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S v Police [2000] NZFLR 380 (HC)

Case summary provided by LEXISNEXIS NZ

Name: S v Police
Reported: [2000] NZFLR 380
File number: AP 139/99
Date: 23 September 1999
Court: High Court
Location: Auckland
Judge: Potter J
Charge: Injuring with Intent to Injure; Recklessly Driving a Motor Vehicle
CYPFA: [2000] NZFLR 380s283(o); s284; s290
Key Title: Conviction and transfer to District Court; Orders - Conviction and transfer to the District Court for sentence - s283(o)

LEXISNEXIS Summary:

Youth Offenders - Sentencing - Injuring with intent to injure - Transfer to District Court for sentencing - Whether decision to transfer was wrong at law - Appellant had been involved in serious offending and only fell within the youth offender framework by a matter of days - Failure to give regard to matters essential to transfer decision - Social Worker had recommended discharge - Crimes Act 1961, s 189(2) - Children, Young Persons, and Their Families Act 1989, ss 283, 284.

The appellant appealed against a decision of the Youth Court to transfer sentencing to the District Court. The appellant had pleaded guilty to three charges of which the most serious was injuring with intent to injure under s 189(2) of the Crimes Act 1961. The other two charges related to recklessly driving a motor vehicle and presenting an airgun. The appellant had only fallen within the youth offender framework by a matter of days. A family group conference had been held and its recommendations were admonishment in respect of the charge of injuring with intent and a discharge in respect of the other two charges. A social worker was also commissioned to provide a report requested to gain the input of the victim who was in jail facing other charges. The report recommended a six month suspended sentence. The Youth Court Judge was concerned about the proximity of the charges and their seriousness. He found that the social worker’s report gave him no information about the appellant. He declined to discharge the appellant and convicted him and transferred the matter to the District Court for sentencing.

The appellant appealed on the basis that the Youth Court Judge had failed to give adequate consideration to the principles of the Act and its system of restorative justice. It was submitted that the Judge had failed to have regard to the mandatory considerations under s 284(b) of the Act including the history, social circumstances and personal characteristics of the young person and also the family group recommendation as required by s 284(h). It was further argued that an order could not be made under s 283(o) unless the provisions of s 290(l) were satisfied. That required that the offences were purely indictable, that the circumstances were such that if the young person were an adult a full custodial sentence would have been imposed on conviction and that the Court be satisfied that because of the special circumstances of the offence or the offender any order of a non-custodial nature would be clearly inadequate. This was a case where if the appellant had been an adult offender s 5 of the Criminal Justice Act would have applied. However it was submitted that in this case there were special circumstances such as the fact that the appellant was acting under extreme provocation.

Held (quashing the transfer order and ordering a rehearing as to sentence before the Youth Court)

(1) The Youth Court Judge had been plainly wrong in ordering a transfer in this case. The decision was brief. It did not develop in any detail the matters which were necessary to found jurisdiction under s 290. While some matters were considered other relevant matters were not detailed. Though this was serious offending the appellant was entitled to have his case fully examined under the Youth Justice system before a transfer was ordered. As this did not occur the decision was incorrect.

Case referred to in judgment

E v Police (1995) 13 FRNZ 139

Appeal

This was an appeal against an order transferring sentencing from the Youth Court to the District Court.