R v Q [2014] NZHC 550 (21 March 2014)

Last Updated: 25 March 2014

ORDER PERMANENTLY PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF DEFENDANT (Q) AND

CO-DEFENDANT. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-005262 [2014] NZHC 550

THE QUEEN

v

Q

Hearing: 21 March 2014

Appearances: A J F Perkins for Crown

R Mansfield for Q Sentence: 21 March 2014

SENTENCE OF WINKELMANN J [and name suppression judgment]

Solicitors:

Meredith Connell, Auckland

R v Q [2014] NZHC 550 [21 March 2014]

[1] [Q] you appear for sentence today having pleaded guilty to assaulting Stephen Dudley. Although the maximum sentence for that charge is one years’ imprisonment the law is that a sentence of home detention or imprisonment cannot be imposed on you because of your age. The issue for me today is whether I sentence you to community work, or alternatively discharge you without conviction. Because of your age I am going to tell you from the beginning that I have decided to discharge you without conviction. But I want you to listen carefully to what I say because it has an important message for you as to how I have reached the decision that I have. The first thing I have had to consider is of course what you did.

[2] You and your brother and the victim, Stephen Dudley, were students of the same high school in West Auckland. You and Stephen were 15 years’ old at the time and were in the same rugby team. The team was close-knit, consisting mainly of students who had also attended the same Intermediate School. You knew your teammates well, including Stephen.

[3] On the day, your team had come together for a pre-season practice. Prior to training, a fellow teammate had been making fun of and joking around with Stephen. You joined in. Stephen became offended at what was said, and a fight almost broke out between the two of you and mutual taunts were exchanged. Your teammates intervened and prevented things from escalating further. The team practice then proceeded without any further incident.

[4] After practice ended, Stephen picked up his schoolbag and rugby gear and turned to go home. However it seems that some of your teammates wanted to see a fight and someone called out (it was not you) to Stephen to come back. He did. Some people got out cellphones to film a fight and you say you felt pressure to fight. You ignored the members of the team who were trying to stop the fight, and walked to the centre of the field where Stephen met you.

[5] Meanwhile, your 17 year old brother had arrived to pick you up after practice. Someone told him you were about to be in a fight. He ran over to where Stephen was standing. While Stephen was distracted your brother struck him on the

neck with a swinging right arm. Stephen hunched over, and you and your brother punched him several times in the torso. Stephen did not throw a punch. I say that because we have referred to it as a school yard fight, but the reality is that Stephen did not throw a punch.

[6] You and your brother left the scene. You say that when you left Stephen he seemed okay. You had no idea that he was unwell or that he had collapsed. Tragically, Stephen subsequently lost consciousness and died. It has emerged since the assault that Stephen had an undiagnosed heart condition which made him vulnerable to problems with his heart’s rhythm in situations of traumatic stress. No- one knew he had that condition. There is no clear link between your offending and Stephen’s death. However, the reality is, as you have acknowledged in the affidavit you filed in court, that if the fight had not taken place, Stephen might be alive today.

[7] I also take into account the impact of your offending. We have heard today from Mr Dudley who read the statement on behalf of himself and Stephen’s mother. They of course cannot draw a distinction between the impact of the assault and Stephen’s death. Although they say they know you are not responsible for Stephen’s death, they say it is clear in their minds that your actions and the assault were a significant influence on the subsequent events which ultimately meant that Stephen did not return home to his family on that day.

[8] They speak of the impact the loss of Stephen has had on them and upon his two sisters and two brothers. Because of the events on that day, in which you played your part, the Dudley family have lost the boy they describe as warm, loving and thoughtful and as a critical part of their family.

[9] They say that the impact has also been felt by Stephen’s extended family and community. Stephen was a role model to many, and an active member of the community, including taking part in a buddy programme for school exchange students.

[10] In sentencing you I have also taken into account your personal circumstances. The most important of these for the purposes of this sentence, is your youth. You

were fifteen at the time of your assault on Stephen. You are sixteen now. A pre- sentence report prepared by the Department of Corrections has provided me with the following details of your background. Your family is of Samoan descent. You have three brothers and one sister. You have not previously offended.

[11] The report writer assesses you as being at low risk to the community, and as being at low risk of reoffending. He believes that attendance at school is vital for you to lead a life that contributes to our society and notes your enthusiasm to continue with your education. But because of what you did and the events that followed, you have not been at school since midway through last year and you have not been in any education programme since late last year.

[12] Unlike many young people who end up in Court it is clear that you have a loving and supportive family. They have brought you up with a strong moral code. You have expressed your view that you have let your family down. When you decided to assault Stephen, you did let them down.

[13] I have also read the many character references that have been filed on your behalf. The consistent themes that emerge are that you are a quiet, shy and respectful young man. You attend church regularly. You have been a good school student. There is no history at all of violence on your part until you assaulted Stephen.

[14] From the affidavit you have filed for Court today I am satisfied that you do understand the role that you played in Stephen’s death and that you are as remorseful as it is possible to be. I want to give voice to what you say because of the message it has for others your age. You gave the background to the fight as follows:

Fights like this are sadly not uncommon at school, and I believe most schools. You end up being involved due to social peer pressure as no one wants to look soft or weak. If you don’t get involved, then you get a hard time from the others and this can often be harder to deal with than a few bruises which is all anyone expects from a fight. No one seeks to really hurt the other. No one ever imagines that something like this can happen. Certainly I never did.

[15] The fact that fights occur at schools throughout New Zealand does not make them okay. Acts of violence carry with them the risk of unexpected sometimes terrible consequences. Consequences, as you now know, that can be out of all proportion to the violence employed. You acknowledge this in your affidavit. You say:

I was weak to become involved in this fight. If I was a bigger guy, or braver, I would have said no to the others and shaken Stephen’s hand and walked away as friends, as we were. We would have then enjoyed the rest of our time at school and rugby together. Further no matter what, Stephen would have been alive and with his family.

[16] You also speak of your determination to try to address the harm you contributed to. You remain resolute to complete your secondary education and gain entrance to University. You say that part of your motivation to do so is out of obligation to Stephen and his family, saying:

Somehow I want to get on with my life and education. I feel that I owe that to Stephen and his family. There has already been so much pain and loss. I do not think I should be allowed to waste the privilege of life. I feel I have to make something of myself for him and his memory. I do not know what else I can do.

Sentencing analysis

[17] The law provides a structure for how I have to go about sentencing you. The approach I take is informed by the normal sentencing principles that apply to adult offenders. But because of your age I may also take into account the youth justice principles underlying the youth justice provisions of the Children, Young Persons, and Their Families Act.¹ In this case I propose to do so. Were it not for the fact that you were initially charged with manslaughter you would be being dealt with on this charge through the Youth Court justice system where youth justice principles would be applied. When I look at all these principles, I proceed in this way.

[18] In sentencing you I have to hold you accountable for the harm that has resulted from your offending.² I also weigh carefully the need to denounce your

_{conduct. You stand there as a representative of every child who has taken part in a}

¹ _{Pouwhare v R CA227/10, 2 July 2010.}

² Sentencing Act 2002, ss 7(1)(a) and (b).

school yard fight. It may be that fights occur in schools throughout New Zealand and frequently. But as what happened to Stephen makes plain, that violence cannot be condoned. Stephen’s death, and the situation you now find yourself in demonstrate just how unpredictable and even terrible the consequences of even school yard violence can be.

[19] I agree with counsel that especially important in sentencing you is the need to impose a sentence with the purpose of encouraging your rehabilitation and reintegration after your assault of Stephen.³ Your age, good record and lack of continuing threat to the community render the punitive response to your actions of less import than this Court’s supportive and preventive responsibility in assisting your future prospects.

Submissions for the defence

[20] You have heard counsel make submissions to me. They have also made very extensive written submissions which I have taken into account. For you Mr Mansfield submits that I should discharge you without conviction in light of your youth, good character and having regard to the nature of the offending. He also invites me to have regard to youth sentencing principles.

[21] Mr Mansfield submits that your offending involved low-level violence, sadly typical of secondary school adolescents. He says it is offending that would never have come to the attention of the police and would have been dealt with by your school, had Stephen not suffered from an underlying condition.

[22] Mr Mansfield emphasises your youth and previous good character. Prior to this assault you were a good student. You did not resort to the use of your fists. You were well regarded in your year group at school, and in your rugby team, because of your hard work and polite manner. He notes your remorse for your actions which you have acknowledged were part of a series of events which ended with Stephen’s

_{death. He describes the toll that being charged with manslaughter and being}

³ Section 7(1)(h).

excluded from school has had on you. He emphasises that in light of your youth, the need to provide for your rehabilitation is a key consideration.

[23] Mr Mansfield submits that the nature of your offending must be weighed against the serious consequences of having a conviction as a young person, and that the significant and oppressive stigma of a conviction would follow you for life, and affect your future employment and travel.

[24] He observes that had Stephen’s condition come to light before you were charged with manslaughter, your case would have proceeded in the Youth Court. There, youth justice principles would have been applied, you would not have received a conviction for your offending and likely would have been discharged. Mr Mansfield submits this is relevant in assessing issues of the consequences of the entering of a conviction in this Court. He says that this is an adequate response to your offending, that you have already been punished through the months of stress when facing the manslaughter charge, through the social exclusion you have experienced, and through your knowledge of the role you played in the events that led to Stephen’s death.

Submissions for the Crown

[25] The Crown accepts that there is no clear link between your actions and Stephen’s death, and the fact of Stephen’s death is therefore not an aggravating feature of your offending. It submits that an appropriate sentence is community service of 80 hours or less for the purposes of holding you accountable for your offending and deterring you and others from similar offending. But the Crown accepts that although the sentencing provisions of the Children, Young Persons, and Their Families Act do not apply, the youth justice principles that underlie that legislative scheme are available to me in sentencing you. They also accept that how you would have been dealt with in the Youth Court is a relevant consideration for me.

[26] The Crown does not dispute the submissions made on your behalf by counsel concerning the circumstances in which your case has reached this Court.

Discharge without conviction

Introduction

[27] A discharge without conviction is available under s 106 of the Sentencing Act

2002. Should you be discharged without conviction, you are deemed to have been acquitted. I must not grant you a discharge unless I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to your offending.⁴ The approach I have to take in assessing this issue is first to identify the gravity of the offending by reference to what you did, assess the direct and indirect consequences of a conviction on you; and determine whether those consequences would be out of proportion to the gravity of the offending.⁵ In assessing the gravity of your offending, your personal characteristics are relevant.⁶

Analysis

[28] Looked at in the round I have assessed your offending as at the lower end of seriousness. In saying this I do not weigh the fact of Stephen’s death because I may not do so at law. The violence in itself was at the medium to lower end of seriousness. You and your brother each struck several blows to Stephen’s torso. It is an aggravating factor that you were one of two offenders.

[29] I acknowledge that you were egged on by your teammates and felt pressured to fight Stephen. It is true that you did not stay to check on Stephen, but in assessing how much weight I give that factor I remind myself that you did not know of Stephen’s condition, or the seriousness of the situation. If I avoid applying the benefit of hindsight, then your leaving the scene after the incident appears differently, and in a less serious light.

[30] Your youth is also highly relevant to assessing your culpability. It is now known that the adolescent brain is far from fully developed, and that teenagers have,

_{as a consequence, impaired decision making, and a tendency to impulsive conduct.}

⁴ _{Section 107.}

⁵ _{Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 14.}

⁶ Z (CA447/12) v R at [27].

They are particularly subject to peer pressure. We now have confirmation through science of what any parent could tell us about the behaviour of teenagers in their household.

[31] As to the consequence of a conviction you have written in your affidavit that it will have a significant impact on your future and your prospects of employment. It will affect the way you are perceived by other people.

[32] Your youth is also relevant in assessing the consequences of a conviction. A young person of 16 is at a critical point in his development. The outcome of court proceedings such as these for young offenders has an enhanced, even an exaggerated capacity to contribute either constructively or destructively to a young person’s future. It is for that reason that the youth justice system in New Zealand emphasises rehabilitation and reintegration. Section 208 of the Children, Young Persons, and Their Families Act sets out youth justice principles which include:

- that a young person’s age is a mitigating factor in determining whether or not to impose sanctions in respect of offending by that young person.

- that any sanctions imposed on a young person who commits an offence should take the least restrictive form appropriate in the circumstances, and should maintain and promote the development of the young person within their family and family group.

- that any measures for dealing with offending by a young person should so far as it is practicable to do so, address the causes underlying the young person's offending.

- that in determining the measures for dealing with offending consideration should be given to the interests and views of any victims of the offending.

[33] I also consider that it is a material consideration that if you were being dealt with before the Youth Court, as your counsel submits you would almost certainly be discharged on this charge, following a Family Court Conference. So it is material to me that if you were before the Youth Court you would almost certainly be discharged on this charge.

[34] As I have noted above, you have an unblemished record and show genuine remorse. The material provided to me indicates that prior to this incident you could properly have been described as a promising young man. It also indicates that you have good rehabilitation prospects. You have a real determination to contribute positively to your society. Indeed, you have a sense of responsibility to do so.

[35] I note the Crown’s submission that you should be convicted to hold you to account for your actions and to deter you and others from similar offending. But I consider that you have already been held to account for your actions. In saying this I do not mean to diminish the magnitude of Stephen’s family’s loss. But as a 15 year old you had to confront the role you played in Stephen’s death. You were excluded from your school, and indeed you have been excluded from any school to date. This has resulted in isolation from your friends. For several months you were charged with one of the most serious criminal offences, manslaughter. That would, I have no doubt, have taken a toll on any 15 year old boy. You have fully accepted your responsibility from the first, and indeed pleaded guilty to this charge as soon as it was formulated.

[36] I also consider that this sentencing process is itself a sufficient denunciation of your offending for the purposes of deterrence. You are assessed as being at low risk of reoffending so personal deterrence is not a particularly weighty consideration. But deterrence of others from similar offending is. This sentencing process should send a message to others that such violence will not be tolerated. I believe that what you have been through and today’s process will demonstrate the risks to everybody of a school yard or teenage fight.

[37] Weighing these matters against the seriousness of the offending, I am satisfied that the consequences of a conviction would be out of proportion to the

gravity of the offending. It is critical for you, and indeed for our society, that you can move on from today without the stigma of a conviction. I also stress the pressing need I identify for you to be reintegrated into a school. My assessment is that if you are allowed to do so, you will contribute positively to your school.

[38] Therefore [Q], you are discharged without conviction in respect of the charge of assault.

Name suppression

[39] An application has been made on your behalf for permanent name suppression. Your lawyer has submitted that such an order is necessary in light of the need to provide for your rehabilitation, especially in the light of the media attention your case has attracted. He has submitted that any publication of your name will cause extreme hardship to you as a young person. He submits that an order permanently suppressing your name would help protect you from retribution or stigma were you to enrol in school and return to a normal life.

[40] The Crown accepts that the fact that the Youth Court would have automatically granted name suppression to you is an implicit acknowledgement of the degree of hardship a young person in your circumstances would suffer, as opposed to an adult. Again, it can be said that the Crown acknowledges the force of the submissions of your counsel in that regard. Nevertheless the Crown draws to my attention that Stephen’s family opposes name suppression for you.

[41] Consideration of the issue of name suppression must begin with the fact that had you initially been charged with assault you would have had the benefit of automatic name suppression by virtue of the provisions of the Children, Young Persons, and Their Families Act. Because you are now before this Court the provisions of s 200(2) of the Criminal Procedure Act apply, which provides that the Court can only grant name suppression if it is satisfied that publication would be likely to have any of the effects listed. These include to cause extreme hardship to the person charged with the offence. This high threshold reflects the strength of the principle of open justice that runs through our criminal justice system.

[42] Both your counsel and the Crown submit that the fact that the Youth Court would have automatically granted name suppression is an implicit acknowledgment of the degree of hardship a young person will suffer as opposed to an adult if your name is to be published and I accept this submission. I also take into account as I must the rights of young people under various international conventions to have their need for rehabilitation and reintegration respected through the criminal justice

system.⁷

[43] I take into account that young people lack the emotional maturity to deal with the publication of their name in connection with offending, particularly high profile offending as in this case. Name suppression also protects the young person’s prospects of rehabilitation. Young people are particularly exposed to damage through identification in criminal processes – damage that would inhibit or prevent rehabilitation. I have received a psychologist’s report in respect of you and it tells me that you are emotionally immature for a 16 year old, which the psychologist attributes to the sheltered upbringing that you have had in your family.

[44] I am satisfied that identifying you in connection with this offending will cause you extreme hardship as is described by s 200(2) of the Criminal Procedure Act. I am also satisfied that there is no countervailing consideration which outweighs this factor.

[45] I have considered the views of Stephen’s family, but ultimately the obligation of our society to attempt all that it can to reintegrate and rehabilitate you, and indeed the need of our society to ensure that someone as young as you develops in a way which is positive for our society, means that I consider that permanent name suppression should be granted to you.

[46] As is conceded by counsel for the Crown and as is submitted by counsel for your bother, it follows that if you are granted permanent name suppression, it must

_{be also be granted to your brother to protect your name suppression.}

⁷ International Covenant on Civil and Political Rights (1966), at 14(4); the United Nations

Convention on the Rights of the Child, at 40(1).