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Police v FT (13 May 2004) DC, Auckland, CRN 03204004344, Becroft DCJ

Name: Police v FT
Unreported
File number: CRN 03204004344
Date: 13 May 2004
Court: District Court
Location: Auckland
Judge: Becroft DCJ, Principal Youth Court Judge
CYPFA: s283(o)
Charge: Aggravated Robbery
Key Title: Sentencing in the adult Courts - Aggravated Robbery; Sentencing in the adult Courts - application of Youth Court principles

Summary: This judgment was a sentencing in the District Court after the Youth Court made a s283(o) CYPFA order convicting and transferring a young person to the adult Court for sentence. It is an example of how s283(o) CYPFA may sometimes be used not for the purposes of imposing a sentence of imprisonment, but rather to ‘buy more time’ where the young person in question is nearing the expiry age for Youth Court orders (i.e. 17 years and 6 months under s296 CYPFA).

FT was initially charged with disorderly behaviour and being found without a reasonable excuse in an enclosed yard. Both these charges related to incidents when FT was intoxicated. While subject to an FGC plan in respect of his earlier offending, FT, with a group of friends, approached three teenage boys and coerced them into driving them about in their car. They then robbed the boys of money, clothing and cell-phones, using threats of violence, and violence, to get what they wanted. FT and his friends then robbed a teenage boy of his shoes, cell-phone and money using threats of violence. In respect of each of these two incidents, FT was charged with aggravated robbery. The matter came before the Youth Court where FT was offered, and accepted, Youth Court jurisdiction. A s283(o) order was subsequently made by consent. The primary reason for making the s283(o) order was that FT was, by that time, 17 years and 4 months old – that is, he was almost at the expiry age for Youth Court orders.

In the District Court sentencing, Judge Becroft focused on the aggravated robbery offences. He began by weighing the aggravating and mitigating factors. The aggravating factors in F’s case included a degree of planning, group violence and threats, two incidents of offending within a short space of time; and at the time of the aggravated robberies, F was already subject to an FGC plan with which he was supposed to be complying. The mitigating factors in FT’s case were his age, no prior convictions/Youth Court orders, remorse and taking responsibility for his actions. While FT was held on remand under s238(1)(d) CYPFA he had behaved well.

Here, two conflicting sentencing approaches: the District Court is a tariff Court and, under R v Mako [2000] 2 NZLR 170, the offending in question should lead to a prison sentence of 1 - 2 years. On the other hand, Youth Court principles are important, given that the case had been transferred from the Youth Court for sentence, and, in particular, to take account of the following four factors:

1. FT’s friend, who offended with him, had already been sentenced in the Youth Court. He would, if all went well, end up with no more than a Youth Court order on his record. If FT was sent to prison for the same offending, this would not achieve sentencing parity.
2. The reason FT was made subject to a s283(o) order was that he was nearing the expiry age for Youth Court orders. Implicitly, had FT not been as old as he was, the matter would have been kept in the Youth Court and dealt with by a Youth Court order. A Youth Court order would have been appropriate in this case, but for the issue of FT’s age.
3. FT had already spent 5 months in CYFS’s custody under s238(1)(d) and this must be taken into account in sentencing.
4. There was a genuine possibility that FT could be rehabilitated and never offend again. This was most likely if he were to go on the Reducing Youth Offending programme. If he were sentenced to prison, however, he would not qualify for that programme.

Decision: Judge Becroft concluded that he would take a "very unusual and rare step" and sentence FT not to prison, but rather to two years supervision, during which time he would be subject to conditions which included a Reducing Youth Offending Programme, alcohol counselling and treatment, an anger management programme and educational employment training.

Judge Becroft indicated that if FT failed to comply with any of these conditions, then an application should be made to review the sentence and, in that case, a sentence of 1 - 2 years imprisonment "would be absolutely inevitable".