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Court of Appeal of New Zealand |
Last Updated: 13 January 2012
IN THE COURT OF APPEAL OF NEW ZEALAND
CA227/2010[2010] NZCA 268
BETWEEN KURAMIHIRANGI
POUWHARE
Appellant
Hearing: 20 May 2010
Court: William Young P, Chisholm and Keane JJ
Counsel: M J Bullock for Appellant via
videolink
K A L
Bicknell for Respondent via videolink
Judgment: 2 July 2010 at 11.30 am
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JUDGMENT OF THE COURT
|
REASONS OF THE COURT
(Given by Keane
J)
[1] On 19 November 2009 the appellant, then aged 16, was sentenced to two and a half years imprisonment by Principal Youth Court Judge Becroft in the District Court, Wellington, for the aggravated robbery of a Whanganui dairy on 12 July 2009. She was also up for sentence in relation to two other offences, a robbery in Lower Hutt on 7 February 2009, when she was aged 15, and possession of cannabis. For those offences she was convicted and discharged.[1]
[2] The appellant first appeared in the Youth Court, Whanganui. Family group conferences took place at which she accepted responsibility for the offences for which she was sentenced. She was permitted to enter pleas of guilty in that Court. A report and a plan were prepared. On 23 October 2009, however, Judge Callinicos decided he had no option but to convict her and transfer her to the District Court for sentence.[2] The available Youth Court orders were considered to be simply insufficient in duration and intensity to address the appellant’s significant issues.
[3] Both robberies, Judge Callinicos held, were serious. The appellant appeared not to understand how serious they were or to be remorseful. She was likely to re-offend in that way in the near future. The District Court, he held, had a wider ability than the Youth Court to respond on sentence to that likelihood. A sentence of imprisonment, though not inevitable, he said, could not be ruled out.
[4] On sentence Principal Judge Becroft held that he was bound to adhere to the tariff fixed by this Court for aggravated robbery. He held also, though the authorities in the High Court were in conflict, that he could not on sentence apply youth justice sentencing principles. Had he been entitled to, he said, he would have taken a starting point significantly less than the tariff required, four and a half years (five years to take into account the robbery), or applied a greater discount. He would have imposed home detention.
[5] On 30 March 2010, for reasons he gave later,[3] Miller J upheld on appeal the sentence imposed. He granted leave to apply to this Court on the question of law whether, when a young person is transferred by the Youth Court to the District or High Courts for sentence, youth justice principles under the Children, Young Persons and Their Families Act 1989 (“CYPF Act”), as well as those in the Sentencing Act 2002, must be taken into account by the sentencing Judge.
Offences
[6] The appellant's first offence, the robbery on Saturday 7 February 2009, happened at 11 pm at a suburban railway station in Lower Hutt. She and some friends were drinking alcohol. They threw empty bottles around the platform, some of which smashed. A large number of people were waiting to catch the next train to Wellington. One of these people, concerned about the danger, approached the appellant and her friends. That only made things worse. The appellant's brother and a friend of his assaulted two people, demanding their cellphones and money. The appellant did likewise.
[7] The appellant took an 18 year old Australian tourist in a headlock. She punched her three times to the face with a closed fist. She knocked her to the ground and grabbed her bag. Her victim, concerned that the bag contained her passport, pleaded for it back. The appellant threw the bag back after taking $180 cash. Then she grabbed it back once more to take her victim's cellphone. Her victim suffered a bruised jaw and grazes to her knee, elbow and ankle. Her cellphone was recovered but the cash was not.
[8] The appellant's principal offence, the aggravated robbery of a Whanganui dairy that was about to close, happened at approximately 6.00 pm on Sunday 12 July 2009. The appellant and a 13 year old girl entered wearing hooded sweatshirts with the hoods pulled up and scarves over their faces, carrying knives. Holding her knife with her right hand, the appellant grabbed the owner's collar with her left and pushed her up against the shop counter. She demanded money.
[9] The appellant then had the 13 year old hold the owner while she went behind the counter and tried, unsuccessfully, to open the till. She took instead cigarettes and tobacco. As this was happening, the owner, an immigrant, said repeatedly to them both, “I help you, I help you, I have operation”. She had undergone abdominal surgery only days before. She also began to struggle. Leaving the two struggling together, the appellant went to the back of the shop into the kitchen. She cut her search short only when the owner pressed a panic button setting off an alarm.
[10] The following day both were apprehended. They said that the dairy owner had exploited them in the past and that they wanted to get even. They had been intent on money, cigarettes and sweets. The appellant admitted that she had dressed like a boy so that she and the 13 year old would look like boyfriend and girlfriend. Found in her room were two bags of cannabis leaf, weighing 46 grams, the subject of the third offence.
Youth Court report
[11] When, on 23 October 2009, Judge Callinicos for the reasons outlined earlier, transferred the appellant to the District Court for sentence, he had two reports material to this appeal that may or may not have been before Principal Judge Becroft on sentence. They set out in greater detail than the appellant's pre-sentence report where she was living, and with whom, when she offended.
[12] According to the first report, dated 6 October 2009, she is the youngest of eight children. She was born in Whakatane. Before she began primary school she moved with her family to Whanganui. When she was 13 her secondary school stood her down because of her behaviour. She never returned. Her parents were unable to control her. She moved to Wainuiamata to live with an aunt. It was only when she offended in February 2009 that she returned to her parents in Whanganui. That was when she offended again, and more seriously.
[13] The appellant's parents accepted that during her life with them she had been exposed to alcohol, drugs and criminal offending. She was much influenced by her brothers and other family members, some of whom had served prison sentences. One of her brothers was her co-offender in the first offence, the robbery. Another was a patched member of Black Power. The appellant's social worker found her immature, egocentric and without remorse. She shifted, he found, rapidly in mood from passive to aggressive and he saw this when she was with her parents. They said that while they held to Mäori traditions, the appellant, like her brothers, had stopped listening to them. The social worker noted that this was not for want of trying on the part of the mother.
[14] The appellant, her social worker concluded, was beginning to show some sign of understanding the seriousness of her offending but she still showed no real sign of remorse. He felt she was on a path to destruction from which her parents would not be able to deflect her. He feared she might cause serious harm to herself or serious injury to others.
[15] In his second report, dated 16 October 2009, he recommended that the Youth Court consider two sentencing options only. If the Youth Court retained jurisdiction he recommended that the Judge impose on the appellant three months supervision with residence followed by supervision for six months. (She was to live with her parents, subject to a curfew, was not to consume alcohol and drugs and was to attend a program and counselling.) Otherwise, the course chosen by Judge Callinicos was recommended, that convictions be entered and the appellant sentenced before a District Court.
Pre-sentence report
[16] The appellant's pre-sentence report, prepared after transfer, recommended a two-week remand to enable home detention to be canvassed more completely. Principal Judge Becroft did not accede to this. As soon became evident, he did not consider he had the ability to impose that sentence. That apart, the appellant's assessor raised four concerns in her report putting in issue whether that sentence would ever have been viable, which we also note.
[17] The assessor's first concern was the appellant's attitude to her offending. She attributed the earlier robbery to those with whom she happened to be with, minimising her part. Conversely, while she accepted responsibility for the aggravated robbery, her reason for committing it was that she was bored, desperate for a cigarette, and looking for excitement. The assessor's second concern was related to her first. While the appellant expressed some remorse, her assessor questioned whether it was real. The appellant showed no empathy towards her victims. If anything, her assessor said, her attitude towards them was “callous”.
[18] The assessor's third concern was that, though the appellant did not appear to have harmful patterns of alcohol and drug use, she did smoke cannabis regularly and, when she did consume alcohol, she drank in quantity – usually more than ten drinks. The assessor's fourth concern arose from the fact that, while the appellant was in care before sentence, she had to be placed in secure care twice. Despite the fact that she had made some progress within the facility, her assessor said, this put in issue, her ability to live in the community.
[19] The appellant's assessor saw her as presenting a high risk to the community, and being at (at least) a moderate to high risk of re-offending. The appellant's youth, her susceptibility to her peers, her sense of entitlement and her hostility to her victims all suggested that conclusion. To counter that risk, her assessor considered, the appellant needed to undergo a life skills educational or training program. She needed also to undergo a drug and alcohol program and receive counselling.
[20] Her assessor noted that such programs were contingent on the appellant being able to live securely within the community, and it was this that led her to request a two week remand. The appellant's mother wanted her to return home and was confident that she could manage her. But the first address the mother had identified was unsuitable. The second had proved incorrect. Any further address, the assessor said, would need to be screened carefully.
[21] In recommending a sentence of home detention the assessor's focus was on a sentence within the community. The only other sentence she considered was community detention and intensive supervision, which she thought inadequate. Even as to a sentence of home detention, she had reservations. The appellant, she said, might become bored. That might frustrate her rehabilitation. It might also lead her not to comply with that sentence.
Sentencing decision
[22] At sentencing, on 19 November 2009, Principal Judge Becroft began by saying that the decisive offence for sentence was the aggravated robbery, a purely indictable offence. The two other offences were not in that category and s 18 of the Sentencing Act precluded a sentence of imprisonment for those two offences.
[23] After describing the three offences the Principal Judge added that the effect of the aggravated robbery on the dairy owner was radical. She sold her shop precipitately, when the market was depressed and it was known locally that the shop had been robbed twice. Having purchased the shop for $120,000, she sold it for $58,000. The effect of the appellant's offending on her, financially as well as emotionally, was extreme.
[24] The Principal Judge stated that the appropriate sentence for the aggravated robbery depended on the answer to the two questions. First, did any adult tariff apply to a young person convicted and transferred to the District Court for sentence? Secondly, did youth justice principles still apply to such a person?
[25] As to the first, he concluded that he was bound by this Court's tariff decision for aggravated robbery, R v Mako.[4] Were he free to do so he would reduce the starting point set in that case for adults by as much as 60 to 70 per cent. But that had never been countenanced on appeal. He gave as one instance the High Court's decision on appeal, Police v Moala.[5] Such responses on appeal as these, the Principal Judge said, had created real difficulty:[6]
Sometimes the transfer to the District Court has simply been for the purpose of accessing longer rehabilitative sentences such as intensive supervision for two years. Sometimes Youth Court Judges sentencing in the District Court have wanted much more flexibility than a tariff approach can allow, especially to take into account immaturity, what is called “developmental lag” and to significantly reduce the periods of imprisonment that would otherwise apply.
[26] For these reasons and because those under 17 years should be treated in a “qualitatively different way” in order to reflect the United Nations Convention on the Rights of the Child and the CYPF Act, he invited appellate guidance. He then turned to the issue that is the primary subject of this appeal, the extent to which youth justice principles continue to apply as mandatory considerations when a young person is transferred out of the Youth Court for sentence in the District or High Courts.
[27] The sentencing regimes created by the CYPF Act and the Sentencing Act have some common features but differ substantially in their purposes and effects. In the Youth Court, the Judge said:[7]
There is a twin emphasis on accountability and also identifying a young offender's needs and encouraging a response that is socially beneficial, set out in s 4(f). ... Section 208 develops those principles. .... Safety and protection of the community may, at times, justify imprisonment but generally ... there is less emphasis on deterrence, denunciation, punishment and the need for exact parity between offenders.
[28] The immediate problem was that there were two conflicting High Court decisions. In X v Police[8] a full court held that, where the District or High Courts sentence a young person transferred for sentence by the Youth Court, the sentencing judge must consider youth justice principles alongside those in the Sentencing Act. In R v Patea-Glendinning,[9] by contrast, youth justice principles were held not to be principles the sentencing court was bound to consider.
[29] The Principal Judge considered himself bound, as a normal matter of precedent by the latter decision, Patea-Glendinning. But he had also this difficulty with X v Police. Its application turned on the effect of s 283(o) of the CYPF Act, which confers the power of transfer on sentence. The District Court could, however, also become responsible for sentencing a young offender who had denied the offence and either elected or had to go to trial, then pleaded or was found guilty at trial. In those instances it was much harder to argue that the sentencing court was subject to youth justice principles. Whether they applied or not, he considered, should not depend on an accident of process.
[30] This conflict of authority, the Principal Judge said, needed to be resolved. Youth justice principles so differ from ordinary sentencing principles that they can significantly affect the sentence imposed whatever the sentencing court; and in the High Court the cases in conflict had each enjoyed a measure of support or the conflict had been bypassed pragmatically as insignificant to the case.[10] As it was, he found himself obliged to sentence the appellant applying the adult tariff, assuming as a matter of law that youth justice principles did not apply. The effect, he made clear, was highly material.
[31] On the Mako tariff the appellant's aggravated robbery attracted a starting point for sentence within the range of four to six years imprisonment.[11]
[32] The offence was premeditated; deceptive disguises were worn; the appellant and the 13 year old worked together; each was armed with a knife and each used it threateningly; actual force was used; and the effects on the victim were very significant. Even allowing for the appellant's age the “absolute lowest” starting point he could take was four and a half years.
[33] To this the Principal Judge added six months on account of the earlier robbery. The uplift was not for the robbery. For that the appellant had already completed in large part a plan agreed in the Youth Court. He made that uplift to reflect the fact that the aggravated robbery had been committed while the appellant was on bail for the robbery. The uplift also took account of the fact that the two offences were much the same and close in point of time.
[34] The Principal Judge treated the appellant's “obvious immaturity” as a mitigating factor. That she had offended because she was bored and wanted excitement, he said, indicated “how immature and spectacularly and impulsively stupid” her reasoning had been. Though aged 16, he said, she was mentally and emotionally an 11 to 13 year old. Equally relevant was the fact that she had been excluded from school from the age of 13 and in her family life, had been exposed to alcohol, drugs and gangs. He accepted she was as remorseful as she could be. Despite this, her mental and emotional age was such that she did not have any idea how serious her offending was, nor did she appreciate its effect on her victims.
[35] If he were unconstrained by tariff and able to apply youth justice principles, the Principal Judge would have reduced the starting point by at least 50 per cent for the appellant's youth and related factors. It was too early, he said, to write her off. A sentence of home detention coupled with “multi-systemic family therapy and psychological counselling”, could work well. Everything was dependent, however on his ability to impose home detention. He found himself unable to do so.
[36] To impose home detention he would have had to discount some 70 per cent from the starting point he had taken. On the state of the authorities, most recently R v Hessell,[12] the greatest permissible combined discount for youth and an early plea was considered to be 50 per cent. In the event he allowed the appellant a 25 per cent discount for youth, and related factors, and a 33 per cent discount for her early guilty plea.
Decision under appeal
[37] When that sentence was appealed to the High Court, Miller J said that no issue was taken with the decision to transfer the appellant to the District Court for sentence.[13] The issue was whether the sentence then imposed was wrong in principle and manifestly excessive.
[38] Miller J found that the Principal Judge was right to hold as a matter of law that he was bound by Mako and by the principles in the Sentencing Act, and that youth justice principles did not apply. The ordinary principle, to which the Principal Judge adhered was that “[y]outh might affect culpability very substantially in some cases, but it enters the sentencing analysis primarily as a mitigating factor”. In this he adhered to his own decision in Patea-Glendinning.[14]
[39] Miller J also accepted that the Principal Judge was right to say that whether youth justice principles applied could matter. The starting points taken in Mako reflect three objectives that figure in the Sentencing Act, but are not youth justice principles – accountability, deterrence and denunciation.[15] Rather, and at most Mako allowed for “substantially reduced sentences for youth offenders in appropriate cases”.[16]
[40] The Principal Judge was equally right to sentence the appellant from the Mako starting point for an adult offender after trial. That decision as a whole showed that this Court intended to allow youth to be taken into account by discount from the starting point fixed for adult offenders, not by reducing the starting point itself. That, he said, was consistent with s 9(2)(a) of the Sentencing Act, which lists age as a mitigating factor.
[41] Miller J considered that the Principal Judge was not, as he assumed he was based on Police v Moala, confined to a 25 per cent discount for youth.[17] In Moala Harrison J did not set out to impose any general outer limit. The discount he held proper in that case was constrained by very serious serial offending by an offender, who had “an unaddressed and uncontrolled personality disorder”, and whose prospect of rehabilitation was slight.[18]
[42] As a matter of long standing sentencing practice, Miller J accepted, the Principal Judge was right to assume that total discounts for youth, early admissions and remorse had been set at about 50 per cent. But this was not required by Mako. Rather, as Miller J put it, “[t]he size of the youth discount depends on, in particular, first offender status, age and immaturity, and the prospects of rehabilitation”.[19]
[43] Finally, Miller J said, the Principal Judge made no error when he confined the discount he allowed the appellant, for youth and related factors, to 25 per cent. She was transferred for sentence to the District Court because her prospects of rehabilitation were not strong. Since then she had been kept in secure custody twice. Her endemic state of boredom, her poor choice of friends, her sense of entitlement and her hostility to victims all suggested that if therapy or counselling were to work it would have to be intensive.
[44] Miller J agreed with the Principal Judge that this was a case where the issue of whether youth justice principles applied did make a difference. Had they applied a more lenient sentence would have been open in principle.
Appellant's submissions
[45] When a young person is sentenced for criminal offending, Mr Bullock submitted for the appellant, and in whichever court that might be, he or she must be sentenced as a young person, not as an adult. The youth justice regime in the CYPF Act exists for that very reason. Young people are not adults. They are less mature and more vulnerable and impulsive. That does not change if they happen to be sentenced in a court of general criminal jurisdiction.
[46] In such a case, Mr Bullock submitted, the Sentencing Act will apply, but youth justice principles can and ought to apply equally. In that way a young person can be held fully accountable in a fashion that reconciles his or her best interests with the interests of justice generally. That accords with the purpose of each Act. The provisions of each Act, principally those of the CYPF Act, should be read to give effect to that purpose.
[47] Mr Bullock further submitted that the Principal Judge made clear that if he had been able to apply youth justice principles, he would have imposed home detention. His inability to do so, as he perceived it to be, resulted in a more severe and less rehabilitative sentence. This was recognised by Miller J when he granted leave to bring the present appeal. It follows that, if youth justice principles did in fact apply, the sentence imposed was manifestly excessive.
[48] The appellant has been in custody since July 2009 and that might mean that, even if the sentence is set aside because youth justice principles did apply, the availability of home detention may now be academic. But, the appellant as presently sentenced, though eligible to apply for parole at one-third (after ten months) may still be required to serve her full sentence. A sentence of two years or less, by contrast, would entitle her to release when she had served one half.
Two issues of interpretation
[49] The question of whether youth justice principles must be taken into account by judges in the District or High Courts, when sentencing a young person transferred from the Youth Court, turns on three sections of the CYPF Act: s 283(o), which confers the power of transfer; s 5, which states the principles governing any exercise of power under the CYPF Act; and s 6, which states the principles governing any exercise of power within the youth justice regime. The Sentencing Act says nothing directly to the point.
[50] Section 283 confers on the Youth Court the ability to make a range of orders, once a young person admits to or is held answerable for an offence. These range from the unrestrictive and wholly remedial to orders which, though they may be remedial to some degree, can result in the young person being supervised or confined. The most severe was that offered as one of the two alternatives in this case, supervision with residence.[20] Section 283(o), by contrast, enables a Youth Court Judge to take a plea and to decline to sentence within that jurisdiction, as happened here. He or she may instead:
In the case of a young person who is of or over the age of 15 years, 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] shall apply accordingly.
[51] The Judge may only exercise this power of transfer if the threshold imposed by s 290 is passed. This requires that the offence must be purely indictable, or such that a sentence of imprisonment would be called for if the offence were committed by an adult. Otherwise, there must be special circumstances going to the offence or offender that make a non-custodial order “clearly inadequate”. The Judge must consider all other alternatives available under Part 4 of the CYPF Act, and conclude that transfer is the only course appropriate.
[52] Section 208, which sets out the principles governing the exercise of powers under those parts of the CYPF Act that concern youth justice, is subject to s 5 which governs more generally the exercise of any power under the Act. The overarching s 5 principles set out to promote the welfare of children and young persons through their families, and to involve both the child and the families in any decision taken.
[53] Section 208 introduces Part 4 of the Act, which is titled “Youth justice”, and governs how young persons are to be treated from the moment they are apprehended, through to their custody and prosecution. Part 4 also sets out the jurisdiction of the Youth Court, the orders that may be made and the conditions then to apply. As s 208 states, it also governs Part 5 (which prescribes the Court's process) and ss 351–360 within Part 6, (which confer rights of appeal to the High Court).
[54] Whether youth justice principles apply when a young person is sentenced after transfer in the High or District Courts turns finally on two issues of interpretation, on which the decisions in the High Court divide. The first is whether the power of transfer itself, that conferred by s 283(o), is wholly prescriptive. Does it, by stating that on transfer that “the provisions of [the Sentencing Act 2002] shall apply accordingly” displace the CYPF Act’s youth justice principles altogether? Could they still by implication apply?
[55] The second is not unlike the first. It is whether the District or High Court, when sentencing after transfer, is a “court” contemplated by s 208; and s 5 for that matter. By exercising the power of sentence relinquished by the Youth Court, are these courts exercising any power within the CYPF Act for the purposes of s 5, or as s 208 contemplates, a power conferred by Parts 4 and 5? The Youth Court is clearly the court that s 208 and s 5 contemplate primarily. Is that the only court these sections contemplate?
Divergent decisions
[56] In X v Police Heath and Courtney JJ reduced on appeal to two years imprisonment a three-year sentence imposed in the District Court on a young person. That young person had been transferred for sentence from the Youth Court under s 283(o) for two offences of sexual violation. They granted leave to apply for home detention. They held that the sentencing Judge in the District Court ought to have taken into account youth justice principles.
[57] Heath and Courtney JJ convened as a Full Court to decide that very issue of law; an issue, that turned principally, if not exclusively, on whether the District Court was on sentence after transfer a court exercising a power governed by the principles expressed in s 208. They held that it was for two interrelated reasons. They began their decision with the first:[21]
It is generally recognised that young offenders ought to be treated differently from adult offenders. It is the vulnerability of younger people and their (generally) more immature judgment that leads to that conclusion. Recognition of that principle has led to enactment of an alternative criminal justice regime to deal with young offenders.
[58] That reason, by itself, has to be and is completely uncontroversial. Their second reason, to be found later in their judgment, stands differently. It is linked to their first and it underpins their interpretation of s 208. It is this:[22]
In our view, s 5 of the Interpretation Act 1999 requires the legislation to be interpreted in a manner that promotes a coherent youth justice system and the consistent application of youth justice principles to young offenders. A young person does not grow any older by virtue of being transferred to the District Court for sentence.
[59] Section 283(o) had to be the “starting point” for their analysis, and they recognised immediately that it expressly requires the District Court to sentence any young person transferred in accord with the Sentencing Act.[23] They did not, however, see that this imposed any stricture. The Sentencing Act provided a framework for analysis beginning with nine purposes and ten principles, all of which must be taken into account but some of which may not be relevant. It then lists aggravating and mitigating features that must also be taken into account to the extent relevant, and those factors are not exhaustive.[24]
[60] They then turned to s 208 and held that a District Court, when sentencing a young person after transfer, had to be a court governed by the principles there set out, even though “Court” is defined by s 2(1) of the CYPF Act to be the Youth Court, and no other court is referred to. Accepting that to be so, they then said:[25]
... What is far from clear ... is whether the draftsperson of Parts 4 and 5 ... used the term “Court” in a consistent sense in those parts. For example, in s 214(1)(a) (arrest of child or young person without warrant) the term “Court” plainly refers to a Youth Court. However, in other provisions, for example s 272 (dealing with the jurisdiction of the Youth Court), reference is made specifically to “Youth Court”. The reference in s 208 to "any Court" must be read in that context.
[61] This led them to conclude:[26]
... [T]he lack of any clear legislative intent to limit the term “any Court” to the Youth Court requires the words to be given their ordinary meaning. In our view, s 208 refers to any Court (Youth Court, District Court or High Court) that is exercising powers conferred under Parts 4 and 5 of the CYP Act or under the specific provisions within Part 6 to which s208 refers dealing with appeals from the decisions of the Youth Court.
[62] When the District or High Courts sentence a young person after a s 283(o) transfer, they then held, the sentencing court must be a court contemplated by s 208. The sentencing court only obtains that power because the Youth Court has relinquished it by exercising the power of transfer. They put that in this way:[27]
... the CYP Act mandates an exclusive regime to deal with young persons, that regime conferring on the Youth Court, by s 283(o), the power to transfer the young person for sentence in the District Court. An order to that effect can only be made because the Youth Court is expressly empowered to make it under the CYP Act. Conversely, the District Court is empowered to sentence only because the Youth Court has made the transfer order.
[63] They acknowledged that, when the Youth Court declines jurisdiction outright, or when a young person elects or has to go to trial and pleads before trial or is found guilty, that conclusion is “more tenuous”.[28] But they said, as a matter of consistency, the principle had to be general. As they said finally:[29]
... In our view, Parliament could not have intended that s 208 not be taken into account on sentence in the District Court while other principles and purposes were. That does not cause violence to the statutory sentencing scheme. All that must be done is to take account of those factors. Those factors may well be outweighed in particular cases by the need to denounce conduct, hold offenders accountable for their actions and to deter ...
[64] In R v Patea-Glendinning, by contrast, Miller J, on a Crown appeal against sentence, held that in sentencing a young person for aggravated robbery to 300 hours community service and two years supervision, the sentencing Judge in the District Court had erred in taking into account youth justice principles. It was only after he had compared that sentence with those imposed on co-offenders that he held it not to be manifestly inadequate.
[65] In declining to follow X v Police Miller J began, not with s 208, but with s 283(o), which was to be given effect according to its language and in the light of its purpose. Though he accepted that the District Court or the High Court only obtained jurisdiction to sentence a young person once the Youth Court had exercised the power of transfer, he did not regard that as decisive:[30]
... [T]he ordinary and natural meaning of s 283(o) is that when sentencing the District Court exercises its own jurisdiction, applying the Sentencing Act. The sentencing decision is that of the District Court, not the Youth Court. The Sentencing Act provides a comprehensive sentencing regime that expressly recognises youth as a mitigating factor and incorporates the principle of the least restrictive outcome. It follows, as a matter of construction, that youth justice principles do not apply to the sentencing decision because s 208 requires only that they be applied when exercising powers conferred by or under Parts 4 or 5 or sections 351–360.
[66] Miller J did not accept that because s 208 speaks of “any Court”, that means it gathers in any court sentencing as a result of the Youth Court exercising its power of transfer.[31] “[A]ny Court” is explained by the fact that appeals from the Youth Court lie to the High Court. Where the term “Youth Court” is used in s 272, given the definition of “Court” in s 2(1), that full title was arguably surplusage.[32]
[67] Finally, Miller J said:[33]
... [T]he evident purpose of s 283(o) is to allow the Youth Court to transfer young offenders of qualifying age to the District Court where the circumstances of the offence or the offender require that he or she be sentenced in that Court, under the Sentencing Act. That purpose does not dictate that youth justice principles favouring community based sentences be applied to such offenders, especially when the Sentencing Act itself treats youth as a mitigating factor. On the contrary, s 283(o) recognises that there may be young offenders in respect of whom the sentencing options available under the CYPF Act are inadequate notwithstanding their age.
Later cases
[68] Since Patea-Glendinning, decisions in the High Court have divided. In Tanevesi v Police[34] Cooper J agreed with Miller J's analysis. In Police v Moala Harrison J was not as definitive but was attracted to that analysis. In R v MTV[35] Priestley J thought that the Patea-Glendinning analysis might be strictly correct but agreed with the Full Court in X v Police that youth justice principles were relevant when a youth was sentenced in an adult Court. In P v Police[36] Mallon J held that whichever approach was taken was without practical significance on that appeal.
Youth justice principles displaced
[69] When young persons appear for sentence, in whichever court that might happen to be, it will always be relevant, we agree, and sometimes may even be decisive, that they lack the maturity of an adult and are decidedly more vulnerable and impulsive. We are, however, unable to agree that justice to young persons will be rendered incoherently unless all courts sentencing young persons are obliged to take into account the s 208 principles.
[70] The youth justice regime created by the CYPF Act is a carefully weighted and circumscribed amalgam of objects, principles, rights, processes, remedies and sanctions. It is not, and does not purport to be, an exclusive code for the administration of youth justice. It caters for the young offender whose offending is not of the most serious order, which may be attributable to a lack of family support, or immaturity, and may also be impulsive or the result of peer pressure. It does not cater for young offenders, especially those approaching the age of 17, whose offending is alleged or is accepted to be so serious that it is tantamount to adult offending.
[71] Young persons charged with murder or manslaughter are not dealt with in the Youth Court except for the purpose of committal. Young persons charged with purely indictable offences, with an offence attracting a sentence of imprisonment of three months or more who elect trial, again remain within the Youth Court only for the purpose of committal.[37]
[72] A young person who must go to trial or has a right to elect trial and who is not charged with murder or manslaughter, may forego trial and elect to be dealt with in the Youth Court. But that is only when the Youth Court gives the young person that opportunity after considering the evidence supporting the offence charged. The Youth Court may permit a young person, as happened in this case, to plead there and thus assume jurisdiction to sentence.[38] But that too is discretionary. The seriousness of the offence and its character come into play.[39]
[73] Even on sentence the Youth Court has a residual discretion. As s 283(o) recognises, the orders that are within its powers to make will not always serve. Some young persons will always have to be sentenced in a court of general criminal jurisdiction. Their offences may be too serious for the youth justice regime to cater for. They may be so close in age to an adult that they ought to be sentenced as if they were. For some other reason the orders the Youth Court is able to make may be inadequate or inapt.
[74] Therefore, s 283(o) is to be taken literally. Once a young person is transferred for sentence to the District Court, or the High Court for that matter, the Sentencing Act will apply. The plain implication has to be that Sentencing Act purposes, principles and aggravating and mitigating factors will then effectively displace the s 208 principles that would have applied but for transfer. We consider, moreover, that unless that were so, the analysis that the Sentencing Act then calls for would be rendered incoherent.
[75] Whenever a young person is sentenced, in whichever court that may be, the sentencing judge exercises a discretion. But there is a fundamental difference between the principles that apply under the Sentencing Act in a court of general criminal jurisdiction and those that apply in the Youth Court by virtue of ss 5 and 208 of the CYPF Act.
[76] In the Youth Court the primary focus in the balance to be struck between offence and offender is the young person. In the principles the CYPF Act obliges the sentencing judge to take into account, and in the repertoire of orders that it allows, it calls for the least restrictive and most positive of orders to be made; orders that extend beyond simply holding the young person accountable, that strengthen and assist him or her to make better choices; and highly desirably, with the active support of their families.
[77] In the District or High Courts, under the Sentencing Act, by contrast, the Judge is obliged to begin with the offence in its objective seriousness and only then to look to the offender.[40] The Judge must set about this process taking into account generally stated purposes, principles and factors that are in contrast, in tension or are even opposed. In striking a sentence that is just for the offence and for the offender the judge must choose, broadly speaking, between the most restrictive and punitive on one hand, and the least restrictive and most rehabilitative on the other. So even where s 208 principles and Sentencing Act purposes, principles and factors coincide, they differ in purpose, specificity and weighting.
[78] Four s 7 sentencing principles find some counterpart in s 208; to hold the offender accountable (s 7(1)(a)), to make him or her responsible, and to bring home the harm caused (s 7(1)(b)); to provide for the interests of any victim and for reparation (ss 7(1)(c)–(d)); to rehabilitate and reintegrate (s 7(1)(h)). So too do these s 8 principles: to take account of the offender's family and cultural background and of any restorative justice process (ss 8(i)–(j)); and to impose the least restrictive sentence appropriate and to take account of anything making an otherwise appropriate sentence disproportionately severe (ss 8(g)–(h)). There is further congruence with these s 9 mitigating factors: the need to take account of the age of the offender (s 9(2)(a)) as well as whether and when the offender has pleaded guilty and expressed any remorse (s 9(2) paras (b) and (f)).
[79] Section 208 goes further. It requires measures to be taken to strengthen the young person within his or her family, and to be kept in the community so far as practicable. Moreover, youth is not merely a mitigating factor. It has to be taken into account in determining whether to impose any sanction and the nature of it. Even more critically, a number of Sentencing Act purposes, principles and factors find no counterpart in s 208 or s 5, and are frankly incompatible with those principles.
[80] Under the Sentencing Act, there are three s 7 purposes the sentencing judge must consider that are clearly incompatible with the CYPF Act’s youth justice principles: the purpose of denouncing the offender’s conduct, of deterrence and of protecting the public (ss 7(1)(e)–(g)). Equally incompatible are the s 8 principles of: the need to take account of the gravity of the offending and form of offence; the duty to impose the maximum penalty or a penalty near the maximum, where that is called for; and the need to be consistent in sentence with those imposed in like cases (s 8, paras (a) (c) and (e)). Discordant aggravating features are actual or threatened violence, the use of a weapon, unlawful entry, offending on bail, the extent of any loss, damage or harm, particular cruelty, abuse of trust, the vulnerability of the victim, premeditation and prior convictions (s 9(1) paras (a), (d)–(g) and (i)–(j)).
[81] The Sentencing Act does provide that a person under 17 years is not to be sentenced to home detention or imprisonment, except for a purely indictable offence.[41] The sentencing judge must also be satisfied on reasonable grounds, before imposing imprisonment that the young person, like any adult for that matter, is unlikely to comply with any other sentence.[42] According to the letter of the Act a young person must then be sentenced like any other person; and that, we consider, subject to one further very significant qualification, is precisely why the power of transfer exists.
[82] A “young person” under the CYPF Act[43] is a “child” for the purposes of the United Nations Convention on the Rights of the Child,[44] which New Zealand ratified in 1993. For its purposes a “child” is everyone below 18 years unless under domestic law majority is attained earlier.[45] When sentencing a young person, therefore, a judge should, to the the extent that this is consistent with the letter of the Sentencing Act, act in accordance with the Convention and, in particular, should treat the young person's “best interests” as a “primary consideration”.[46] The Judge must treat the young person in a way that promotes his or her “sense of dignity and worth”; must reinforce, the young person's “respect for the human rights and fundamental freedoms of others”; and must, as the Sentencing Act also expressly calls for, impose a sentence which “takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society”.[47]
[83] In the end, a judge sentencing a young person under the Sentencing Act must always weigh the young person's age and the reasons why he or she offended, against the seriousness of his or her offending and prospects of rehabilitation. Sometimes the young person's age will be a mitigating factor of high, perhaps decisive, significance not to be circumscribed by any fixed outer percentage. Equally, there can be no warrant for saying that youth, of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.
Youth discretionary mitigating factor
[84] The conclusion we have just expressed is consistent with the decisions of this Court both before and after the passing of the Sentencing Act. This Court has adhered in cases such as these to a constant principle. That the principle may have been expressed more completely on some occasions than on others seems to us without significance.
[85] R v Cuckow[48] is an early prime example. In that case this Court set aside on appeal a sentence of two years imposed by the High Court on a 14 year old boy for arson. It imposed instead a sentence of supervision requiring that he live where directed and undertake training and counselling.
[86] That too was a case where the Youth Court had declined jurisdiction. The arson was serious. A school had been set alight and $500,000 of damage caused. Such offences, this Court said, occurred with disturbing frequency. A deterrent sentence was clearly called for. The sentencing Judge had regarded the protection of the community as the overriding fact. However:[49]
Once the Youth Court declines jurisdiction in favour of the High Court, the offender falls to be sentenced under the Criminal Justice Act and strictly speaking the provisions of the Children, Young Persons and Their Families Act cease to be applicable. However, the principles underlying the sections referred to by the Judge normally should underlie consideration of any sentence in respect of a young offender.
[87] In that case this Court concluded that if the sentencing Judge had enjoyed the advantage of the extensive material available on appeal, speaking of the boy's most unfortunate background and his low level of maturity and understanding, he might have imposed a different sentence. The Court concluded, “[c]ertainly a young first offender should not be regarded as beyond help even after serious offending unless there is no escape from that conclusion”.[50]
[88] A contrasting decision is R v Crime Appeal[51] where this Court upheld on appeal a four-year sentence imposed on a 16 year old for sexual violation. There the offences for sentence, the offender’s similar earlier offences, and the personality of the boy, which was characterised by “fantasies and acts of sexual and physical aggression, rages and antipathy to authority”, made the safety of the public paramount.
[89] By way of yet further contrast, this Court in R v C[52] declined a Crown appeal against a sentence of 18 months supervision, where a 14 year old had committed two sexual violations by rape. The Court held that the offender and the offences had singular features that justified that sentence. It added this:[53]
Finally, viewed more broadly in terms of the wider public interest, we cannot see that a sentence of imprisonment on a 14 year old for this offending a year after the event and against that background would act as a general deterrent to like-minded youths, or that it would send a signal to the youth and the wider community denouncing his offending.
[90] The principle underlying all these decisions was expressed perhaps most broadly by this Court in R v Mahoni:[54]
The principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is well established. See R v Titoko CA114/96, 11 August 1996 where this Court drew attention to section 7 of the Criminal Justice Act and Article 37(b) of the United Nations Convention on the Rights of the Child. It should be noted that the principle is not founded solely on consideration for young persons; there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in. However, the principle is not absolute and there are situations where it must yield to the public interest, see for example R v Wilson [1989] 2 NZLR 308.
[91] There can be no difference in principle when this Court issues a tariff decision like R v Mako or as a result of the order of analysis now called for by R v Taueki. In Mako, this Court, to some degree anticipating Taueki, held that once an appropriate starting point is taken for the offence and its objective seriousness:[55]
Adjustments can be made in mitigation to allow for such matters as pleas of guilty, assistance to the authorities, age and other personal circumstances. At the same stage, matters of aggravation may warrant some increase. These could include the offender's criminal history, the fact of bail or parole at the time of offending and the like.
[92] As to the effect that youth and prospects of rehabilitation may have, this Court first said:[56]
Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens, cannot expect leniency in sentencing for serious aggravated robbery offences. ... A high proportion of aggravated robberies in this country are committed by teenagers. In some cases young offenders may have been directed by others who are older. It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and an unlikelihood of re-offending.
[93] In that passage this Court gave first place to the values that stand in contrast to those set out in s 208, denunciation, deterrence and the protection of the community. The Court next, however, considered to what extent those purposes could be displaced:[57]
... where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery, even when committed by an immature offender, remains serious violent offending.
[94] A very recent instance in which the youth of the offender figured as a factor that had been given insignificant weight is R v K.[58] There the young person was aged 16 and for sentencing purposes a first offender. He had apologised at a family group conference. He had entered an early guilty plea. He had also claimed to have acted under duress. The victims had recognised the need for a rehabilitative sentence even though the prospects looked bleak.
[95] There this Court held that the young person's offending had to be balanced against the need to consider his rehabilitation and reintegration into society. The outcome had to be the least restrictive in the circumstances. It set aside a six and a half-year sentence (a seven year sentence in reality because he had spent five months on remand). It set aside a minimum term of four years. It imposed a sentence of three years.
[96] As these decisions illustrate, the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person's part in it, anything aggravating and otherwise mitigating must also be weighed. The analysis Mako calls for is always indispensable.
Conclusion
[97] We uphold the decision of the High Court. Further, we answer the question posed by Miller J in this way: when a young person is sentenced in the District Court or High Court, having been transferred for sentence by the Youth Court, the sentencing Judge is not required to take into account the youth justice principles provided for in the CYPF Act.
[98] The Principal Judge, in the sentence he imposed weighed accurately the seriousness of the appellant's offending against her age and related factors, and her early plea. He was incorrect when he assumed that there is any outer limit to the discount for youth. Such a fixed discount would be inconsistent with the Judge's duty on sentence to accord to the child the rights he or she enjoys under the United Nations Convention on the Rights of the Child. What sentence is proper in type and length is not constrained by any percentage. It will depend on the case.
[99] The appellant is now a considerable way through her sentence. Whether she ought to be released at the earliest release date, or later, is properly for the Parole Board. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Hosay DC Wellington CRI-2009-283-59, 19 November 2009.
[2] In accordance
with Children, Young Persons, and Their Families Act 1989, s 283(o); R v KH
YC Whanganui CRI-2009-283-59; CRI-2009-283-23, 23 October
2009.
[3] R v
Pouwhare HC Whanganui CRI-2010-483-11, 16 April
2010.
[4] R v
Mako [2000] 2 NZLR 170
(CA).
[5] Police
v Moala [2008] DCR 70
(HC).
[6] At
[24].
[7] At
[34].
[8] X v
Police (2005) 22 CRNZ 58
(HC).
[9] R v
Patea-Glendinning (2006) 22 CRNZ 959
(HC).
[10] At
[39]–[40].
[11]
At [45], based on R v Mako at
[56].
[12] R v
Hessell [2009] NZCA 450, (2009) 24 CRNZ
612.
[13] At
[8].
[14] At
[50].
[15] At
[12]. See Sentencing Act 2002, ss 7(1)(a) and
7(1)(e)–(f).
[16]
At [12].
[17] At
[17].
[18]
Police v Moala at
[23].
[19] At
[18].
[20]
Children, Young Persons, and Their Families Act 1989, s
283(n).
[21] X
v Police at
[1].
[22] At
[79].
[23] At
[68].
[24] At
[70].
[25]
At
[75].
[26] At
[76].
[27] At
[77].
[28] At
[80].
[29] At
[81].
[30] At
[45].
[31] At
[46].
[32] At
[47].
[33] At
[48].
[34]
Tanevesi v Police HC Auckland CRI-2007-404-223, 4 December
2007.
[35] R v
MTV HC Auckland CRI-2008-292-179, 27 August 2008.
[36] P v
Police HC Wellington CRI 2007-485-48, 23 August
2007.
[37]
Children, Young Persons, and Their Families Act 1989, s 272(4), s
274.
[38]
Children, Young Persons, and Their Families Act 1989, ss
275–276.
[39]
W v Registrar of the Youth Court, Tokoroa [1999] NZFLR 1000
(CA).
[40] R v
Taueki [2005] 3 NZLR 372 (CA).
[41]
Sentencing Act 2002, ss 15B,
18.
[42] Section
17.
[43] Children,
Young Persons, and Their Families Act 1989, s
2.
[44]
Convention on the Rights of the Child, GA Res 44/25, A/Res/44/25
(1989).
[45]
Article 1.
[46]
Article 3.1.
[47]
Article
40.1.
[48] R v
Cuckow CA312/91, 17 December
1991.
[49] At
5.
[50] At
10.
[51] R v
Crime Appeal CA212/91, 17 October
1991.
[52] R v
C CA332/95, 28 September
1995.
[53] At
6.
[54] R v
Mahoni (1998) 15 CRNZ 428 (CA) at
436–437.
[55]
At [62].
[56] At
[65].
[57] At
[66].
[58] R v K
(2003) 20 CRNZ 62 (CA).
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