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

R v Carmichael (23 March 1995) CA 521/94, Eichelbaum, Gault, Williamson JJ

Name: R v Carmichael
Unreported
File number: CA 521/94
Date: 23 March 1995
Court: Court of Appeal
Location: Wellington
Judge: Eichelbaum, Gault, 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; Reports - Psychological

Summary: Application by Solicitor-General for leave to appeal against 2 years imprisonment suspended for 2 years with 2 years supervision. Defendant (15 at time of offence) sexually violated 15 year old girl who lived at the same home for youth at risk; victim traumatised. Defendant had severely limited intellectual capacity; no previous convictions but history of aggressive and inappropriate behaviour; no remorse. Psychologist reports conclude prison inappropriate as this would heighten defendant’s criminal tendencies. Exceptional case; rehabilitative approach in defendant’s and community’s interests. Precedents for regarding youth of offender or offender’s limited mental development as grounds for sentence markedly below the usual tariff listed: R v Kircher CA 239/87, 30 September 1987; R v Accused [1989] 1 NZLR 656 (CA); R v Accused [1989] 1 NZLR 643; R v McKay CA 131/93, 11 June 1993; R v Hodder T 58/91, 29 September 1991, Roper J. These cases all prior to increase of the maximum for rape but this increased maximum would not have affected the broad approach of the Courts that the youth or mental state of the accused may justify an exceptional response. Here youth and mental retardation present and thus Judge’s view was within the range of his discretion; selection of shortest time possible in accordance with Art 37(b) 1985 United Nations Convention on the Rights of the Child. As to suspension Judge entitled to regard that situation as within the principles laid down in R v Peterson [1984] 3 NZLR 533, 538.

Decision: Solicitor-General’s application for leave dismissed.