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

Police v Moala (2 March 2007) HC Auckland CRI-2006-404-389, Harrison J

Name: Police v Moala
Unreported:
File number: CRI-2006-404-389
Court: HC
Location: Auckland
Date: 2 March 2007
Judge: Harrison J
Charge: aggravated burglary, aggravated robbery, assault, threatening to kill
CYPFA: 283(o)
Key title: Sentencing in the adult courts: Application of YC principles
Key title: Sentencing in the adult courts: Aggravated robbery
Key title: Sentencing in the adult courts: Aggravated burglary
Case Summary:
M pleaded guilty in the Youth Court to 32 offences over 8 months. He was then convicted and transferred to the District Court under s283(o) of the CYPF Act. Though defence counsel recommended a sentence of 3 to 4 years imprisonment, M was eventually sentenced to two and a half years. The Crown appealed.

M turned 16 during his 8 month “avalanche of offending”. Youth offenders can only be sentenced in the DC to imprisonment on ‘purely indictable’ charges (Sentencing Act s18(1)). 6 out of the 32 offences fell into this category.

Harrison J identified the lack of a starting point as the DC judge’s primary mistake and referred to the sentencing practices spelled out by Gault J in R v Mako [2000] 2 NZLR 170 for these particular offences. Mako is authority for the principle that determining a starting point is universal regardless of age, and youth should then be properly treated as a mitigating factor to be given greater weight than normal (Priestley J in McCollum v Police HC Whangarei AP22/03 18 August 2003).

A psychological report described M as having severe conduct disorder, little consideration for the consequences of his behaviour, and little real empathy with his victims, leading to little overall prospect for his rehabilitation. Prospects of M’s rehabilitation were also hindered, in the Court’s mind, by a spate of 26 serious assaults and burglaries committed against pensioners in the months following his arrest on the more serious aggravated robbery charges.

Justice Harrison determined a starting point of 10 years imprisonment based on the seriousness of M’s offending. Two mitigating factors were then considered: guilty pleas; and age and prospects for rehabilitation. Despite his view that 6 to 7 years imprisonment was appropriate, Justice Harrison felt restrained by the 5 year cap on custodial sentencing when a young offender is convicted and transferred to the DC under s283(o).

Commenting on the debate over the place of youth justice principles applying to DC sentencing following transfer from the Youth Court, Justice Harrison noted his attraction to the decision of Miller J in R v Patea-Glendinning [2006] DCR 505. Miller J held that CYPF Act sentencing principles do not travel with a Youth Court offender when they are transferred to the DC. Instead, s9(2) Sentencing Act 2002 applies to make youth a factor in mitigation. Justice Harrison went on to echo Justice Miller’s observation in Patea-Glendinning that, whichever enactment applied to give a discount for an offender’s age, the result would be no different.

Calling M “a violent offender whose behaviour displays the worst traits of hardened and callous adult criminality”, Justice Harrison commented that a reduction from his preferred sentence to one of 5 years reflected the extent of the leniency that he was prepared to show to M “to allow for his age and associated immaturity and its effect on his culpability”.

Decision:
Sentences increased from two and a half years to concurrent 5 year terms on all aggravated burglary and aggravated robbery charges, with minimum non-parole periods of two and a half years for each.