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E v Police (1995) 13 FRNZ 139; [1995] NZFLR 433 (HC)

Case summary provided by BROOKERS

Name: E v Police
Reported: (1995) 13 FRNZ 139; [1995] NZFLR 433
File number: AP328/94
Date: 2 March 1995
Court: High Court
Location: Christchurch
Judge: Williamson J
Charge: Burglary; Making a False Statement
CYPF no: s283(o); s290(1)(c); s351
Key Title: Adult co-offenders; Jointly charged with Adult; Orders – Conviction and transfer to the District Court for sentence – s283(o); Conviction and transfer to District Court
Brooker’s Summary:

Youth justice - Jurisdiction - Appeal from decision of Youth Court that young person be dealt with in District Court - Burglary charges - Adult co-offenders received strict sentences - Appellant had been through process required in Youth Court - Whether appropriate to insist on uniformity between co-offenders - Persons of appellant's age entitled to special consideration under Children, Young Persons, and Their Families Act - Order wrong in principle - Incorrect weight given to some factors - Children, Young Persons, and Their Families Act 1989, s 351.

This was an appeal from the decision of a Youth Court Judge making an order that the appellant, a 16-year-old woman, be dealt with in the District Court. The order appealed from was made under ss 283(o) and 290(1)(c) Children, Young Persons and Their Families Act 1989.

The appellant faced criminal charges for the first time. She initially appeared in the Youth Court on six charges of burglary and one charge of making a false statement. She was remanded for a family group conference. Seven of the victims of the offences attended the conference and concluded that they did not want the appellant punished further, but wanted her helped. At the conference the appellant had apologised and undertaken to try to recover some of the stolen property. A psychiatric report under s 333 was recommended, and the psychiatrist concluded that it was important for the appellant to receive ongoing help. He thought it important for the appellant to continue her work and that any sentence imposed should not affect that work.

The family group conference was reconvened, and recommended that the appellant make a donation to each victim, and be subject to informal supervision for 6 months. During this time she was to perform community work, have counselling with a psychiatrist, take any further treatment recommended by her social worker or psychiatrist, and not to reoffend.

The appellant appeared in the Youth Court again following that conference and was remanded so that further updates could be obtained on the victim impact and social work reports. When the appellant subsequently appeared in the Youth Court, the Judge made the decision appealed from. The reasons expressed for that decision were that the charges were very serious, the appellant was heavily involved in the offending, the co-offenders had been sent to prison and there was a need for consistency and parity, and no sufficient penalty was available in the Youth Court. The most important of those reasons was the need for uniformity between the co-offenders.

The appellant argued that the District Court Judge failed to give sufficient weight to the new and enlightened policy of youth justice. The appellant contended that Parliament deliberately created a different system for offenders under age 17, and that to equate the sentences of persons [(1995) 13 FRNZ 139, 140]under 17 with those over 17 was wrong in principle. The appellant also submitted that the District Court Judge had not given sufficient weight to several other relevant factors.

Held, allowing the appeal and quashing the order made in the Youth Court:

(1) The Crown submitted that the District Court Judge was entitled to have exercised his discretion in the way he did and that it had not been dependent only on questions of parity. However, the Crown's submission that the fact that the female co-offender was only 3 months older than the appellant created an injustice if there was not parity between them was not supported by authority. That submission appeared contrary to authority, which stated that persons of the appellant's age were entitled "to the special consideration reflected in the philosophy underlying the Children, Young Persons, and Their Families Act 1989". (p 143)

R v Brown 29/11/94,CA347/94 considered
R v Le Marquand 16/5/91, CA17/91 considered

(2) The order made by the District Court Judge was wrong in principle, and in arriving at it he gave undue weight to some factors and insufficient weight to others. It was relevant that the appellant had undergone the process required in the Youth Court, and that positive and thoughtful recommendations had been made by the conferences which accorded with the report obtained from a specialist. (p144)

Statutes and regulations referred to

Children, Young Persons, and Their Families Act 1989, ss 283, 290, 333, 351

Cases referred to

R v Brown 29/11/94, CA347/94
R v Le Marquand 16/5/91, CA17/91
S v District Court at New Plymouth (1992) 9 FRNZ 57; 8 CRNZ 241

Appeal

This was an appeal from a decision of the Youth Court making an order that a 16-year-old woman be dealt with in the District Court.