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Kohere v Police (1994) 11 CRNZ 442 (HC)

Case summary provided by BROOKERS

Name: Kohere v Police
Reported: (1994) 11 CRNZ 442
File number: AP8/94
Date: 16 March 1994
Court: High Court
Location: Rotorua
Judge: Anderson J
Charge: Burglary, Theft, Receiving
CYPF no: s321(1)
Key Title: Sentencing in the adult Courts - application of Youth Court principles
Brooker’s Summary:

Sentence - Sentencing Judge considered previous Youth Court proceedings - Youth Court not a Court of criminal record - However, Youth Court proceedings form part of offenders' behavioural history - May be relevant when determining sentence - Judge had not erred in principle - Children, Young Persons, and Their Families Act 1989,s 321(1) Summary Proceedings Act 1957, ss 71, 209.

Sentence - Suspended sentence - Two-tiered approach required - Sentencing Judge must first determine imprisonment term - Secondly, must determine whether suspension appropriate - Criminal Justice Act 1985, s 21A.

The appellant pleaded guilty to burglary, theft, and receiving charges. He did not have any previous convictions for burglary. The District Court Judge imposed a sentence of 6 months' imprisonment, suspended for 9 months. The appellant appealed against sentence, submitting that the sentencing Judge had erred in principle by taking previous Youth Court proceedings into consideration, and that the sentence was manifestly excessive or otherwise inappropriate.

Held,

(1) The Youth Court is not a Court of criminal record to the extent that matters dealt within it do not constitute criminal convictions. However, Youth Court proceedings form part of the behavioural history of a person to be sentenced in the District Court and the High Court and may be relevant to determining the appropriate sentence. The District Court Judge had not erred in principle by taking previous Youth Court proceedings against the appellant into account when determining sentence.

(2) Under s 21A Criminal Justice Act 1985 a two-tiered approach is required. First, the Court must identify the indications for a sentence of imprisonment and for the term being considered. Secondly, before making an order for the suspension of that sentence, the Court must identify the indications for such a suspension.

(3) The District Court Judge had looked at the appropriate sentence for the appellant in the round rather than in the two-tiered approach required under s 21A Criminal Justice Act 1985. In the circumstances of the case it is highly unlikely that the Court would have sentenced the appellant to 6 months' imprisonment in the absence of a power to suspend.

Appeal

Appeal against sentence.