P v Police
[2017] NZHC 2445
•6 October 2017
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 RespondentJudgment:
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 have committed the offences with which she was charged. A criminal charge is established in one of two ways. By evidence at trial. Or by guilty plea, so no trial is required. In the Youth Court, however, defendants are not required to enter a plea. The Judge merely records the charge is “not denied” if the defendant does not wish
to go to trial.4 If the charge is not denied, the Court directs a youth justice
co-ordinator to convene a family group conference. At that conference, the defendant either “admits” or “does not admit” the offence.5 The Youth Court can find a charge “proved” by accepting a defendant’s admission at a family group conference, as then confirmed by the Youth Court.6 In Police v M Judge Harvey
observed “the finding of a charge proved in the Youth Court, after admission at a
3 Formerly the Children, Young Persons and Their Families Act 1989.
4 See Oranga Tamariki Act 1989, s 246.
5 See Oranga Tamariki Act, s 259.
6 X v Police (2005) 22 CRNZ 58 (HC) at [36]. Police v M (2001) 20 FRNZ 199, [2001] DCR
385; Police v B [2001] NZFLR 585, (2001) 20 FRNZ 364, [2001] DCR 627. See the contrary view taken by Hammond J in C v Police (2000) 17 CRNZ 448, [2000] NZFLR 769, (2000) 19 FRNZ 357.
family group conference, contains … inherent safeguards … to ensure the protection of young persons”.7
[8] Here, P did not deny the charges. And, she later admitted them at a family group conference. The Judge’s decision to consider the various options under s 283 of the Act confirms the Judge regarded the charges as proved. It follows P was “found” by the Youth Court to have committed the offences with which she was charged. The order sought to be appealed—an order transferring the charges to the District Court for sentence—is based on that finding. Without it, there would be no basis to transfer the case to that Court. So, the first and second requirements set out at [5] are met.
[9] The third and remaining requirement for the young person to be “dealt with under s 283” is less straightforward. Section 351(2) provides “a young person may not appeal against a finding of the court until the young person has been dealt with by the Court under section 283”. There is room for the view “dealt with under s 283” does not include an order under s 283(o) transferring the charges to the District Court. In this situation, it could be said the Youth Court has expressly declined to “deal with” the youth offender, hence its transfer to the District Court.
[10] This appears to have been the view of Hugh Williams J in W v Police.8 In that case, His Honour concluded analogous facts did not give rise to jurisdiction for an appeal. The Judge relied on the Court of Appeal’s decision in W v The Registrar of Youth Court (Tokoroa).9 In W, the Court of Appeal considered s 276 of the Act which, at that stage, invested the Youth Court with a discretion to deal with a young person who wished to plead guilty and forego a right to trial by jury. The Court held no right of appeal existed in relation to a decision of the Youth Court to decline jurisdiction under s 276(2) because s 351(2) required a young person to be dealt with under s 283 before any appeal could be made against a finding of the Court. Only
judicial review was available.
7 Police v M, above n 6, at 203.
8 W v Police [2003] NZFLR 433 (HC).
9 W v The Registrar of Youth Court (Tokoroa) [1999] NZFLR 1000 (CA).
[11] To return to W v Police, Williams J held “the exercise of a Youth Court Judge’s discretion under … s 283(o) is unappealable before the Youth Court exercises its other powers under s 283”.10 It seems the Judge took the view “dealt with” in s 283 did not include transfer under s 283(o).
[12] Doubt attaches to whether Parliament intended this. First, as the authors of
Brookers Family Law – Child Law observe:11
A transfer to the District Court is the most restrictive of all the orders available to the Youth Court and exposes the young person to an adult sentencing regime and possibly imprisonment. In that respect it is inconceivable that a s 283(o) order is the only order under s 283 that is not appealable.
[13] Second, an order transferring the young person from the jurisdiction of the Youth Court to the jurisdiction of the District Court is better considered as one means of dealing with the case. A transfer of this nature is pursuant to an order. The various orders in s 283 appear under the section heading, “Hierarchy of court’s responses if a charge against a young person is proved”. Transfer is the most serious response available to the Youth Court. And in making such an order, the Youth Court is exercising its jurisdiction to remove the case to the jurisdiction of another court. Moreover, s 351(2) refers the young person having been “dealt with under section 283”. An order under subs (o) is an order under that section. Consistently with this view, in E v Police the High Court concluded it had jurisdiction to hear an
appeal against an order made under s 283(o).12 E v Police was cited in S v Police.13
There, Potter J heard an appeal against a s 283(o) order without questioning jurisdiction.
[14] In any event, s 351(4) provides a young person with a right of appeal against an order of the Youth Court if a month has elapsed since the Court found the young person committed the offence. It provides:
(4) In any case where a young person has not been dealt with by the court under section 283 within 1 month after the date of the finding of the court and has not appealed to the High Court under subsection (3), the
10 W v Police, above n 8, at [18].
11 Brookers Family Law – Child Law (online looseleaf ed, Thomson Reuters) at [YJ13.1.02].
12 E v Police (1995) 13 FRNZ 139.
13 S v Police [2000] NZFLR 380.
young person may appeal to the High Court in accordance with subsection (1) after the court has made any order or imposed any sentence on the young person.
[15] It will be noted the subsection is directed to the situation in which the young person “has not been dealt with by the court under section 283 within 1 month after the date of the finding of the court”.14 This limb appears to address Hugh Williams J’s reasoning on the facts: Judge Moala delivered her judgment orally on 29 May 2017. P did not appeal until 20 July 2017. So, P has a right of appeal under s 351(4) even if she has not been “dealt with under s 283”.
[16] But as foreshadowed, I conclude there is jurisdiction for P’s appeal because she has “been found by the Youth Court to have committed an offence”; the order sought to be appealed is “based on that finding”; and an order transferring the case to the District Court necessarily involves the young person having been “dealt with by the [Youth Court] under section 283” in consequence of the exercise of its jurisdiction under s 283(o).
Extension of time
[17] Pursuant to s 248 of the Criminal Procedure Act 2011, which applies with necessary modification, P was required to file a notice of appeal within 20 working days after the date of Judge Moala’s order. That period expired on 27 June 2017. The appeal was lodged on 20 July 2017.
[18] P seeks an extension of time for filing the appeal. P’s counsel, Ms Leys, advises she did not receive Judge Moala’s written decision until 20 July 2017 and did not consider it appropriate to file an appeal until the signed decision was received. Additionally, P was in custody in Palmerston North and Ms Leys considered she needed to give legal advice in person.
[19] The Crown does not oppose leave. In the circumstances, leave is appropriate.
Discussion
[20] For P, Ms Leys submits the Judge erred in her assessment of the various considerations required to be taken into account by the Act. In particular, Ms Leys contends the Judge failed to give adequate weight to:
(a) P’s lack of Youth Court history.
(b) P’s progress towards rehabilitation while in custody. (c) The length of time P has spent in custody.
(d) Parity, given some of P’s co-offenders were dealt with in the Youth
Court.
(e) The principle a young person should be given the least restrictive outcome appropriate in the circumstances.
[21] And, Ms Leys submits the Judge gave undue weight to the number of charges; their serious nature; victim impact; and the likely length of a term of imprisonment. Ms Leys acknowledges it was “open” to the Judge to transfer the charges to the District Court. But she contends the Judge erred in the ways above.
[22] This is an appeal against the exercise of discretion.15 The Court will not interfere unless the Judge acted on a wrong principle, failed to take into account a relevant matter, took account of an irrelevant matter or was plainly wrong.
[23] I start with P’s offending. It was, as the Judge noted, particularly serious and extensive. P’s first spree of offending gave rise to 25 charges: 12 related to unlawful use or interference with a motor vehicle; three of dishonestly using a document; one of assault with intent to injure; one of theft; one of aggravated robbery; six of burglary; and one of escaping custody. P’s second offence gave rise to 13 further charges: nine of unlawfully using a motor vehicle; two of aggravated robbery; and two of burglary.
[24] In total, P broke into eight petrol stations, a bottle store and two clothes shops. She and her associates would arrive and leave in stolen vehicles. A total of
$116,911.23 worth of goods was stolen during the various aggravated robberies, burglaries, and thefts.16
[25] P was also involved in “muggings”. On one occasion she and an associate punched a 25 year old woman in the face until she fell to the ground. The pair then used the victim’s credit card to purchase items at two petrol stations. On another occasion, P stole a woman’s handbag causing loss of $5,000.
[26] Significantly, on 1 April 2016 P was apprehended by Police during a burglary of a petrol station. She appeared the next day in the Manukau District Court and was remanded in custody. P escaped in the early hours of 3 April 2016. Nineteen of P’s
38 offences were committed after the escape.
[27] The most serious charges were three of aggravated robbery. The first took place on 27 March 2016 at a petrol station in Pakuranga. One of P’s associates gained entry by smashing the glass entrance with a large rock. He then punched the store attendant seven or eight times in the face knocking him to the ground. P and her associates took two cash registers containing $868.30 in cash and multiple trays of cigarettes to the value of $1,607.98.
[28] The second took place on 1 July 2016 at a liquor store in Forrest Hill. P and five others entered the store. One of them swung a hammer at the store attendant causing him to fall off his chair. Others threw bottles at the victim. The group took alcohol and a till containing $100 in cash.
[29] The third occurred two days later on 3 July 2016 at a petrol station. This time there were 13 offenders. They gained entry with a large rock and threatened the store attendant with it. They took two cash registers containing $437.50 in cash and a large amount of cigarettes valued at $9,365.60.
[30] On any view, P’s offending was serious and extensive. 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:17
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] Heath J made the same point in R v Mason, commenting a youth offender may be transferred to the District Court for sentencing “if the offending were too serious”.18 So, there can be no objection to the Judge emphasising the seriousness of the offending. On these facts, the Judge was obliged to.
[32] Similarly, there was nothing objectionable about considering the likely sentence upon referral to the District Court. As the Court of Appeal observed in R v P, “the purpose of a transfer is simply to make available a wider and more punitive range of sanctions than those a Youth Court could impose”.19 Potential sentence is therefore clearly relevant to whether the offending is too serious to be dealt with in the Youth Court. And may be decisive.
[33] Nor did the Judge err in relation to parity. Ms Leys responsibly accepted P was at or near the “top of the pile”. While some of P’s co-offenders received Youth Court orders, her offending was appreciably more serious because, unlike those co-offenders, P was firmly involved in both offence sprees. Only one other young person was involved in both. He too has been transferred to the District Court for
sentence.20
[34] As to mitigating factors, Judge Moala accepted P has participated in cultural and sporting activities since being in custody, and expressed remorse for her offending. The Judge also noted P hopes to direct her future energy towards positive
ends.21 Similarly, the Judge was cognisant P had no Youth Court history. The Judge
17 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [73].
18 R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [41].
19 R v P CA59/03, 18 September 2003 at [13].
20 I was advised by counsel this offender escaped custody and committed further, serious offending in addition to his offending with P.
21 Police v TP, above n 2, at [37]–[41].
directed herself on three separate occasions to impose the least restrictive outcome appropriate in the circumstances.22
[35] Large portions of the judgment were directed to these factors.23 And, they clearly impressed the Judge. As the following passage records, the Judge “agonised” over the decision having regard to all the relevant factors:
[57] I have agonised over this decision. It has been really difficult to make. I adjourned it today to give your lawyer a chance to provide me with more information and to provide me with a reason to keep you in the Youth Court. I am really concerned about your age. I know that you have enough time to deal with these offences in the Youth Court. I am mindful that this is the first time you have been to the Youth Court and I am also mindful of your change in attitude since you have been in residence.
[58] After weighing everything up, taking into account that I should try and keep you in the Youth Court with its rehabilitative focus and it is the least restrictive outcome, rather than transferring you to the District Court for sentencing. After weighing all of those factors up, I am satisfied that you should be transferred to the District Court for sentencing. Any less restrictive outcome is clearly inadequate given the seriousness of your offending and the factors in s 284. Your offending is simply too serious to be dealt with in the Youth Court.
[59] I have thought carefully about the option of supervision with residence with a supervision order but I must hold you accountable for your offending and hold you responsible for your offending and supervision with residence and supervision order is just not sufficient to respond to the seriousness of what you have done.
[36] The appeal reduces to the proposition the Judge committed reversible error in concluding the seriousness of the offending required transfer to the District Court notwithstanding P’s youth, her lack of previous history and impressive rehabilitative efforts. But as Ms Leys accepts—and as the law recognises—it was open to the Judge to transfer P to that Court having regard to the seriousness of the offending.
[37] This leaves time spent in custody. Under the Parole Act 2002, detention in a secure Youth facility is treated as time on remand, and deducted administratively from a sentence of imprisonment.24 Consequently, this is a matter for the prison
authorities. The Judge did not err in not having regard to a factor reserved for others.
22 Police v TP, above n 2, at [32], [43] and [58].
23 The Judge dedicated 14 paras of her judgment detailing the various submissions advanced on behalf of P: [35]–[42], [48]–[51], [55]–[57].
24 Parole Act 2002, ss 90, 91 and 92.
Result
[38] Time is extended for the appeal. But, the appeal is dismissed. [39] I thank counsel for their helpful submissions.
……………………………..
Downs J
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3
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