P v Police - [2017] NZHC 2445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000249 [2017] NZHC 2445

BETWEEN
P

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 October 2017

Counsel:

CJA Leys for Appellant
MK Regan for Respondent

Judgment:

6 October 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 6 October 2017 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Catherine Leys, Barrister, Manukau.
Kayes Fletcher Walker, Manukau.

P v POLICE [2017] NZHC 2445 [6 October 2017]

The appeal

[1] P, a young person, acknowledged committing 38 offences. Judge Moala concluded P’s offending was too serious to be dealt with in the Youth Court and transferred the charges to the District Court for sentencing. The Judge entered convictions for the most serious charges—three of aggravated robbery. P appeals transfer.

Background

[2] Some background. P turned 17 on 5 October 2017. She appears to be a capable and intelligent young woman. But last year—between 22 March 2016 and
4 July 20161—P committed a series of serious offences. Along with others, P broke

into and robbed petrol stations, clothing stores and an alcohol store. Sometimes the group was armed. And sometimes victims were injured—one was hospitalised. The group stole items with a combined value totalling over $100,000—and multiple cars.

[3] Judge Moala had to decide whether to deal with P in the Youth Court or transfer her for sentence to the District Court. The Judge gave a detailed and lengthy oral judgment which was later given to the parties in writing.2 The Judge noted P’s youth, her impressive efforts towards rehabilitation and lack of previous history in the Youth Court. However, the Judge concluded the seriousness of the offending required transfer to the District Court. P says the Judge erred in reaching this conclusion.

Jurisdiction

[4] Jurisdiction for the appeal was not contested. However, it is elementary consent cannot found jurisdiction. And, the law in this area is not without difficulty.

1 Save for one offence committed on 24 January 2015. P broke into a parked car.
2 Police v TP [2017] NZYC 430.

[5] Section 351 of the Oranga Tamariki Act 1989 (the Act) provides rights of appeal in relation to Youth Court decisions.3 A young person may appeal an order made in the Youth Court if:

(a) He or she has “been found by the Youth Court to have committed an offence”: s 351(1); and

(b) The order sought to be appealed is “based on that finding”:

s 351(1)(b); and

(c) The young person has been dealt with under s 283: s 351(2).

[6] A young person may also appeal a Youth Court order if that Court has not dealt with the individual (under s 283 of the Act) within a month of finding he or she committed the offence provided the Youth Court has made any order or imposed any sentence on the young person: s 351(4).

[7] The first issue is whether P was “found” by the Youth Court to…

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.

Continue reading P v Police

Details

AGLC: P v Police [2017] NZHC 2445
Case: [2017] NZHC 2445
Decision Date: 6 October 2017

CaseChat Overview and Summary

P, a 17-year-old young person, appeals against the Youth Court’s decision to transfer 38 charges against her to the District Court for sentencing. The charges related to a series of serious and extensive offending, including aggravated robbery, burglary and theft. Judge Moala concluded the offending was too serious to be dealt with in the Youth Court and transferred the charges accordingly. P’s counsel contends the Judge erred in her assessment of the various considerations required to be taken into account by the Oranga Tamariki Act 1989. In particular, counsel submits the Judge failed to give adequate weight to P’s lack of Youth Court history, her progress towards rehabilitation while in custody, the length of time P has spent in custody, parity with her co-offenders, and the principle a young person should be given the least restrictive outcome appropriate in the circumstances. The Court considers the seriousness of the offending and the need for parity with co-offenders. It concludes the Judge was not plainly wrong to transfer the charges to the District Court for sentencing. The appeal is dismissed.

Orders