A v Police HC Invercargill CRI-2009-025-000995, 4 December 2009

File number: CRI-2009-025-000995
Court: High Court, Invercargill
Date: 4 December 2009
Judge: Fogarty J
Key title: Orders – Supervision with Residence, s 283(n), s 290, assault  

The appellant and her friend punched the victim, another young girl, who they thought had narked to staff at the YMCA. The victim's caregiver told the social worker that the victim recovered very quickly from the assault and appeared to suffer no ill effects from it.

The Youth Court judge received a social worker report pursuant to section 334 which contained the recommendation that A receive a supervision order rather than a supervision with residence order. However, the Youth Court Judge imposed a supervision with residence order.

On appeal the appellant argued that the Judge failed to give proper weight to the social worker report, that he failed to follow the principle of the statute that requires the least restrictive outcome, that he overstated the impact of the assault on the victim, that he applied the test in section 290 in a way which was inconsistent with the terms of the section.

The Youth Court Judge gave two sets of reasons. The first was on the template form for ordering uncontested supervision with residence orders. The form is used because section 340 requires reasons at the time the order is made. The second set of reasons were the oral remarks made at the time, typed up and provided later.

The High Court made the following points:

• It noted that the template form addresses the criteria in section 290 before dealing with the criteria in section 284, but that the judicial determinations need to be made in the other order. In this case, the Youth Court Judge went first to section 290(1)(c), then took into account the section 284 matters. This is an error of law.
• It also noted that the template form simplified the criteria in section 290 and in doing so, mis-stated the test. The purpose of the form was to provide information comprehensible to young people, but it would be wrong to use the simplified language as the actual test. In this case, the Youth Court Judge used the language of the template form as the test, rather than the language of the statute.
• It stated that where a Judge rejects a recommendation for a non-custodial report by a competent person (as occurred in the social worker's report), section 290(c) required that the Judge explain why such an order would be clearly inadequate. In this case, the Youth Court Judge did not discuss that he is differing from the social worker or why. In this way, he had not demonstrated satisfaction with the threshold requirement in section 290, as he was required to do when making a supervision with residence order.

There appeared to be no basis for the Judge's assessment of the impact of the assault on the victim, which differed from the assessment in the section 344 report.

Result:
Appeal allowed. Custodial order quashed. A supervision order substituted.

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Eriha and Kohu v Police HC Wanganui CRI-2009-483-000012 & 13, 8 April 2009

File number: CRI-2009-483-000012 & 13
Court: High Court, Wanganui
Date: 8 April 2009
Judge: Ronald Young J
Key title: Sentencing in the adult courts: Aggravated robbery

Summary:
Appeal against sentence. Pair (aged 15 and 16.5 years) and others planned diary robbery, obtained sawn off shotgun, wore disguises, hit shop worker in the head while yelling abuse and pointing the gun at her head. Discount in lower court for age and guilty pleas of 42% and 45%.

Mako decision is tariff case. Offending at the top end. Aggravating factor that defendants on bail or awaiting sentence at the time of the robbery offence. No reduction for remorse given unwillingness to name others involved. Both appellants participated equally in the offending.

Decision:

Kohu's sentence reduced to 3 years 3 months to match Eriha's. Eriha's appeal dismissed.

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R v King [2009] NZCA 194

Court of Appeal
File number: CA17/09
Date: 10 August 2009
Judge: Ellen France, Priestley and Miller JJ
Key title: Sentencing in the adult courts: Aggravated robbery

Summary
Crown appeal. Sentenced to 18 months imprisonment on historic charges of assault with intent to rob (now called 'aggravated robbery') after DNA evidence linked King to 1996 offending. King was 16 at the time, and would have been a first offender if charged. Subsequent convictions for burglary, theft, assault and possession of a firearm.

In 1996, King living on the streets after parents moved to Australia.

Late guilty plea. Sentenced as first offender. Aggravating features including planning, use of a weapon and effect on victims. Starting point by sentencing judge 3 years imprisonment, reduced by 12 months for age and circumstances, and 6 months for guilty plea.

The Court reviewed the tariff case of R v Mako [2000] 2 NZLR 170 (CA), which held that youth need not be a mitigating factor, but may be appropriate where a youth is a first offender and appears genuinely motivated to reform.

The Court recognised that, as well as the rehabilitative potential of young offenders, age also mitigates because young people may be considered less culpable, with the younger the offender, the more important the recognition of reduced culpability.

Decision
Appeal dismissed.

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R v Alletson [2009] NZCA 2

Court of Appeal
File number: CA63/09
Date: 19 February 2009
Judge: Ellen France J
Key title: Bail (s 238(1)(b))

Summary:
Appeal against refusal of bail pending appeal against conviction and sentence for unlawful sexual connection, indecent assault, and inducing a girl under 12 to perform an indecent act. Ground of appeal that the applicant was a young person at the time of offending.

Applicant aged 20 years 10 months at the time of sentence. Appeal relies, amongst other things, on UNCROC Article 37(b) providing that imprisonment should only be used as a measure of last resort.

Decision:
Appellant's youth alone is not sufficient to warrant bail. Application for bail declined.

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R v Broughton HC Rotorua CRI-2008-269-000062, 26 March 2009

File number: CRI-2008-269-000062
Court: High Court, Rotorua
Date: 26 March 2009
Judge: Lang J
Key title: Sentencing in the adult courts: Murder/Manslaughter 

Summary:
JB, 14 and a half years old, had been drinking vodka. Grabbed a woman, who resisted, then bashed her with a rock until she became unconscious. Twelve days later at 2.00 am seen on security camera smashing windows at a local high school, followed 27 year old Scottish traveller and beat her with baseball bat, pulled off her underpants and took her bag. Victim died an hour later at hospital.

Factors taken into account for sentencing on murder charge, all principles in Sentencing Act 2002, effect on victims, effects on New Zealand as seen internationally. Aggravating factors influencing decision on minimum period of imprisonment include, innocent vulnerable defenceless victim, baseball bat as lethal weapon, significant degree of force, some degree of premeditation, robbery, sexual element, leaving the scene without assisting the victim.

Discussed R v Rapira [2003] 3 NZLR 794 (CA); R v Piilua HC Christchurch CRI-2005-009-011878, 1 September 2006 and R v Abraham CA 139/03, CA 330/03 28 October 2003. Found that this case fell outside usual range enough to increase minimum period of imprisonment beyond 10 years. 9 years imprisonment on wounding charge considered realistic, ending up around 5-6 years when guilty plea and age taken into account, with 4 years minimum non parole. Uplift of 3 years in minimum period of imprisonment to take into account wounding charge.

Only limited recognition can be taken of age as a mitigating factor when charge is serious (Rapira), 1 year reduction in minimum period of imprisonment. Further reduction of 2.5 years for early guilty plea.

Decision:
Life imprisonment for murder with minimum term of imprisonment of 12.5 years. 6 years imprisonment for wounding with intent, concurrent.

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R v Putt [2009] NZCA 38

Court of Appeal
File number: CA651/08
Date: 26 February 2009
Judge: Ellen France, Harrison, Cooper JJ
Key title: Sentencing in the adult courts: Serious assault (including GBH)

Summary:
Charges: wounding with intent to cause gbh. Appeal against sentence. of 5.5 yrs imprisonment. Father hit P over the head with a stereo after an argument, rendering him unconscious. Both intoxicated. P later stabbed father four times in response.

Guilty plea. Reconciliation. Original sentence starting point uplifted by 2 years to reflect Youth Court history (notings of operating a motor vehicle recklessly, possession of an offensive weapon in 2005, kidnapping, dangerous driving, possession of an offensive weapon in 2006), resulting in starting point of 8 years, but credit was given for age, guilty plea, and remorse.

Found starting point of 8 years too high. YC history relevant factor Kohere v Police (1994) 11 CRNZ 442 (HC) at 444. However no violence and not extensive, so should only have been used to "offset" discount for youth but not completely negate it. Provocation should also have been taken into account. Starting point should have been 5.5 years with discount of 35% for remorse, restorative justice processes and guilty plea.

Decision:
Appeal allowed. Sentence of 3.5 yrs imprisonment. No minimum period.

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R v Te Wini HC Rotorua, CRI-2008-270-000361, 18 December 2009

File number: CRI-2008-270-000361
Court: High Court, Rotorua
Date: 18 December 2009
Judge: Venning J
Key titles: Sentencing in the adult courts: Murder/manslaughter

High profile murder of elderly gentleman in his home. TW and co-accused plead not guilty.

TW was 14 at the time of the offending. She lived a transient lifestyle, smoked cannabis, had relationships with gang affiliates and suffered from post-traumatic stress disorder.

The Judge described each girl as a victim in their own right, who was failed by their families and those who were meant to be responsible for them. The Judge also described as a tragedy that they would receive more chance of an education and learning life skills in prison than had been provided to them so far by those meant to be responsible for their upbringing.

Factors counting towards a minimum non-parole term of 17 years included:

• the home invasion nature of the offending,
• murder committed in the course of a robbery,
• the high level of brutality, and  
• the vulnerability of the victim.

The Court held that, but for the youth of the defendants, minimum terms of 19 or 20 years could be appropriate.

The Court distinguished R v Slade [2005] 2 NZLR 526 (CA) and R v Trevithick HC Auckland CRI-2007-244-000009, 19 June 2007 due to TW’s encouragement of her co-offender and her lack of a guilty plea and subsequent remorse. Statutory minimum period of imprisonment imposed despite TW’s young age due to Parliament deliberately choosing not to make an exception for youth.

Result:
Life imprisonment with MPI of 17 years.

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R v V HC Hamilton CRI-2007-219-000335, 5 March 2009

File number: CRI-2007-219-000335
Court: High Court, Hamilton
Date: 5 March 2009
Judge: Cooper J.
Key title: Sentencing in the adult courts: Murder/manslaughter

Summary:
V (16 at the time of the offence) pleaded guilty to killing a sleeping man by hitting him on the head with brick tiles.

Pre-sentence report noted previous Youth Court history, alcohol use, little motivation to change and high risk of reoffending. Other aggravating factors included gratuitous nature of assault, incident occurred while V on bail, V's abandonment of victim after assault. Court commented on widespread community concern about serious violence by strong young men. Starting point 4.5 years. Six month deduction for age and time spent in youth justice residence. Further sixteen month deduction for early guilty plea.

Decision:
2 years, 8 months imprisonment.

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Ranginui v Police HC Wellington CRI-2009-483-000039, 23 October 2009

File number: CRI-2009-483-000039
Court: High Court, Wellington
Date: 23 October 2009
Judge: Judge Dobson
Key title: Sentencing in the adult court, aggravated robbery, aggravated wounding.

R and a male co-offender forced their way into the victim's house at night. R was aged 15, the male co-offender was 19. The co-offender was armed with a machete with which he gashed the victim's head, causing profuse bleeding. The co-offender continued to assault the victim. They left, taking an EFTPOS card, its PIN, a wallet, a cheque book and $1300 cash.

R had earlier pleaded guilty in the Youth Court to aggravated robbery and aggravated wounding and had been sentenced in the District Court to four years six months imprisonment, a reduction on the starting point of nine years. Subsequent to her sentencing, R was re-interviewed by Police. That further information and her preparedness to give evidence were instrumental in the co-offender electing not to dispute the facts of his offending.

Appeal (out of time) on two grounds: first that regard should be had to the post-sentencing assistance provided by R, and second that a lower starting point for sentence was warranted because a greater disparity ought to have been recognised between R and her co-offender. Subsequent to R's sentencing, the starting point for the co-offender's sentencing was set at 12 years.

The Police conceded that the first ground had merit and a further 10 percent discount from the starting point was warranted. The Court agreed and noted that this was consistent with the recent guideline decision on discounts for guilty pleas in R v Hessell [2009] NZCA 450.

The Court found that age and naiveté were relevant in assessing mitigating factors, not the starting point. The three year difference between the starting point for R and her co-offender was characterised as generous. Accordingly there was no error in the starting point.

Result:
Leave for the appeal (out of time) was granted. The appeal was allowed on the first ground. Consequently a 60 percent reduction on the starting point of nine years was granted. The original term of imprisonment of four years and six months was substituted with a term of three years and seven months.

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