R v MTV HC Auckland CRI 2008-292-179

[2008] NZHC 2530

RESTRICTION ON PUBLICATION OF NAME OR IDENTIFYING DETAILS OF PRISONER

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-292-179

THE QUEEN

v

M T V

Appearances: C M Ryan for the Crown

S Alofivae for the prisoner

Sentence:       27 August 2008

SENTENCING NOTES OF PRIESTLEY J

Counsel:

C M Ryan, Meredith Connell & Co, P O Box 2213, Auckland 1140 Fax: [phone]

S Alofivae. P O Box 76787, Manukau, Auckland 1702. Fax: [phone]. Email: [email protected]

R V M T V HC AK CRI 2008-292-179  27 August 2008

[1]      M T V, you know why you are here.  You are here because you were a party to a serious crime.  It is a crime which carries a maximum of 14 years imprisonment.

[2]      When you last appeared before me on 14 August a guilty plea was entered. You  had  previously  admitted  your  offending  in  the  Youth  Court.    That  Court declined jurisdiction. For reasons which I do not need to discuss the High Court is the only court which can sentence you.

[3]      You are a young person as that is defined under s 2 of the Children, Young Persons and Their Families Act 1989.  Both at the time of your criminal activity and today you were 14.  The Manukau Youth Court has sent you here to be sentenced.

[4]      You were involved in the armed robbery of an Otara service station on 5

November 2007.   You were one of a party of six males.   You got into a vehicle when, randomly perhaps, one of your co-offenders stopped beside you in the street. You knew some or all of the occupants.  Your counsel says you were not involved in the original planning of the robbery.  You say you simply did what you were told. However, you well knew what was involved and you went along with it.  You were the decoy.  You were told to approach the automatic doors of the service station and if all was well inside you were to bend down and pretend to tie up your shoelace. This you did.  That was the signal for the others to rush into the shop.   A loaded sawn off .22 semi-automatic rifle was pointed at the service station attendant’s head. Cash was taken from the till, $501, and over $1200 worth of cigarettes was stolen.

[5]      This type of armed robbery, by undisciplined, mindless young thugs, is intolerable.  It legitimately raises public concern and alarm.  It is highly dangerous. An impulsive squeezing of the trigger or an accident could have had fatal consequences.   In different circumstances you and your co-offenders would have been charged with murder.

[6]      The public, and rightly in my judgment, is sick and tired of robberies of this type.  An armed robbery, quite apart from a violation of property rights, traumatises the victims, sometimes permanently.  No victim impact statement is available here. The victim has apparently returned for the time being to India.

[7]      If this type of offending continues unabated there is a real risk that vulnerable shop keepers, lawfully or otherwise, will in turn arm themselves for their protection, with an increased risk of loss of life.

[8]      An alarming feature of this case is that both the firearm and its magazine, with a live round still on its platform, were found secreted in your home.   This occurred, on the matters placed before me, as a result of one of the offenders giving the weapon to your older brother.  You were not responsible for hiding the weapon but your brother was.  This demonstrates to me that at least one of your siblings was also prepared to give assistance to your co-offenders.

[9]      If you were not a young person you would be sent to jail.  Ms Ryan is correct in her formulation of a hypothetical sentence. R v Mako [2000] 2 NZLR 170 applies. Were I to go to the appropriate start point and factor in aggravating and mitigating features of both the offending and you, as R v Taueki [2005] 3 NZLR 372 obliges me to do, I would probably come to a start point of around four and a half years as being consistent with your culpability as a party which when discounted for your guilty plea and your youth would result in an end sentence of somewhere around two years three months to two and a half years. With an additional and merciful discount I would further reduce the end sentence to two years, which brings s 15A(1)(b) into play.

[10]     However, I am not going to send you to jail.  Your two adult co-offenders were both sentenced to two and a half years imprisonment, having pleaded guilty. The three young people, whose involvement was probably somewhat more culpable than yours, have been sentenced to 12 months home detention.  For reasons of parity and commonsense home detention is the appropriate sentencing option  for  you. Were you older, however, it would be jail.

[11]     Your youth and the unarguable propositions that society will benefit if a last- ditch attempt is made to give you some life skills, some sense of discipline, and to pull you away from your unsatisfactory lifestyle to date dictate, in my judgment, a sentence structured to try to achieve the Sentencing Act purposes of rehabilitation and re-integration.  I say that because, even before your criminal activity, you were

behaving in a disgraceful way.  Your parents’ attempts to help and control you were unsuccessful.  You were drinking alcohol.  You were truanting.  You were running away from home.  It was some time after the offending before the police found you to interview you.  You were, so your counsel tells me, on the street.  Your parents’ attempts to control your behaviour with curfews, physical discipline and bribery with alcohol were totally unsuccessful.

[12]     Highly relevant in my judgment to tailoring an appropriate sentence are the youth justice principles set out in s 208 of the Children Young Persons and Their Families Act 1989.  Principle (d) of keeping a young person in the community so far as  practicable  and  consonant  with  public  safety  and  the  principles  in  (f)  that sanctions should tilt towards maintaining and promoting the young person’s development within his family group and be the least restrictive as is appropriate in the circumstances are clearly relevant.  So too is the s 4(f)(ii) object of giving young people  the  opportunity  to  develop  in  a  responsible,  beneficial,  and  socially acceptable way.

[13]     Of course, as a matter of narrow statutory interpretation the High Court is not exercising Youth Court powers when sentencing you today.   I am aware of a divergence of judicial views on whether s 208 youth justice principles apply in this case.  Sentencing notes are not the forum for me to give a measured or compelling analysis of that divergence.  Suffice to say that, unlike Cooper J in Tanevesi v Police CRI 2007-404-00223, 4 December 2007 I do not find, with respect, the reasoning of Miller J in R v Patea-Glendinning as compelling as I do the reasoning of a Full Court in X v New Zealand Police (2005) 22 CRNZ 58.  Miller J is correct when he observes at [36] that two Court of Appeal approaches are discernible.  For my part I consider  the  Court  of  Appeal’s  observations  in  R  v  Cuckow  (CA319/91,  17

December 1991) at [8]   and R v C (CA332/95, 28 September 1995) at [3] are powerful and correct dicta.  Gault J in the former case correctly noted that when the Youth Court declines jurisdiction and a High Court is sentencing “strictly speaking” the provisions of the CYPTF Act cease to be applicable.   He went on to say “however, the principles underlying the sections… normally should underlie consideration of any sentence in respect of a young offender”.  Identical observations were made in R v C.

[14]     It may be that Mallon J is correct when in P v New Zealand Police (CRI

2007-485-48, 23 August 2007) she suggested that the outcome of one view or the other might not really matter since the Sentencing Act requirement, to impose the least  restrictive  outcome  appropriate  in  the  circumstances,  articulated  the  same policy of Youth Justice principles.  However, sentencing higher courts should not be blind to the fact that a young person remains a young person and that the Youth Court, which is bound by the s 208 principles, is where everything started off.  In my judgment there is no sound reason why a sentencing court should not continue to have regard to the s 208 principles, even though from a strict jurisdictional stand- point, they are not applicable.

[15]     I have now had the benefit of three pre-sentence reports.  For some months now you have been in the controlled environment of a secure youth facility.   The pre-sentence report dated 7 August 2008 had the required home detention appendix. There are no technical reasons why your parents’ Otara home should not be a home detention address.  However, as I indicated to counsel on 14 August, there are clear difficulties with that address.   It returns you to the same family environment in which you were living whilst you were behaving unacceptably.  Your brother lives there, he being responsible for introducing the firearm into your home.  There were comments about family tensions, a clear ambivalence by your parents, and legitimate concerns as to whether they were able to cope.

[16]     As a result I made further directions on 14 August.   Mr Paul Colenutt the Service  Manager  of  the  Community  Probation  Otara  Service  Centre  has  taken matters in hand and has prepared a further supplementary report.  I am grateful to Mr Colenutt for that input.  He has come up with a measured and sensible plan which will help you and your family across the board.  Counsel do not dispute any of the recommendations in that report.  It is clear from that report that the Service supports your parents’ home as an appropriate address.  A series of meetings have been set up and  strategies  set  in  place  which  will  include  assistance  brought  to  your  older brother.  Meetings have been set up to offer assistance to your parents and extended family.  A further meeting has been arranged with the principal and relevant staff of Edmund Hillary Collegiate.  As a result of that meeting, however, for the time being at least, arrangements have been made with the Ministry of Education to place you in

an Alternative Education programme in the Otara community.   Transport will be provided  to  assist  with  that.    Extra  special  conditions  both  attaching  to  home detention  and  post  home  detention  have  been  recommended,  all  of  which  are designed to help you.   As I have said this is a careful and structured plan which hopefully will work and will cause you to turn your life around.

[17]     For  reasons  I  have  stated  I  consider  home  detention  is  the  appropriate sentence.   I consider it is the least restrictive and an appropriate outcome.   I am satisfied, as a result of the further directions I made earlier this month, that the Corrections Department has put into place, as best it can, appropriate conditions and programmes.

[18]     The tax-payer will be putting a huge financial investment into helping you young man.  If you blow it or go off the rails again, then once you cross over the threshold to 17 years terms of imprisonment are inevitable.  To you and your family I say this is your last chance.  Do not ignore it.  Do not forget it.

[19]     Accordingly,  on  the  charge  of  aggravated  robbery  I  sentence  you  to  12 months  home  detention.    I impose  the  following special  conditions  pursuant  to s 80C(1)(b) of the Sentencing Act. Those special conditions are:

1.        You are to travel directly from here to [your parents’ home in] Otara.

2.        You are to reside at that address for the duration of home detention.

3.        You are to comply with the requirements of electronic monitoring as directed by the probation officer.

4.        You  are  to  attend  a  psychological  assessment  and,  if  assessed  as suitable, attend and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of your probation officer and treatment provider.

5.        You are to attend alcohol and drug counselling if directed by your supervising probation officer.

6.        You  are  to  attend  any  other  course,  programme  or  recreational activity including with 274 Youth Core, as directed by the supervising probation officer.

7.        You are to abstain from the consumption of alcohol and/or illicit drugs for the duration of home detention.

8.        You are not to communicate or associate with co-offenders, unless you have the prior written consent of your supervising probation officer.

9.        You are not to associate with or contact your victim without the prior written consent of your supervising probation officer.

[20]     I also, in terms of s 80N(2) of the Sentencing Act, impose the following post detention conditions as special conditions.  I decline to make any order varying the

12 month term of those post detention conditions.  They are:

1.        You  are  to  attend  a  psychological  assessment  and,  if  assessed  as suitable, attend and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of your probation officer and treatment provider.

2.        You are to attend alcohol and drug counselling if directed by your supervising probation officer.

3.        You  are  to  attend  any  other  course,  programme,  or  recreational activity, including with the 274 Youth Core, as directed by the supervising probation officer.

4.        You are to abstain from the consumption of alcohol and/or illicit drugs for the duration of your post detention conditions.

5.        You are not to communicate or associate with co-offenders, unless you have the prior written consent of your supervising probation officer.

6.        Finally, you are not to associate with or contact your victim without the prior written consent of your probation officer.

[21]     I also make an order in terms of s 80ZJ(2) of the Sentencing Act that a progress report to enable judicial monitoring is to be made available to this Court no later than 28 November 2008. Whether your appearance is required and whether I will require further reports will be a matter I will consider three months out.

[22]     Now I don’t know whether you understand what I have said to you and I understand if you don’t because Judge’s have to be quite technical and complicated when they are imposing sentences.

[23]     You may think that because you have been locked up for the last few months that is your punishment.   Well it is not.   Your punishment starts today and your punishment is that you are going to be confined to home for the next 12 months. You are going to have to wear an electronic bracelet round your ankle and that will set off alarms if you try to run away or go somewhere where you are not meant to be.

[24]     A lot of people are going to help you, sending you off to a school, sending you off on various programmes, and trying to get you to sort your life out.  And if you don’t play ball with them, do you understand what I mean by playing ball?

[25]     The prisoner:  No.

[26]     If you are difficult with them, if you take no notice of them, if you are disobedient, if you are undisciplined, you will come back to this Court and I will probably have to send you to jail.  I don’t want to do that so this is really your last chance to become a good citizen which is what your father came here, 31 years ago, to try to do.  You have let him down.  You have let the family down and they are not happy with the way you have been behaving.   You  were giving them  a lot of problems beforehand, you were boozing, you were running away from home, you weren’t going to school and they just didn’t know how to cope.  Then to cap it all off you went and helped a whole lot of other young thugs hold up a service station with

a rifle.  Now that is just unacceptable.  And what I am trying to do today is to punish you but punish you in such a way that you get a lot of help.

[27]     If you blow it, then that is your funeral.  Do you understand what I am saying to you?

[28]     The prisoner:  Yes.

[29]     Well do your best and I hope you never have to come back to court again. Thank you counsel for your assistance.  Adjourn the Court please.

..........................................… Priestley J