Counsel:M J Bullock for Appellant via videolink K A L Bicknell for Respondent via videolink
Judgment:2 July 2010 at 11.30 am
JUDGMENT OF THE COURT
AThe appeal on a question of law against sentence of two and a half years imprisonment for aggravated robbery is dismissed.
BThe question is answered as follows: When a young person is sentenced in the District Court or High Court, having been transferred for sentence by the Youth Court, the sentencing Judge is not required to take into account the youth justice principles provided for in the Children, Young Persons and Their Families Act 1989.
REASONS OF THE COURT
(Given by Keane J)
[1] On 19 November 2009 the appellant, then aged 16, was sentenced to two and a half years imprisonment by Principal Youth Court Judge Becroft in the District Court, Wellington, for the aggravated robbery of a Whanganui dairy on 12 July 2009. She was also up for sentence in relation to two other offences, a robbery in Lower Hutt on 7 February 2009, when she was aged 15, and possession of cannabis. For those offences she was convicted and discharged.[1]
[1] R v Hosay DC Wellington CRI-2009-283-59, 19 November 2009.
[2] The appellant first appeared in the Youth Court, Whanganui. Family group conferences took place at which she accepted responsibility for the offences for which she was sentenced. She was permitted to enter pleas of guilty in that Court. A report and a plan were prepared. On 23 October 2009, however, Judge Callinicos decided he had no option but to convict her and transfer her to the District Court for sentence.[2] The available Youth Court orders were considered to be simply insufficient in duration and intensity to address the appellant’s significant issues.
[2]In accordance with Children, Young Persons, and Their Families Act 1989, s 283(o); R v KH YC Whanganui CRI-2009-283-59; CRI-2009-283-23, 23 October 2009.
[3] Both robberies, Judge Callinicos held, were serious. The appellant appeared not to understand how serious they were or to be remorseful. She was likely to re‑offend in that way in the near future. The District Court, he held, had a wider ability than the Youth Court to respond on sentence to that likelihood. A sentence of imprisonment, though not inevitable, he said, could not be ruled out.
[4] On sentence Principal Judge Becroft held that he was bound to adhere to the tariff fixed by this Court for aggravated robbery. He held also, though the authorities in the High Court were in conflict, that he could not on sentence apply youth justice sentencing principles. Had he been entitled to, he said, he would have taken a starting point significantly less than the tariff required, four and a half years (five years to take into account the robbery), or applied a greater discount. He would have imposed home detention.
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.
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AGLC
Pouwhare v R [2010] NZCA 268
Case
[2010] NZCA 268
Decision Date
CaseChat Overview and Summary
In Pouwhare v R the Court of Appeal dismissed an appeal against sentence. The appellant, a 16 year old girl, had been sentenced in the District Court to two and a half years imprisonment for aggravated robbery. The appeal was brought on a question of law as to whether the sentencing Judge should have taken into account the youth justice principles provided for in the Children, Young Persons and Their Families Act 1989. The appeal was dismissed and the question answered in the negative. The sentencing Judge was not required to take into account those principles. The Court concluded that the youth justice regime created by the CYPF Act is a carefully weighted and circumscribed amalgam of objects, principles, rights, processes, remedies and sanctions. It is not, and does not purport to be, an exclusive code for the administration of youth justice. It caters for the young offender whose offending is not of the most serious order, which may be attributable to a lack of family support, or immaturity, and may also be impulsive or the result of peer pressure. It does not cater for young offenders, especially those approaching the age of 17, whose offending is alleged or is accepted to be so serious that it is tantamount to adult offending. When young persons appear for sentence, in whichever court that might happen to be, it will always be relevant, and sometimes may even be decisive, that they lack the maturity of an adult and are decidedly more vulnerable and impulsive. The Court considered that youth is a mitigating factor, but it cannot be said to be of decisive significance. When a young person is transferred for sentence to the District Court, or the High Court for that matter, the Sentencing Act will apply. The plain implication has to be that Sentencing Act purposes, principles and aggravating and mitigating factors will then effectively displace the s 208 principles that would have applied but for transfer.