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R v M T-J (2002) 20 CRNZ 1051

Name: R v M T-J
Reported: (2002) 20 CRNZ 1051
File number: TO13622
Date: 1 October 2002
Court: District Court
Location: Manukau
Judge: Harvey DCJ
CYPFA: s5, s208, s284
Charge: Aggravated Robbery
Key Title: Sentencing in the adult Courts -  application of Youth Court principles; Objects; Principles

Summary: This judgment confirms the applicability of Youth Justice principles under the CYPFA to sentencing in the District, and other, Courts, in relation to matters that originated in the Youth Court. In this judgment, Judge Harvey reviews the authorities, discusses the inter-relationship between the principles of the CYPFA and of the Sentencing Act 2002 (SA), then suggests an approach to sentencing youth offenders in the adult Courts.

M T-J, a young person, was charged with aggravated robbery in relation to his participation in the theft of cigarettes from a dairy. During the theft, M T-J smashed a beer bottle on the head of the dairy owner. M T-J was 16 at the time of the offending. The charge was laid in the Youth Court. M T-J denied the charges and no offer of Youth Court jurisdiction was made under s275 CYPFA. The matter went to trial and a jury convicted M T-J. Judge Harvey was then called upon to determine the appropriate sentence in the District Court.

Judge Harvey began by canvassing the relevant case law, including R v Cuckow (CA 312/91) and W v Registrar of Youth Court Tokoroa (CA 166/99). In both of those cases, the Court of Appeal confirmed the continuing applicability of Youth Justice principles to sentencing in adult Court in relation to matters that originated in the Youth Court.

Judge Harvey went on to examine in detail the relevant provisions of the CYPFA (in particular s5, s208 and s284) and the Sentencing Act ("SA") (in particular s7 and s8). He noted the "parallels" between these respective sections, including:

• That age is a mitigating factor.
• The need to balance community protection and offender rehabilitation/reintegration.
• The need to take account of the interests of victims.
• The emphasis on restorative justice (including offers of amends, rehabilitation, reintegration) and the removal of emphasis on punitive/retributive sentencing.
• The emphasis on the offender’s acceptance of responsibility for his/her actions.
• The use of prison as a last resort.

Judge Harvey noted that Youth Court remedies may sometimes be inadequate to address the serious nature of some offending by young people; or it may be that a Youth Court sentence will not last long enough to have the positive effect intended (para [22]). As an example, he mentioned supervision during the completion of a rehabilitative course noting the need, in some cases, for a longer period of legal supervision than was available in the Youth Court. (See Police v FT (13 May 2004, District Court Auckland, CRN 03204004344, Judge A J Becroft).

Judge Harvey gave the following reasons for holding – in line with the Court of Appeal dicta – that Youth Justice principles do apply to sentencing of young offenders in the adult Courts (para [25]):

• Common themes in the relevant provisions of the CYPFA and SA.
• Common principles in the relevant provisions of the CYPFA and SA.
• Recognition that young people occupy a particular position in relation to the law and that this justifies special consideration when imposing a sentence.
• The SA does not exclude the application of the principles of the CYPFA in sentencing of young persons. If it had been intended that the SA would have the effect of overriding such principles, it would have been expected that the legislators would have made this clear in the SA.

In sentencing there should be a consideration of youth justice and sentencing principles; need for consistency of approach but also recognition that offenders should not be stereotyped; the law has made special provision in terms of age of responsibility. Once sentence decided upon having taken principles into account, the duration of the sentence must be measured against the requirements of the Sentencing Act, in particular the age of the offender. The youth of an offender for those who fall under the CYPFA demands an application of youth justice and sentencing principles in the determination of the type of sentence and also a consideration of the duration of the sentence.

In the case before him, Judge Harvey started with a benchmark of 4 – 5 years imprisonment (based on the type of offending). Mitigating factors included M T-J’s age, no previous serious offences, remorse and maturation over the 2-year interval between offending and sentence. Aggravating factors included the violence involved in the offending and the prevalence of the type of offending in question in the locale in which it occurred.

Decision: Taking these factors into account, and adopting the approach to the relevant, applicable principles he had already outlined, Judge Harvey imposed a sentence of imprisonment of 2 years on M T-J.