K (A Young Person) v The Queen - [2012] NZHC 2950

ORDER PROHIBITING PUBLICATION OF NAME(S)OR IDENTIFYING PARTICULARS OF APPELLANT AND VICTIMS PURSUANT TO SS 200
AND 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-37 [2012] NZHC 2950

BETWEEN K (A YOUNG PERSON) Appellant

ANDTHE QUEEN Respondent

Hearing: 26 October 2012 (further submissions 1 November 2012) Counsel: J F McDowell for Appellant
R J Collins for Respondent

Judgment: 7 November 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against Youth Court sentence)

[1] The appellant is 16 years old. He appears basically to be a good lad. Not a rocket scientist, in his counsel’s words, well-behaved. Very good at sport and art. But one night he made an appalling mistake. He hit another lad in the face with a bottle. In the Youth Court he admitted injuring with intent to cause grievous bodily harm, assault and stealing. He was sentenced to three months’ supervision with residence. He now appeals that sentence.

Offending

[2] At around 1 am on 12 August 2012 the two victims, both aged 15, were wandering the Napier streets along with four other friends. They saw the appellant
and a friend standing by a transformer box. The appellant and his friends were

K (A YOUNG PERSON) v R HC NAP CRI 2012-441-37 [7 November 2012]

drinking. One of the victims, W, attended the same school as the appellant. W and his friends came over. W called out, “Hey boys.” There is inconclusive material in the record suggesting some possible but minor physical contact with the appellant as he did so. Without warning, the appellant swung his whole body and arm and struck W in the mouth with an empty glass bottle. A smashing noise was heard. Either the bottle breaking or W’s three front teeth breaking. Either way, the teeth were broken. The appellant then kicked W before he managed to escape and seek safety.

[3] The appellant then approached the second victim, M. He kicked him in the thigh. Then he punched M’s right cheek with a closed fist. M’s cap fell to the ground. The appellant took the cap and fled.

Aftermath

[4] W’s three front teeth were broken in half. They cannot be saved. W now has false teeth. The injuries have caused him considerable pain. He did not return to school for a week. He cannot receive a final bone graft until he is 18. By then his jaw will have developed sufficiently. The other victim, M, was not injured.

[5] The appellant attended a family group conference. He admitted the charges and apologised. No agreement was reached as to the sanctions that should be imposed.

Youth Court decision

[6] The Judge had before him a social work report from Child Youth and Family. It recommended the Court consider a Court-monitored plan instead of an order of the type specified in s 283 of the Children, Young Persons, and their Families Act 1989 (the Act). It envisaged the appellant working with this plan, with a disposition…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 2950
Decision Date: 7 November 2012

CaseChat Overview and Summary

The appellant, a 16-year-old boy, appealed against his sentence imposed by the Youth Court for assault and other charges. The appellant had attacked two 15-year-old boys with a bottle and a fist, causing significant injury to one of the boys. The Youth Court sentenced the appellant to three months' supervision with residence. The appellant contended that the sentence was manifestly excessive and did not properly consider the principles and factors of sentencing under the Children, Young Persons, and their Families Act 1989 (the Act). The Crown submitted that the sentence was appropriate for the gravity of the offending.

The Court considered whether the sentence was manifestly excessive, inadequate, or inappropriate. The Court acknowledged the seriousness of the offending but also noted the appellant's good character, lack of prior offending, and the support of his family. The Court found that the Youth Court Judge had not adequately considered the alternative outcomes and the principles in s 208 of the Act, particularly the requirement to take the least restrictive form of sanction appropriate in the circumstances. The Court concluded that the supervision with residence order was disproportionate and did not align with the statutory objectives of youth justice.

The Court allowed the appeal and set aside the supervision with residence order. The remaining aspects of the Youth Court sentence were sustained, and the appellant was to appear in the Youth Court for further proceedings. The Court emphasised the importance of tailoring sentences to the individual circumstances of the offender and the offence, while also considering the welfare of the young person.

Orders