Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446

Court of Appeal
File number: CA610/2010 
Date: 19 October 2011
Judge: Glazebrook, Ellen France and Harrison JJ
Charge: Murder
Key title: Sentencing in the adult courts: Murder/manslaughter, Reports: Psychological, Reports: Psychiatric.

Ms Churchward (17 years old) and her 14 year old cousin were convicted of the murder of a 78 year old man. Multiple submissions were made on both conviction and sentence.

Appeal on Conviction
A key defence submission was that the trial Judge erred by not directing on the relevance of youth to the question of intent. The Court noted that as a general rule, it is preferable for judges to draw the jury’s attention to an accused’s youth and the effect this may have had on intent (which happened here).

Appeal of Sentence
Two new reports from a clinical psychologist and a psychiatrist referenced Ms Churchward’s traumatic history (problems with parents, anorexia, depression, alleged abuse by a relative, suicidal thoughts, an abusive relationship, and involvement with serious drugs) and the impact of this on her sense of identity, self esteem and coping mechanisms. The clinical psychologist stated that intervention and treatment in prison were essential.

The psychiatrist summarised leading literature on adolescent brain development. He noted several key characteristics of adolescence recognised by developmental psychology research, such as diminished decision making ability, greater vulnerability to external coercion, a tendency to discount risks and the formation of personal identity.

The core submission on sentencing was that the presumption of a 17 year minimum period of imprisonment should have been displaced because Ms Churchward’s age and personal circumstances meant the 'manifestly unjust' threshold in s 104 of the Sentencing Act was met. With regards to youth, the Court accepted that there is no automatic displacement of a 17 year minimum period of imprisonment on the basis of youth alone, but that age can be a mitigating factor and falls into the 'manifestly unjust' test. The Court traversed New Zealand, commonwealth and United States jurisprudence to consider ways in which youth has been found relevant to sentencing. These considerations can be found at [77] - [92]. The Court also noted the particularly adverse effects that long sentences can have on young people in light of s 8(h) of the Sentencing Act, and the importance of considering young people’s rehabilitative prospects.

The Court responded to the Crown’s submission that a discount was not warranted because Ms Churchward’s age was 'towards the end of the spectrum as regards youth' by noting that, though Ms Churchward was almost past being a child as defined in the United Nations Convention on the Rights of the Child, youth is seen as a larger concept than childhood and extends past 18 years of age.

Considering these factors and Ms Churchward’s mental health, the court found a serious risk that the period could have a 'crushing effect' on Ms Churchward. When considering her rehabilitative prospects, the Court noted several examples of success in her life that suggest she may fit into what one of the psychologists called 'Adolescents Limited' (those who commit crime in adolescence only) rather than 'Life-Course-Persistent Offenders.'

Decision
Sentence manifestly unjust, minimum period of imprisonment reduced to 13 years.

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CT and BS v Attorney General and DC at Christchurch

File number: CIV-2011-409-000845, CIV-2011-409-000846
Court: High Court, Christchurch
Date: 26 July 2011
Judge: Chisholm J 
Key titles: Appeals to the High Court/Court of Appeal: Jurisdiction, Delay (s 322), Media reporting (s 438).

Judicial review of decision in R v CT and BS DC Christchurch CRI-2010-008-008489, 7 February 2011. Crown accepted that delay of 6 years 2 months between the time of the alleged offence and the scheduled trial was unduly protracted. Therefore only question for review is whether judge erred in the exercise of his discretion.

Court noted strong parallels between this case and Turner decision. Decision in District Court case was made 'contrary to all precedents' and when the delay was weighed against the principle in s 5(f) of the CYPFA it was difficult to see how it was not enough to overwhelm the other countering considerations.

Court held that the DC judge erred in the exercise of his discretion not to dismiss for delay.

Result:
Permanent stay of charge granted. Permanent name suppression also granted.

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Geros v R  [2011] NZCA 122

Court of Appeal
File number: CA321/2010
Date: 31 March 2011
Judges:  Chambers, Chisholm and Venning JJ
Key titles: Appeal to the High Court/Court of Appeal: jurisdiction.

17 year old appealing sentence. Whether Youth Court history can be taken into account.

Held that while YC history cannot be taken into account under s 9(1)(j) of the Sentencing Act 2002, it does not mean that it is irrelevant.

Held that sentencing Courts may 'off set' a person’s Youth Court history against a discount that would otherwise be available to them due to their age.

Result:
Appeal dismissed.

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H v R [2011] NZCA 227

Court of Appeal
File number: CA828/2010
Date: 26 May 2011
Judges: Wild, Venning and Courtney JJ
Key titles: Sentencing in the adult courts: Sexual violation by unlawful sexual connection

Appeal from High Court sentence of 10 years imprisonment, with a minimum term of imprisonment of five years, on charges of serious sexual offending with threats of violence. The offending occurred over two years against three relatives aged between four and eight years. At the time of the offending H was aged between 14 and 16 years old.

In arriving at the sentence the High Court accepted a starting point of 16 years. The term was reduced by two years to reflect the appellant’s age, by a further two years to reflect the his intellectual disability, and by 20% to reflect his guilty plea.

The sentence was appealed on the grounds that the High Court gave insufficient credit for age and intellectual disability and that a calculating error had occurred in respect of the guilty plea discount. In examining the two year discount for youth, the Court of Appeal considered R v Mahoni (1998) 15 CRNZ 428 (CA ) at 436-437 and Pouwhare v R [2010] NZCA 268 at [83]. It considered that there were few factors relating to age that might justify a discount. Specifically, the offending could not be characterised as youthful indiscretion or a single impulsive act. Indeed the use of a knife to threaten suggested premeditation. Consequently a significant reduction for age was not indicated. Two years was held to be a fair discount.

In considering the two year discount for H’s intellectual disability the Court of Appeal considered E v R [2010] NZCA 13. It accepted that it was highly likely that H’s intellectual disability contributed to the offending to some extent. However it also accepted that the intellectual disability also contributed to a heightened risk of re-offending. It held that the two year discount was within the range available to the High Court Judge.

The Court of Appeal accepted that the 20% discount for a guilty plea had been miscalculated. However, the resulting difference of 3% was not sufficient to justify appellant intervention where the end sentence is otherwise within the available range.

Result:
Appeal dismissed.

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L v R [2011] NZCA 405

Court of Appeal
File number: CA123/2010
Date: 25 August 2011
Judges: Glazebrook, Ellen France, Harrison JJ
Key titles: Sentencing in the adult courts: Murder/manslaughter. Reports: Psychiatric.

L (14 years old at the time of the offending) and a co-offender were originally convicted of murder following the beating of an elderly neighbour in his home.

Appeal grounded, in part, on the lack of special measures taken to ensure a fair trial based on L's age, and the effect of L's psychiatric state.

L used marijuana and self-harmed from the age of 12. She also made three suicide attempts, and had problems with eating, hallucinations, depression, and PTSD.

During the well-known trial of 8 youths for the murder of pizza delivery worker Michael Choy, special measures were put in place to take account of the young ages of the accused. In February 2000, the UK‟s Lord Chief Justice issued a practice direction dealing with special arrangements for trials involving young defendants, in the wake of a European Court of Human Rights decision regarding the trial of the two 10-year old killers of James Bulger.

The Court of Appeal accepted that special measures should have been taken to accommodate L's youth at her trial, despite the fact that she was represented by an experienced youth advocate, and is articulate and intelligent.

A psychiatric report prepared for this trial advised that L would have struggled significantly with coping with, and participating meaningfully in, the court process. The Court accepted that L's psychiatric state may have impacted on her ability to make appropriate decisions about her defence. No psychiatric report was done for L at her original trial.

Due to other circumstances related to her legal advice, L also had no opportunity to properly consider her options about a defence in court, about giving evidence or about a plea.

Result:
Appeal allowed. Retrial ordered.

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M v Police

File number: CRI-2011-485-000072
Court: High Court, Wellington
Date: 21 September 2011
Judge: Mallon J 
Key titles: Sentencing in the adult courts: Sexual violation by unlawful sexual connection

Appeal against 3 year sentence for offences which came to light 8 years after they were committed by M as a young person on a younger family member. M admitted offending when it came to light. Since the original offending, M had gained steady employment and was in a stable and supportive relationship. M regretful and remorseful when he realised the seriousness of his offending.

District Court sentencing adopted starting point of 8 years, reduced by 40% for youth and 33% for remorse and guilty pleas.

High Court agreed that the guideline judgment in R v AM [2010] NZCA 114 does apply to young offenders, and that M‟s offending fell at the bottom of band 2 of that judgment.

Court agreed that prison sentences for adolescents can do more harm than good to young boys with good prospects, and this would have been a relevant consideration if M had been sentenced when he was 15 (at the time of the offence). Since then, M had been a reformed character with no comparable offences, and this can be taken into account as a mitigating factor in sentencing. M's good behaviour since the original offending shows that any sentence does not need to address aspects of individual deterrence.

Final sentence in line with other comparable cases.

Result
Appeal successful. Original sentence quashed. As replacement, starting point of 8 years imprisonment was reduced to 3 years for factors relating to M‟s youth, and reduced further to 2 years for guilty plea and remorse. Consideration of home detention not necessary as M had already served nearly a year of his sentence, which means a release date was imminent.

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R v M [2011] NZCA 673, [2012] NZAR 137

Court of Appeal
File number: CA689/11
Date: 17 November 2011
Judges: O’Regan P, Wild and Heath JJ
Key titles: Appeal to the High Court/Court of Appeal: jurisdiction, Delay (s 322), Principles of Youth Justice (s 208).

The Court of Appeal had to determine whether or not s 322, and relevant youth justice principles, could apply in relation to a young person who has been committed to the High Court or District Court for trial. In this case, the accused wanted to rely on s 322 when applying for a discharge under s 347 of the Crimes Act 1961.

Application of s 322 to the District or High Court
The Court held that s 322 did not apply. It noted that s 322 is a power given to Youth Court judges only, it applies to 'information' (which does not encompass an indictment) and that s 2(2) and s 2(3) (which extends s 322 to the District Court if a young person has turned 18 between the time of the alleged offence and the time when the information is laid) would be superfluous if s 322 were found to apply. The Court found that s 347 and the inherent power of the Court to stay proceedings to prevent an abuse of process provided adequate remedies without the need for recourse to s 322.

The Court also commented that the meaning of 'hearing' in s 322 was unclear (i.e. whether it means the date of the hearing of the charges (as in Attorney-General v Youth Court at Manukau [2007] NZFLR 103 (HC)) or the hearing of the s 322 application itself. The Court did not conclude on this, but raised for consideration whether a statutory amendment clarifying the position may be appropriate.

Relevance of youth justice principles to application for discharge under s 347
The Court considered Pouwhare v R and held that youth justice principles are not generally applicable. However, it was noted that youth is nonetheless a relevant factor when considering delay, and in particular the requirement to apply UNCROC and s 25(i) of the Bill of Rights Act 1990 mean that it is an important consideration for a discharge under s 347.

Was the Judge correct to exercise the discretion to discharge under s 347? 
The Court followed the test in Williams v R [2009] 2 NZLR 750, considering whether the fair trial rights of the accused person were affected by the delay and whether the delay was of such a degree to amount to undue delay for the purposes of s 25(b) of the Bill of Rights. The Court found that a delay of 16 months was not enough to justify a discharge, and noted the fact that a trial date was set down for January to assure no further delays.

Result: 
Section 322 and youth justice principles do not apply on committal to District or High Court.

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R v RTW and Others

File number: CRI-2010-019-005681
Court: High Court, Hamilton
Date: 30 September 2011
Judge: Keane J
Key titles: Sentencing in the adult courts: Murder/manslaughter.

Three defendants (R, 14 years old, murder) (P, 15 years old, manslaughter) (I 17 years old, manslaughter) beat and left for dead a 74 year old man in order to steal his car.

R's early life 'increasingly fractured', expelled from school at 12, care and protection history, drug use, gangs, parents were gang affiliated. P, father of 2 year old, large family, no father, gang influences, frequent drug use. I, foster homes, conduct disorder, excluded from schools, recent sentence for robbery with violence, emotionally detached.

R's age did not make life imprisonment manifestly unjust, but was the most important factor (5 year reduction to 17 year minimum term), no credit for remorse, 12 months credit for guilty plea (not at the earliest opportunity).

P, starting point 8 years, for being present and not intervening to stop the beating or to help the victim. 18 months discount for age, 12 months discount for plea.

I, starting point of 8 years, increased by 6 months for recent previous offending, 12 months discount for age, 2 years discount for assistance to authorities, 18 months discount for early plea.

Result:
R, life imprisonment with a minimum term of 11 years. P, 5 and a half years imprisonment, with MPI of 2 years 9 months. I, 4 years imprisonment, with MPI of 2 years.

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R v UGT

File number: CRI-2011-263-000073
Court: High Court, Rotorua
Date: 21 July 2011
Judge: Whata J
Key titles: Media reporting (s 438)

Application for permanent name suppression. In tragic circumstances U (15 years old) stabbed his close friend in the leg, who later died. U's mother encouraged the consumption of alcohol prior to the incident. U remorseful. Strong prospects of rehabilitation and reincorporation into his community.

Court considered that, despite the principles in s 140 of the Criminal Justice Act 1985 and the Court's commitment to open justice, the Court should also have regard to UNCROC, and in particular, treat the young person's best interests as a primary consideration. R v Rawiri HC Auckland 3 July 2002 per Fisher J cited as compelling.

Court found that publication of UGT's name could be highly detrimental to his reintegration.

Result:
Permanent name suppression granted.

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