P v R HC Wanganui CRI 2010-483-11
[2010] NZHC 1021
•16 April 2010
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI 2010-483-11
BETWEEN K P Appellant
ANDQUEEN Respondent
Hearing: 30 March 2010
Counsel: M Bullock for Appellant
L C Rowe for Respondent
Judgment: 16 April 2010
JUDGMENT OF MILLER J
[1] P was 16 years of age when she appeared for sentence on charges of aggravated robbery, robbery and possession of cannabis. She admitted the charges in the Youth Court and was transferred to the District Court for sentence. There she received two and a half years imprisonment on the aggravated robbery charge and was convicted and discharged on the other two.
[2] After the hearing I dismissed the appeal and gave leave to appeal to the Court of Appeal. These are my reasons.
[3] The appeal confronts, not for the first time, the relationship between tariff sentencing decisions, in this case R v Mako,[1] and youth justice principles when a youth happens to be sentenced in an adult Court. Judge Becroft followed a decision
[1] R v Mako [2000] 2 NZLR 170.
of mine, R v Patea-Glendinning, to the effect that youth justice principles do not
K P V R HC WANG CRI 2010-483-11 16 April 2010
apply directly; rather, youth is treated as a mitigating factor.[2] He took that approach reluctantly, holding:[3]
If I could have gone lower, I would have done. Home detention was recommended in the probation report. If I did not feel constrained by the tariff approach, if I did not feel forced to proceed today on the basis that youth justice principles do not apply as a matter of law, I would have made a reduction for youth of at least 40 percent, which when coupled with the 33 percent deduction for an early guilty plea, would have bought you under two years, and home detention would have applied. I would have granted it. But I regret that I cannot do so. The end sentence is two and a half years imprisonment.
[2] R v Patea-Glendinning (2006) 22 CRNZ 959.
[3] At [57].
[4] I adopt the Judge’s discussion of the facts, which are not in dispute. There were two separate incidents. The first in time was the robbery, which occurred at the Woburn railway station on 7 February 2009, when P was 15:[4]
[4] At [11]-[13].
You and your friends had been drinking and were throwing and smashing empty bottles around the railway station. There were others waiting at the station to catch the train. Some within that group came and confronted you and your friends about what you were doing. You were joined by your brother and his friends and while they were assaulting some in the group who had confronted you, you grabbed another in that group from behind and placed that person, a woman, in a headlock. She was an 18-year-old Australian tourist.
You punched her in the face with a closed fist three times and knocked her to the ground. You grabbed her shoulder bag, walked off with it and after being begged by the victim to return it because it had her passport in it, you took $180 cash from the bag and threw it back to her. As you turned to leave, you realised you wanted her cellphone as well. You grabbed the bag back from the victim, took the cellphone, threw the bag away and said to the victim, “walk away if you know what’s good for you”.
The victim, as a result of that offending, feels much less trusting, not as comfortable in public places and is now nervous about people and her surroundings. It was meant to be a holiday for her in New Zealand to watch the Sevens. She says, in a foreign country, she felt alone, isolated and violated and you can understand how upset and angry she would feel. She was, however, most concerned and upset to hear that you had been involved in the aggravated robbery which occurred on 12 July this year.
[5] The second and more serious incident occurred on 12 July 2009 at Wanganui and involved a 13 year old co-offender:[5]
[5] At [14]-[16].
You disguised yourself with hooded sweatshirts, hoods pulled up over your heads with scarves covering your faces. You and your young companion were both carrying a knife. It seems you had targeted the robbery just when the shop was closing and the female, 47-year-old, Chinese sole proprietor was closing up. You confronted her outside the shop as she was bringing in the “Open” sign. You grabbed her and pushed her into the shop demanding money. You used your left hand to grab her clothing around her collar and as you were pushing or marching her inside, you held the knife in your right arm at your side. You pushed her up against the counter using your forearm.
At that stage, your young companion moved alongside you, grabbed hold of the victim and, after she had a good hold of her, you walked around the back of the counter to the till where you tried to open the till by pressing buttons randomly. You were unsuccessful. You then went to the cigarette cabinet and grabbed between seven and 10 packets of cigarettes and tobacco. You then moved around behind the counter and moved from the commercial area of the shop into the private dwelling house area, up the stairs and along the hallway into the kitchen where you placed your knife on the bench and searched the drawers.
Meanwhile, your young companion had hold of the victim. The victim managed to manoeuvre her around the front of the counter, then behind the counter, so that eventually she could press the panic alarm. There was some struggle between the victim and your young companion and she made several stabbing motions with her knife at the owner. The victim was repeatedly saying, “I will help you, I will help you, I’ve had an operation.” In fact, the victim had only been released from hospital days before after undergoing stomach surgery. As I say, eventually the victim manoeuvred your companion around to the panic button which she pushed. You ran from the kitchen, leaving the knife behind. Your young companion let the victim go. She made one threatening stabbing motion to the victim and you both left running out of the front door of the shop.
[6] The impact on both victims was severe. The shop owner, in particular, suffered badly. She became very fearful and had no option but to sell the shop at a substantial loss.
[7] P admitted the offending when confronted with the evidence. A search of her room uncovered 46 gm of cannabis.
[8] No issue is taken with the decision of Judge Callinicos to transfer P to the
District Court for sentence following her admissions.
[9] The first question is which set of sentencing principles governs the case. Judge Becroft explained that while those appearing for sentence in the Youth Court are dealt with under the special sentencing regime in the Children, Young Persons, and Their Families Act 1989, those transferred, for whatever reason, to an adult
Court are not. “The general approach has been that once the young person is in the adult Court, the young person is in a tariff Court and if tariff guidelines exist, they must apply.”[6] Attempts to discount starting points by up to 60 per cent or 70 per cent have met appellate criticism.
[6] At [24].
[10] As the Judge recognised, there is a conflict of authority in this Court. Arrayed on one side are the Full Court decision in X v Police[7] and the decision of Priestley J in R v MTV.[8] In X v Police, Heath and Courtney JJ held that youth justice principles do apply when a youth is sentenced in the District Court. On the other are Patea-Glendinning and the decision of Cooper J in Tanevesi v Police.[9] Judge Becroft considered that he must follow Patea-Glendinning, which is more recent than X. He observed that youths may travel by differing paths to the District Court and in some cases - for example, where a jury trial is elected or jurisdiction is declined - the reasoning in X is less compelling. The applicable sentencing
principles should not depend on the path the youth follows to the adult Court.
[7] X v Police (2005) 22 CRNZ 58.
[8] R v MTV HC Auckland CRI 2008-292-179, 27 August 2008.
[9] Tanevesi v Police HC Auckland CRI 2007-404-223, 4 December 2007.
[11] Mr Bullock’s careful submissions notwithstanding, I remain of the views that I expressed in Patea-Glendinning. Nothing is gained by rehearsing the arguments. I observe that in MTV, Priestley J evidently thought Patea-Glendinning was strictly correct in law although he agreed with the Full Court in X, reasoning that youth justice principles are relevant when a youth is sentenced in an adult Court. For that he cited Court of Appeal decisions, notably R v Cuckow and R v C, that predate the
Sentencing Act.[10] In my opinion the Judge was right to find that youth justice
principles did not apply to P as a matter of law, but that the Sentencing Act 2002 and Mako did. Youth may affect culpability very substantially in some cases, but it enters the sentencing analysis primarily as a mitigating factor.[11]
[10] R v Cuckow CA319/91, 17 December 1991; R v C CA332/95, 28 September 1995.
[11] R v Patea-Glendinning at [50].
[12] I also accept Mr Rowe’s submission that the choice of sentencing principles matters, although it may make no difference on particular facts.[12] Although Mako admits substantially reduced sentences for youth offenders in appropriate cases, the starting points are high, reflecting the importance attached under the Sentencing Act to accountability, deterrence and denunciation. Those considerations are not listed among the youth justice principles in s 208 of the Children, Young Persons and their
Families Act. In this case the Judge would have chosen a rehabilitative and less restrictive sentence had he not been bound by Mako. As he put it, “the Youth Court principled approach is fundamentally different [from the Sentencing Act] allowing for a more tailored approach at sentencing in order to bring young people into mature, functioning adulthood”.[13]
[12] R v MTV; P v Police HC Wellington CRI 2007-485-48, 23 August 2007; Police v Moala [2008] DCR 70 (HC).
[13] At [34].
[13] In this case the Judge recognised that a four to six year starting point was appropriate under Mako. Having regard to the use of disguises and knives and a degree of force, coupled with the impact on the dairy owner, the lowest possible starting point was four and a half years. To that he added six months for the Woburn robbery, noting that P was on bail for it when she committed the Wanganui offence.
[14] No issue is taken with those figures, although Mr Bullock does argue that as a matter of principle youth ought to be taken into account when setting the starting point. Some support for that is arguably found in Mako itself; the Court of Appeal held that a starting point, in the context of aggravated robbery, was a starting point for an adult offender after trial.[14] However, the judgment as a whole shows that the Court intended the starting points would apply to young offenders, with age being treated as a mitigating factor.[15] That approach is consistent with the subsequently enacted Sentencing Act, which lists age as a mitigating factor, and a preference for transparency and consistency in sentencing.[16]
[14] At [34].
[15] At [62], [65]-[66].
[16] Sentencing Act 2002, s 9(2)(a).
[15] Turning to mitigating factors, the Judge noted P’s ‘developmental lag’. She presented as a grown woman, but she was probably developmentally an 11-13 year
old. She had long been excluded from school and had been exposed to an alcohol and drug culture and a gang. She had lacked insight into how serious the offending was. She was remorseful. For all of these things the Judge would have reduced the five-year term by 50 per cent or more. But the authorities did not permit so large a deduction for youth and immaturity. The most that the Judge felt able to give was 25 per cent. He added that another reason for making a larger deduction, had he been free to do so, was that H will probably have to serve her sentence in an adult women’s prison. (I am told that he was correct; she is at Arohata.)
[16] A further 15-month deduction was made for the guilty pleas and acceptance of responsibility, resulting in the end sentence. Home detention was unavailable.
[17] Judge Becroft felt that 25 per cent was the maximum possible deduction for youth in this case. The only case cited for the proposition that appellate Courts resist larger deductions was Police v Moala, a judgment of Harrison J. That was a case involving 32 offences, including five aggravated robberies, and the youth had escaped from a secure facility and assaulted a police officer. His prognosis was bleak; he suffered “unaddressed and uncontrolled personality disorder” and the psychological reports were disturbing. The District Court Judge had not fixed a starting point but it had to be at least 10 years; if so the implicit discount for mitigating factors (youth, guilty plea, and prospects of rehabilitation) must have been
75 per cent, which could never be justified. However, that conclusion was based on the particular facts. Although Harrison J observed that Mako anticipated stern sentences for youths who commit serious aggravated robberies, he did not suggest that there is an outer limit for the youth discount that is available. It must always depend on the individual’s potential for rehabilitation.
[18] Counsel were unable to point to any other case in which an appellate Court has set some limit to the deduction that may be made for youth. If the Judge felt himself bound to allow only 25 per cent for youth, I consider that he erred. Mako sets no such limit. The size of the youth discount depends on, in particular, first offender status, age and immaturity, and prospects of rehabilitation.
[19] However, I accept Mr Rowe’s submission that the Judge’s approach reflects longstanding sentencing practice, under which aggregate discounts of about 50 per cent are given for youth and early admissions and remorse. Indeed, X v Police, in which Mr Rowe appeared as amicus, is perhaps the best example. (In Patea- Glendinning, by contrast, a much greater discount was upheld, albeit by reference in part to the position of co-offenders.) Another example is Solicitor-General v
Wilson.[17] And of course, 50 per cent is the overall discount allowed in this case. It
[17] Solicitor-General v Wilson HC Auckland A 9-02, 10 May 2002.
has recently become necessary, following Hessell,[18] to quantify guilty plea discounts, as the Judge did in this case, but that does not appear to have altered the aggregate discount. In my opinion Mako does not insist that discounts be restricted in that way.
[18] R v Hessell [2009] NZCA 450.
[20] Critically so far as this appeal is concerned, the Judge did not err by denying P a more substantial discount in her particular circumstances. Although she was undoubtedly immature, which substantially affected her culpability, very large discounts are usually reserved for those who demonstrate strong potential for
reform.[19] P’s prospects of rehabilitation are not particularly strong. While she is
[19] R v Mahoni (1998) 15 CRNZ 428.
immature, shows some evidence of remorse, and has the support of her family, Judge Callinicos described her prospects as bleak, pointing to poor insight, when he transferred her to the District Court.[20] There were also behavioural problems while on remand, resulting in her being kept in secure custody on two occasions. The probation officer attributed the offending to boredom, and pointed to poor choice of peers, a sense of entitlement, and hostility towards the victims. Judge Becroft recognised these things but concluded that, given her age, multi-systemic family therapy and psychological counselling could work well. In short, her rehabilitation
[20] At [20].
will require intensive work. For these reasons, the discount for youth was not wrong, following Mako. This turns out to be one of those cases in which the choice of sentencing principles does make a difference; the Youth Court approach would admit a more lenient sentence for an offender, such as P, whose prospects of rehabilitation are not strong.
[21] For these reasons I concluded that the sentence was not manifestly excessive. The appeal was dismissed.
Miller J
Solicitors:
Crown Solicitor’s Office, Wanganui for Respondent