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Youth Court Decisions

X v Police (11 February 2005) HC, Auckland, CRI 2004-404-374, Heath and Courtney JJ

Name: X v Police
Unreported
File number: CRI 2004-404-374
Date: 11 February 2005
Court: High Court
Location: Auckland
Judge: Heath and Courtney JJ
CYPFA: s208; s283(o)
Charge: Unlawful Sexual Connection; Indecent Assault
Key Title: Sentencing in the adult Courts - application of Youth Court principles; Sentencing in the adult Courts - Sexual violation - Rape

Summary: This case considered whether youth justice principles (set out in s208, CYPFA) apply in an adult tariff Court, and if so, to what extent should those principles be taken into account. X was charged with several counts of unlawful sexual connection and indecent assault with two young males (one under the age of 12 and one aged between 12-16). X was aged between 14 and 15 at the time of the particular offending with which he was charged. He came before the Youth Court at the age of 17. X admitted the charges in the Youth Court. The Court entered a conviction on each charge and ordered that X be transferred to the District Court for sentence under s283(o) CYPFA. The District Court sentenced X to three years imprisonment on each of the sexual violation charges, to be served concurrently. X appealed against his sentence on the ground that the sentence imposed by the District Court Judge was manifestly excessive, inappropriate, and did not take into account youth justice principles relevant to the sentencing decision. Held: The District Court must take into account youth justice principles in determining the length of the sentence of imprisonment to be imposed for a youth offender following a transfer for sentence from the Youth Court. Several factors should be taken into account when sentencing young offenders, including:

The age of the offender and their particular vulnerability and immaturity;

Findings in the Youth Court as to chances of rehabilitation and support groups;

The reasons why the Youth Court Judge transferred the case to the District Court; and

The principles and purposes of sentencing reflected in the goals of s208 of the CYPFA.

Outcome

Appeal allowed. Sentences imposed by District Court Judge set aside.

X sentenced to 2 years on each sexual violation charge, terms to be concurrent. 50% discount to sentence due to acceptance of early responsibility, remorse, and age of offender. Age was an important factor: "The age of the offender takes account of his vulnerability and immaturity which in turn operate to lessen (at least to some degree) the weight to be given to premeditated offending." [109]

Leave to apply for home detention granted.

Section 14(1) Parole Act 2002 conditions apply with other conditions specified in judgment.

The High Court’s Analysis

The Statutory Scheme

There are important differences in procedure and the consequences of any finding that a charge has been proved between the youth and adult courts.

The CYPFA governs youth justice in New Zealand. The law recognises that youth offenders ought to be treated differently from adult offenders. The particular features of the youth justice system highlighted in the High Court case were:

The Youth Court operates using age-related controls, sanctions and procedures that recognise the limited understanding and particular vulnerability to influence of young people (Police v Edge [1993] 2 NZLR 7 (CA).

The Youth Court applies "youth justice principles" set out in s208 of CYP Act (E v Police (1995) 13 FRNZ 139, 140) that reflect the objects of the Act.

The consequences of electing trial by jury are significant as to potential sentence. The maximum sentence that can be imposed by a District Court following a transfer for sentence from the Youth Court is 5 years for the reasons given by the Court of Appeal in R v P (CA59/03, 18 September 2003, Keith, Hammond and Patterson J).

The method of disposal of criminal proceedings in the Youth Court is unique. The Youth Court does not have to enter convictions after proof that the offence has been committed. Rather, the Court may make one or more of the orders set out in s283 of the CYP Act.

In this case, the Youth Court made an order for transfer to the District Court under s283(o) of the CYP Act. Section 290 restricts the making of a s283(o) order:

290.Restrictions on imposition of supervision with residence or transfer to District Court for sentence—

(1)No order shall be made under paragraph (n) or paragraph (o) of section 283 of this Act in respect of a young person unless—

(a)The offence is a purely indictable offence; or

(b)The nature or circumstances of the offence are such that if the young person were an adult and had been convicted of the offence in a Court other than a Youth Court, a [sentence of imprisonment (within the meaning of section 4(1) of the Sentencing Act 2002]) would be required to be imposed on the young person; or

(c)The Court is satisfied that, because of the special circumstances of the offence or of the offender, any order of a non-custodial nature would be clearly inadequate.

(2)No order shall be made under section 283(o) of this Act unless the Court has considered all other alternatives available to it under this Part of this Act and is satisfied that none of them is appropriate in the circumstances of the particular case

The High Court stated that this process was of some importance as "In effect, an order for transfer is a recognition that sanctions available solely in the Youth Court are inappropriate to respond to the particular offending in issue." [38] A transfer order indicates that a wider range of sentencing options ought to be considered. It removes the option of purely Youth Court sanctions being imposed for the offending. [41]

In making sentencing decisions the Youth Court is guided by:

(a) the principles of youth justice (s208 of the CYP Act);

(b) The objects of the CYP Act;

(c) The principles to be applied generally in the exercise of powers conferred by the Act; and

(d) The long title to the Act.

When a decision is transferred to the adult tariff court the provisions of the Sentencing Act apply. The High Court therefore had to consider whether and how youth justice principles would apply in the District Court. The authorities on the applicability of youth justice principles outside the Youth Court have developed in an ad hoc manner:

A detailed history of the case law is at paras [46] to [56]. Only one case dealt with the interface between the CYP Act and Sentencing Act in the context of a transfer for sentence in the District Court under s283(o) of the CYP Act, R v Thompson Jackson (2002) 20 CRNZ 1051.

R v Thompson Jackson was a case that involved an aggravated robbery where the tariff case of R v Mako ordinarily applied. In his judgment, Judge Harvey held that the sections in the CYP Act continued to be available in the District or Sentencing Court. The High Court quoted extensively from his judgment, citing in full paras [25] to [30].

Reasoning

The Court’s analysis is set out at paras [68] to [85].

(a) Applicability of youth justice principles

The starting point for analysis is s283(o) of the CYP Act. "In effect an order for transfer has the effect of removing a young offender from the youth justice regime." [68] Once in the adult tariff court, the provisions of the Sentencing Act 2002 apply.

The Sentencing Act provides a framework for analysis when imposing a sentence. Nothing in either s9(1) or (2) of the Sentencing Act (which list aggravating and mitigating factors to be considered by a sentencing Court) prevents the Court from taking into account other aggravating or mitigating factors.

When a Youth Court determines if a young offender should be sentenced in the District Court it must apply the criteria set out in s290 of the CYP Act. The factors of particular importance relate to the likelihood of a custodial sentence being imposed (s290(1)(b) and (c)). When the Youth Court makes that assessment, ss16 and 18 of the Sentencing Act are also relevant.

In determining whether a District Court is obliged to have regard to youth justice principles the wording of s208 of the CYP Act assumes importance. The first two principles are only relevant to the youth court "[p]rima facie, the balance of the principles set out in s208 are relevant to sentencing, whether in the Youth Court or the District Court" (i.e. s208 (c) to (h)).

Section 5 of the CYP Act, to which s208 is expressly subject - refers to principles to be applied by any Court exercising powers conferred by or under the Act (ie s5(a)-(f)). There was some discussion about the meaning of the underlined words. The High Court held:

(a) The words "any Court" are not limited to the Youth Court [76].

(b) When the District Court sentences a young person pursuant to a s283(o) order the DC exercises a power conferred by or under parts 4 or 5 of the CYP Act, and so is exercising a power "conferred by or under the Act".

The High Court addressed "whether this construction causes an inconsistency between those cases in which the young person is tried summarily in the Youth Court (whether in respect of summary or indictable offences) and those in which trial by jury is elected and the option to revert to the Youth Court jurisdiction is not offered or not accepted". It held at [80]:

"We accept the argument that sentencing exercised after trial by jury is a power "conferred by or under [Part 4] or Part 5" of the CYP Act (for the purposes of s208) is more tenuous. But, we have come to the view that it is a valid interpretation given that, even in the most serious offence of murder, a modified preliminary process is mandated by the CYP Act. For that reason we hold that the CYP Act empowers the sentencing Court by providing for the way in which different Courts deal with particular charges in specified circumstances."

[81] As s4, 5, and the Long Title to the CYP Act are located within earlier parts of the statute, there is nothing in s208 of the CYP Act that could preclude a sentencing Court, other than the Youth Court, from taking those objectives, purposes and principles into account." [81]

The effect of this obiter statement is that where a case has only passed through the Youth Court as a matter of procedure any sentencing decision in the adult tariff courts will have to consider youth justice principles.

The High Court stated that their interpretation was consistent with that of Judge Harvey in Jackson Thompson except in three important aspects, set out at para [83] from (a) to (c).

Some Important Principles

The Court outlined at [85] "some important principles which we consider ought to be followed when District Court Judges are asked to sentence under s283(o) of the CYP Act":

(a) In many cases the Youth Court will have inquired, both through the receipt of specialist reports and at a Family Group Conference, whether adequate family support groups exist to assist an offender to rehabilitate. Findings on that issue ought to be included in the reasons for transferring the young offender to the District Court for sentence because a finding, one way or the other, may influence the District Court on sentence. Similarly, any findings as to the nature of such a support group are also likely to be helpful.

(b) The extent to which the youth justice principles set out in s208 and the purposes of the CYP Act can be taken into account will fall for consideration on a case by case basis. A District Court Judge will need to be reasonably specific in his or her analysis of the weight to be given to particular factors so that an appellate Court can understand the reasons why the sentence was chosen. In particular, it is important that the District Court Judge take account of the reasons for transfer given by the Youth Court because the decision to transfer necessarily means the case is too serious for Youth Court sanctions alone.

(c) In cases of sexual violation, non-custodial sentences can rarely (if ever) be justified because of the existence of s128B of the Crimes Act 1961 and the dicta of the Court of Appeal in R v N. Nevertheless, the principles of youth justice are still relevant in fixing the length of the appropriate term of imprisonment. Often, the youth justice principles will be relevant to the sentencing goal of imposing the least restrictive outcome available in the circumstances: s8(g) of the Sentencing Act.

(d) Many of the principles and purposes of sentencing reflect goals set out in s208 of the CYP Act. For example, s8(h) and (i) and the mitigating factor of age (s9(2)(a)) can be seen as directly relevant to the principles in s208(c), (d), (e) and (f).

[85] Finally, and most important of all, we reinforce what was said by Judge Harvey in Jackson-Thompson. The application of youth justice principles does not prevent the District Court from imposing a sentence of imprisonment. Nor does it they prevent the District Court, in appropriate circumstances, from holding that sentencing goals of accountability for harm done, denunciation and deterrence require a longer custodial sentence because those factors assume primacy over the youth justice principles. Each case must be determined on its own facts. The point is that the sentencing of a young person must take account of youth justice principles.