W v Police

[2018] NZHC 1428

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ATTENDING. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-13

[2018] NZHC 1428

BETWEEN

W

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 June 2018 (by AVL)
Counsel:	R D Stone for appellant J E Rielly for respondent
Judgment:	15 June 2018

RESERVED JUDGMENT OF COOKE J

W v POLICE [2018] NZHC 1428 [15 June 2018]

Introduction

[1]    The appellant is 16 years old. After pleading guilty to a charge of aggravated robbery,1 he was sentenced in the Youth Court at Napier to five months’ supervision with residence.2

[2]    The appellant appeals his sentence on the grounds that the sentence was manifestly excessive and that there was disparity with the sentence of a co-offender, H.

[3]    The Crown opposes the appeal as the sentencing approach was methodical, comprehensive, principled and orthodox.

Factual background

[4]    On the evening of 14 January 2018, the appellant and a group of associates were gathered outside a motel in central Napier. One of the associates ordered a pizza to be delivered to the motel. When the pizza delivery driver arrived, he got out of his vehicle and was approached by the five youths.

[5]    Some of the associates then pinned the driver against a vehicle, while another associate punched the driver twice in the back of the head, causing the driver to step backwards.

[6]    At this stage, the appellant pulled out a pocket knife and pointed it at the driver. An associate then took the driver’s pizza delivery bag, containing the pizza and approximately $210 in change. The driver’s wrists were scratched while the pizza delivery bag was being taken.

[7]    Some of the associates then took the driver’s cell phone from the vehicle, valued at $500. Another associate went through the driver’s pockets in an attempt to find the keys to the vehicle. However, the driver began yelling for help so the youths ran off with the stolen items.

1      Crimes Act 1961, s 235(b). Maximum penalty 14 years’ imprisonment.

2      Police v W [2018] NZYC 283.

[8]    Two of the associates were 13 years old and were not sentenced. One associate was an adult and was sentenced in the  District Court.  The final associate, H, was  14 years old and was also sentenced in the Youth Court.

[9]    The appellant was 15 years old at the time of the offending and was in the custody of Oranga Tamariki pursuant to s 101 of the Act, due to a breakdown in the family unit, partly due to his willingness to use threats and violence. He has a long history of offending, beginning at age 10. He has five previous proven offences, all arising late last year:

(a)two counts of burglary;

(b)two counts of unlawfully interfering with a motor vehicle; and

(c)one count of wilful damage.

[10]   The appellant was sentenced to three months’ supervision for those five charges on 7 December 2017.3

Youth Court decision

[11]   The appellant was sentenced on 10 May 2018 by Judge Callinicos. The Judge started by noting that the appellant was only one month into his previous three-month sentence of supervision when the offending occurred.4 This indicated that the plan put in place to address the underlying causes of the appellant’s offending had failed.5

[12]   The Judge noted that if the appellant was being sentenced before an adult court, a starting point of five or six years’ imprisonment would be appropriate.6 The Judge rejected that the offending was opportunistic, as the group had ordered the pizza for the purpose of committing the offence.7

3      Oranga Tamariki Act 1989, s 283(k). This was a Group 4 response.

4      Police v W, above n 2, at [4].

5 At [5].

6 At [9].

7 At [6].

[13]   The Judge described the environment the appellant had been brought up in as “unfortunate”.8 He had started using synthetic cannabis at a young age. It was suggested at the hearing that the appellant had recently stopped using drugs and had attended drug and alcohol counselling, but the Judge viewed this information with a degree of scepticism.9

[14]   The Judge recorded the appellant’s “very negative” attitude towards his offending. The social work report recorded him as saying “I don't care about the victim, I just wanted what he had”.10 Although the appellant later said he was sorry for what he did to the victim, the Judge considered this was too superficial to conclude that he felt true remorse or that he had gained meaningful insight into his offending.11

[15]   The Judge did not find anything useful in the response from the appellant’s family, although he emphasised that this did not count against the appellant.12

[16]   The Judge recorded that the victim was frustrated, annoyed and upset with the physical, mental and financial impacts on him.13

[17]   The Judge took into account the appellant’s previous proven offences. His main concern was with the appellant’s failure to comply with supervision. He noted that the social worker had warned the appellant on several occasions before the offending, and that the appellant had been reported missing from his bailed address on three occasions, and had acted belligerently to police when he was located.14

[18]   The Judge also referred to an incident where the appellant had breached his bail on the present charge and ended up being involved in a vehicle accident.15

8      Police v W, above n 2, at [10].

9 At [12].

10 At [13].

11 At [14].

12 At [15].

13 At [17].

14     At [19]–[20].

15 At [21].

[19]   Additionally, the Judge referred to previous discharges. He disregarded these, but took into consideration the fact there had been previous attempts to prevent “exactly what has happened”.16

[20]   The Judge noted that the central underlying causes of the appellant’s offending were drug and alcohol abuse and association with anti-social peers. He remarked that neither a community-based sentence, nor a residence-based sentence, would remove the appellant from such anti-social peers.17

[21]   In ordering supervision with residence, the Judge was primarily concerned that a supervision with activity sentence would see the appellant return to his long pattern of risky behaviour after the pressure of sentencing was gone.18 He was also concerned that the appellant now “poses a real risk to people”.19

[22]   The Judge expressly took into account the following key principles of sentencing:20

(a)to strengthen the family group;

(b)to maintain the young person in the community as far as practicable and consonant with the need to ensure the safety of the public;

(c)age is a mitigating factor; and

(d)the least restrictive outcome must be considered.

[23]The key considerations for the Judge were expressed in the following terms:21

(b)In terms of supervision with activity, there are simply too many risk factors at play for that to be viable at this point in time. He has shown what I would describe as initial or superficial expressions of insight or remorse. They might well be genuine, but it is far too early for me to make anything approaching an informed consideration bearing in

16     Police v W, above n 2, at [18].

17 At [24].

18 At [28].

19 At [27].

20 At [30].

21 At [31].

mind the wealth of material that shows that right up until the latest report has all been very negative. Being based in a residence would give a safe way of ensuring that if those expressions are genuine they can be worked upon, as I say, as a platform. There is little tangible evidence before me that the risks to the public would be addressed by supervision with activity.

(c)In terms of supervision with residence, it is my determination that it is the least restrictive outcome in all the circumstances. As I say, there must be a period of secure structure around [the appellant] sufficient to really gauge whether preliminary expressions of remorse, his early engagement with alcohol and drugs counselling are real and genuine and if so whether they are likely to be sustainable. There is far too greater risk to the public, such as the pizza delivery person, that leaving [the appellant] in the community would simply lead to him reverting quickly to his behaviours and to ongoing offending.

Approach on appeal

[24]   An appeal against an order by the Youth Court under s 351 of the Act is dealt with on the same basis as an appeal against a sentence by the District Court.22

[25]   An appeal against sentence is an appeal against a discretion. Section 250 of the Criminal Procedure Act 2011 requires the Court to allow the appeal if, and only if:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[26]   Whether the end sentence is “manifestly excessive" continues to be an important guide to finding an error.23 If the end sentence is within range, then the appeal court will not change it, even if the lower court made an error in its sentencing approach.

[27]   A sentence will be manifestly excessive if it is substantially more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.24

22     Oranga Tamariki Act 1989, s 355.

23     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

24     Woods v Police [2015] NZHC 305 at [33].

Youth Court sentencing principles

[28]   Section 208 of the Act outlines the principles of youth justice. The relevant principles are:

(a)any measures for dealing with offending by young persons should be designed to strengthen the family group of the young person and foster the ability of the family group to develop their own means of dealing with offending by their young persons;25

(b)a young person who commits an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public;26

(c)a young person’s age is a mitigating factor in determining the nature of any sanctions imposed in respect of offending by that young person;27

(d)any sanctions imposed on a young person who commits an offence should take the form most likely to maintain and promote the development of the young person within their family group and should take the least restrictive form that is appropriate in the circumstances;28

(e)any measures for dealing with offending by a young person should so far as practicable address the causes underlying the young person’s offending;29 and

(f)any measures for dealing with offending by a young person should have proper regard for the interests of any victims of the offending and the impact of the offending on them.30

25     Oranga Tamariki Act 1989, s 208(c).

26     Section 208(d).

27     Section 208(e)(ii).

28     Section 208(f).

29     Section 208(fa).

30     Section 208(g)(ii).

[29]   Section 284 outlines the factors to be taken into account for sentencing in the Youth Court. The relevant considerations are:

(a)the nature and circumstances of the offence and the young person's involvement in that offence;31

(b)the personal history, social circumstances and personal characteristics of the young person;32

(c)the attitude of the young person towards the offence;33

(d)the effect of the offence on any victim of the offence;34

(e)any previous offence proved to have been committed by the young person, any penalty imposed in relation to that offence, and the effect on the young person of that penalty;35 and

(f)the causes underlying the young person’s offending, and the measures available for addressing those causes.36

[30]   Section 283 outlines the hierarchy of responses the Youth Court can take to a charge against a young person. A supervision order with activity is Group 5, while a supervision order with residence is Group 6. Group 7 is the most serious.

[31]   Section 289 requires the Youth Court to impose the least restrictive outcome adequate in the circumstances. An outcome must not be imposed unless the Court is satisfied that a less restrictive outcome would be clearly inadequate.

[32]   Section 311(1) sets a minimum period of three months for a supervision with residence order, and a maximum period of six months.

31     Oranga Tamariki Act 1989, s 284(1)(a).

32     Section 284(1)(b).

33     Section 284(1)(c).

34     Section 284(1)(f).

35     Section 284(1)(g).

36     Section 284(1)(i).

Developments since sentencing

[33]   There has been a significant development since the sentencing in the Youth Court. After written submissions had been filed on this appeal, I received a memorandum from the appellant’s counsel. This provided advice of two developments:

(a)the appellant’s case leader at Te Au Rere A Te Tonga (the residence where he is serving his sentence) has advised that the appellant has been accepted for the START Taranaki programme commencing on 16 July 2018; and

(b)in an attached email from the case leader, the case leader advised that the appellant’s behaviour within residence had been reasonably good to date, that the appellant was keen to attend START, and in the view of the case leader the positive behaviour is likely to continue and that START was an ideal opportunity to build on what had been achieved.

[34]   I accepted this new evidence in accordance with s 335 of the Criminal Procedure Act.

[35]   Counsel advised that if the appellant’s sentence was reduced to three months and two weeks’ supervision with residence, this would allow for an early release hearing on 16 July 2018 under s 311(2A) of the Act, in time for the appellant to commence the START programme should the Youth Court conclude that a supervision sentence under s 283(k) is appropriate.

Arguments on appeal

[36]   Against that background, Mr Stone did not pursue the appeal against the imposition of a sentence of supervision with residence as outlined in his written submissions. Instead, he concentrated on the proposal now put forward in his memorandum, which would involve reducing the period of the residence to allow the new proposal to be implemented. He pointed out that there was nothing specific in the Judge’s judgment concerning the period of residence apart from the observation

that the period be of “sufficient duration to allow for every chance of meaningful therapeutic interventions to be commenced and settled to lay the platform for a very structured post-residence supervision order”.37 He also pointed out that the structure of the sentence in this way had highly influenced the sentence that the same Judge had imposed on H that day. Mr Stone also drew on the principles set out in the United Nations Convention on the Rights of the Child. He submitted that, had the information now available to this Court been available to the Judge, the revised sentence he was proposing would likely have been imposed.

[37]   Ms Rielly for the Crown opposed the appeal, and the suggested restructuring of the sentence. She pointed out that the High Court did not engage in a fresh sentencing exercise, but could only interfere with a sentence if the lower court’s decision had been demonstrated to be wrong. She also stressed that the detailed information that would be before the Youth Court at an early release hearing was not before this Court. What was available was simply an email rather than the detailed social worker’s reports, and a plan as would be expected. She emphasised the particular experience of the Judge, and submitted that it could not be inferred that he would have imposed the revised sentence now proposed had the information contained in Mr Stone’s memorandum been available.

Discussion

[38]   I accept the point made by Ms Rielly that this Court does not have the detailed reports and plan that would normally be expected, especially at an early release hearing. But the Youth Court can have such reports available to it at an early release hearing on 16 July 2018, and if there is concern about the authenticity of the appellant’s commitment to rehabilitation an early release may not occur.

[39]   I agree with Ms Rielly that the Judge thoroughly considered the relevant sentencing principles and the various options available, before concluding that a sentence of supervision with residence was appropriate. In particular, the Judge satisfied the requirement in s 289(1)(b) not to impose the sentence unless a less restrictive outcome would be clearly inadequate. The Judge legitimately took into

37     Police v W, above n 2, at [32].

account the appellant’s past failures to comply with supervision and the escalating risk he poses to the safety of the public to conclude that supervision with activity would be clearly adequate.

[40]   The seriousness of the appellant’s offending is influenced by the following aggravating factors:

(a)premeditation;38

(b)involvement of multiple offenders;39

(c)use of a weapon;40 and

(d)offending occurred while subject to sentence of supervision.41

[41]   The appellant played an important role in the offence, as he was involved in planning the offence with H before the pizza order was made, and he was the party holding the knife.

[42]   H’s sentencing notes have not been provided to the Court. Mr Stone advises that H had been remanded to residence for about one month prior to sentencing.42 He also advises that the length of H’s sentence was to allow for the possibility of completing a supervision sentence at START Taranaki as part of his split sentencing.

[43]   I agree with Ms Rielly, however, that the personal circumstances of H were sufficiently different to warrant a slightly shorter sentence. The main factors being his younger age and his lack of previous sentences.

[44]   Were it not for the recent developments, I would have accepted that the circumstances presented the Judge with very little option but to impose a sentence of supervision with residence. I would also have concluded that interfering with the

38     Compare Sentencing Act 2002, s 9(1)(i).

39     R v Mako [2000] 2 NZLR 170 (CA) at [56].

40     Compare Sentencing Act 2002, s 9(1)(a).

41     Compare s 9(1)(c).

42     This was done under Oranga Tamariki Act 1989, s 238(1)(d).

length of the supervision with residence order would have involved tinkering with a sentence that was plainly open for the Judge to impose.

[45]   But the new information involves a substantial change to the circumstances. There were two driving considerations for the Judge, namely the need for a period when the appellant was withdrawn from the community to consolidate his position, and secondly the need for a period of secure structure around the appellant so that his early expressions of remorse could be built upon to ensure they were sustainable. There was nothing specific about the period of residence apart from it being of sufficient length to create a meaningful intervention. The new information demonstrates that the initial period of the residence programme is showing signs of achieving precisely what the Judge hoped would be secured. The reduction of the period of time of the residential component in those circumstances seems consistent with the underlying objectives of the Judge, as a period of non-residential supervision commencing with the START programme can build on what has been achieved. The Judge even specifically mentioned the START programme as a potential “intense post- residence follow-up”, which a period in residence would “lay a sound foundation for”.43

[46]In K (a young person) v R, Kós J held:44

While acknowledging, therefore, the need to give due consideration to the interests of victims, it is utterly fundamental that a young person’s sentence must be the least restrictive appropriate to the circumstances, and shall keep him or her in the community (as opposed to a custodial sentence) so far as practicable and consonant with public safety. The former point is restated subsequently in s 289(1)(b): in setting a sanction, any less restrictive outcome must be “clearly inadequate”.

[47]   The circumstances as now apparent demonstrate that the less restrictive outcome is now supervision with residence for three months and two weeks. It can no longer be regarded as tinkering with the sentence, but altering it so that the overall sentence is compliant with the principles of the Act. The new information means that there is now an error in the sentence as imposed and that a different sentence should be imposed in accordance with s 250 of the Criminal Procedure Act.

43     Police v W, above n 2, at [27].

44     K (a young person) v R [2012] NZHC 2950, (2012) 29 FRNZ 141 at [22].

[48]   The sentence of H, who was also sentenced by Judge Callinocos, appears to have been influenced by the availability of a rehabilitation plan. Had the information now available to this Court been available to the Judge, I think it likely that the appellant’s sentence would have been tailored in the way proposed. This amended sentence is most likely to achieve the principles of the Act, and a positive outcome. I also note that the difference between the early release dates that would be involved (16 July rather than 9 August) is only three weeks and three days.

Result

[49]   Accordingly, the appeal is allowed. A sentence of three months and two weeks’ supervision with residence is imposed in substitution for the five months’ supervision with residence sentence.  An early release hearing is directed to occur on or before  16 July 2018 in substitution for the 9 August 2018 date directed by Judge Callinicos.

Cooke J

Solicitors:

Souness Stone Law Partnership, Hastings for appellant Crown Solicitor, Napier