R v P (CA59/03) [2003] NZCA 374 (18 September 2003)

Last Updated: 1 January 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA59/03

THE QUEEN

v

P (CA59/03)

Hearing: 15 July 2003

Coram: Keith J
Hammond J Paterson J

Appearances: J A Hope for the Appellant A Markham for the Crown

Written submissions: 13 and 18 August 2003

Judgment: 18 September 2003

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] The appellant was sentenced in a District Court to five and a half years imprisonment on two charges of sexual violation by unlawful sexual connection and one charge of attempted sexual violation. He had been transferred to that Court for sentencing by a Youth Court Judge acting under s283(o) of the Children, Young Persons and their Families Act 1989 (CYPF Act). He has sought to appeal to this Court against the sentence on the ground that it is manifestly excessive.

R V P (CA59/03) CA CA59/03 [18 September 2003]

[2] At the hearing of the appeal, the bench raised questions about the jurisdiction of this Court to hear the appeal and about the relevant powers of the Youth and District Courts. Following a brief discussion, counsel were asked to file memoranda on those matters and on the disposition of the appeal on the understanding that the matter was to be dealt with on the papers. Those memoranda have now been received and have been considered by the members of the Court who have agreed upon this judgment.

The Proceedings in the Family and District Courts

[3] The three charges related to an attack on a young girl on 13 August 2002. On that date, the appellant was 16 years old and therefore a “young person” as defined in s2(1) of the CYPF Act:

"Young person" means a boy or girl of or over the age of 14 years but under 17 years; but does not include any person who is or has been married.

[4] As a young person charged with an offence, the appellant was brought before the Youth Court under s272 of the CYPF Act. On his initial appearance he was remanded in Police custody pending the availability of a placement in social welfare custody. On 28 August he again appeared and, as recorded on the informations, indicated a desire to plead guilty. He was again remanded in custody and, because he did not deny the charges, the Youth Court directed under s246 that a Family Group Conference be held.

[5] The participants in the Family Group Conference were unable to reach agreement concerning the proper disposition of the appellant’s case, the appellant’s family preferring a community based rehabilitation programme and the victim’s family considering a sentence of imprisonment necessary. On 4 December the proceeding against the appellant was transferred by consent under s283(o) of the CYPF Act to a District Court for sentencing.

[6] According to the very helpful submissions filed by the Crown, no one dealing with the case appreciated that the maximum penalty that could be imposed by a District Court on a reference under s283(o) may have been restricted to five years
imprisonment – the maximum available to a District Court acting in its summary jurisdiction (see s7 of the Summary Proceedings Act 1957).

The relevant powers of the Family and District Courts

[7] Counsel are agreed that in the circumstances of this case the District Court was subject to that five year sentencing limit. They also agree this Court does not have jurisdiction to hear the appeal. We agree with them on both points. We now state our reasons for those conclusions.

[8] Section 274 of the CYPF Act requires young persons charged with purely indictable offences including sexual violation – the present case – to be dealt with in accordance with Part 5 of the Summary Proceedings Act regulating the preliminary hearing of indictable offences, except that the preliminary hearing takes place in a Youth Court which for that purpose has all the powers of a District Court. Section 274 is, however, subject to s276. Under subs (1) of that provision a Youth Court Judge has the power to allow a young person who indicates a desire to plead guilty the opportunity to forego the right to trial by a jury and instead to elect to be dealt with in a Youth Court. On that election, the Youth Court, under subs (2), has jurisdiction to deal with the young person in accordance with the CYPF Act.

[9] The acceptance by young persons of the opportunity, afforded to them under s276, to be dealt with in a Youth Court fundamentally changes the nature of the proceedings. While they were earlier being proceeded against by indictment, once they accept the opportunity offered under s276, the offence is heard and determined in a jurisdiction that exists primarily in substitution for the summary jurisdiction of the District Courts. In the words of this Court in R v M (an accused) [1986] 2 NZLR 172, 178-179, once a Youth Court gives the young offender that opportunity "the procedural and jurisdictional die is cast".

[10] In that case the Court was considering s34(2)(c) of the Children and Young Persons Act 1974, the predecessor to s276(1) of the present Act. While s276(2) (para [8] above) does not include the final phrase of s34(2)(d) which directed that the
matter be dealt with "as if the offence were punishable summarily", for reasons we give in this judgment we do not see that omission as significant.

[11] Following a young person’s acceptance of Youth Court jurisdiction under s276, the proceedings cease to be a preliminary hearing under the Summary Proceedings Act leading to a jury trial based on an indictment. Once the Youth Court finds the charge to be proved it has the powers set out in s283. While the emphasis of that provision is on non-custodial orders, in the case, among others, of a young person of 15 or over who has committed a purely indictable offence the Youth Court may enter a conviction and order that the young person be brought before a District Court for sentence or decision and in any such case the provisions of the Sentencing Act 2002 apply accordingly (s283(o); see also the requirements of ss290(2)-(4) and 340).

[12] Is a District Court when imposing a sentence on an offender brought before it under s283(o) subject to the five year maximum sentence or not? We conclude that it is subject to that maximum; the Court in such a case is acting summarily, not indictably. That is so for a number of reasons. We mention just three.

[13] First, when "the procedural and jurisdictional die [was] cast" by the offender's election, the indictable process came to an end. The charges were now before a Youth Court with its more benevolent powers. That Court has of course only summary jurisdiction. That summary character does not alter when the matter is transferred to the District Court under s283(o). As the Crown says in its helpful submissions, the purpose of a transfer is simply to make available a wider and more punitive range of sanctions than those a Youth Court could impose, but that range does not provide for the lifting of the cap which applies to sentences imposed in summary proceedings.

[14] Secondly, that benevolence of approach towards young offenders is highlighted by the contrast between the election made available to them under s276 with the right (available without any court decision) for adult defendants to plead guilty before or during the preliminary hearing under s153A of the Summary Proceedings Act and up to committal under s168. The defendants must be
represented by counsel, they are to be brought before the Court, they are to have the charge read to them, they are to be called upon to plead and if they plead guilty they are to be committed for sentence. If the sentencing court is the High Court then of course the maximum penalties are those fixed by the relevant penal statute. That is now also the case if a District Court is imposing the sentence, as s28F(3) and (4) of the District Courts Act (as enacted in 1991) makes explicit. There is of course no such explicit provision lifting the cap for a District Court operating under s283(o). A District Court also has the power under those provisions – see also s44 of the Summary Proceedings Act – not to accept jurisdiction and to commit the offender to the High Court for sentence. Again no such explicit power of transfer appears in the CYPF Act.

[15] A third reason relates to the legislation as it was in 1989 when the CYPF Act was enacted. At that time the power of a District Court sentencing an offender who had pleaded guilty under s153A or s168 was capped by the then three year limit on sentences applicable in the District Courts' summary jurisdiction. That limit meant that there was all the more reason for a District Court to have the power to refer the sentencing to the High Court.

[16] The 1991 removal of that cap for adult offenders was reflected in no way at all in the CYPF Act. That removal cannot be seen as placing young offenders in that increased jeopardy in such a indirect way. Further, under the 1980 provisions of the District Courts Act which were in force in 1989, District Courts could not even impose sentences in respect of the offences in issue in this case : see s28F(2) (as enacted in 1980) and s153A(6) of the Summary Proceedings Act (as inserted in 1976). The 1989 Act cannot be read at that time as empowering a District Court exercising the jurisdiction arising from a reference under s283(o) in respect of young offenders to exceed the standard maximum penalty which may be imposed on a summary conviction for an indictable offence.

[17] It follows from what has been said that when s274(2)(a) says that a Youth Court holding a preliminary hearing has all the powers of a District Court, those powers do not include the powers conferred by s153A : s274 after all is expressly subject to the election provision of s276 (and also s275, not in issue in this case). It
also follows, as this Court indicated in R v M at 177 and 178, that the power of transfer conferred by s44 of the Summary Proceedings Act – not in any event applicable to the situation in this case – is not available.

[18] To repeat, the District Court had no power to impose the sentence it did. This Court assumed that there was no such power in R v M at 179 and 182 and the changes from the 1974 Act to the 1989 Act, including that mentioned in para [10] above ,do not alter that position. How then should this appeal be disposed of?

The disposition of the appeal

[19] The appeal from a District Court in its summary criminal jurisdiction is of course to the High Court under Part 4 of the Summary Proceedings Act. The appeal to this Court must accordingly fail for want of jurisdiction.

[20] We do not however consider that a reference to the High Court so that it may determine the appeal is appropriate for a number of reasons. First, in the words of the Crown's submission, "the record suggests that the Youth Court may not have turned its mind to the issue of an election under s276 and ... that no proper plea of guilty was taken". Secondly, the District Court Judge and counsel did not address the appropriate sentence with the five year limit in mind. Thirdly, the appellant in the normal course has the right of appeal – in this case to the High Court (see also s25(h) of the New Zealand Bill of Rights Act 1990), and a reference back only to the High Court might well defeat that right.

Result

[21] We accordingly decline the appeal for want of jurisdiction and remit the proceedings to the District Court which imposed the sentence. We make two points about the course of action it might adopt. The first is that s77 of the Summary Proceedings Act confers broad power on District Courts to amend defective sentences including sentences that are not within the jurisdiction of the Court (see R v Boocock CA7/85 20 March 1985). The second is that the District Court may wish
to remit the proceedings to the Youth Court which originally dealt with the changes to inquire into the first matter mentioned in para [20] above.

Solicitors:

Till Henderson, Hamilton for the Appellant Crown Law Office, Wellington