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

The Queen v Adam Anish Chand-Whakaue, CA [2007] NZCA 216 Chambers, Gendall and Heath JJ

Name: The Queen v Adam Anish Chand-Whakaue
Reported
File number: CA265/06 [2007] NZCA 216
Court: Court of Appeal
Location: Wellington
Date: 31 May 2007
Judge: Gendall, Chambers, Heath JJ
Charge: Assault with intent to injure
CYPFA:
Key title: Sentencing in the adult courts

Decision: There are no exceptions to s18 of the Sentencing Act 2002. A sentence of imprisonment may not be imposed on a young offender who has committed a non-purely indictable charge.

Successful appeal against sentence following the appellant’s guilty plea and sentencing in the DC to 18 months imprisonment on a charge of assault with intent to injure. The appellant was 14 years old at the time of the offending.

Issues:

1. Whether the DC had jurisdiction to impose imprisonment?
2. If not, what was the appropriate sentence?

Background Facts

During an altercation with the victim, the appellant kicked and punched the victim, leaving him unconscious outside his flat in the cold. The victim suffered severe brain damage.

The appellant denied the charge in the YC and a preliminary hearing took place in the YC on 28 July 2005. At the preliminary hearing, the YC judge held that a prima facie case had been established.

Judge declined to offer YC jurisdiction for the purely indictable offence. In exercising his discretion not to offer YC jurisdiction, the Judge took into account the seriousness of the charge and the inability to transfer the appellant for sentence in the DC (the appellant being under 15 years of age). The appellant was committed for trial in the HC. Subsequent orders were made by the HC under s 168A of the Summary Proceedings Act 1957 transferring the appellant’s and the adult co-offender’s trials to the DC. Before trial the Crown Solicitor filed an amended indictment containing one count of assault with intent to injure (not a purely indictable charge) to which the appellant plead guilty.

The majority decision, Chambers and Gendall JJ

District Court Jurisdiction

The DC Judge referred to s 18 of the Sentencing Act, but considered it was trumped by s 17 of the Sentencing Act. Section 17 reads “Nothing in this Part limits the discretion of a court to impose a sentence of imprisonment …if that offender is unlikely to comply with any other sentence…”

The CA considered that s 17 of the Sentencing Act did not trump s18 of the Sentencing Act. The meaning of s17 of the Sentencing Act 2002 lay in its legislative history and its forerunner the Criminal Justice Act 1985.

The CA considered that it is absolutely clear that under s 8 of the Criminal Justice Act 1985, a youth under 16 years could not be imprisoned except for a purely indictable offence. Section 9 of the Criminal Justice Act 1985 was essentially reproduced in s 17 of the Sentencing Act. Section 9 of the Criminal Justice Act 1985 could only override ss6 and 7(1), not s 8 of the Criminal Justice Act 1985. Section 9 read “Nothing in section 6 or 7(1) of this Act shall limit the discretion of the court to impose a full-time custodial sentence…”.

The CA considered the wording was changed to “Nothing in this Part…” in s 17 of the Sentencing Act because the Criminal Justice Act was very sparse in setting out purposes and principles of sentencing.
Only ss 5,6, and 7 dealt with this topic. Section 9 was available to override ss 6 and 7’s presumptions against imprisonment where the court was ‘satisfied on reasonable grounds that the offender was unlikely to comply with any sentence other than imprisonment’.

The Sentencing Act was structured differently, where the presumptions of ss 5-7 of the Criminal Justice Act 1985 were replaced by a raft of considerations, setting out where imprisonment would be appropriate.
It was no longer possible just to refer to two sections limiting the court’s discretion to impose full-time custodial sentences.

The CA considered that when Parliament referred to ‘nothing in this Part,” it was referring to ‘so much of ss 7-16 as may point against a sentence of imprisonment”.

Nothing in the legislative history of the Sentencing Act 2002 suggested that Parliament intended to reverse the dominance of s 8 of the Criminal Justice Act 1985 (now s18 of the Sentencing Act ) over s 9 (now s17).

Indications to the contrary included that Parliament raised the age at which a person became eligible for imprisonment for purely indictable offences from 16 to 17. It would be unlikely that Parliament intended to then widen the net by rendering all young people eligible for imprisonment, including those who have committed only non-indictable offences.

Secondly, ss 8 and 9 of the Criminal Justice Act 1985 have been placed in reverse order in the Sentencing Act 2002. That suggested that Parliament was emphasising the limits on a court’s discretion to impose imprisonment to which s17 of the Sentencing Act 2002 was referring were those limits found in the immediately preceding sections. Section18 of the Sentencing Act 2002 was dealing, not with limits on the courts’ discretion to impose imprisonment, but a prohibition on imprisonment of young people, except for those committing purely indictable offences.

Held:

1. The charge to which the appellant pleaded guilty was not a ‘purely indictable offence.’ Imprisonment could only be imposed if s17 trumped s18 of Sentencing Act 2002. The CA was satisfied that it did not. The DC had no jurisdiction to impose imprisonment on the appellant; therefore the sentence was quashed on jurisdictional grounds

2. The appellant was sentenced to 200 hours community work, 18 months supervision, with special conditions not to consume alcohol or use illicit drugs, not to associate with his co-offenders or the victim.
The appellant was ordered to undertake an assessment for drug and alcohol counselling.
The appellant was ordered to report to a probation officer within 72 hours of this judgment.

The following is a summary of the dissenting view of Heath J. Heath J agreed with the result, but took a different view on the interrelationship between ss 17 and 18 of the Sentencing Act 2002 Act 2002.

Heath J.

On the face of it the s18 (1) of the Sentencing Act 2002 prohibition on any court imposing a sentence of imprisonment on an offender under 17 at the time of the offence, is absolute.

However, Heath J considered that s 17 of the Sentencing Act qualifies the circumstances in which s 18 is engaged. Section 17 of the Sentencing Act has primacy over s 18 of the Sentencing Act. The opening words to s17 “nothing in this Part…” are plain and make s 18 subservient to s 17 of the Sentencing Act 2002.
Heath J considered it unlikely that Parliament intended to curtail completely a court’s ability to sentence a young offender to imprisonment for a non-purely indictable offence.
The ability to imprison arising from section 17 of the Sentencing Act is limited. The court must be satisfied that the offender would be unlikely to comply with a non-custodial sentence, and be satisfied that imprisonment is otherwise appropriate.

The reason for the application of the s 17 qualification is clear. Otherwise, a court would be required to sentence the offender to a non-custodial sentence even though it had reasonable grounds to believe the offender would not comply with its terms.

If the approach of the majority was correct, a young offender could refuse to comply with a non-custodial sentence in the knowledge he or she could not be imprisoned for breach. This would impact adversely on public confidence in the criminal justice system. Public safety issues will arise if violent offenders cannot be imprisoned. Police prosecutors might seek to charge more serious offences in cases where they have a genuine belief that imprisonment should be the appropriate sentence.

A YC may under s283(o) of the CYPFA 1989, transfer a young person for sentence in the DC if that young person is 15 years or older. The DC has the ability to imprison, subject to s17.

The appellant’s age was significant for assessing whether imprisonment was ‘otherwise appropriate” for s17 purposes. It was a material pointer for a non-custodial sentence.

There were no reasonable grounds to believe the appellant was “unlikely to comply” with a sentence of community work. Therefore there were no grounds to apply s17, with the consequence that a non-custodial sentence was required.