R v C-W [2007] NZCA 216; [2007] 3 NZLR 797 (31 May 2007)

Last Updated: 5 February 2018

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND

CA265/06
[2007] NZCA 216

THE QUEEN



v



ADAM ANISH CHAND-WHAKAUE

Hearing: 6 March 2007

Court: Chambers, Gendall and Heath JJ

Counsel: H S Edward for Appellant
P K Feltham for Crown

Judgment: 31 May 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

B The sentence is quashed.

100. In substitution therefor, the appellant is sentenced to a term of 200 hours’ community work and a term of supervision of 18 months. Supervision will be subject to standard conditions and the following special conditions:
     • (a) The appellant is not to consume alcohol or use illicit drugs;
     • (b) The appellant is not to associate with his co-offenders or the victim;
     • (c) The appellant is to undertake an assessment for drug and alcohol counselling and, if suitable, to undertake such counselling as may be directed by a probation officer.

4. The appellant must report to a probation officer at Rotorua within 72 hours of delivery of this judgment.

REASONS

Chambers and Gendall JJ [1]
Heath J [32]

CHAMBERS AND GENDALL JJ

(Given by Chambers J)

Assault with intent to injure

[1] The appellant pleaded guilty to a charge of assault with intent to injure. He was only 14 at the time of the offending, but Judge McGuire determined that, despite his young age, imprisonment was warranted. He sentenced the appellant to 18 months’ imprisonment.
[2] The appellant appeals against his sentence.

Issues on the appeal

[3] Two issues arise on this appeal. First, did the District Court have jurisdiction to impose imprisonment?
[4] Secondly, if not, what is the appropriate sentence?

Did the District Court have jurisdiction to impose imprisonment?

[5] Mr Edward, for the appellant, submits that the District Court had no jurisdiction to sentence the appellant to imprisonment because of s 18 of the Sentencing Act 2002. Judge McGuire in his sentencing notes referred to that section, but considered it was trumped by s 17. The two sections read as follows:

17 Imprisonment may be imposed if offender unlikely to comply with other sentences

Nothing in this Part limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.

18 Limitation on imprisonment of person under 17 years

(1) No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a purely indictable offence, if, at the time of the commission of the offence, the offender was under the age of 17 years.

(2) In subsection (1), purely indictable offence means any indictable offence within the meaning of section 2(1) of the Summary Proceedings Act 1957, other than an offence for which, under section 6 of that Act, proceedings may be taken in a summary way in accordance with that Act.

[6] It is common ground that the charge to which the appellant pleaded guilty is not “a purely indictable offence”. Accordingly, imprisonment could be imposed on the appellant only if s 17 trumps s 18. That turns on whether the opening words of that section, namely “Nothing in this Part”, refer only to preceding sections in Part 1 of the Sentencing Act or to all sections in that Part. Mr Edward contended for the former meaning; Ms Feltham, for the Crown, contended for the latter meaning, and in so doing has picked up the support of Heath J.
[7] At first blush, the broad sweep of s 17’s opening words would appear to support the view that s 17 trumps s 18. We are, however, satisfied it does not. In our view, the answer to s 17’s meaning lies in its legislative history.
[8] The Criminal Justice Act 1985 was the forerunner of the Sentencing Act. Five sections of the Criminal Justice Act have relevance in the present case and need to be set out:

6. Offenders against property not to be detained except in special circumstances

Where an offender is convicted of an offence against property punishable by imprisonment for a term of 7 years or less the court shall not impose a full-time custodial sentence on the offender unless the court is satisfied that, because of the special circumstances of the offence or of the offender, any other sentence that it could lawfully impose would be clearly inadequate or inappropriate.

7. General limitation on imprisonment

(1) Where an offender is convicted of an offence punishable by imprisonment, the court shall, in considering the sentence it should impose, have regard to the desirability of keeping offenders in the community so far as that is practicable and consonant with promoting the safety of the community.

(2) Where the court considers that it should impose a sentence of imprisonment, the term of the sentence shall be as short as is, in the opinion of the court, consonant with promoting the safety of the community.

(3) This section shall be read subject to section 5 of this Act.

8. Limitation on imprisonment of persons under 16 years

(1) No court shall impose a sentence of imprisonment on a person who at the time of conviction is under the age of 16 years except for a purely indictable offence.

(2) In subsection (1) of this section, “a purely indictable offence” means any indictable offence within the remaining of section 2 of the Summary Proceedings Act 1957, other than an offence for which, by virtue of section 6 of that Act, proceedings may be taken in a summary way in accordance with that Act.

9. Corrective training or imprisonment may be imposed where offender unlikely to comply with other sentences

Nothing in section 6 or section 7(1) of this Act shall limit the discretion of the court to impose a fulltime custodial sentence on an offender where the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.

10. No full-time custodial sentence to be imposed without opportunity for legal representation

(1) No court shall impose a full-time custodial sentence on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, unless the court is satisfied that the offender,

(a) Having been informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Offenders Legal Aid Act 1954; and
(b) Having fully understood those rights; and
(c) Having had the opportunity to exercise those rights, has refused or failed to do so, or engaged counsel but subsequently dismissed him or her.
(2) Where, on any appeal against sentence, a court finds that any sentence was imposed in contravention of subsection (1) of this section, the court shall either –

• (a) Quash the sentence imposed and impose in substitution for it such other lawful sentence as the court thinks ought to have been imposed; or
• (b) Quash the conviction and direct a new hearing or trial, or make such other order as justice requires.

(3) For the purposes of this section an offender refuses or fails to exercise his or her rights relating to legal representation where the offender –

• (a) Refuses or fails to apply for legal aid under the Offenders Legal Aid Act 1954 or applies for such aid unsuccessfully; and
• (b) Refuses or fails to engage counsel by other means.

[9] Section 6 of the 1985 Act has no direct equivalent in the Sentencing Act. The equivalent of s 7(1) is s 16(1) of the 2002 Act. Section 7(2) does not have a direct equivalent in the 2002 Act, although the principle there enunciated is one of the principles of sentencing set out in s 8 of the 2002 Act: see para (g). Section 8 of the 1985 Act is essentially reproduced in s 18 of the 2002 Act. Section 9 is essentially reproduced in s 17 of the 2002 Act. Section 10 is essentially reproduced in s 30 of the 2002 Act.
[10] It is absolutely clear that, under the 1985 Act, a youth under the age of 16 could not be imprisoned except for a purely indictable offence: see s 8. Even in circumstances where the court was satisfied of the matters stated in s 9, s 8 would trump in the case of youthful offenders. Section 9 could override only ss 6 and 7(1); it did not override s 8.
[11] Why then did Parliament change “nothing in s 6 or s 7(1)” in the old s 9 to “nothing in this Part” in s 9’s modern equivalent, s 17? The answer in our view is quite simple. The Criminal Justice Act was very sparse in setting out purposes and principles of sentencing. There were really only three general sections which dealt with this topic: s 5 (which created a presumption in favour of imprisonment for violent offenders), s 6 (which imposed a presumption against imprisonment for those convicted of offences against property), and s 7 (which established a principle of keeping offenders in the community so far as that was practicable). Section 9 was available to override ss 6 and 7’s presumptions against imprisonment in circumstances where the court was satisfied on reasonable grounds that the offender was unlikely to comply with any sentence other than imprisonment.
[12] The new Sentencing Act was quite differently structured. The three presumptions of ss 57 of the 1985 Act were replaced by a raft of considerations, beginning at s 7 with the purposes of sentencing and carrying right through to s 16, setting out circumstances in which imprisonment would be appropriate. The scheme of Part 1 of the statute requires the sentencing judge to first consider the purposes and principles of sentencing, and identify any aggravating or mitigating factors (ss 79). The sentencing judge then moves methodically up through the hierarchy of sentences set out in ss 1116, stopping at that which he or she considers appropriate in light of the detailed criteria set out in the various sections.
[13] It was no longer possible just to refer to two sections limiting the court’s discretion to impose full-time custodial sentences as it was under the 1985 Act, because the limitations on the court’s discretion to impose sentences of imprisonment are now to be found throughout ss 716. In our view, when Parliament referred to “nothing in this Part” limiting the discretion of a court to impose a sentence of imprisonment, it was referring to so much of ss 716 as may point against a sentence of imprisonment. (Of course, some of the purposes, principles, and criteria contained in those sections will lead in appropriate cases to a conclusion that imprisonment is required; in those cases, s 17 is irrelevant.)
[14] Nothing in the legislative history of the 2002 Act suggests that Parliament intended to reverse the dominance of s 8 (now s 18) over s 9 (s 17). It would have been a very significant step for Parliament to render youths amenable to imprisonment for non-indictable offences (as we refer, by way of shorthand, to offences other than purely indictable offences). Had that been intended, one would have expected to see some reference to the change and the reasons for it, if not in the Parliamentary debates, then at least in the departmental reports, the explanatory notes to the Bill, or the select committee report following the select committee hearings. So far as our researches show, there is nothing to suggest such a change was intended.
[15] Indeed, there are three indications to the contrary. First, Parliament raised the age at which those convicted of purely indictable offences became eligible for imprisonment. The age was raised from 16 to 17. It appears that this change resulted from a report by the Department of Corrections, About Time: Turning people away from a life of crime and reducing re-offending (2001). That report noted the extremely high recidivism rates for teenaged offenders who were imprisoned in adult prisons. The report urged a number of strategies for dealing with youth offending. These were intended to reduce the number of teenagers being sentenced to prison. In light of this background, it is very unlikely Parliament intended to restrict the class of youngsters eligible for imprisonment in one breath (by raising the age limit) and then, in the next breath, to widen the net by rendering eligible for imprisonment all youngsters, including those who have committed only non-indictable offences.
[16] The unlikelihood of that being the Parliamentary intention is increased when one considers that nowhere is an explanation given for what would be contradictory stances. Further, if, contrary to our view, it was the Parliamentary intention to widen the net, a very oblique drafting technique was adopted to achieve it.
[17] Secondly, it seems significant that ss 8 and 9 of the 1985 Act were placed in reverse order in the 2002 Act. That suggests Parliament was emphasising that the limits on a court’s discretion to impose imprisonment to which s 17 was referring were those limits found in the immediately preceding sections. Section 18 on the other hand was dealing, not with limits on courts’ discretion to impose imprisonment, but rather with a prohibition on imprisonment of young people, save in the case of those committing purely indictable offences.
[18] Thirdly, if “nothing in this Part” in s 17 were to be applied literally and without regard to its legislative history, it would appear to trump not only s 18 but also s 30, which prohibits the imposition of a sentence of imprisonment in the absence of legal representation. The old s 9 certainly did not trump s 10. It would seem very unlikely that Parliament intended their modern equivalents, ss 17 and 30 respectively, to reverse that situation, especially where s 30 is in substantially similar terms to its forerunner, s 10.
[19] The interpretation of s 17 to which we have come may also be reached by a slightly different route. Section 18 abrogates the power to sentence offenders under 17 to prison, save in the case of those committing purely indictable offences. Section 17 cannot bite on s 18 because s 17 applies only in circumstances where the court retains power (and discretion) to sentence to imprisonment. Where the court has power to imprison (but only where it has such power), then s 17 goes on to provide a further guideline as to when imprisonment might be appropriate, which guideline needs to be weighed with the criteria set out in ss 716.
[20] Our interpretation of s 17, to which we have come applying relevant construction principles, also coincides with the right of children under s 25 of the New Zealand Bill of Rights Act 1990 “to be dealt with in a manner that takes account of the child’s age”: see para (i). If there was to be a prima facie infringement of this right, the courts would want clear evidence that Parliament intended to change the law and widen the net of those youngsters eligible for imprisonment. There is no such indication that that was Parliament’s intention.
[21] Heath J, in his reasons which follow, expresses the view that our interpretation leads to courts being required to sentence young offenders to noncustodial sentences even in circumstances where there may be reasonable grounds for believing that the youngsters will not comply with them: at [57]. That is so. But that was indisputably the case when the Criminal Justice Act was in force, as Heath J would have to acknowledge. If it was intended to change that, one would have expected some comment somewhere as to the need for that change – and yet, so far as research shows, there is silence.
[22] Further, we note Heath J’s view that, if our interpretation is correct, the ability to transfer a young person for sentence in a District Court, under s 238(o) of the Children, Young Persons, and Their Families Act 1989, is of little utility: at [65]. We do not accept that is correct, but, in any event, when the Children, Young Persons, and Their Families Act was passed in 1989, a transfer to the District Court under s 283(o) could not be ordered for the purpose of rendering the youngster liable to imprisonment, save in cases where he or she had committed a purely indictable offence. Whatever utility there originally was in such a transfer remains: our interpretation neither increases nor decreases the utility of transfer.
[23] For these reasons, we conclude the District Court had no jurisdiction to impose imprisonment on the appellant. That sentence must be quashed on jurisdictional grounds.

What is the appropriate sentence?

[24] Mr Edward submitted the appropriate sentence was community work and supervision. As to the former, he suggested we impose between 150 hours and 200 hours. Ms Feltham accepted that, if imprisonment were not available, then sentences of community work and supervision were appropriate.

Supervision

[25] There can be no doubt that the appellant needs a sentence of supervision. We are completely satisfied that “a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender”: see Sentencing Act, s 46. The appellant needs close supervision by a probation officer over the next 18 months, so that he can be assisted to get his life back on track before he spirals into a life of crime. In addition to the standard conditions of supervision (s 49), we consider special conditions are necessary to reduce the likelihood of further offending by the appellant (ss 5052). Alcohol and drugs are already a significant problem for the appellant, although he appears not to recognise it. In our view, it is vital that the appellant be assessed for drug and alcohol counselling, and, if found suitable, be required to undertake such programmes as his probation officer may direct.

Community work

[26] Mr Edward is also correct in his advocacy of community work. The only issue is its duration. Mr Edward’s upper limit really arises from the following consideration. The appellant originally faced the more serious charge of wounding with intent to cause grievous bodily harm. Only later did the Crown reduce the charge to assault with intent to injure, at which point the appellant’s guilty plea was entered. Had the police originally charged assault with intent to injure, this matter would have had to be dealt with in the Youth Court. In that court, the maximum number of hours a young person can be required to do under a community work order is 200 hours: Children, Young Persons, and Their Families Act 1989, ss 283(l) and 298.
[27] While we do not consider ourselves bound by what the position would have been had the police from the start charged the appellant with assault with intent to injure, we think strong justification is required before imposing a tougher sentence than could have been imposed in the Youth Court. While we consider a longer sentence of supervision than could have been imposed in the Youth Court has been shown to be justified, we are not so satisfied with respect to community work. For a 15 year old, (the appellant’s age at the date of original sentencing), 200 hours’ community work will be a substantial punishment.
[28] Therefore, we impose a 200 hour community work sentence; that is half the maximum possible under the Sentencing Act, but, as we have said, it represents the maximum sentence which could have been imposed in the Youth Court.
[29] Had the appellant been older at the time of his offending, a longer period of community work or even imprisonment would have been justified. He committed with others a serious act of violence against the victim, who suffered brain damage as a result of the offending.
[30] The appellant can consider himself lucky that his young age has rendered him immune from a heavier sentence. This is his opportunity to turn his life around, with the assistance of skilled professionals within the Department of Corrections. It is to be hoped he takes this opportunity.
[31] The appellant has been on bail pending the determination of his appeal. He must now report to a probation officer at Rotorua within 72 hours of delivery of this judgment.

HEATH J

Introduction

[32] I agree with Chambers and Gendall JJ that the appeal should be allowed with the consequences they propose. I have reached that conclusion by a different reasoning process. I take a different view on the interrelationship between ss 17 and 18 of the Sentencing Act 2002.
[33] I am conscious that the question of sentencing reform remains before Parliament. It is possible that articulation of a contrary view on the interrelationship between the two sections may be helpful in the debate about whether young offenders ought to be at risk of imprisonment. For that reason, I write separately.

Some additional background

[34] Chambers and Gendall JJ begin the narrative of events by referring to Mr Chand-Whakaue’s plea of guilty to a charge of assault with intent to injure, a non-purely indictable offence. To understand how Mr Chand-Whakaue, aged 14 years at the time of the offending, came to be before the District Court for sentence, it is necessary to set out some additional background information.
[35] Graeme Managh lived alone, in a single bedroom flat in Ngongotaha near Rotorua. He was 40 years old. Regularly, he would allow some local youths to visit his flat if they had nowhere else to go.
[36] On Thursday 28 April 2005, Mr Managh was at his home. He was alone and consuming alcohol. At about 6pm some youths arrived. They too began to consume alcohol and to smoke cannabis. Mr Managh was unhappy with this situation but felt powerless to remove the youths from his home. Mr Chand-Whakaue was one of the youths present.
[37] At about 8pm there was an altercation between Mr Managh and Mr ChandWhakaue which resulted in pushing and shoving. That was resolved promptly. Everyone present resumed their consumption of alcohol.
[38] About one hour later, a second altercation occurred. This followed a clear indication from Mr Managh that he wanted the youths to leave his flat. Mr Managh advanced towards Mr Chand-Whakaue. An adult co-offender (Mr McRoy, aged 20 years) intervened and threw Mr Managh to the ground.
[39] Although the altercation began inside Mr Managh’s home the assault continued outside, on hard ground. During the course of the continued assault, Mr Chand-Whakaue and another juvenile began to kick and punch Mr Managh. As a result of the beating, Mr Managh was rendered unconscious and left lying outside his flat in the cold. The three offenders and an associate left, taking some alcohol from Mr Managh’s flat with them.
[40] Mr Managh suffered severe brain damage as a result of the offending.
[41] Mr Chand-Whakaue was charged, jointly with Mr McRoy and another youth, with wounding with intent to cause grievous bodily harm. He was brought before the Youth Court on 12 May 2005 and denied the charge.
[42] The preliminary hearing for Mr Chand-Whakaue and Mr McRoy took place in the Youth Court on 28 July 2005, in accordance with s 274 of the Children Young Persons and Their Families Act 1989 (the 1989 Act). The second juvenile had absconded before the preliminary hearing.
[43] At the conclusion of the preliminary hearing, the presiding Youth Court Judge (Judge Hikaka) held that a prima facie case had been established. He committed Mr McRoy to the High Court for trial.
[44] The charge against Mr Chand-Whakaue was adjourned to allow his counsel to make submissions on whether the Youth Court should exercise its discretion to allow Mr Chand-Whakaue to forego his right to a jury trial. The consequence, if that opportunity were extended to Mr Chand-Whakaue, was that the charge would be heard and determined in the Youth Court. The discretion is conferred, by s 275 of the 1989 Act, in the following terms:

275 Young person may forego right to jury trial and elect to have proceedings determined by Youth Court

(1) Where section 274 of this Act applies and the offence is not murder or manslaughter, if, when all the evidence has been given, the Youth Court is of the opinion that the evidence adduced by the informant is sufficient to put the young person on trial for the offence, the Youth Court may give the young person an opportunity of foregoing the right to trial by jury and of electing to have the information heard and determined in a Youth Court by a Youth Court Judge.

(2) If the young person accepts the opportunity given under subsection (1) of this section and elects to have the information so heard and determined, the Youth Court shall have jurisdiction to hear and determine the information and otherwise deal with the young person in accordance with this Act.

[45] On 9 August 2005, counsel for Mr Chand-Whakaue made submissions to Judge Hikaka in an attempt to persuade him to offer Youth Court jurisdiction for the purely indictable offence. The Judge declined to exercise his discretion in Mr Chand-Whakaue’s favour. The Judge took into account a number of factors. The desirability of a joint trial, given that Mr Chand-Whakaue was charged jointly with an adult co-offender, was sufficient to tip the balance in favour of declining an opportunity for the charge to be heard and determined in the Youth Court.
[46] In exercising his discretion not to offer Youth Court jurisdiction the Judge was alive both to the seriousness of the charge (confirmed by the serious brain injuries suffered by the victim) and the inability (because Mr Chand-Whakaue was under the age of 15 years at the relevant time) to transfer him for sentence in the District Court if the charge were found proved. As to the latter point, see s 283(o) of the 1989 Act.
[47] Mr Chand-Whakaue was committed for trial to the High Court. Subsequently orders were made by the High Court under s 168AA of the Summary Proceedings Act 1957 transferring his and Mr McRoy’s trials to the District Court. Before trial (scheduled to start on 1 May 2006) the Crown Solicitor filed an amended indictment containing one count of assault with intent to injure. Mr Chand-Whakaue entered a plea of guilty to that charge on 13 April 2006. The lesser charge, unlike the charge on which he had been committed for trial, was not a purely indictable offence.

Jurisdiction: ss 17 and 18 of the Sentencing Act

[48] Sections 17 and 18 of the Sentencing Act have been set out at [5] above. In my view, the starting point is s 18(1). Read alone, subject only to an ability to imprison if a young person were convicted of a purely indictable offence, s 18(1) operates to prevent any court from imposing a sentence of imprisonment on an offender under the age of 17 years at the time the offence was committed. On the face of it, the prohibition is absolute.
[49] However, in my view, s 17 qualifies the circumstances in which s 18 is engaged. The language employed in s 17 demonstrates that s 17 has primacy over s 18. The opening words to s 17 (“Nothing in this Part limits the discretion of a court to impose a sentence of imprisonment”) are plain. They make s 18 subservient to s 17. Both sections appear in Part 1 of the Sentencing Act.
[50] Section 17 is not limited to young offenders. Nor does it exclude young offenders from its scope. If a sentencing court’s discretion to sentence is limited in the manner contemplated by the opening words to s 17, it retains a power to imprison if satisfied, on reasonable grounds, that the offender is unlikely to comply with a non-custodial sentence and, otherwise, a sentence of imprisonment would be appropriate.
[51] The “discretion” to which s 17 refers must be the ability of a court of competent jurisdiction to impose a sentence of imprisonment designed to reflect the culpability of an offender for a particular offence. The penalty to be imposed will be determined by reference to the maximum penalty prescribed for the offence or something less, in the event that a particular court’s jurisdiction is limited by statute: eg s 28F of the District Courts Act 1948 and s 283 of the 1989 Act.
[52] Chambers and Gendall JJ have concluded that the legislative history of ss 17 and 18 require a contrary interpretation. The provisions of the Criminal Justice Act 1985 on which they rely are set out in [8] above. With respect, I cannot read the opening words of s 17 in a manner that accords with their interpretation. The words “Nothing in this Part ... ” are emphatic and unequivocal. In my view, it is not open to rely upon legislative history to reach a different interpretation.
[53] Even taking account of the legislative history, I am not persuaded that the alternative approach is sound.
[54] Given that the Sentencing Act was Parliament’s response to a referendum in 1999 in which those of voting age were asked whether reform of the justice system was required to provide harsher responses to serious violent offending, I regard it as unlikely that Parliament would have intended an interpretation of ss 17 and 18 along the lines set out in Chambers and Gendall JJ’s judgment.
[55] First, there are two important differences between s 18(1) of the Sentencing Act and s 8 of the Criminal Justice Act. Section 8(1) enjoined sentencing courts from imposing sentences of imprisonment on anyone under the age of 16 years at the time of conviction, save for a purely indictable offence. The two changes are:

1. First, the age under which the court is prohibited from sentencing a young offender to imprisonment, on other than purely indictable offences, has been raised from 16 years to 17 years.
2. Second, the time at which the age is established is now the time of commission of the offence, rather than the time of conviction.

[56] On any view, s 18 casts a wider net. More young people who commit serious (but not purely indictable) offences will fall within the prohibition than was the case under the 1985 Act. It is unlikely, in my view, that Parliament intended to curtail completely a court’s ability to sentence a young offender to imprisonment for a non-purely indictable offence.
[57] Second, the scheme of the Sentencing Act does not require the interpretation favoured by the majority. The ability to imprison arising from s 17 is limited in its terms. Section 17 can apply only if a sentencing court were satisfied that an offender were unlikely to comply with a non-custodial sentence and where imprisonment is otherwise appropriate. Section 17 will apply to cases falling under s 16 of the Act, in which the court has concluded, prima facie, that a non-custodial sentence should be imposed. It would also apply, on my view, in cases involving s 18.
[58] The reason for the application of the s 17 qualification to both s 16 and s 18 is clear. Were the position otherwise, a court would be required to sentence the offender to a non-custodial sentence even though it had reasonable grounds for believing that the offender would not comply with its terms. Such an approach undermines the sentencing process to an extent that is likely to impact adversely on public confidence in the criminal justice system.
[59] The position is more acute with regard to young offenders. If s 18 has the interpretation favoured by the majority, a young offender could refuse to comply with a non-custodial sentence, content in the knowledge that he or she could not be imprisoned for breach; a situation of real concern in a climate of increasing involvement in serious offending by juvenile gangs. Further serious offences could also be committed with impunity, so long as they were not purely indictable. Two troubling consequences are:

1. First, public safety issues arise if violent offenders cannot, in any circumstances, be imprisoned.
2. Second, there is the risk that Police prosecutors might seek to charge more serious offences in cases where they have a genuine belief that imprisonment should be the appropriate sentencing response. That would be an undesirable situation.

[60] The charge faced by Mr Chand-Whakaue of assault with intent to injure carried a maximum penalty of three years imprisonment. There are more serious non-purely indictable offences. For example, one such offence carries a maximum penalty of 14 years imprisonment (assault with intent to rob) and at least six (attempted sexual connection with a child under 12, indecent act on a child under 12, exploitative sexual connection with a person with a significant impairment, injuring with intent to injure, burglary and robbery) carry maximum terms of 10 years. They are all serious offences.
[61] Third, Chambers and Gendall JJ see s 17 as being drafted sufficiently widely to trump s 30 of the Sentencing Act. Section 30 prohibits the imposition of a sentence of imprisonment in the absence of legal representation. With respect, I do not agree.
[62] What s 30 does is to require an accused to be represented at the time he or she is at risk of conviction. Otherwise, the criteria set out in s 30(2) must be met before a sentence of imprisonment can be imposed. Once those procedural prerequisites have been met, there is no limitation on the discretion to impose imprisonment on which s 17 bites. Accordingly, I do not agree with the suggestion that s 30 adds to the interpretation issue.
[63] Fourth, I do not see my interpretation as being inconsistent with legislative policy concerning offending by young people. Section 17 can be seen as a mechanism designed to smooth out some of the sharp edges involved in the application of s 18. A young offender who is properly before the High Court or a District Court for sentence cannot be imprisoned unless the sentencing court is satisfied that imprisonment is appropriate in terms of the s 16 test and that reasonable grounds exist to believe that the offender is unlikely to comply with a non-custodial sentence. The need for imprisonment will be more difficult to establish for a young person than for an adult.
[64] If a young person is properly before the High Court or the District Court for sentence, the full range of sentencing options available to those courts come into play: R v S CA284/02 CA234/02 31 October 2002. That situation will only arise if a young person is charged with an indictable offence and elects trial by jury or where the Youth Court, having conducted a preliminary hearing and found sufficient evidence to commit the young person for trial, declines to offer an opportunity to the young person to have the charge determined in the Youth Court: s 275 of the Act.
[65] A Youth Court may, under s 283(o) of the 1989 Act, transfer a young person for sentence in a District Court. However, the young person must be of or over the age of 15 years before transfer may be ordered. On my interpretation that would give the District Court the ability to imprison, subject to s 17. On the majority view, the relatively minor differences between the sentences available in the District Court and the Youth Court (see s 283 of the 1989 Act) will make transfer of less utility.

The appropriate sentence

[66] Although Judge McGuire found that Mr Chand-Whakaue was unlikely to comply with any community based sentence and a sentence of imprisonment was otherwise appropriate, I would have started the sentencing process afresh because the Judge did not take into account the fact that, because Mr Chand-Whakaue was aged 14 years at the time of the offending, he could not, had the charge been dealt with in the Youth Court, have been at risk of imprisonment due to s 283(o) of the 1989 Act.
[67] Mr Chand-Whakaue’s young age was a significant factor when assessing whether imprisonment was “otherwise appropriate” for s 17 purposes. It was a material pointer towards a non-custodial sentence. I intend no criticism of the sentencing Judge in making those comments; the issue was not put to him in that way at the sentencing hearing.
[68] Although there have been breaches of court orders by Mr Chand-Whakaue in the past, he has not yet been subjected to community work. Before sentences of periodic detention and community service were merged (on enactment of the Sentencing Act) this court emphasised on a number of occasions that non-custodial sentences of that type ought to be regarded as real and effective alternatives to imprisonment: R v Burton [1982] NZCA 36; [1982] 1 NZLR 602 (CA) and R v Minto [1982] 1 NZLR 607 (CA).
[69] Looking at the s 17 issue afresh, I am persuaded (albeit by a narrow margin) that there were no reasonable grounds to believe that Mr Chand-Whakaue was “unlikely to comply” with a sentence of community work. On that basis I conclude there were no grounds to apply s 17, with the consequence that a non-custodial sentence was required.
[70] I am content to agree with the majority on the sentence to be imposed, though my personal response, if sitting at first instance, might have been more stern. The special conditions of supervision and the length of the period of supervision should provide an adequate opportunity for Mr Chand-Whakaue to respond to rehabilitative efforts. On my interpretation of ss 17 and 18, should he breach the community work or supervision orders, he would be liable to imprisonment. The majority approach precludes that sentencing response in the event of non-compliance with the non-custodial sentence.

Solicitors:
H S Edward, Rotorua, for Appellant
Crown Law Office, Wellington