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R v McLeish (22 July 1997) CA 219/97, Robertson J

Name: R v McLeish
Unreported
File number: CA 219/97
Date: 22 July 1997
Court: Court of Appeal
Location: Wellington
Judge: Robertson J
CYPFA:
Charge: Assault; Robbery
Key Title: Adult co-offenders; Jointly Charged with Adult; General Principles of Sentencing - eg Parity/Jurisdiction

Summary: Appeal against sentence. McLeish (17) and co-offender (16 years, 10 months) picked up a prostitute in parent’s car, drove to a secluded place and attacked and robbed her in the back of the car. Co-offender dealt with in Youth Court; received fine, supervision and community service. McLeish sentenced in District Court to 12 months imprisonment as District Court Judge took view that Criminal Justice Act 1985, s5 applied and expressed concern at culture developing where youth indulged and serious crimes downplayed or ignored. Appeal on grounds that Judge did not consider possibility of suspension and the disparity between the treatment of the two offenders. Held: Suspension did require to be considered once Judge determined that the appropriate avenue was a custodial sentence of 6 months to 2 years (R v Petersen [1994] 2 NZLR 522). Disparity test in R v Lawson [1982] 2 NZLR 219; common enterprise; offenders only 9 weeks apart in age; co-accused "more of the aggressor"; no great damage to victim; no weapon used; McLeish admitted guilt early on; McLeish only 17 years and 1 week old; no previous convictions. Fact that offenders were dealt with in different jurisdictions could not be used as a general blanket to ignore the reality of the consequences for each of them.

Decision: Imprisonment reduced to 3 months due to disparity; Order for suspension confirmed.