File number: CRI-2007-004-000438
Court: Youth Court, Auckland
Date: 23 November 2009
Judge: Judge Fitzgerald
Key title: Sentencing – Intensive Monitoring Group, s 282, s 283(a).
More than two years previously, AK was accepted into the Intensive Monitoring Group of the Auckland Youth Court after being charged with sexual violation, kidnapping, indecent assault, and threatening to do grievous bodily harm.
This sentencing note records AK's successful completion of his family group conference plan. For more than two years AK's progress has been monitored by regular appearances before the Court (fortnightly for the first year, and monthly after that).
AK successfully completed the SAFE programme for sexual offenders. At the start he was assessed as at high risk of reoffending. He applied himself to the programme which was not easy, and was subsequently assessed as a moderate to low risk of reoffending. AK regularly put aside money to pay reparation, did not reoffended in any way, did not breach his bail conditions, increasingly demonstrated a mature and responsible attitude, and was soon due to finish his apprenticeship.
AK's effort was recognised by the Police's agreement to a section 282 discharge in relation to two charges, instead of a section 283(a) discharge.
Result:
The Court ordered a section 283(a) discharge on the sexual violation and kidnapping charges, and a section 282 discharge on the indecent assault and threatening to do grievous bodily harm charges.
File number: CRI-2008-292-000544
Court: Youth Court, Manukau
Date: 25 September 2009
Judge: Judge Hikaka
Key title: Jurisdiction of the Youth Court – s 275 offer/election, sexual violation
At a depositions hearing, a prima facie case of sexual violation against A was conceded and the court found sufficient evidence adduced to put A on trial.
A was aged 14 years 9 months at the date of the alleged offending.
The question for the court was whether to offer Youth Court jurisdiction under section 275.
The court thoroughly addressed all the factors it considered relevant to the exercise of that discretion, and in particular the potential for a restorative therapeutic programme under either the District Court or the Youth Court sentencing systems. Programmes for sexual offenders of A's age were not available in prison. The Te Poutama programme was strictly for young people within the care and protection framework of the youth justice legislation. However, there was a possible role in this case for Family Court jurisdiction to dovetail with the Youth Court jurisdiction.
Result:
Youth Court jurisdiction was offered.
File number: CRI-2008-283-000126
Court: Youth Court, Wanganui
Date: 19 February 2009
Judge: Judge Callinicos
Key title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Aggravated robbery, Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Serious assault (including GBH), Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Other.
Summary:
Whether to convict and transfer to the District Court.
Charges include aggravated robbery, assault with a weapon, and party to kidnapping and aggravated wounding. Home invasion of 67 year old man living alone by AR and boyfriend (cited R v Mako (2000) 17 CRNZ 272 (CA) at [58]). Machete used, cash and EFTPOS card taken. AR had opportunity to leave the scene and stop the offending, which she did not take. The two offenders had separate roles, and although AR did not wield the machete, both roles were necessary for the overall outcome.
Court took into account previous life history, CYF history, lack of secondary education and early substance use. No sign of reparation offers by parents, and continued cannabis use by AR. No previous Youth Court history.
Patterson J's judgment in Nelson v Police referred to in support of conviction and transfer in cases of "adult offences". Previous attempts at rehabilitation not successful. Youth Court orders not enough to address offending issues in this case, and too difficult to enforce. No support from parents. Youth justice principles still capable of consideration in the District Court under the Sentencing Act 2002.
Decision:
AR convicted and transferred to the DC for sentencing.
File number: CRI-2008-027-000119
Court: Youth Court, Kaikohe
Date: 26 February 2009
Judge: Judge Druce
CYPFA: Arrest without warrant (s 214)
Summary:
Unprovoked attacks, many injuries. Group of 8 attackers. Informations originally laid summarily, then dismissed as a nullity, then relaid indictably. Witness identified one attacker in a white hoodie and distinctive jacket. Police (with prior experience with AS) identified AS on security camera footage from before the assault. Person carrying white hoodie also seen on security camera after assault.
Search warrant carried out at AS's home, hoodie found. AS and parents followed police to station. AS interview with mother present. AS acknowledged presence in town with others but denied involvement in assault. AS arrested due to concerns about destruction of evidence, communicating with others in the group, desire to get whole group before the court quickly, despite police records to the contrary. Court found reasonable cause to suspect AS of offending. Also seriousness of attack and public interest. Also AS last "missing" part of the group to be put before the court. Found arrest reasonable in the public interest. Held initially wrongly laid charges do not taint earlier lawful arrest.
Decision:
Arrest and indictably laid informations lawful.
File number: CRI-2008-204-000536
Court: Youth Court, Auckland
Date: 9 March 2009
Judge: Judge Fitzgerald
Key title: Jurisdiction of the Youth Court: Age, Presence at hearing (s 329)
Summary:
Whether to offer Youth Court jurisdiction.
Charges include unlawfully getting into a motor vehicle, and aggravated robbery (x4). BH was 14 at the time of the offences, so eventual transfer to adult court under s 283(o) CYPFA would not be available if Youth Court jurisdiction offered.
Support in court from extended whanau. First time in trouble with Police or Youth Court. No breaches of bail conditions or reoffending while on bail, but still some interest in gang culture. Offending occurred on only one night in the company of an older and experienced offender.
Decision:
Youth Court jurisdiction offered.
File number: CRI-2011-219-000342
Court: Youth Court, Hamilton
Date: 15 September 2009
Judge: Judge Cocurullo
Key titles: Bail (s 238(1)(b), Custody (s 238): Police (s 238(1)(e))
Young person appeared on new charge of assault, with two current charges of aggravated robbery. Assault occurred while young person electronic bail. No youth justice residence bed available.
Result:
Remanded under s 238(1)(e) into the custody of police.
File number: CRI-2009-212-000037
Court: Youth Court, Dunedin
Date: 5 October 2009
Judge: Judge O’Driscoll
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection.
Two representative charges of sexual violation against the victim when the victim was aged 8 and 11 years old.
Offending was admitted by B and Youth Court jurisdiction was offered and accepted.
B was diagnosed with ADHD and was a habitual cannabis user. Previous Youth Court charges of indecent assault proved after defended hearing. B has refused to engage with any psychological therapy. If convicted and transferred to adult court, B would be too young or not qualify for therapeutic sex-offender programmes.
The Court outlined the relevant legislation, principles and relevant and similar cases. Court also considered specialist reports, and recognised that there would be no way to compel B to stick with the long term STOP (which could be ordered if B stayed in the YC) programme beyond the age of 17 and a half.
Result:
Convicted and transferred to District Court for sentence. STOP assessment ordered.
File number: CRI-2009-206-000010
Court: Youth Court, Blenheim
Date: 30 January 2009
Judge: Judge Zohrab
Key title: Bail (s 238(1)(b)): Breach of bail (non-attendance at Court), Custody (s 238): Chief Executive (s 238(1)(d)).
Summary
Application for bail. BLC admitted a charge of assault with intent to injure, and was remanded on bail awaiting a family group conference. A bail condition required BLC not to associate with two named females. Police saw BLC associating with one of those females, a co-offender, in the centre of town.
Previous history involves violent offending, offences of dishonesty and escaping, and a significant number of breaches of bail conditions. BLC appears to be determined to do what she wants, when she wants, notwithstanding bail conditions. BLC was, perhaps, not the lead offender in the serious assault.
Repetitive bail breaches do not justify a detention, unless they can be linked to the three conditions in s 239(1). BLC's history of violent offending, dishonesty and breaches of bail conditions, together with the fact that she associated with a prohibited person also involved in the assault, satisfied the Court that she will continue to breach her bail conditions and that is likely to lead to further offending.
Decision
Remand in custody.
File number: CRI 2009-204-000008
Court: Youth Court, Auckland
Date: 15 June 2009
Judge: Judge Fitzgerald
Key title: Delay (s 322)
Summary:
BM charged with burglary, 10 months prior to this appearance. No hearing. Fingerprints taken from scene 6 months after alleged offending, and matched to BM 2 months later. Fingerprint service had heavy workload. Police failed to provide affidavit evidence to explain delay, and not ready to proceed.
Decision:
This charge and another burglary charge dismissed.
File number: CRI 2008-254-000220
Court: District Court, Auckland
Date: 25 March 2009
Judge: Judge Lynch
Key title: Sentencing in the adult courts: Aggravated robbery
Summary
Both girls aged 17. Attempted aggravated robbery with two 17 year old male co-offenders who were dealt with in Youth Court, and received s 282 discharges following completing substantial amounts of community service.
Maximum sentence 7 years imprisonment for attempted offence. Males were the principal offenders. Weapons and disguises involved. Starting points of 2 years 6 months. Court considered co-offender cases: Farquhar (Gendall J), Uili, Kaka (Mackenzie J). 45% reduction for age and guilty pleas. Community detention would not meet relevant sentencing principles. Home detention appropriate where there is commitment to and very real prospects of rehabilitation.
Decision
6 months home detention, plus 150 hours community work.
File number: CRI-2009-204-000094
Court: Youth Court, Auckland
Date: 24 August 2009
Judge: Judge Fitzgerald
Key title: Jurisdiction of the Youth Court – s 276 offer, Aggravated robbery
C aged 14, together with two other young people, entered a dairy at 8.30am. C pointed a gun at the shop worker, a woman on her own. They left with $300 cash, cigarettes, sweets and ice cream.
Police opposed the offer of Youth Court jurisdiction due to the nature of the offending, the repeated and escalating nature of C's offending, and his extensive history of offending as a child. C also has a history of absconding from placements and non-compliance with efforts to address the issues underlying his offending.
However, the other 14 year old co-offender was offered Youth Court jurisdiction and the family group conference recommended it be offered to C.
There were current Care and Protection proceedings for C before the Family Court.
The Court held that, although this is not a sentencing decision, most of the factors to be taken into account on sentencing set out in section 284 of the Act were relevant.
C's personal history was sad and disturbing reading, including violent tendencies from the age of four, conduct disorder, parental neglect, extreme intoxication, extremely low intellectual and verbal functioning, and limited function in his left arm due to inadequate medical care at an earlier date. It appeared that C had little (if any) insight into the seriousness of his offending and little remorse or sympathy for the victim.
Reports from the youth justice residential facility where C had been on remand indicated that he had been in secure for violence numerous times and that he appeared to promote and encourage a culture of violence among other residents. On the other hand, there were also reports that he was responding to individuals working with him on his reading.
There was a consensus that C needed therapeutic interventions, and concern that Youth Court orders were not long enough to address C's needs.
The Court distinguished other decisions where there were concurrent youth justice and care and protection proceedings, and where the same Judge with both Youth Court and Family Court warrants managed and oversaw the young person's progress. In those decisions, the young people did not have the history of non-compliance with voluntary plans.
The Court held that Youth Court orders were inadequate to address both the degree of accountability required and C's therapeutic needs.
Result:
Youth Court jurisdiction was not offered.
File number: CRI 2009-004-000161
Court: Youth Court, Auckland
Date: 10 August 2009
Judge: Judge Aitken
Key title: Arrest without warrant (s 214)
Summary:
DK charged with assault with a weapon. Charge denied. Application to dismiss on the grounds of unlawful arrest.
DK spoken to by Police on the street after informal identification by victim. DK accompanied by friend, who acted as interpreter. DK gave correct name and address details to Police, which were later confirmed by Immigration Service, and then went voluntarily to Police station. DK declined to make a statement, and was arrested.
Police offered no evidence that DK arrested to prevent him from committing further offences, or to prevent loss or destruction of evidence.
Court held that prosecution had failed to prove s 214(1) of the CYPFA satisfied. Seriousness of charge not an available ground for arrest under s 214(1). Court also held that arrest not necessary to ensure appearance before the Court, as Police informed by Immigration Service that DK had current visa application pending. Police argument that summons process would have taken too long contradictory as DK bailed from Police station to appear in Youth Court in 6 days time.
Court found arrest unlawful. Section 245 discussed. Arrested means lawfully arrested. Police v LM and TLD YC Wellington CRI-2009-285-000023, 21 April 2009 per Judge Walker agreed with. No subsequent resort to s 245 options in this case. Held information invalid.
Court concerned at the use of DK's friend as interpreter, rather than a qualified interpreter, given the need for DK to fully understand his situation and rights.
Decision:
Information dismissed.
File number: CRI-2007-204-000558
Court: Youth Court, Auckland
Date: 30 March 2009
Judge: Judge Fitzgerald
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Other
Summary:
Whether to convict and transfer to District Court.
Failure to comply with orders following multiple offences, including numerous burglaries. Charges not purely indictable (s 290(1)(a)), and no special circumstances that would make a non-custodial sentence clearly inadequate (s 290(1)(c)). Section 18 of the Sentencing Act 2002 prevents EP from being imprisoned (as under 17 at the time of the offence) for non purely indictable charges.
Senior v Police HC Christchurch A139/00, 19 December 2000 referred to re categories of burglaries and sentencing in adult courts. Court found EP comes under 'recidivist' and 'spree' categories. Apiata v Police HC Christchurch A174/98, 10 September 1998 cited for requirement under s 290(1)(b) that prison would be required if sentenced as an adult.
EP aged out of top end Youth Court orders, and found that sentence of imprisonment would be required if sentenced as an adult. Repeat offending and failures to comply.
Decision:
Latest supervision order cancelled. Convicted and transferred to District Court for sentence.
File number: CRI-2009-004-010487
Court: District Court, Auckland
Date: 28 May 2009
Judge: Judge Fitzgerald
Key title: Sentencing in the adult courts: Other
Summary:
EP aged 17. Troubled past, including Youth Court history. Vulnerable young man, with care and protection, anxiety, conduct disorder and alcohol and drug dependency concerns. Previously offered opportunities for treatment and rehabilitation, but repeatedly absconded and reoffended. Negative attitude towards the Court.
Prison would ultimately result in EP being released on the public but with underlying problems unaddressed. Guilty pleas and age taken into account.
Decision:
2 years intensive supervision. 200 hours community work. Drug, alcohol and psychological assessments. Reparation.
File number: CRI-2009-291-000108
Court: District Court, Porirua
Date: 18 November 2009
Judge: Judge Becroft
Key title: Sentencing in the adult courts — Application of Youth Justice principles
At the age of 16, the defendant approached a 20 year old woman at a train station at 8.40pm. He had been drinking heavily. After making inappropriate suggestions to her which were repeatedly refused, he grabbed her, threw her to the ground, lay on top of her, threatened her, lowered her underwear, and began to undo his belt. She managed to distract him and make her way to a dairy. He was charged with assault with intent to commit sexual violation.
The defendant indicated a desire to plead guilty at an early stage, and was offered and accepted Youth Court jurisdiction. He admitted the offending at a family group conference but was convicted and transferred to the District Court for sentencing.
The Court indicated that the first question to determine in this sentencing was whether youth justice principles applied and that there was conflicting judicial authority on this point. In X v Police (2005) 22 CRNZ 58, a decision of a full bench of the High Court held that despite being transferred to the District Court, youth justice principles continued to apply as well as adult Sentencing Act principles. In R v Patea-Glendinning (2006) 22 CRNZ 959; [2006] DCR 505 (HC), Miller J considered the earlier decision but concluded that as a matter of law youth justice principles do not apply, although as a matter of discretion the adult court 'may', but not 'must' consider them.
The Court considered that this is one of the rare cases in which the approach taken to this question would make a significant difference. Under the first approach, there is a real argument that community detention and intensive supervision would be appropriate. Under the second approach, a starting point of imprisonment is inevitable, although an end point of home detention might be appropriate.
The Court felt bound to follow R v Patea-Glendinning because:
The Court settled on a starting point of three and a half years imprisonment. That was reduced by 40% to 26 months to reflect the defendant's difficult background, his lack of past serious offending, and his immaturity. It was further reduced by one-third, to 18 months, for pleading guilty at the earliest possible stage.
File number: CRI-2009-204-000262
Court: Youth Court, Auckland
Date: 7 September 2009
Judge: Judge Fitzgerald
Key titles: Arrest without warrant (s 214), Rights.
GB was charged with possessing an offensive weapon in a public place, and possessing 8 spray cans capable of being used to commit an offence.
Police spoke to G and others late at night in central Auckland.
Police searched a nearby vehicle, in which they discovered a machete and spray cans. G admitted that he owned a baseball bat in the vehicle but gave a false name and age to the Police. After other enquiries, the Police told G he was under arrest. After G told the Police he had lied about his name and age, he was given his Bill of Rights rights and taken to Auckland Central Police station. Police evidence that arrest was maintained to confirm G’s correct identity.
The Court found that none of the prerequisites needed to lawfully arrest a young person were present at the Police station. Held that the arrest was not valid. The Court rejected argument that s 440 of the CYPFA can be used to remedy a substantive matter such as unlawful arrest, which goes 'to the heart of some of the key objects and principles of the [CYPF] Act'.
Result:
Information dismissed.
File number: CRI-2008-292-000370
Court: Youth Court, Christchurch
Date: 15 May 2009
Judge: Judge N A Walsh
Key title: Delay (s 322), Family Group Conferences: Held/Convened, Family Group Conferences: Timeframes/limits: Court-ordered.
Summary:
Depositions on charge of sexual violation heard 5.5 months after offending. Hearing held 5.5 months after depositions. Charge proved. Section 247(e) family group conference (FGC) ordered and held 5 weeks later. FGC convened outside statutory limit (s 249 of the CYPFA), but held within limit set by s 249(5).
Court applied Police v V and L [2006] NZFLR 1057 (HC) per Rodney Hansen J and distinguished H v Police [1999] NZFLR 966 (HC) per Smellie J. Court held that proceedings should not be brought to an end due to: no negligence or inefficiency by youth justice co-ordinator (but administrative mistake by Court staff), serious nature of the offence, H's comprehensive criminal history, the need to hold H accountable and deal with him in a way that acknowledges his needs s4(f), to promote services in the community s4(a), and no prejudice to H.
Applying the procedure in AG v Youth Court at Manukau HC Auckland CIV-2006-404-002202, 18 August 2006 per Winkelmann J, the Court found the delay of 11 months between offence and hearing to be protracted, but not undue or unnecessary. Contributing to the delays were: unavailability of police, unavailability of hearing dates, and sickness of youth advocate.
Decision:
Information not dismissed due to non-compliance with FGC time limits or delay.
Home detention was considered appropriate (and conceded by the Crown) for a period of just less than half the sentence of imprisonment, that being eight months.
The Court pointed out that a different result would have eventuated if youth justice principles were applied. The joint focus on accountability and the needs of the defendant would have provided a strong argument for community detention and intensive supervision.
Result:
The defendant was sentenced to eight months home detention, with special conditions continuing for a further nine months.
File number: CRI-2009-270-000103
Court: District Court, Tauranga
Date: 21 September 2009
Judge: Judge Ingram
Key title: Sentencing in the adult court - Arson
JEH, after consuming alcohol and cannabis, started several small fires with associates. Later that night he started a fire in a plastic rubbish bin adjacent to the technical block at a high school, but left when it was smoking. The resulting fire caused an estimated $3 - 5 million damage.
JEH admitted the charge in the Youth Court and was convicted and transferred to the District Court for sentencing due to the overarching public interest in offending of this scale being dealt with in the District Court, and because resolution of outstanding issues required more time than was available to the Youth Court.
The report from Youth Forensic Service concluded that JEH needed on-going assessment and treatment, without which he may become a considerable menace to society with his anti-social behaviour and fire lighting background. The probation report described a lack of emotion in regard to this offending, and if JEH's learning difficulties and anti-social behaviour were not addressed, his risk of re-offending would rise.
Home detention was not suitable because it would not allow rehabilitative needs to be met. The geographical isolation of his home meant that education needs could not be met on home detention. It would also be socially isolating.
The Court considered that, following X v Police (2005) CRNZ 58 (HC), youth justice principles were to be taken into account.
It held that supervision and community work were not appropriate for offending of this magnitude. The appropriate starting point (there being no binding tariff for a case of this kind) was five years imprisonment. The Court allowed a two year reduction for the guilty plea, and a further one year reduction for youth.
Result:
The defendant was sentenced to two years imprisonment with special release conditions including attendance and completion of treatment programmes.
File number: CRI-2009-019-000343, CRI-2009-273-000006
Court: Youth Court, Hamilton
Date: 23 September 2009
Judge: Judge Cocurullo
Key titles: Bail, s 239, Assault
Application for bail. Young person charged with assaulting girlfriend. 11 previous charges in Youth Court, including theft and violence. Court in no doubt that young person would commit further offences if released on bail.
Result:
Application not granted.
File number: CRI-2009-209-000500
Court: Youth Court, Christchurch
Date: 22 September 2009
Judge: Judge Callaghan
Key title: Jurisdiction of the Youth Court – s 276 offer/election
J and a co-offender, both disguised, went at night into a bakery. J was armed with a knife, his co-offender with a piece of galvanised pipe. The co-offender grabbed one of the two bakery workers by the throat and demanded money. They stole cigarettes and money worth $1,000 and $117 respectively. They were charged with aggravated robbery.
J indicated a desire to plead guilty, so pursuant to section 276 the Youth Court must determine whether Youth Court jurisdiction should be offered to him. The family group conference did not agree on the question of jurisdiction.
The Court canvassed the range of matters it must take into account when exercising its discretion. It emphasised that J would be likely to meet the criteria for the Youth Drug Court due to an alcohol addiction, his history with the Youth Court was small, and J is remorseful. These matters had to be weighed against the public interest in serious offending, the interests of victims, and the aggravating features of the offending (planning, preparation, weapons, disguises, intimidation and threats).
The Court noted the alarming increase in young people committing more serious offences involving violence.
While the Youth Court has a unique jurisdiction to deal with young people in a way that reflects their lack of maturation, the Court has taken sterner measures where the offending is more serious. This was one of those cases.
Decision
Youth Court jurisdiction not offered.
File number: CRI-2009-206-000020
Court: Youth Court, Blenheim
Date: 5 May 2009
Judge: Judge Russell
Key title: Orders - type: Supervision with residence - s 283(n)
Summary:
Burglary (x9). Attempted burglary. Theft from motor vehicle (x3). Possession of a firearm. All charges relate to one night out stealing with associates. J aged 16 years 9 months, and often acted as ringleader. Remanded in youth justice residence for 3 months.
Decision:
Supervision with residence (last chance in Youth Court).
File number: CRI 2008-288-126
Court: District Court, Whangarei
Date: 26 February 2009
Judge: Judge de Ridder
Key title: Sentencing in the adult courts: Aggravated robbery
Summary
KC 16 years old at the time of offending. 14 charges transferred from Youth Court, including aggravated robbery, conspiracy to commit robbery, burglary, theft, unlawfully getting into a motor vehicle.
KC involved with young offenders in Auckland targeting bag snatchers in shopping malls. Later demonstrated insight into offending and remorse. Well supported by whanau.
Recommendation of home detention supported by Family Group Conference. Seriousness of offending requires imprisonment as starting point: R v Mako [2000] 2 NZLR 170 (CA). Starting point fixed at 2.5 years. Mitigating factors: age and early non-denials.
Court commented that youth justice principles and Sentencing Act principles merge, and, whichever was primarily considered, the result would be a sentence of imprisonment less than 2 years. Home detention is appropriate and the least restrictive sentence that can be imposed. R v MTV HC Auckland CRI-2008-292-000179, 27 August 2008 mentioned.
Decision
9 months home detention.
File number: CRI 2009-204-000007
Court: Youth Court, Auckland
Date: 6 July 2009
Judge: Judge Fitzgerald
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 9 trial, Criminal Procedure (Mentally Impaired Persons) Act 2003, s 14 mentally impaired /unfit to stand trial, Reports: Psychiatric.
Summary:
Special hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act). KF charged with aggravated robbery, assault with intent to rob, and burglary. Previous psychiatric reports from January and March concluded KF was mentally impaired and likely to be found unfit to stand trial, but that his fitness could improve over time.
Trow v NZ Police HC Auckland, 10 September 2004 per Nicholson J referred to regarding 5 step process. Police v RA YC Manukau CRI-2007-292-000753, 6 August 2008 agreed with regarding rationale behind lack of definition of mental impairment in CP(MIP) Act. Court commented that evidence of health assessors should be given in Court, and that determining unfitness is separate from finding mental impairment. Court considered postponement of unfitness inquiry under s 8 of the CP(MIP) Act and R v Codd [2006] 3 NZLR 526 at [26].
Court referred to recent paper by Professor Warren Brookbanks.
Court found: KF caused the acts or omissions that formed the basis for the offences; KF suffers from a mental impairment.
Decision:
Hearing into unfitness to stand trial postponed in anticipation of both health assessors being present to give evidence. Counsel to assist Court appointed to brief and present evidence of health assessors and to make submissions as to the method by which evidence should be produced.
File number: CRI-2008-259-000010
Court: Youth Court, Queenstown
Date: 17 September 2009
Judge: Judge Strettell
Key title: Jurisdiction of the Youth Court - age
K was charged with 73 informations relating to the use of a document. It was alledged that he found a fuel card, used it on several occasions and gave it to his acquaintances to use, knowing that he did not have the right to use it. 12 incidents were not denied. Some of those incidents occurred after K had turned 17 years old.
The Court discussed its jurisdiction to deal with those incidents occurring after his 17th birthday, and the analogous situation under s 277 where an adult and a youth are heard together in the Youth Court.
The case was further complicated by the fact that K was aged 18 when he appeared before the Youth Court. Section 2(2) required that no family group conference be held in respect of a person who has attained the age of 18 years.
The Court considered that it still had jurisdiction to deal with the seven incidents which occurred before K turned 17, but was limited in its response to a fine, reparation, restitution, forfeiture and disqualification because K was too old for the other Youth Court orders which need to be completed by the age of 17 and a half. If K were under the age of 17, these matters would have been dealt with by way of reparation or other diversion-type options, and a s 282 discharge.
As to the five incidents occurring after his 17th birthday, the Court found that there was a possibility that K could avail himself of Youth Court jurisdiction (by analogy with s 277). However, the orders available to the Court in respect of these incidents were those available to an adult in the District Court.
Result:
Both the adult informations and the Youth Court informations were adjourned to a date before a Youth Court judge where, if the agreed outcomes were undertaken and the appropriate reparation had been paid, K could be discharged under s 282 in respect of the Youth Court informations, and the District Court matters could be either withdrawn or discharged under s 106 of the Sentencing Act 2002
File number: CRI-2008-283-000113
Court: District Court, Wanganui
Date: 5 March 2009
Judge: Judge Callinicos
Key title: Sentencing - General Principles (e.g. Parity/Jurisdiction), Sentencing in the adult courts: Aggravated robbery
Summary
Youth justice principles at sentencing. Impact of summarily laid charges on sentencing in DC.
Aggravated robbery, burglary x 4, possession of imitation firearm. Kohu 17 years old and Eriha 16 at time of sentencing. Court recognised that Sentencing Act 2002 contains express requirements for the sentencing judge to take into account matters that are consistent with youth justice principles, despite the different authorities represented by Full Court of the High Court and X v Police (2005) 22 CRNZ 60, and R v Patea-Glendinning (2006) 22 CRNZ 959 (HC) .
Court bound by Police v Moala [2008] DCR 70 (HC) in which the High Court held that summarily laid charges may not be taken into account as an aggravating feature under s 9(1)(j) of the Sentencing Act 2002 leading to any sentence of imprisonment, but could be taken into account by reducing any allowance proposed because of rehabilitative prospects.
Robbery was planned. K carried a sawn-off shotgun, which the Court was entitled to believe was loaded. Verbal and physical violence against victims. Tobacco taken, valued at $470.00. All of K's offending happened while on bail, and both young people were subject to other youth justice Family Group Conference plans at the time of offending.
Court held that, for remorse to deliver any reduction in sentence, it would have to require some tangible and meaningful display. Naming co-offenders would suffice. K & E did not name co-offenders.
Both Kohu and Eriha had dysfunctional passages in their life, including criminal role models.
Court refers to tariff case of R v Mako [2000] 2 NZLR 170 (CA). Start point for Eriha reduced (6 years) due to lesser involvement. Start point for Kohu 6.5 years.
Flurry of serious offending in Wanganui taken into account in relation to deterrence W v Registrar of Youth Court at Tokoroa [1999] NZFLR 1000 (CA), Gray v Police HC Wanganui, 6 September 2002 per Gendall J. Deterrent sentences of more effect in small communities The line where young offenders can expect to be sent to prison has been overwhelmingly crossed in this case.
Decision
Kohu: 3 years, 9 months imprisonment. Eriha: 3 years, 3 months.
File number: CRI 2008-216-000114
Court: District Court, Gisborne
Date: 25 June 2009
Judge: Judge Taumaunu
Key title: Sentencing in the adult courts: Serious assault (including GBH)
Summary:
M aged 16 years 7 months at the time of offending. Part of a large group of youths and gang members who attacked the victim, who was incorrectly identified as a member of a rival gang. M threw the first punch.
R v Taueki [2005] 3 NZLR 372 (tariff case) discussed. Aggravating factors: extreme violence; serious injury; attacking of the head; multiple attackers; gang warfare. Starting point 4 years imprisonment, at the high end of Taueki Band 1. Mitigating factor - not a patched gang member but under the influence of adult gang members. Discount on starting point of 1 year, 6 months.
Previous Youth Court orders, including supervision with residence (obiter in R v Putt [2009] NZCA 38 referred to but not followed) considered sufficiently serious to uplift starting point by 6 months. 12 months credit given for guilty plea. Final starting point 2 years imprisonment.
Home detention considered. Court agreed with psychological report, which advised that putting M in an adult prison would be the kiss of death to his future. No new charges while on bail. Mother prepared to issue trespass notices to gang members so that her home can be used as HD address. Highly unlikely that M would abide by a HD sentence of 12 months due to age and immaturity.
Decision:
8 months home detention, judicial monitoring, and 300 hours community work.
File number: CRI-2009-209-000586, CRN-2009-209-000587
Court: Youth Court. Christchurch
Date: 25 September 2009
Judge: Judge Callaghan
Key title: Jurisdiction of the Youth Court - s 276 offer, aggravated robbery
K and R, both 15 year old females were charged with the aggravated robbery of a diary. A 16 year old male visited K and R and brought alcohol and cannabis, which he supplied to them. He also showed them a shotgun he had recently stolen. They decided to use it to rob the diary. Wearing scarves and bandanas over their faces, they walked into the diary. The male aimed the shotgun at the diary owner and demanded money. When the diary owner did not react, R grabbed a jar of Easter eggs and they all left.
The male was 17 years old by the time he was sentenced in the District Court to a prison term of more than four years. He had other matters before the Court, including burglary and unlawfully taking a motor vehicle. He also had quite a large history in the Youth Court.
Both K and R admitted their involvement, and showed remorse and a good attitude to the FGC outcomes. Neither had any Youth Court appearances. Both were attending school. Both family group conferences recommended that the matter be dealt with by the Youth Court. The prosecution also supported the case being dealt with in the Youth Court.
The offending was very serious, but K and R were taken in by the alcohol, cannabis and influence of the older male.
The Court considered it reasonably unlikely that they would come before the Youth Court again.
Result:
Youth Court jurisdiction offered.
File number: CRI-2008-204-000470
Court: Youth Court, Auckland
Date: 11 May 2009
Judge: Judge Fitzgerald
Key title: Orders - type: Discharge - s 282, Orders - type: Discharge - s 283(a). Intensive Monitoring Group Court
Summary:
6 months prior to sentencing LH faced charges of burglary, trespass, resisting arrest, disorderly behaviour, aggravated robbery, possession of an offensive weapon.
L's history troubled with early substance abuse, gangs, ADHD, personality disorder, post traumatic stress.
LH's FGC plan had been monitored by Intensive Monitoring Group court, and completed satisfactorily, with few 'speed bumps'.
Decision:
Section 283 discharge for aggravated robbery, s 282 discharges for other offences, except possession of offensive weapon, which continues.
File number: CRI-2009-204-000226
Court: Youth Court, Auckland
Date: 25 June 2009
Judge: Judge Fitzgerald
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o) Aggravated robbery, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Other
Summary:
LH hatched plan with co-offender to rob a taxi driver. Court described offending as a horrible, callous and brutal attack.
LH 17 years old. Previous Youth Court offending. LH's family had extensive CYF history, including physical and sexual abuse, witnessing violence and alcohol and drug abuse. LH had not responded well to previous Youth Court initiatives. Recent better results. However, Youth Court orders not adequate or long enough (given age) to address offending. Imprisonment not the only option in the District Court.
Decision:
Convict and transfer to the District Court for sentencing
File number: CRI-2009-285-000023
Court: Youth Court, Wellington
Date: 21 April 2009
Judge: Judge Walker
Key title: Arrest without warrant (s 214)
Summary:
Young people aged 15 and 16 respectively. Aggravated robbery. Preliminary hearing previously in the Youth Court.
Issue is whether validity of arrest can be determined at a preliminary hearing. Court held that jurisdiction to determine the validity of the information is required because the Court cannot conduct a preliminary hearing without a valid information. A valid information is the basis for the jurisdiction to conduct a preliminary hearing. The decision on the validity of the information is necessarily prior to any decision as to committal or otherwise. The Court felt bound to determine a challenge to jurisdiction before embarking on a consideration of the evidence. Police v JDH YC Tauranga, 20 October 2008 per Judge Harding mentioned but not agreed with.
Young people arrested 4 weeks after offence committed. Police evidence that arrest needed to prevent interference with witnesses. No basis for Police to be satisfied that arrest necessary to ensure appearance in Court, to prevent further offending, or to prevent destruction of evidence. Police evidence fell well short of what is required to be satisfied that there was a risk of interference with victim or witnesses. Court found a breach of s 214 of the CYPFA.
Issue about consequence of breach of s 214. Court preferred judgment of Harrison J in Pomare v Police HC Whangarei AP 8/02,12 March 2002 where it was held that the Police cannot use s 214 to bring young person to court if the arrest is ruled invalid. The only alternative is through an intention to charge FGC (s245).
Comments in YP v Upper Hutt Youth Court HC Wellington 25 September 2006 per Mallon J discounted as obiter. Youth Court cases Police v R [1999] NZFLR 312; Police v PA [1995] DCR 204, and Police v HG (2004) 20 CRNZ 993 (YC) also mentioned.
Court held that, when s 245 CYPFA refers to arrest, it means arrest in compliance with s 214. This reflected the youth justice principle in s 208(a). Court adopted "gateway" comments of Judge Malosi in EM v Police (2008) 26 FRNZ 982 (YC).
Court held that "Not just any arrest will be sufficient to avoid the application of s 245. Only an arrest which clears the protective hurdles in s 214 will suffice". Found s 214 not complied with. Also, no compliance with s 245, so informations not lawfully laid.
Decision:
Informations dismissed.
File number: CRI-2008-292-000496
Court: Youth Court, Manukau
Date: 21 May 2009
Judge: Judge Malosi
Key title: Jurisdiction of the Youth Court - s 276 offer/election, Jurisdiction of the Youth Court: Charge type
Summary:
One charge of sexual violation and one charge of doing an indecent act on a child under 12. Indication of a desire by M to plead guilty. Victim was a 10 year old child, staying with M and his parents while victim's parents overseas.
M 14 years 11 months at the time of offending. Previous proven charge of burglary (stalking) in Youth Court, and concurrent care and protection proceedings based on M's offending s 14(1)(e), in the Family Court. New immigrant family.
Slim chance of non-custodial sentence in District Court. Broader range of community based sentences now available in District Court. Long term rehabilitation of young sex offenders now accepted as more effective than imprisonment.
MA well engaged with sex offender counselling services, accepted responsibility for offending, remorseful, achieved good academic results in youth justice residence. MAs family paid $2,500 to victim's family as per Muslim practice. Court acknowledged victim's issues and the need to keep MA engaged with SAFE programme. Other family issues also present.
Decision:
Youth Court jurisdiction not offered. MA to be brought before a District Court Jury Warranted Judge for sentence
[Editors note - sentencing by a jury warranted judge is required if the term of imprisonment will be more than 5 years s 28F(4)(b) District Courts Act 1947].
File number: CRN 08244000639
Court: Youth Court, North Shore
Date: 14 May 2009
Judge: Judge Ryan
Key title: Evidence (not including admissibility of statements to police/police questioning)
Summary:
Preliminary hearing. Issue is whether identity of undercover police officer can be withheld. Summary charge.
Court held that ss 108 and 109 of the Evidence Act 2006 only apply in Youth Court to purely indictable offences. No drafting error in legislation. Evidence Act provision only targeted at serious offences. Also held that witness required no protection from MG (s 334C(3) of the Crimes Act 1961).
Decision:
Identity of witness cannot be protected. Information subsequently withdrawn.
File number: CRI-2008-287-000077
Court: Youth Court, Porirua
Date: 28 May 2009
Judge: Judge Walker
Key titles: Jurisdiction of the Youth Court: Age, Jurisdiction of the Youth Court: Charge type.
MOV 14 at the time of offending, so not eligible to be convicted and transferred to the District Court. No agreement from FGC as to jurisdiction. Likely sentence in adult court would be 8—10 years minus time for age. Public interest and views of the victim are relevant factors. The offending is too serious for the Youth Court.
Result:
Jurisdiction not offered.
File number: CRI-2009-242-000011
Court: Youth Court, Nelson
Date: 30 January 2009
Judge: Judge Russell
Key titles: Bail (s 238(1)(b)): Breach of bail (non-attendance at Court), Custody (s 238): CYFS
Application for bail. NP has appeared in Court twice for breach of bail since original offences were laid. He now appears for two new charges of theft. NP has come to Police attention 46 times from 2006 to 2009 and been identified as the offender 31 times. His parents have difficulty controlling him.
The Court considered there was a risk of further offending and further bail breaches if bail continued in present terms or if a 24 hour curfew were imposed.
Electronic monitoring seems appropriate as it would reinforce to NP that he is to remain in the care of his parents, and provides them with an additional mechanism to help control him.
Result:
NP to be remanded in CYFS custody. Further charges are remanded without plea. NP invited to apply for electronically monitored bail.
File number: CRI-2008-209-000641
Court: YC Christchurch
Date: 3 February 2009
Judge: Judge N Walsh
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH)
PK poured petrol over a wooden garden shed at an unoccupied address and ignited it, causing $8,200 worth of damage. Five days later PK, together with two associates all armed and with bandanas covering their faces, broke into a flat, demanded property and money, and inflicted injuries requiring urgent medical attention.
PK appeared before the court charged with intentional damage, injuring with intent to cause grievous bodily harm, wounding with intent to cause grievous bodily harm, robbery, intentional damage, assault with a weapon, drink driving.
Court acknowledged that prison would be a poor deterrent. Most of PK’s immediate family are either in prison, facing charges or serving sentences. PK is currently in CYFS residence, and reportedly has a lack of empathy and remorse, but is making some positive changes. The consultant psychiatrist suspects a significant conduct disorder.
The reasons for conviction and transfer to the District Court are – PK was 15 years and one month at time of offending, the circumstances of the offending cannot be appropriately dealt with in the Youth Court (notwithstanding the absence of significant previous convictions), PK was under the influence of drugs and alcohol at time of violent offending, the offending was premeditated and occurred whilst on bail. There are serious public safety concerns and a need for accountability.
Result:
Conviction entered on all charges. Transfer to District Court for sentencing ordered.
File number: CRI-2008-216-000200
Court: Youth Court, Gisborne
Date: 11 December 2009
Judge: Judge Taumaunu
Key titles: Orders - type: Discharge - s 282, Family Group Conferences: Agreement
RH for sentence on 7 burglary charges. Agreement at Family Group Conference (FGC) on s 283(a) discharge.
Factors affecting Court’s decision not to grant s 283(a) discharge include:
RH had turned his life around and wished to join the army.
Court commented that s 282 discharge might result in a lesser stand down period before being accepted into the military.
Result:
Section 282 discharge on all charges.
File number: CRI 2009-242-37
Court: Youth Court, Nelson
Date: 18 August 2009
Judge: Judge Zohrab
Key titles: Bail, s 329
Young person arrested for latest of 15 breaches of bail, including numerous warnings from police and Courts. Most recent breach contravening non-association condition. Despite further offending (not linked to non-association), and the frustration of the Court, latest breach cannot be linked to requirements in s239 for detention in custody.
Result:
Bail granted.
File number: CRI-2009-242-000037
Court: Youth Court, Nelson
Date: 31 August 2009
Judge: Judge Russell
Key titles: Bail (s 238(1)(b)): Breach of bail (non-attendance at Court), Custody (s 238): Chief Executive (s 238(1)(d)).
Young person currently subject to FGC plan, which was not completed. Arrested on four further charges. Most recent bail breach warning reported above (Police v SC (No 1) YC Nelson CRI-2009-242-000037, 18 August 2009). S's mother is supportive but has little control over him. Court told young person this was the 'end of the line'. Court satisfied that S would be likely to abscond and commit further offences.
Result:
Remand in custody.
File number: CRI-2008-204-000446
Court: Youth Court, Auckland
Date: 30 March 2009
Judge: Judge Fitzgerald
Key title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Other.
Multiple charges of theft and burglary, committed when SE was 14 and 15 years old. First time in Youth Court. Offending premeditated and planned, with much loss to commercial businesses ($50,000 for stolen goods alone).
Offences not purely indictable. Police argue that a sentence of imprisonment would be required if SE was an adult: Senior v Police HC Christchurch A139/00, 19 December 2000. Court satisfied only that imprisonment could be expected if offender was an adult in the same situation. Apiata v Police HC Christchurch A174/98, 10 September 1998 per Panckhurst J cited. Court not able to conclude that an adult in the same situation would be required to be sentenced to imprisonment.
Previously declared in need of care and protection, involved in truancy, bullying, fighting, and offending as a child.
Result:
Supervision with activity order plus supervision.
File number: CRI-2008-204-000446
Court: Youth Court, Auckland
Date: 11 June 2009
Judge: Judge Fitzgerald
Key titles: Orders - type: Supervision with residence - s 283(n), Orders - type: Reparation - s 283(f)
SE committed 2 more burglaries 2 days after previous sentencing (see Police v SE (No 1) YC Auckland CRI-2008-204-000446, 30 March 2009 above).
Court held that when s 290(1)(b) refers to imprisonment being required, it must mean more than just required by statute.
Under this section, ‘imprisonment’ (or home detention) is what a Court would consider to be an appropriate and effective end point for an adult.
SE cannot be sentenced to imprisonment in District Court under s18 of the Sentencing Act 2002. Court expressed concern that appropriate youth programmes not able to be offered by probation service to young people given long District Court sentences, e.g. intensive supervision.
Result:
3 months supervision with residence, followed by 6 months supervision. Reparation order against mother.
File number: CRI-2008-204-000576
Court: Youth Court, Auckland
Date: 9 February 2009
Judge: Judge Fitzgerald
Key title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Aggravated robbery, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH), Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Other.
Summary:
Charges: aggravated robbery x 3, theft, assault with intent to rob, party to robbery, s 283(o). Charges admitted at Family Group Conference (FGC). Youth Court jurisdiction offered and accepted. Youth justice principles and reports considered - ADHD, troubled schooling, alcohol use. SG mainly worked as part of a team with one other performing street robberies. Each young person now claiming they were the follower and the other was the leader.
Court found SG played key role, both appeared to be enjoying the offending and acted in concert, and was organised and premeditated. SG almost 17 at time of appearance. SG displayed disinterest and disrespect in Court and to other professionals. Good parental support from mother. Victims' physical and emotional injuries plus financial costs considered. No previous appearances in Youth Court, but known to the police. FGC could not agree on outcome. Court found Youth Court options not adequate for accountability. More than 6 months needed for rehabilitation.
Decision:
Conviction and transfer to the District Court.
File number: CRI-2009-255-000032
Court: District Court, Manukau
Date: 23 July 2009
Judge: Judge Malosi
File number: Sentencing in the adult courts: Aggravated robbery.
Aggravated robbery by S (16 at the time of the offending) of a dairy, using a 10kg metal chain on the 60 year old victim, who was a customer in the shop.
The Court distinguished R v Mako [2000] 2 NZLR 170 (CA) and held that the starting point should be 4 years imprisonment. Factors include:
Other factors contributing to a further discount were: early guilty plea, remorse, personal care and protection history, commitment to being a good father, good attitude while on remand.
Result:
Two years intensive supervision with special conditions, 3 months community detention, 100 hours community work, and judicial monitoring.
File number: CRI-2009-270-000075
Court: Youth Court, Tauranga
Date: 18 August 2009
Judge: Judge Harding
Key titles: Jurisdiction of the Youth Court – s 276 offer
S indicated a desire to plead guilty to an indictably laid charge of arson. He set fire to two classrooms causing $750,000 worth of damage. The family group conference recommended that Youth Court jurisdiction be offered.
The psychological report, not available to the FGC indicated a fascination with fire, a history of non-compliance with parents, and described S as quiet, withdrawn, unassertive, easily influenced, emotionally unstable, possible underlying depression, and low self-esteem.
The Court drew attention to the fact that, because the offending occurred one month before S turned 15, if Youth Court jurisdiction was offered and the offence was admitted or proved, conviction and transfer to the District Court for sentencing was not an option.
The Court then addressed the principles set out in sections 208 and 5 of the Children, Young Persons and Their Families Act 1989 (CYPF Act). It also discussed the seriousness of the offence, the part played by S, the effect of the discretion on sentencing options, the desirability of rehabilitative provisions of the CYPF Act, and the forum in which the matter could be dealt with most promptly.
It held that offering Youth Court jurisdiction would provide both an inadequate sentencing response, and inadequate rehabilitative approach. "The tools within the Youth Court jurisdiction are inadequate to deal with this offending in my view, notwithstanding the lack of prior offences".
Decision:
Youth Court jurisdiction was not offered.
File number: CRI 2008-292-413/4, CRI-2009-270-104
Court: Youth Court, Manukau
Date: 7 May 2009
Judge: Judge Malosi
Key title: Reports - Psychological, Evidence (not including admissibility of statements to police/police questioning), Jurisdiction of the Youth Court: s 276 offer/election, Orders - type: supervision with activity - s 283(m).
Summary
Both 14 years old at the time of offending. Charged jointly with aggravated robbery and indicated desire to plead guilty. W also charged with driving offences (not denied). Offending involved car jacking with knives, and taking $70, committed after watching similar movie. Section 333 psychological reports obtained for each young person.
Issue whether prejudicial disclosures in s 333 reports can be taken into account by the Court when deciding whether to offer jurisdiction under s 276.
Court refers to HCR 9.38 and McGechan at 9.38.04. Counsel to assist the Court appointed. Both young people admitted to previous offending in interviews with report writers, but have no history in Youth Court. Neither young person tended evidence about previous offending or examined report writers.
Court held that report writers not required as witnesses until ss 193 or 194 of the CYPFA invoked, however reports do provide "valuable insights upon which the Court can craft outcomes that address offending and the causes of it".
Court confirmed that privilege does not apply to statements in reports (s 59(1)(b) of the Evidence Act 2006) and Court has discretion to prevent disclosure of confidential material (s 69 of the Evidence Act) if confidential material found to exist. Court satisfied that young people understood that all disclosures during report interviews could end up in court, and that they were not obliged to answer report writers questions. So Court found no basis to exercise s 69 discretion.
Court recognised public interest argument in young people not being full and frank with report writers if they thought reports could be used as evidence. Also counter argument that young people need to be honest with report writers so all relevant criminogenic needs can be assessed.
Court held that it would be unjust to decline jurisdiction or to sentence young person based on statements in s 333 reports. Also held that s 333 reports are not required for s 276 decisions. Complete reports remained before the Court, but given little probative value. Court distinguished cases of admissions of specific offending (R v GME HC Wellington 4 July 2008 Simon France J) from more general unspecific admissions in this instance.
Issue whether or not to offer Youth Court jurisdiction. Police v S and M (1993) 11 FRNZ 322 (YC) and Police v James (1991) 8 FRNZ 628 (YC) mentioned as helpful. Factors: serious offending, presence of knives, no YC history, supervision with activity an alternative to supervision with residence, S left unsupervised and without food for some days prior to offending, W abided by bail conditions despite intellectual functioning and personality disorder.
Decision
Youth Court jurisdiction offered and accepted. Supervision with activity with conditions and community work ordered.
File number: CRI-2009-270-000075, CRI-2009-270-000241
Court: District Court, Tauranga
Date: 6 November 2009
Judge: Judge Rollo
Key titles: Sentencing in the adult courts: Arson.
SR was 14 at the time of the offending. Youth Court jurisdiction was previously declined (see Police v SR YC Tauranga CRI-2009-270-000075,18 August 2009). $700,000 damage was done to a primary school after grass was combined with accelerants in a rubbish bin and set alight.
Presentence report advised against home detention.
Psychological report referred to, amongst other things, drug and alcohol issues, a fascination with lighting fires, the need for grief counselling after the death of a sibling, and assertiveness training.
Court held that community work can be ordered as a punitive element in place of a sentence of imprisonment, and that imprisonment plus release conditions would be likely to be inadequate to achieve the primary social goals in this case.
Result:
Two years intensive supervision plus 250 hours community work.
File number: CRI-2009-290-000257
Court: District Court, Waitakere
Date: 15 September 2009
Judge: Judge Taumaunu
Key titles: Sentencing in the adult courts: Aggravated robbery, Sentencing in the adult courts: Serious assault (including GBH)
T appeared on 3 charges of aggravated robbery, and one of wounding with intent. The offending involved demanding money from service station attendants, then taking cash and cigarettes. Two of the victims were hit with weapons. T was serving a Youth Court sentence of supervision on other charges when offending occurred.
Court held that a starting point of 5 years imprisonment should be reserved for more serious cases, and adopted a starting point of 4 years. 50% discount for guilty plea and inherent remorse.
Result:
2 years imprisonment with leave to apply for home detention.
File number: CRI-2008-083-000155
Court: Youth Court, Wanganui
Date: 19 February 2009
Judge: Judge Callinicos
Key title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Aggravated robbery, Reports: Psychological
Summary:
Aggravated robbery. TA indicated desire to plead guilty. Youth Court jurisdiction offered and accepted. Nature of offending considered. Robberies planned with victims selected based on vulnerability. Lethal weapons carried. One victim deliberately targetted twice. Spate of dairy robberies in Wanganui.
Personal history and social circumstances considered. No prior involvement with youth justice. Psychological report showed little understanding of seriousness of the offence, or of his offending from the victims' point of view, and showed little motivation to change. Supportive family.
No reparation paid. Court expressed doubt about enforceability of Youth Court community orders. TA agrees that a supervision with residence order, together with the nearly 4 months in a youth justice residence on remand would amount to the equivalent of a adult sentence of 12 months imprisonment.
Co-offender previously convicted and transferred to the District Court. Court commented on the need for parity in sentencing. Court agreed with police that denunciation and deterrence in the Wanganui context cannot be achieved in the Youth Court. The court is entitled to make reference to a local situation: W v Registrar of the Youth Court at Tokoroa [1999] NZFLR 1000 (CA); Gray v Police HC 6 September 2002 at [10] per Gendall J. Commented that efforts at deterrence may carry greater sway in small centres such as Wanganui where most young offenders are known to each other. TA requires substantial work to develop a level of empathy that can extend beyond himself and his immediate family.
Decision:
TA convicted and transferred to the District Court for sentence.
File number: CRI-2009-204-000171
Court: Youth Court, Auckland
Date: 11 June 2009
Judge: Judge Fitzgerald
Key title: Orders - type: Supervision with activity - s 283(m).
TH smashed windows and took $200 from a service station. The next day he drove a car dangerously at excessive speeds with a high alcohol reading. TH said he was upset after splitting up with his girlfriend.
Court accepted that behaviour was completely out of character, and a cause of shock and shame to TH and his family.
Decision:
Supervision with activity, plus supervision.
File number: CRI-2009-290-000198
Court: Youth Court, Waitakere
Date: 1 October 2009
Judge: Judge Fitzgerald
Key titles: Arrest without warrant (s 214).
T charged with theft of a car. The car was stopped by Police who arrested T because he was the driver. Police constable’s evidence was that he arrested T in exactly the same way as if he were an adult. The arrest was not to prevent T from turning up in Court, or to avoid the destruction of evidence, and the constable also did not consider issuing a summons instead of arrest. T was cooperative with Police. At the time the Police stopped the car, the front seat passenger admitted that he had stolen it and was just getting T to drive it.
Court held that the reasons given for the arrest fell outside the four specific grounds mentioned in s 214 of the CYPFA.
Result:
Charges dismissed.
File number: CRI-2009-209-000569
Court: Youth Court, Christchurch
Date: 22 December 2009
Judge: Judge N Walsh
Key titles: Orders - type: Supervision - s 283(k), Orders - type: Community Work - s 283(l).
Co-offender with 17 year old sister. Robbery of cash and cigarettes from a shop. Sister was sentenced in District Court to 2 years imprisonment.
U had disrupted home and school life, but had recently reconnected with his Maori culture.
Result:
Six months supervision plus 200 hours community work.
File number: CRI-2009-225-000059
Court: District Court, Invercargill
Date: 27 August 2009
Judge: Judge Phillips
Key title: Sentencing in the adult court – Sexual violation by unlawful sexual connection, Media Reporting (s 438)
M appeared for sentencing in the District Court on four charges of sexual violation against two victims, his step-brother and his cousin. Three of the offences occurred before M's 17th birthday. The fourth occurred after his 17th birthday. These charges were indicative. The summary of facts indicated that the offending occurred on many occasions. M admitted his offending promptly.
M suffered from a medical condition which gave him a range of language, social, and other intellectual disabilities.
The Crown accepted that youth justice principles should apply to the sentencing order. A lack of remorse and insight into the offending was due to his disabilities. Electronic monitoring was not available because M did not have sufficient intellectual capacity to comply with conditions.
The Court discussed both Youth Court sentencing principles (the principles and objects in ss 4, 5 and 208 of the CYPF Act), and District Court sentencing principles (ss 16 and 18 of the Sentencing Act 2002 and the presumption of imprisonment in s 128B of the Crimes Act 1962). The Court also emphasised the community benefit in the rehabilitation of M.
Decision
M was sentenced to a term of intensive supervision for two years on each of the charges. Special conditions included attendance at and completion of an assessment for the Stop Programme and judicial monitoring. There was also a final order for name suppression.
File number: CRI-2009-283-000059
Court: District Court, Wellington
Date: 19 November 2009
Judge: Judge Becroft
Key title: Sentencing in the adult courts – Application of Youth Justice principles, aggravated robbery
The defendant committed aggravated robbery while on bail for a previous robbery charge and after almost completing a family group conference plan in respect of that earlier robbery. In the earlier offence, the defendant attacked a woman at a train station, punched her in the face, and stole $180 cash and a cellphone. In the latter aggravated robbery offence, the defendant and a 13 year old girl robbed a dairy, disguised with hoods and scarves, and carrying knives. They brandished the knife, used threats and some violence against the sole female proprietor of the dairy, and stole between seven and 10 packets of tobacco and cigarettes.
The Court discussed whether the tariff approach in the adult court applies to an under 17 year old who is convicted in the Youth Court and transferred to the District Court for sentencing, and whether youth justice principles apply to that sentencing in the adult Court.
On the first issue, the Judge held that he was bound to apply the tariff approach because it had been implicitly applied in every appellate decision. He indicated however, that he found this approach unsatisfactory and should be the subject of appellate guidance because young people should not be treated the same way as teenage adults when they offend.
On the second issue, the Judge discussed the two conflicting decisions: X v Police (2005) 22 CRNZ 58 (HC) in which it was held that youth justice principles do apply to the sentencing of young people in the District Court, in combination with the principles in the Sentencing Act; and R v Patea Gendinning (2006) 22 CRNZ 959 in which it was held that youth justice principles do not apply as a matter of law because the powers of the Youth Court do not follow the young person into the District Court. The Judge held that he was bound by the latter case, although he wished that he was not. Consequently, as a matter of law, he could not apply youth justice principles.
The starting point therefore, was four and a half years (applying R v Mako [2000] 2 NZLR 170 (CA)), uplifted by six months because the defendant was on bail at the time of this offence. The resulting period of five years was reduced by 25% for remorse, developmental lag and the defendant's background. There was a further reduction of 15 months to reflect the early guilty plea.
If youth justice principles had applied, the Judge indicated that he would have made a reduction of at least 40% for the young age of the defendant. Coupled with 33% for the early guilty plea, the result would have been less than two years, making the defendant eligible for home detention.
Result:
The defendant was sentenced to imprisonment for two and a half years (therefore home detention cannot apply).
File number: CRI-2008-204-000412
Court: District Court, Auckland
Date: 12 February 2009
Judge: Judge Fitzgerald
Key title: Sentencing in the adult courts: Serious assault (including GBH)
Summary:
L 16 at the time of offending. Convicted and transferred from Youth Court. Victim unknown to young person. Escaped before sexual violation could occur. No previous offending, offending out of character, deep and genuine remorse, realisation of shame and stress brought upon family.
Low risk of reoffending, high motivation to change. Principles and purposes of sentencing considered. Aggravating features - opportunistic nature of offence, and the use of sex as a coping mechanism. Other mitigating factors - age, guilty plea, obeyed 24 hour curfew for 10 months (which goes to accountability). Protection of the public to be achieved by effective rehabilitation rather than imprisonment.
Decision:
18 months intensive supervision with special conditions plus 100 hours community work.
File number: CRI-2008-012-005560
Court: District Court, Dunedin
Date: 3 April 2009
Judge: Judge O'Driscoll
Key title: Sentencing in the adult courts: Arson, Sentencing in the adult courts: Other
Summary
14 charges including theft, arson, unlawfully taking a motor vehicle. Some charges transferred from Youth Court. Some committed while on bail.
Propensity to destroy vehicles, sometimes 'on contract'. This Court had previously "gone out on a limb" by granting bail, during which L had offended by driving dangerously and crashing into two parked cars.
Home detention not recommended due to inappropriate address. L unsuitable for electronic monitoring, and not motivated. Offending premeditated, with significant loss of property.
Mitigating features: age (16) and guilty pleas. Court distinguished Protos case. Starting point of 4 years imprisonment.
Decision
2 years 6 months imprisonment and disqualification
File number: CRI-2008-290-000667
Court: Youth Court, Waitakere
Date: 21 July 2009
Judge: Judge Taumaunu
Key title: Jurisdiction of the Youth Court: s 275 offer/election, Jurisdiction of the Youth Court: Age
Summary:
L was charged with rape of a 14 year old complainant. The charge is denied. L aged 14 at the time of the alleged offence, so cannot be convicted and transferred to the District Court if offered Youth Court jurisdiction.
Court considered youth justice principles, public interest, previous history (3 current burglary charges in the Youth Court), complainant's views, and sentencing options. Court also considered relative availability of hearing dates (2 months in Youth Court as opposed to 12 months in District Court or High Court).
Decision:
Youth Court jurisdiction offered.
File number: CRI-2008-291-000218
Court: District Court, Wellington
Date: 31 July 2009
Judge: Judge Kelly
Key title: Sentencing in the adult courts: Sexual violation by rape
Summary:
Youth Court jurisdiction previously declined. MV aged 14 at the time of the offending. Personal history included sexual abuse and violence. Self reported gang involvement, stealing and selling cannabis, although youth advocate denies veracity of these statements. Regular anger displayed while on remand at a youth justice residence. Learning difficulties.
Report for Court concerned at lack of empathy, acknowledgement and remorse for offending, although MV did acknowledge offending and apologised to victim and family at family group conference.
Probation report described MV as very high needs, and a high risk offender. Extensive psychological treatments needed while in prison.
Approach to sentencing involved adopting a starting point appropriate for an adult offender after taking into account aggravating and mitigating factors related to the offending, then deciding a final sentence after taking into account aggravating and mitigating factors personal to the offender.
Aggravating factors related to the offending: actual violence, prolonged attacks, threatening victim with being stabbed, abduction. Starting point 14 after applying totality principle to starting points for the first rape and abduction (12 years) and second rape (8 years).
50% reduction for age and guilty pleas. Further discount of 6 months for time spent on remand in youth justice residence, which would not be credited as time served at the end of the sentence.
Decision:
6 years, 6 months imprisonment for rapes. 3 years imprisonment for abduction. To be served concurrently. No minimum period of imprisonment due to age.
File number: CRI-2009-290-000005
Court: Youth Court, Whangarei
Date: 31 March 2009
Judge: Judge Tremewan
Key title: Jurisdiction of the Youth Court: s 276 offer/election.
Summary:
Charged with aggravated robbery, with intention to plead guilty. Breach of curfew while on bail on this charge. Previous charges including robbery, intentional damage and discharging an air pistol with reckless disregard. Report of good conduct following sentencing on those charges.
Court commented that quality of supervision is much greater in Youth Court than in adult court. Time enough left to run for Youth Court orders if jurisdiction offered.
W's father well known to the Court, plus significant history of abuse and domestic violence in W's home. W deserved special consideration for his family history. W continued to attend programme of his own volition, despite previous supervision sentence being cancelled.
Decision:
Youth Court jurisdiction offered.
This website explains many of the things you might want to know if you are coming to the Youth Court, or just wondering how the Youth Court works.
Visit website›
Ministry of Justice website with information on family issues including about going to court, forms and other times when you may need help.
Visit website›
For information about courts and tribunals, including going to court, finding a court & collection of fines and reparation.
Visit website›
On this site you will find information about our Supreme Court, Court of Appeal and High Court including recent decisions, daily lists and news.
Visit website›