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D v Youth Court at Tauranga & The Attorney-General, 3 October 2007, High Court, Tauranga, CRI 2007-470-767, Baragwanath J

Name: D v Youth Court at Tauranga & The Attorney-General
Unreported
File number: CRI 2007-470-767
Court: High Court
Location: Tauranga
Date: 3 October 2007
Judge: Baragwanath J
Charge: Attempted murder, aggravated burglary, using a firearm against Police
CYPFA: ss2(2), 283(o), 275
Key title: Conviction and transfer to DC, Jurisdiction - s275 offer/election, Jurisdiction - Age

Case Summary:
Unsuccessful application for judicial review. D challenged Youth Court decision not to offer Youth Court jurisdiction under s275 CYPFA.

Discussion:
D was aged 14 at the time of the offence, but had turned 15 by the time of the YC hearing. He was charged with 5 purely indictable offences, including attempted murder of a Police officer. After depositions in YC, parties agreed there was a case to answer. YC Judge declined to follow authority in Police v H [2004] DCR 97, and declined to offer D the chance to forego the right to trial by jury and stay in the Youth Court, which would have given the Court the opportunity to convict and transfer D to the DC for sentencing under s283(o)of the CYPFA. D was sent to the HC for trial.

D argued that as he was 15 at the time of the proceedings s283(o) would apply if YC jurisdiction was to be offered under s275. A YC Judge could have then convicted and transferred D to the DC. The A-G argued that s283(o) should be read in the light of s2(2) which states that “age” means age “at the date of the alleged offence” for the purposes of jurisdiction and proceedings taken.

The combination of these two provisions means that 14 year olds charged with the most serious offences must be tried and sentenced in the HC, where they are subject to adult sentencing rules, whereas 15 year olds in the same circumstances can be convicted and transferred to the DC, where sentences of imprisonment are limited to 5 years.

Baragwanath J compared the age limit under the CYPFA (16 years old) for making parents and guardians liable for reparation and other costs with the age limit for conviction and transfer, and held that standard principles of statutory interpretation meant that both should be interpreted in the same way. He considered that the age limit as applied to parental reparation is illogical, but needed to be strictly interpreted in order not to make s2(2) meaningless. He described the “fit” between s2(2) and s283(o) as “uncomfortable”, but unavoidable, given that the HC has no power to fix inconsistencies in legislation, in the same way as it does in contract.

The Court upheld the YC Judge’s reasoning declining to offer YC jurisdiction: the seriousness of the offences would require close to the maximum penalty, which would be unavailable in the YC and the DC (given the jurisdictional bar to sending 14 year olds to the DC).

Decision:
Application dismissed.