Youth Court Decisions How to Use Full list of key titles CYPFA section Date

P v Police, 23 August 2007, High Court, Wellington, CRI 2007-478- 48, Mallon J

Name: P v New Zealand Police
Unreported
File number: CRI 2007-478-48
Court: High Court
Location: Wellington
Date: 23 August 2007
Judge: Mallon J
Charge: Aggravated Robbery
CYPFA: s208, S283(o)
Key title: Sentencing in the Adult Courts, Youth Justice Principles

Case Summary:
Unsuccessful appeal against sentence. P, a YP (16 at time of offending) pleaded guilty to a charge of aggravated robbery. On this charge and a number of lesser charges he was sentenced in the DC to 3 years imprisonment.
YC jurisdiction was originally offered and accepted by P under s276 of the CYPFA. The charge was “not denied” and he was remanded to the YC for orders following a FGC.
A decision to transfer to the DC for sentencing was conceded due to the seriousness of the charge, P’s record and because his age precluded him from high-end YC orders.
DC Sentencing
In sentencing the DC Judge took a starting point as four years imprisonment for the aggravated robbery charge. From this she reduced the sentence by 18 months for P’s age, his guilty plea and his “to a limited extent’ remorse. The sentence was uplifted 6 months for aggravating factors, which were that P had committed most of the offences while he was subject to sentences, his previous convictions and the previous orders that had been made in the YC.
Three years imprisonment was imposed on the aggravated robbery charge, concurrent with three months imprisonment on the other charge and the appellant was discharged from driving for six months.

CYPFA Principles
There is conflicting HC authority regarding whether the DC, following transfer, is a Court exercising a power under s238(o) of the CYPF Act. If so, it should be guided by the principles in s208 of the CYPF Act. Otherwise the DC’s sentence or decision is exercised solely by reference to the principles in the Sentencing Act 2002. In X v Police [2005] 22 CRNZ 58 Courtenay and Heath JJ held that youth justice principles should be taken into account. In R v Patea-Glendenning [2006] DCR 505 Miller J declined to follow X and held that, once proceedings were transferred to the DC, youth justice principles did not apply.

Effect of Applying YJ Principles
Counsel for P submitted that R v Mako [2000] 2 NZLR 170 is not relevant to sentencing a YP as that case refers to youth, but not ‘youth justice principles’. Mako is authority for the principle that determining a starting point is universal regardless of age, and youth should then be treated as a mitigating factor to be given greater weight than normal.
Counsel for the respondent submitted that Mako is relevant to sentencing on all aggravated robbery offending despite the five year jurisdictional limit on the DC.

Discount
The DC Judge gave a discount of 37% for the guilty plea, youth and remorse. A discount of 25% is common for a guilty plea and the remorse, leaving a 12% discount for youth.

Uplift
Counsel for the appellant submitted that is was wrong to uplift the sentence for aggravating features and that the DC convictions were not relevant because they post-dated the aggravated robbery.
It was also submitted for the appellant that the Judge erred in referring to P’s YC record as this amounted to a double counting. She said it had already been taken into account when the decision was made to transfer P to the DC.
ISSUES
1. Whether as a matter of law the DC was required to take into account the principles of the CYPF Act when sentencing the appellant.
2. Whether the principles of the CYPFA if applied would lead to a lesser term of imprisonment.
3. The effect of the Judge wrongly referring to privileged material from the family group conference under the CYPFA.
4. Whether too much weight was placed on other convictions and the appellant’s YC record.

Decision
Dismissing the appeal. The sentence gave an appropriate discount for mitigating factors, including youth and the effective term of the sentence on all the charges before the DC was not excessive.
1. The outcome would not be different whether the X v Police or Patea-Glendenning approach was applied.
Mallon J considered that the assessment of culpability was not to be assessed as though the five year jurisdictional limit was the maximum penalty for the most serious kind of aggravated robbery. If the offending was so serious that it warranted a sentence greater than five years that might be relevant in determining whether YC jurisdiction should be offered. The ability to offer YC jurisdiction to an offender reflects that youth is relevant for the reasons set out in Patea-Glendenning: the development level of adolescents may make their culpability lower and may cause them to suffer more from incarceration than adults.
That does not make Mako irrelevant to the assessment of the appropriate starting point where a term of imprisonment is to be imposed. Youth will be a relevant consideration as recognised by Mako. Mako is also not inconsistent with youth justice principles that the sanction ‘takes the least restrictive form that is appropriate in the circumstances’. The Sentencing Act 2002 has a similar provision.

2. No greater discount than 12% for youth was warranted in this case. The appellant was not a first offender nor one genuinely motivated to reform. The 37% discount was not inadequate. A focus on the youth justice principles of rehabilitation would not have made a difference as under the Sentencing Act 2002 the Court was required to consider rehabilitation, and here rehabilitation prospects are not good in the short term.

3 Mallon J did not see the privileged report. In light of the admissible material, a sentence of three years imprisonment was appropriate.

3. The DC convictions were relevant because they were the 10 convictions that were before the Judge for sentencing. The DC judge looked at the totality of the offending and considered 3 years appropriate. Those 10 matters related to offending when the appellant was 17 years old and therefore the restriction on imprisonment for offenders under 17 (s18 Sentencing Act 2002) no longer applied. Each of the offences were subject to maximum penalties of between three months and seven years and the Judge could have imposed cumulative sentences totalling six months rather than treating this offending as an aggravating feature of the aggravated robbery.
Mallon J found that it was not necessary to decide whether and when a YC record would warrant an uplift on an imposition of a sentence to be imposed in the YC. There were 10 other charges before the Court. Cumulative sentences totalling a further six months on a two and a half year sentence was warranted. That would have had the same net result for the appellant.