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P v Police (1998) 17 FRNZ 33 (HC)

Case summary provided by BROOKERS

Name: P v Police
Reported: (1998) 17 FRNZ 33
File number: AP 40/98
Date: 21 April 1998
Court: High Court
Location: Auckland
Judge: Williams J
Charge: Aggravated Robbery
CYPFA: s283(o); s284, s290
Key Title: Conviction and transfer to the District Court; Orders - Conviction and transfer to the District Court for sentence - s283(o); General principles of sentencing eg Parity/Jurisdiction; Youth Court procedure

BROOKERS Summary:

Youth justice - Procedure - Jurisdiction - Appellant involved in aggravated robbery - Appellant convicted and sentenced in District Court jurisdiction - Co-accused dealt with in Youth Court - Not convicted - Failure by District Court Judge to follow family group conference recommendations - Children, Young Persons, and Their Families Act 1989, ss 4, 5, 6, 208, 284, 290.

In January 1998 the appellant ("P") and two other youths robbed a takeaway bar. They entered the premises disguised and armed with two weapons. P stood guard over the employees and threatened them with an air rifle, while his associates took chocolates and cigarettes. At the time P was 15 years old and his co-accused were 16 years old.

A family group conference was held. It was unanimously agreed by those present that both charges against P should be retained within the Youth Court jurisdiction. A detailed plan, designed to encourage his reformation in accordance with the principles of the Children, Young Persons, and Their Families Act 1989 was implemented. The social worker's report concurred with these recommendations.

However, when the matter came before him, Judge McElrea declined to accept the recommendations. He transferred P to the District Court and sentenced him to 8 months' imprisonment suspended for 8 months, together with 12 months' supervision, provided P carried out all of the family group conference's recommendations. P's co-offenders were dealt with by different District Court Judges on different days. In each of their cases the Court accepted the conference's recommendation that the charges against them be retained in the Youth Court.

P appealed on two grounds: that the charges against him should not have been transferred to the District Court, having regard to the principles of the Children, Young Persons, and Their Families Act 1989 (ss 4, 5, 6, 208, and 290); and that the Court was required to consider other alternatives before transferring the proceedings and the factors to be taken into account on sentencing.

Held, allowing the appeal and remitting the matter to the Youth Court for reconsideration:

(1) The District Court Judge had considered the appropriate legal requirements before transferring the appellant's charges to the District Court. It was open to the District Court Judge and the Youth Court Judge to treat the appellant as being the major offender. The appellant was the only offender to carry an operable weapon. He played a major part in the robbery and continually threatened the takeaway occupants. His co-offenders played a lesser part. (p 35, line 35; p 37, line 13)[(1998) 17 FRNZ 33, 34]

H v Police (1997) 15 FRNZ 678

R v Brown unreported, 29 November 1994, CA347/94

R v Cuckow unreported, 17 December 1991, CA312/91

R v Lawson [1982] 2 NZLR 219 (CA)

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

(2) Had the District Court Judge been aware of all the circumstances concerning the other two offenders, it is conceivable that he may have reached a different decision. He may have considered that it was demonstrably unfair for the appellant to have a conviction against his name, when the co-accused did not. Though the appellant was the major offender, his level of culpability did not seem to have been so substantially different as require treatment which would result in a conviction when he and his co-offenders must all comply with the agreements reached at their family group conferences. Because of these circumstances the Court concluded that the disparity between the sentences imposed on the appellant and those of the co-offenders invited reconsideration. (p 37, lines 29; 41)

Comments, steps had since been taken to endeavour to overcome the difficulties faced by District Court and Youth Court Judges in circumstances such as these, where none of the three District Court Judges who dealt with each of the offenders was aware of all the details of the other two cases when they dealt with the offender before them. (p 37, line 21)

Statutes and regulations referred to

Children, Young Persons and Their Families Act 1989, ss 4, 5, 6, 208, 284, 290

Cases referred to

H v Police (1997) 15 FRNZ 678
R v Brown unreported, 29 November 1994, CA347/94
R v Cuckow unreported, 17 December 1991, CA312/91
R v Lawson [1982] 2 NZLR 219 (CA)
R E v Police (1995) 13 FRNZ 139; [1995] NZFLR 433

Appeal

This was an appeal against the transfer of an aggravated robbery charge against the appellant from the Youth Court to the District Court and his subsequent conviction on that charge.