravating factors include criminal history, and offending while on bail or parole. (p 285, para 62)
10. Suspended sentences will rarely be appropriate for aggravated robbery. A sentence of less than 2 years is only available if the elements of aggravated robbery are minimal or the offender participated in a secondary role. (p 285, para 67). Solicitor-General v Lam (1997) 15 CRNZ 18 (CA) referred to
11. This judgment supersedes R v Moananui [1983] NZLR 537 (CA). (p 286, para 70)

Back to contents

C v Police [2000] NZFLR 769, 17 CRNZ 448, 19 FRNZ 357 (HC)

Case summary provided by LEXISNEXIS NZ

File number: AP 45/00
Date: 13 June 2000
Court: High Court, Hamilton
Judge: Hammond J
Key Title: Youth Court procedure; Orders - Conviction and transfer to the District Courts - s 283(o): Other Offences, Youth Court procedure

Summary:
Children and young persons - Sentencing - Youth Court - Transfer to District Court for sentencing - Charges 'not denied' by young person - Whether offences had been 'proved' for the purposes of s 283(o) of the Children, Young Persons, and Their Families Act 1989 - Whether convictions could be properly entered on the plea of 'not denied' - How criminal offence can be 'proved' - Defect of jurisdiction in this case not able to be cured by s 440 - Children, Young Persons, and Their Families Act 1989, ss 238, 259, 283, 351, 440 - New Zealand Bill of Rights Act 1990, ss 6, 25 - Summary Proceedings Act 1957, s 67.

Appeal:
This was an appeal against a decision of a Youth Court Judge to transfer a youth to the District Court for sentence when the offences with which he was charged had not been 'proved' for the purposes of s 283(o) of the Children, Young Persons, and Their Families Act 1989.

The young person (C), aged 16, committed a series of crimes, including close to forty burglaries, between April 1999 and March 2000. When he appeared in the Youth Court it was said on his behalf that the charges were 'not denied' and a notation to that effect was made on the informations. The police argued for all matters to be transferred to the District Court for sentencing.

The Youth Court Judge took the view that C's offending was serious, constant, and unchecked and that he had no alternative but to send C to the District Court. The informations were then embossed by the Judge with a stamp that C was 'convicted and transferred to the District Court'. Subsequently some further informations were laid and the charge noted as having been 'admitted' and these informations were also removed to the District Court for sentence.

C appealed against the transfer on the basis that the charges against him had not been 'proved' and that therefore a conviction could not be properly entered.

Held: (allowing the appeal and remitting the case to the District Court for proper pleas to be taken)

1. A criminal charge was 'proved' in one of two ways. Either it was proved by evidence led by the prosecution, which, in the view of the trier of fact comes up to the criminal law standard of proof. Or, the person charged 'acknowledges' the crime. The use of the term 'not denied' could not support the entry of a conviction. Therefore there had been a fundamental defect of jurisdiction which could not be cured by s 440 of the Children, Young Persons, and Their Families Act 1989.
2. By that point of time at which the Judge was considering whether to remove the youth to the District Court for sentence, the youth must have been formally asked how he pleads, that is guilty or not guilty. It is only if he pleads 'guilty' or the charge has been proved by evidence, that the Youth Court Judge can properly enter a conviction and transfer him to the District Court for sentence.

Back to contents

R v A (2001) 20 FRNZ 205 (HC)

Case summary provided by BROOKERS

File number: T001586
Date: 2 November 2000
Court: High Court, Auckland
Judge: Williams J
Key Title: Jurisdiction of the Youth Court - Age; Objects/Principles of the CYPFA (ss 4 and 5); Principles of Youth Justice (s 208), Databank Compulsion Order; Admissibility of statements to Police/police questioning (ss 215-222): Reasonable compliance, Evidence (not including admissibility of statements to police/police questioning)

Summary:
Youth justice - Evidence - Application for orders that accused young person's statement and blood sample be ruled admissible - Fifteen-year-old charged with burglary and sexual violation - Police led to believe accused was an adult and treated him as such - Special protection afforded to young persons - Reasonable compliance - Children, Young Persons, and Their Families Act 1989, ss 2, 4(f)(ii), 208(h), 215, 221(2), 222, 224; Crimes Act 1961, s 344A; Criminal Investigations (Blood Samples) Act 1995.

After a burglary was disturbed in the early hours of 8 April 2000, investigating police found A hiding in the garden of a neighbouring property and took him to the police station for questioning. When asked his age, A told police he was 22 years old when he was only 15. There was nothing about A which suggested to police that the information he had given them was incorrect. A was a sturdy, well-developed young man with every physical appearance of being older than 15 years of age. A's 28-year-old de facto partner, who was pregnant with his child, also told police in her interview that A was 22. Although police gave A the usual cautions, A was not told that he could have a person nominated by him present while his statement was taken. The initial statements A made during the course of the morning were exculpatory, and A voluntarily agreed to a blood sample. A's DNA matched a semen sample from an alleged rape committed during a burglary in the same street one month earlier. Consequently, A was charged with sexual violation by rape and burglary. He was permitted to speak to his de facto partner in an interview room before being questioned again. After a half-hour discussion with his partner, A made a statement to police effectively admitting his participation in both burglaries. The police sought an order stating that A's statements and blood sample were admissible. Alternatively, a juvenile compulsion order was sought requiring A to give a blood sample.

[Note: Consistent with the format of the issued judgment, paragraph numbers rather than line numbers are used in this report.]

Held, ruling the statement admissible, the blood sample inadmissible, and granting a juvenile compulsion order:

1. The overall thrust of the Children, Young Persons, and Their Families Act 1989 is that children and young persons should, unless there is clear indication to the contrary, be entitled to the protection which the statute provides. For the purpose of deciding whether a person is a 'young person' under the Act, the term 'marriage' does not extend to a person living in a 'relationship in the nature of [(2001) 20 FRNZ 205, 206]marriage'. Had Parliament intended young persons in a de facto relationship not to be covered, it would have said so. In the Act, Parliament set out an elaborate and detailed code of the way the authorities should treat children and young persons when offences are committed. That code is deliberately tailored to make the regime appropriate to the age and status of young persons. What is in issue is the extent to which they need the protective provisions of the Act. On the facts of this case, where all the evidence suggested to the police that the young person was conducting himself as a full adult, it may have been arguable that the protection of the statute should not apply to him, but these circumstances were sufficiently unusual that no broad exception should be made to the statute simply to accommodate that unusual situation. Extending the definition of 'marriage' would also impose an additional obligation on police to ascertain whether the young person was in a relationship 'in the nature of marriage', and this would be an unfortunate burden. The Act should supervene over what would amount to judicial legislation if the Court extended the definition of 'marriage' and the definition of 'young persons'. (p 209, para 15; p 211, para 19; p 212, paras 21-22)
2. The police breached s 215(f) by failing to inform A that he was entitled to have a person nominated by him present while his statement was taken, even though what occurred was not known to be a breach. In considering whether there was 'reasonable compliance' under s 224, the whole of the circumstances should be taken into account. In this case, A was able to stand up for himself as was evidenced by his denials during the morning. Police knew A had been living his life as an adult and had no reason to suppose he was a young person. A was given the opportunity to consult with his de facto partner before he made the statement. In these unusual circumstances there was reasonable compliance, and A's statements are admissible. (p 214, paras 30-32; p 214, para 35)
3. It was accepted that there was no attempt at compliance with the requirements of the Criminal Investigations (Blood Samples) Act 1995 as far as juvenile compulsion orders are concerned. There is no saving provision in that Act allowing the Court to order that samples taken in breach of the statute can be admitted where there has been reasonable compliance. The sample given voluntarily by A was inadmissible. However, there was good cause to suspect that A committed the offences with which he is charged. The application for a juvenile compulsion order was granted and A was ordered to give a sample of blood. (p 215, paras 37-39)

Cases referred to:
Adoption of T, Re (1992) 10 FRNZ 23, also reported as Re Adoption by Paul and Hauraki [1993] NZFLR 266
Excell v DSW (1990) 7 FRNZ 239; [1991] NZFLR 241
Gaskin v McRoberts (1991) 16 CRNZ 371
Police v C (1998) 16 CRNZ 139
Police v G [1997] 1 NZLR 455; (1996) 3 HRNZ 358
R v Accused (CA311/91) (1991) 8 FRNZ 119; 7 CRNZ 539
R v Irwin [1992] 3 NZLR 119; (1991) 8 FRNZ 487; 8 CRNZ 39
R v T [1999] 2 NZLR 602, also reported as R v Accused (CA302/98) (1998) 17 CRNZ 49 (CA)
Ruka v DSW [1997] 1 NZLR 154; (1996) 14 FRNZ 622; 14 CRNZ 196; [1996] NZFLR 913 (CA)[(2001) 20 FRNZ 205, 207]
Thompson v DSW [1994] 2 NZLR 369; (1993) 11 FRNZ 402

Application:
This was an application for an order that the young person's statement and blood sample were admissible.

Back to contents