MW v Police

[2017] NZHC 3084

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000031

[2017] NZHC 3084

BETWEEN

MW

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 December 2017
Counsel:	JA Young for Appellant JPR Scott for Respondent
Judgment:	12 December 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 12 December 2017 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

JA Young, Whangarei. Crown Solicitor, Whangarei.

MW v POLICE [2017] NZHC 3084 [12 December 2017]

The case

[1]    When he was 14, MW raped another teenager, S. A friend of MW sought to intervene. MW persisted. S was then 16.  Judge G L Davis ordered MW come back to court within 12 months if required; in effect, “a good behaviour bond”.1 MW appeals. On his behalf, Ms Young contends the Judge erred not to discharge MW. In this context, a discharge means the charge “is deemed never to have been filed”.2 For the Police, Mr Scott contends MW is fortunate a more severe sentence was not imposed.

Background

[2]    The Judge described the offending this way. I gratefully adopt His Honour’s summary:3

[MW] and some of his friends had  been  consuming alcohol around about 30 July 2015. They had also been smoking cannabis. He went to the victim’s house, who I will refer to as [S], and went to her bedroom window. He drew or attracted her attention and was invited in. [MW] at the time was extremely intoxicated as was some of his friends who also came into the room. Thereafter [MW] sought a kiss or something of that general nature from the victim. She replied, “No, you have [X]”, which I understand to be a reference to his then girlfriend. He persisted and sat down behind the victim. He grabbed her, wrapping his arms around her shoulders and began kissing her neck. She pushed him away. She continued to protest. In short, despite those protestations, he then jumped onto the bed and began to more aggressively ask for a kiss. Again he was rebuffed, he then rubbed her shoulders, pushed her down on the bed, pinned her down and to summarise the events thereafter and despite the protestations of the victim he raped her. He said to her something along the lines of, “I’ll fuckin G rape again”.

[3]    As foreshadowed, one ingredient should be added to this narrative. A friend of MW’s was in the room while S was actively rejecting MW’s advances. He tried to get MW to stop, telling him: “I thought you were more of a man than this, you can clearly see [S] is crying and doesn’t want any of this”. MW persisted, referring to a “rape club”, S as a “little slut”, and telling her, “I’m going to rape you now”.

1      Police v MTW [2017] NZYC 462 at [71].

2      Oranga Tamariki Act 1989, s 282(2).

3      Police v MTW, above n 1, at [3].

[4]    MW was charged on 20 August 2015. There were two family group conferences; the second on 17 December 2015. For ease of reference, I refer to the second as the family group conference. MW accepted he had committed the offence. A plan was agreed at the family group conference, with various components. The most significant of these was satisfactory completion of a SAFE programme. The programme took approximately 12 months.4 It is common ground MW completed it successfully.

[5]    At the family group conference, S and the Police agreed if MW completed the plan, they would support his discharge. Sentencing did not occur until 23 June 2017, because of the duration of the SAFE programme. Its final report was not available until 6 June 2017. By then, S did not support a discharge. Neither did Police. There were several hearings between the family group conference and sentencing. More about these shortly.

[6]    The   Judge’s    sentencing   decision   is   comprehensive.    It    extends   to 73 paragraphs. The Judge referred extensively to the Act, and to its provisions and principles. The Judge concluded MW had “done everything that has been asked of him by the SAFE programme, which has been the centre of the plan”.5 The Judge also concluded MW’s family “have also done what has been expected of them”.6

[7]    The Judge considered there were sufficient mitigating features to warrant retaining the case in the Youth Court rather than transferring it to the District Court. If the case had been transferred, MW would have been dealt with by conventional sentencing principles rather than within a youth justice framework. The Judge concluded the offending was too serious to warrant a discharge,  however.  Or,  as His Honour put it, “I take the view that despite the efforts of MW … this offending can[not] go unmarked. It is too serious for that to occur”.7

4      The programme involved approximately 47 hours of sessions and “homework”. MW also completed 100 hours of community work; alcohol and drug assessments; related counselling; and a mentoring programme.

5      Police v MTW, above n 1, at [51]

6 At [51].

7 At [69].

Grounds of appeal

[8]There are two:

(a)MW was prejudiced by a change in the Police position vis-à-vis discharge once they had the benefit of representation from the Crown Solicitor’s office.

(b)The sentence is manifestly excessive, on the basis MW should have been discharged.

Prejudice?

[9]A little more background is necessary to address this ground of appeal.

[10]   A Police constable attended the family group conference, as did S and her parents, and MW and his. The conference record ends:

Disposal

If the young person fully completes all aspects of this plan, within the timeframes set, the conference agreed that this matter be disposed of pursuant to section 282 of the Children, Young Persons and Families Act.

RECOMMENDATIONS

It is respectfully requested that the Court;

·      Accepts the recommendation of this Family Group Conference plan.

·      Acknowledges that there are two plans.

·      Acknowledges that the young person will undertake the SAFE Programme for the duration as required by SAFE.

·      Adjourns matters for three months, to allow the young person time to complete Plan B.

·      Gives consideration to the victim’s father, Mr [B], his request for compensation of $2500.00.

·      Considers variation to bail conditions (submissions should be sought from the Youth Advocate, Ms Young).

[11]   Family group conferences are conducted in the absence of a Judge.8 Conference recommendations,9 if any, are placed before a Judge at a hearing, at which

8      Oranga Tamariki Act, s 251.

9      Section 260.

“the [Youth] court shall … consider any decision, recommendation, or plan made or formulated by the family group conference in relation to that offence”.10

[12]   That happened on 18 December 2015—the day after the family group conference. Judge S M R Lindsay presided. Her Honour called for argument on whether the charge should remain before the Youth Court or be transferred to the District Court given its serious nature. 18 February 2016 was fixed as the date for that argument. And then adjourned until 2 March 2016.

[13]   The file was transferred to the Crown Solicitor’s office.11 It filed a submission on 17 February 2016. That submission expressed the view a discharge was not a fait accompli. Unsurprisingly, the submission highlighted the seriousness of the offending acknowledged by MW.

[14]   On 2 March 2016 Judge Davis presided. By then, MW had been accepted into the SAFE programme, but it had not commenced. The Judge concluded the “question as to appropriate forum for disposition to be considered at end of programme”.12 Later events reveal disposition remained live. For example, on 19 August 2016 Judge Davis noted the overarching issue was “how and where these charges should be disposed of”.13 The Judge elaborated:14

… should this charge be dealt with in the Youth Court ... or should it be dealt with in the adult Court?

[15]The Judge made similar observations at a hearing on 11 November 2016:15

Given the serious nature of the charge there is a clear question as to whether or not the Youth Court should retain ... jurisdiction for this offending or whether or not it should be sent upstairs to the District Court for sentence.

10     Section 279.

11   The Police remained prosecutor notwithstanding the involvement of the Crown Solicitor’s office, as the charge did not become a Crown prosecution; see Crown Prosecution Regulations 2013, r 4(2).

12     Record of Hearing CRN 15288000177, 2 March 2016.

13     R v MW YC Whangarei CRI-2015-288-000085, 19 August 2016 at [1] (Minute).

14 At [2].

15     R v MTW YC Whangarei CRI-2015-288-000085, 11 November 2016 at [2] (Minute).

[16]   Against this background, MW cannot have been prejudiced by the change in Police position, as conveyed by the Crown Solicitor’s office on 17 February 2016, from that adopted at the family group conference.

[17]   First, MW knew from the day after the conference he may be transferred to the District Court for sentence, and successful completion of the SAFE programme did not preclude conviction—or worse. Second, the change in Police position was communicated to MW before the SAFE programme began. Third, it was always in MW’s interests to complete the programme, irrespective of the anticipated sentencing outcome.

[18]   To these points should be added an obvious but important one: the Youth Court was not bound to adopt the recommendation of the family group conference even if the Police position had remained unchanged. The Act required the Youth Court to “consider” the recommendation; not implement it.16

[19]   It is unclear where this argument leads anyway. Ms Young did not contend the change of position constituted an abuse of process.17 High authority suggests she was right not to do so. In Fox v Attorney-General the defendant pleaded guilty to firearms charges in consequence of a plea arrangement with the Police.18 On advice from the Crown Solicitor, Police then re-laid more serious charges. Mr Fox contended these should be dismissed as an abuse of process. The District Court upheld that contention. A Full Court of the Court of Appeal disagreed:19

Nevertheless, bearing in mind the constitutional principle of restraint in supervision of prosecutorial decisions, we do not consider the threshold test for abuse of the Court’s processes is made out merely because a public prosecuting agency decides to backtrack on an agreement it reached as to the charges a defendant would face. No concept akin to contractual enforcement

16     Oranga Tamariki Act, s 279.

17 Section 267 of the Act requires an enforcement agency to give effect to an agreed recommendation when its implementation involves action on the part of the agency (unless the exceptions identified in the provision apply). Ms Young placed no reliance on this provision. Doubt attaches to whether implementation of the recommendations of the family group conference involved action on the part of the Police, or whether the provision could bind the Police in the exercise of prosecutorial discretion. The learned authors of Adams on Criminal Law observe the section “is primarily aimed at matters outside the Court system”. Simon France (ed) Adams on Criminal Law (online loose- leaf ed, Thomson Reuters) at [CY267.01].

18     Fox v Attorney-General [2002] 3 NZLR 62.

19 At [39].

is applicable to such agreements which are not capable in themselves of having binding force….

[20]   In summary, MW was not prejudiced by the change of position, which could not be realistically challenged as an abuse of process.

A manifestly excessive sentence?

[21]   The arguments first. Ms Young observed MW was only 14 at the time of the offence; a Youth Court notation for sexual violation by rape would constitute “a stain” against his name for the rest of his life. Employment and other prospects may be compromised, particularly in a “life involving forms” and vetting.

[22]   Ms Young submitted MW had done all that was asked of him, including successful completion of the SAFE programme. MW’s risk of sexual re-offending is regarded as low on the Estimate of Risk of Adolescent Sexual Offence Recidivism (ERASOR).20 And, MW is considered to have demonstrated “a very positive change in [his] ... level of understanding concerning the impact of harmful sexual behaviour”.21 Ms Young noted a discharge for rape is available under s 282 of the Act, and other young offenders have received discharges for sexual offending.

[23]   Mr Scott acknowledged these points, but contended MW received a particularly benevolent sentence. Had MW been transferred to the District Court for sentence, his offending would likely have fallen in band two of R v AM,22 thereby attracting a starting point of 7–13 years’ imprisonment, albeit subject to appreciable discount for youth. Mr Scott also highlighted victim impact.

[24]   Now analysis. Section 284 of the Act required the Judge to consider a host of matters including, but not limited to, the seriousness of the offence; MW’s circumstances; his response to the offence; victim impact; and the recommendation of the family group conference. The Judge did so in a comprehensive decision.

[25]Five points are important.

20 See [32].

21     Police v MTW, above n 1, at [34].

22     R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

[26]   First, while the case exhibits significant mitigating features, including MW’s age, his acknowledgement of responsibility and successful completion of the SAFE programme, there are powerful countervailing features too. The charge carried a maximum penalty of 20 years’ imprisonment—sexual violation by rape is one of the most serious on the criminal calendar. And, the offending is a bad example of its kind. S resisted, forcefully. A friend of MW intervened too. MW remained undeterred by both.

[27]   It is clear MW knew S did not consent—rather than mistakenly but unreasonably believing in consent—because he specifically referred to “a rape club”. Indeed, MW told S he would “rape” her. MW and S knew each other well enough for him to knock on her bedroom window. They had friends in common. It follows the offending involved an element of breach of trust. As Judge Davis observed, the offending has had “a pronounced impact” on the victim.23 She continues to feel violated. The offending occurred in her bedroom. What should be a haven now feels like anything but.

[28]   Whether the offending would be placed in band two of AM is something of a moot point, for, irrespective of its precise banding, a term of imprisonment might have been imposed had MW been transferred to the District Court for sentencing.

[29]   Second, none of the cases cited by Ms Young involved rape as against lesser species of sexual violation or indecent assault.24 True, the offence of rape is amenable to a discharge under the section, in turn recognition of a legislative preference for quarantining only the gravest charges from this form of youth justice resolution. However, as observed, this is a bad instance of its kind.

[30]   Third, the Court of Appeal has recognised the seriousness of the offending may be a reason by itself to transfer charges from the Youth Court to the District Court. In Pouwhare v R it observed:25

23     Police v MTW, above n 1, at [41].

24     Police v JC [2015] NZYC 92; NB v Police [2016] NZHC 1118; Police v LS [2015] NZYC 600, R v XE [2016] NZYC 291; Police v TDM YC Nelson CRI-2011-242-16, 24 May 2012; Police v CJK [2014] NZYC 344; Police v JB [2015] NZYC 488.

25     Pouwhare v R [2010] NZCA 268 at [73].

As s 283(o) recognises, the orders that are within [the Youth Court’s] 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.

[31]This reasoning is equally applicable to a discharge under s 282, which is the

least restrictive outcome available to the Youth Court.

[32]   Fourth, assessments of risk of re-offending in this context have a short lifespan, in part due to rapid developmental changes during adolescence. The final SAFE report makes this clear. Consequently, a low risk of sexual re-offending under ERASOR is at best part snapshot, part prediction. Because of its absolutist nature, a s 282 discharge would presumably preclude curial reference to this offending in the event of future offending, however unlikely that may currently seem. Conversely, MW has the benefit of no penalty beyond the fact of a Youth Court notation (assuming he commits no further offence within the remaining period of the sentence).

[33]   Fifth, while it is correct the notation remains something of a “stain” that may affect future opportunities, care must be taken not to assume employers, immigration officials and others with an interest in MW’s past will necessarily be unreasonable or unfair in their treatment of the notation, particularly if it is considered in the context of the rehabilitative progress made by MW and his age at the time of the offence. Put another way, a worst-case scenario should not constitute the operative frame of reference for the assessment of likely future impact of the fact of a notation.

[34]   It follows the sentence is not manifestly excessive. Rather, MW was the beneficiary of a rehabilitative approach which might not have endured had MW been transferred to the District Court for sentencing in the adult criminal jurisdiction.

[35]   A final observation. The written submissions on behalf of the Police exhorted the imposition of “a more severe sentence” on appeal, albeit Mr Scott responsibly abandoned this contention at the hearing. An offender’s sentence can, of course, be increased if he or she appeals sentence, but instances of this happening are difficult to find. Materially, there is no apparent precedent for this course in relation to a young person; the Crown Law Office was not consulted before the submission was filed; and

the Police considered, but declined against, lodging their own sentence appeal. Given this mix, the submission was unfortunate.

[36]The appeal is dismissed.

……………………………..

Downs J