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Police v J & P [2006] DCR 526 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v J & P
Reported: [2006] DCR 526
File number: CRI 2004-283-15
Court: District CourtLocation: Wanganui
Date: 13 December 2005
Judge: Callinicos DCJ
Charge: [Serious Sexual Offending]
CYPFA: s208
Key title: Sentencing in the adult Courts: Application of Youth Court Principles; Mental Impairment; Sentencing in the adult Courts: Sexual Violation

LexisNexis Case Summary:

Criminal procedure – Young offenders – Sentence and disposition – Sexual offending by twin brothers – Intellectual disability – Youth justice principles – Whether protection of community achieved by sentencing brothers to imprisonment – Interests of the victims – Whether denunciation and retributive approach appropriate – Compulsory care order – Crimes Act 1961, s 218B – Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 3, 9, 14, 34, 34(1)(b)(ii), 35, 37 – Children, Young Persons, and Their Families Act 1989, ss 101, 283(a), 284, 290, 333 – Intellectual Disability (Compulsory Care and Rehabilitation) Act 2000, ss 26, 85, 463.

In August 2005, the two young persons, twin brothers, were convicted of a number of serious sexual offences and transferred from the Youth Court jurisdiction to the District Court for sentence.

In 1992, when the twins were 14 years old, they were removed from their parents by the Department of Child, Youth, and Family Services (CYPFS) under a place of safety warrant. Since that time, they had been under the care of a variety of caregivers, including their maternal aunt who was the mother of one of the victims of their offending.

Held (ordering a compulsory care order for a period three years in respect of both young persons)
Under s 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIPA) both J and P would be cared for as care recipients under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCRA) rather than being sentenced to imprisonment. The significant gains made by the boys between being charged and being sentenced would, in all likelihood, have been lost if they went to prison. Whilst there was a strong view in higher Court authorities emphasising the denunciation and retributive approach, the principles in the Sentencing Act relating to the protection of the community, the interests of the victims, and the youth justice principles, supported the view that the protection of the community was more likely to be achieved by adopting a course of support, therapy and rehabilitation rather than imprisonment. J and P would therefore not be detained in a secure facility, but would be subject to a care order for an initial minimum period of three years (see paras [96], [100]).

Cases mentioned in judgment
Police v C (High Court, Auckland A 4903, 22 May 2003, Rodney Hansen J).
R v N [1998] 2 NZLR 272.
X v Police (High Court, Auckland CRI 2004-404-374, 11 February 2005, Heath and Courtney JJ).

Sentencing and disposition
This was the sentencing disposition in respect of a number of serious sexual offences committed by twin brothers aged 17 at the time of sentencing.