Youth Court Decisions How to Use Full list of key titles CYPFA section Date

R v C (28 September 1995) CA 332/95, Richardson, Thorp, Williamson JJ

Name: R v C
Unreported
File number: CA 332/95
Date: 28 September 1995
Court: Court of Appeal
Location: Wellington
Judge: Richardson, Thorp, Williamson JJ
CYPFA:
Charge: Sexual Violation - Rape

Key Title: Sentencing in the adult Courts - sexual violation - rape; Sentencing in the adult Courts - application of Youth Court principles

Summary: Appeal against sentence of 18 months supervision with special conditions. C (14 years and 3 months at time of offending) charged with sexual violation by rape of 4 year old cousin; C motivated by a desire to "get back at his aunt", his previous caregiver, who, he felt, had not been giving him enough attention; victim and her family badly affected. YC Judge refused YC jurisdiction as serious charge and supervision, if appropriate, should be for 2 years, not the 6 months available to the YC. C had emotionally deprived childhood, recent attempt at suicide.

Reports recommended C stay in the SAFE programme he was attending; High Court Judge imposed 18 months supervision given that it was appropriate in the special circumstances of the offending, the victim and the offender. 12 months had elapsed since offending, the youth had performed well at the SAFE programme and prison would be inappropriate. Crown agreed to supervision for 18 months on specified conditions but argued this should be underpinned by a sentence of imprisonment suspended under s21A of the Criminal Justice Act 1985 for deterrence, public interest.

Section 5 Criminal Justice Act 1985 and s128B Crimes Act 1961 both create a statutory presumption in favour of full time custodial sentences displaced where having regard to the particular circumstances of the offence or the offender including the nature of the conduct constituting the offence, the Court is of the opinion that the offender should not be sentenced to imprisonment. Youth alone does not justify leniency: R v Accused [1989] 1 NZLR 645, 655, but it may be a highly relevant consideration and the younger the defendant, the more significant its relevance: R v Cuckow (CA 312/91, 17 December 1991).

Held: lower Court Judge did not err in principle in declining to impose a suspended sentence of imprisonment, because: (1) age of offender; (2) special circumstances of offending and offender, C’s motivation for offending and his unfortunate family circumstances; (3) C had performed well to date on programmes devised for him; (4) deterrent effect unlikely 1 year after event.

Decision: Application for leave to appeal dismissed.