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 hearing at some later stage.   Possibly with a discharge if the plan was completed satisfactorily.  It would be undertaken over six months and would entail:  attending a drug and alcohol assessment and counselling; participating in a youth development programme; reparation; commitment to education; 200 hours community service; completion of an art project portraying an anti-violence message to be donated to a

community organisation; good behaviour bond; and weekly contact with a Youth

Justice social worker.

[7]      The Judge described the plan as “bewildering”.  He rejected it.  He said it was manifestly inadequate to meet the serious nature of the offending.

[8]      The judgment addressed the following topics:1

(a)      Circumstances of and role in the offending:  The Judge was concerned that a young man, said to be of good character, was permitted to be out drinking alcohol in the street at that hour.  The Judge outlined the circumstances that evening.

(b)Personal  history:  The  Judge  agreed  the  appellant  had  a  good upbringing and was otherwise a person of good character.  A school report noted the appellant had “a pretty good attitude”, but a shift in attitude towards education was required if he wished to achieve.  He had no previous involvement with the police or youth justice.

(c)      Effect on the victim:  The Judge noted the significant distress caused to W and his family and their desire for justice.   He also noted the significant number of impacts, physical and mental, for W.

(d)Cryptic submissions and social work report:  The Judge noted from the report that the appellant had no memory of what exactly occurred. But he rejected a submission from counsel that there was provocation. There was no tangible evidence of that.  He did not doubt the remorse detailed by the report.

(e)      Response of whanau:   The Judge noted the appellant came from a supportive family.   They were disappointed in him, but praised him

for his honesty in the aftermath of the incident.

1      Many of which reflect considerations in s 284 of the Act.

(f)      Causes of Offending:  Alcohol was a major factor, but issues of anger were also considered to be involved.

(g)Reparation: W’s family had suffered financial losses of up to $250, some  of  which  ACC  would  cover.     However,  some  aspects  of treatment such as a bridging mouthpiece could cost up to $1500 and were not covered. It was recognised some type of payment should be made, but there was no precise proposal.

(h)Previous  Youth  Court  involvement:     The  appellant  had  had  no previous Youth Court involvement.

[9]      The Judge then turned to the principles and factors of sentencing.  He noted the social worker’s rationale was that the offending occurred as a result of the consumption of alcohol.  Further, that keeping the appellant in the community would not pose a risk to public safety.  The plan was designed to give him the opportunity to address factors behind the offending.

[10]     The  police  saw  the  recommendation  as  manifestly  below  the  response required.  The Judge agreed, referring to the serious consequences to the victim and the gratuitous nature of the offending.   The Judge, noting that the least restrictive outcome was appropriate, considered the seriousness of the offence at the highest level, and placed some weight on that consideration. He said:

[28]      I am concerned regarding the nature of unprovoked street attacks by young people primed up on alcohol.  I have to have regard to the interests of the victim and as I highlight, this victim has not just suffered a one-off attack where the consequences have ended at the point of attack.  He has suffered longstanding serious and painful matters that will flow for some years.   I have had regard to your otherwise good character and that will certainly serve to lessen the penalty I will impose upon you.

[29]      But in terms of the sentencing principles in s 208 I do not believe that an outcome less than supervision with residence is at all appropriate for the nature of this offending. It is simply too serious in its nature.

[11]     Accordingly, he sentenced the appellant to three months’ supervision with residence.   That level, he considered, was seriously discounted for the appellant’s good character.  The Judge issued a split sentence.  When the matter comes back to

Court  on  22 November  for  early  release  hearing,  the  social  worker  is  to  have prepared a detailed plan for supervision to follow the supervision with residence period.

Appellant’s submissions

[12]     On behalf of the appellant, Mr John McDowell submitted that the Judge was unduly influenced by the consequences of the appellant’s actions, rather than the circumstances which gave rise to that action.   He submitted the Judge’s desire to accommodate the victim’s views, and those of his mother had largely overridden all other considerations.  The Judge recorded the mother’s concerns that there had been no great  approach by the appellant or his family with regard to expressions of remorse.  But the Judge failed to recognise that the appellant was subject to a non- association term of bail and therefore could not approach the victim or his family. There  was  ample  evidence  of  real  remorse.    And  there  was  evidence  that  the appellant was depressed about what had happened.  There was also doubt as to the precise circumstances of the offending.  There was some suggestion that the victims had provoked the attack, or at least pushed the appellant before he reacted to their arrival on the scene.  The Judge dismissed that possibility too readily.  The problem was exacerbated by the appellant’s lack of fluency in English.

[13]     Mr McDowell’s primary submission was that the Judge gave insufficient consideration to the alternative outcomes and the principles in s 208 of the Act.  In particular, the Judge had adopted the most serious sentencing response, short of declining jurisdiction altogether, for a young person who was a first offender.  Yet section 208(f) provides as a sentencing principle that the Court should take the least restrictive form of sanction appropriate in the circumstances.   Likewise s 208(d), which provides that a youth offender should be kept in the community so far as practicable and consonant with the need to ensure the safety of the public.

[14]     Mr McDowell submitted that although the Judge cited ss 208 and 284 of the Act,  he  gave  no  in-depth  consideration  to  them.    None  of  the  other  responses available in s 283 were considered.  The only factor which gained any currency was the victim’s views as to the long term effects of the injury.   This should not be

considered to the exclusion of all other factors. Finally, Mr McDowell emphasised the positive comments made about the appellant, the recognition of the contribution he has made to sport.  Letters of support emphasised he is a good boy who made a bad decision, rather than a nasty boy who has no caring or empathy for others.  The careful report by the social worker attempted to build on this but was dismissed, wrongly, as “bewildering”.  In reality it was an attempt to create a combination of responses short of a s 283 “group 6” response (supervision with residence).  Rather it sought to draw on groups 2 (reparation), 3 (counselling) and 4 (community work).

Respondent’s submissions

[15]     Mr Russell Collins submitted, first, that it was a case of deliberate injuring with intent to cause grievous bodily harm.  It was a case of serious violence.  The Judge was an experienced Judge, and specialised in this jurisdiction.   The crime called for proper accountability, and the recommended plan did not meet that need. The Judge was perfectly justified in departing from that recommendation.  What was needed here was in effect a short, sharp response.  Finally, it was important to bear in mind that the sanctions imposed did not amount to “convictions” against the appellant.  So that stigma was not a feature of the sanctions imposed.

Further submissions

[16]     I sought from counsel further information on the educational impact of the sentence on the appellant.  Counsel filed a joint memorandum on 1 November.  It informs me that there have been some adverse educational impacts as a result of the appellant’s removal.  In particular the syllabus at the residential centre is set at a far more fundamental level than if he had continued to attend the secondary school at which he is enrolled.  He has however been able to sit for credits in two courses he is currently studying.

Approach to appeal

[17]     Section 351 of the Act provides a right of appeal to the High Court from any order made by the Court based on a finding by a Youth Court that a young person

has  committed  an  offence.  Section  355  of  the Act  provides  that  Part  4  of  the Summary Proceedings Act 1957 applies with necessary modifications to an appeal under s 351.  Section 119 of the Summary Proceedings Act 1957 provides that this is a general appeal to be heard by way of rehearing.  The onus is on the appellant to satisfy the Court that the grounds of appeal have been made out and that it should differ from the original decision, but the appellate Court must come to its own view

on the merits.2    Section 121(3) provides that in the case of sentence the Court may

confirm the sentence; or if the sentence is one in which the Court had no jurisdiction, or was clearly excessive, inadequate or inappropriate to impose may quash or vary the sentence or part of it.

[18]     As to whether a sentence is manifestly excessive, in R v Monkman3 the Court of Appeal said:

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily  observed  with  respect  to  that  offence  the  place  which  the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to this particular kind of offending).

[19]     The High Court on appeal from the Youth Court will not lightly alter a sentence imposed by an experienced sentencing Judge. It is not the function of this Court to tinker with sentences, or alter them at all unless it feels that the sentence imposed is contrary to both principle and conscience.

Statutory framework

[20]     It is proper to start with s 4(f) of the Act, which provides that it is one of the purposes of the Act to ensure that where children or young persons commit offences they  are  held  accountable,  and  encouraged  to  accept  responsibility,  for  their behaviour, yet are dealt with in a way that acknowledges their needs and will give

them the opportunity to develop in responsible, beneficial, and socially acceptable

2      Austin, Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

3      R v Monkman CA 445/02, 3 March 2003.

ways.    The  welfare  of  the  offender  gains  greater  prominence  in  Youth  Court sentencing than in adult sentencing in the District Court.4

[21]     That focus is emphasised by s 5, and also by s 208. The latter provides, so far as relevant, that sentencing shall be guided by these principles:

Principles

Subject to section 5, any court which, or person who, exercises any powers conferred by or under this Part or Part 5 or sections 351 to 360 of this Act shall be guided by the following principles:

...

(d)       the principle that a child or young person who commits an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public:

(e)       the principle that a child's or young person's age is a mitigating factor in determining—

(i)        whether or not to impose sanctions in respect of offending by a child or young person; and

(ii)      the nature of any such sanctions:

(f)       the principle that any sanctions imposed on a child or young person who commits an offence should—

(i)      take the form most likely to maintain and promote the development of the child or young person within his or her family, whanau, hapu, and family group; and

(ii)      take the least restrictive form that is appropriate in the circumstances:

(fa)      the principle that any measures for dealing with offending by a child or young person should so far as it is practicable to do so address the causes underlying the child's or young person's offending:

(g)       the principle that—

(i)        in the determination of measures for dealing with offending by children or young persons, consideration should be given to the interests and views of any victims of the offending (for example, by encouraging the victims to participate in the processes under this Part for dealing with offending); and

4      Police v Edge [1993] 2 NZLR 7 (HC) at 12; Pouwhare v R [2010] NZCA 268; (2010) 24 CRNZ

868 at [75]–[76].

(ii)      any measures should have proper regard for the interests of any victims of the offending and the impact of the offending on them

[22]     While acknowledging, therefore, the need to give due consideration to the interests of victims, it is utterly fundamental that a young person’s sentence must be the least restrictive appropriate to the circumstances, and shall keep him or her in the community (as opposed to a custodial sentence) so far as practicable and consonant with public safety.   The former point is restated subsequently in s 289(1)(b):   in setting a sanction, any less restrictive outcome must be “clearly inadequate”.

[23]     Section 283 confers the power to make a range of orders once a young person admits to or is held answerable for an offence.   There are seven discrete group responses, which 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 via a custodial sentence.  The most severe is that imposed in this instance, supervision with residence (s 283(n)).5     It is reserved for the most serious offenders sentenced in the Youth Court.  Section 283(o), by contrast, enables a Youth  Court  Judge  to  enter  a  conviction  but  decline  to  sentence  within  that

jurisdiction.    No  other  determination  by  the  Youth  Court  has  the  status  of  a

“conviction”.6

[24]     Section 284(1) provides a series of considerations the Court must have regard to.  They include the circumstances of the offending, the history and character of the young person, his or her attitude to the offence (along with that of their family), remorse, reparation, victim impact and any decision, recommendation, or plan made at a family group conference.

Discussion

[25]     It may well be that there is no right answer in this case.

5      Pouwhare v R [2010] NZCA 268; (2010) 24 CRNZ 868.

6      Geros v R [2011] NZCA 122, at [16]; Kohere v Police (1994) 11 CRNZ 442 (HC) at 444.

[26]     This is a decision of a very experienced Judge.  I would require to be satisfied that the decision is reached contrary to both principle and conscience before I was satisfied that the sentence was manifestly excessive.

[27]     It is also a case of a nasty violent offending.  It will have lasting impact on the victim.  It did call for a sharp response, as Mr Collins was right to submit.

[28]     I am however left with a profound sense of unease about several aspects of the sentence. After careful reflection I consider I am left in such doubt that I have no just alternative but to set the sentence imposed aside.

[29]     First, the judgment very properly records the impact on the principal victim, W. That is enduring, and it is tempting to think that in contrast it is little price for the appellant to pay to be inconvenienced for just three months by his present sentence. Particularly bearing in mind that in reality it may be just two months:  s 314(1).  But the clear evidence here,  based  on  character references,  is  that  this  offending is entirely out of character.  He is said to be “a trustworthy, reliable and very loyal boy” by his sports coach.   He is also said to be “respectful, honest and very positive”. Another referee says he is “full of bravado but a gentle, kind soul”.   His school reports that he has a “pretty good attitude”.   He has “not caused any significant issues”.   The social worker preparing the s 334 report says he is a “shy and reserved young man who finds it difficult to express himself”.   She found him to seem genuinely remorseful, not just for the predicament he now was in “but also because of the stress and fear he has caused the victim and the victim’s family”.

[30]     In short, we are not dealing here with a committed young thug.  The most important thing is to make sure that he does not become one.

[31]     Secondly, regardless of the admission made by the appellant, the dynamics of the incident need to be considered.  The appellant and the victims are only a year apart in age.  The appellant had been drinking.  That is not commendable, given his age, but it may mitigate misjudgement.  The appellant and his friend were met by a group of six youths, by night.  There was every possibility of misunderstanding in those  circumstances:    night,  numbers  and  drink.    The  clearest  statement  of  the

appellant’s position is found in the s 334 report.   It suggests there may have been rather more to the incident than the judgment suggests, with a shoulder push before the attack.   Whether that actually happened, was genuinely perceived to have happened, or did not happen at all, who knows?   And if it did, whether it was deliberate or accidental, again who knows?   That is the problem here.   Without a trial, no definite view can be taken one way or the other.   It is not a question of provocation, which the Judge rightly dismissed, but mitigation.   It needed to be explored.

[32]     Thirdly, it is as I have noted fundamental to youth justice that a young person be retained in the community if at all practicable, and consistent with public safety. There is no suggestion that the appellant represents any threat to the community, or the safety of its members.  This incident was out of character and is most unlikely to be repeated.  Nor is there any reason why, with a strong and supportive family, as the Judge acknowledged, he could not serve his sentence in the community.

[33]     Fourthly, the Act requires the least restrictive outcome appropriate to the circumstances.     The  nastiness  of  the  attack  is  a  significant  part  of  those circumstances.  But it is not to obscure other considerations, such as the character of the offender, his absence of prior offending and the lack of risk he poses to the community.  All these need to be weighed.  The social worker’s recommended plan may well have been over-engineered.   It is not easy to see where the responses suggested fit within s 283.  That is not necessarily a reason not to implement a more comprehensive tailored response along its lines.  However the Judge may have been right to describe this one as bewildering.  That being said, there were other options available short of supervision with residence.  That is the most severe sanction the Youth Court can impose.  It is a custodial sentence. A form of imprisonment, despite

the statutory euphemism. As the Principal Youth Court Judge has observed:7

Supervision with residence is the harshest penalty available to the Youth Court and, as it deals with only the most serious youth offenders, young people on supervision with residence are the small but difficult group of young offenders who require intensive and careful intervention.

7      Speech to the Commonwealth Magistrates & Judges Association Triennial Conference, Toronto, Canada, 12 September 2006.

That simply does not seem to describe the appellant here.  There is real doubt that the sentence in this case will do anything much more than frighten him, expose him to a group of genuinely troubled young criminals and impair his education. Supervision with residence orders should therefore be used as a last resort. Particularly in the case of a first time offender.  They should only be imposed after less restrictive options have been evaluated and found wholly inappropriate.

[34]     Fifthly,  there  were  a  number  of  cases  referred  to  me  by  Mr McDowell involving much worse offending, yet which did not result in supervision with residence order.  Cases involving sexual violation by young person on another.8   In R v LF9  a group fight ensued after a school ball.  LF, aged 15 and a half, kicked the victim’s head while he was unconscious on the ground.   Two other boys hit the

victim with a piece of wood.  The victim was saved only by the brave intervention of another youth.  Medical opinion at the time was that the victim would likely die. As the judgment records, the medical treatment he received and his will to survive meant he survived.  But he suffered greatly at the time and continued to do so.  Judge Recordon took into account the context involving pressure from gang members, alcohol intake, good family support, the high likelihood of rehabilitation, the fact that LF was a good sportsman, and the fact he was a first time offender. A structured plan was imposed with the possibility of discharge.   The supervision plan was to extend for a period of three and a half years, until LF turned 19.

[35]     Sixthly, had the appellant been sentenced in the District Court as an adult, he would likely have been sentenced at the lower end of band 2 under R v Harris10 (injuries moderate, sentences of up to two years imprisonment justified).  In Waihiere v Police11 an 18 year old and co-offenders pursued a victim, forced her to the ground and repeatedly kicked and punched her.  The victim suffered extensive bruising and swelling to her face.  The violence there was worse (as in LF), but the injuries in this case  lie  between  the  two  precedent  decisions.   A starting  point  of  20  months’ imprisonment was adopted in Waihiere, given it was a group attack, but a seven

month discount was given for the early guilty plea and youth.  In the present case a

8      See e.g. R v C CA332/95, 28 September 1995.

9      R v LF YC Waitakere CRI 2005-004-014541, 17 August 2007.

10     R v Harris [2008] NZCA 528.

11     Waihiere v Police [2012] NZHC 667.

starting point of 12-18 months would have been appropriate, with up to 45 per cent discount for guilty plea, previous good record and youth.  The result is a sentence that would have been likely of between six and 12 months’ imprisonment.  Almost certainly, home detention would have been directed.   So, had the appellant been sentenced in the District Court, he would have remained in the community.  I have to say it seems incongruous to me that the result of his being sentenced in the Youth Court is an institutionally custodial sentence which in practice at least he would not have received had he been sentenced as an adult.

[36]     In my view the just outcome in the present case is to allow the appeal.  The appellant has by now served some seven weeks of his custodial supervision with residence sentence.   That is sufficient custody, regardless of the minimum period prescribed in s 311(1).  It may be that he should have served none of it.

[37]     But I am not prepared to simply leave matters there.  The appellant was due to reappear on 22 November for consideration of further non-residential supervision to reintegrate the appellant and provide him with support.   That aspect of the sentencing  remains  entirely  appropriate.    It  follows  that  the  only aspect  of  the original sentencing order that I am setting aside is the first aspect, the supervision with residence order.

Result

[38]     Appeal allowed.

[39]     Supervision with residence order set aside.  Remaining aspects of the Youth Court sentence are sustained and are to be completed.  The appellant is to appear in the Youth Court at Napier on 22 November 2012 at 10am for that purpose.

[40]     Name suppression of the appellant and the victims continues. Although s 438 of the Act only applies in the Youth Court, and not in the event of transfer or committal,12  suppression nonetheless should continue in the case of an appeal from

that Court.

12     R v Rawiri HC Auckland T014047, 3 July 2002.

[41]     I record my appreciation of the very high standard indeed of submissions from both counsel.

Stephen Kós J

Solicitors:
Crown Solicitor, Napier for Respondent