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H v Police (1997) 15 FRNZ 678 (HC)

Case summary provided by BROOKERS

Name: H v Police
Reported: (1997) 15 FRNZ 678
File number: AP63/97
Date: 18 July 1997
Court: High Court
Location: Hamilton
Judge: Hammond J
Charge: Wounding with Intent; Aggravated Burglary; Unlawfully Interfering with a Motor Vehicle
CYPFA: s208; s283(o); s344; s284; s290
Key Title: General Principles of Sentencing eg Parity/Jurisdiction; Principles; Conviction and transfer to District Court; Orders – Conviction and transfer to District Court for sentencing – s283(o)

BROOKERS Summary:

Child, young persons, and their families - Youth justice -Young person transferred to District Court for sentencing - Risk of gross disparity of sentence with co-offender - Sentence to be least restrictive appropriate and to maintain and promote development of young person - Challenge to District Court sentence premature - Seriousness of offending required remittance - Children, Young Persons, and Their Families Act 1989, ss 208, 283, 284, 290, 344.

H, aged 15, was convicted of wounding with intent, aggravated burglary, and unlawfully interfering with a motor vehicle, together with W, also aged 15, and a 12-year-old. Both 15-year-old offenders were brought before the Youth Court. W was transferred to another Youth Court, where he was ordered to undertake supervision with residence, followed by 6 months' supervision under s 283(n) Children, Young Persons, and Their Families Act 1989. Although the police disputed this sentence, no appeal was lodged.

H was remanded to a family group conference which did not reach agreement on an appropriate sentence. The Youth Court Judge transferred H to the District Court for sentence, considering that, in the light of H's history and the nature of the attack, against an elderly woman, a deterrent sentence was required. H appealed on the grounds that a custodial sentence in the District Court would result in gross disparity with W's sentence and that, in remitting H to the District Court, the Youth Court Judge failed to recognise the requirements of s 208 Children, Young Persons, and Their Families Act, and the potential family support available to H.

Held, dismissing the appeal:

(1) Any question of the appropriateness of District Court sentencing was premature as the Court had not yet passed sentence. Parity in sentencing may well be an issue for the Court. If that principle was infringed, H would have the right to appeal. (p 680, line 13)

(2) The second ground of appeal was essentially against the exercise of a discretion. The Judge's finding could not be said to be plainly wrong. Given the nature of the report under s 344 Children, Young Persons, and their Families Act, there was ample evidence to support a finding that H's family would not support him in making reparation and an apology to the victim. The appeal was dismissed. (p 680, line 27)

Statutes and regulations referred to

Children, Young Persons, and Their Families Act 1989, ss 208, 283, 284, 290, 344[(1997) 15 FRNZ 678, 679]

Appeal

This was an appeal against a Youth Court Judge's decision to transfer a young person to the District Court for sentence under s 283(o) Children, Young Persons, and Their Families Act 1989.