W v Police - [2018] NZHC 1428

NOTE: NO PUBLICATION OF A REPORT OF THIS PROCEEDING IS PERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE

PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL OR TECHNICAL NATURE THAT DO NOT INCLUDE THE NAMES OR IDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANY

PERSON HAVING THE CARE OF THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR IS

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…

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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Details

Case: [2018] NZHC 1428
Decision Date: 15 June 2018

CaseChat Overview and Summary

W, a 16-year-old, appeals his five-month sentence of supervision with residence for aggravated robbery, arguing it is manifestly excessive and that there is a disparity with the sentence of his co-offender, H. The Crown argues the sentence was principled and orthodox. W was part of a group that robbed a pizza delivery driver, with W threatening the driver with a knife. W had a history of offending and had been in custody under the Oranga Tamariki Act due to family issues. He had been sentenced to three months' supervision just a month before the current offence.

The High Court found that the Youth Court judge had thoroughly considered the sentencing principles and options, concluding that a residence-based sentence was appropriate due to W's history of non-compliance and risk to the public. The Court also noted that the Youth Court judge had imposed a similar sentence on H, considering H's slightly different personal circumstances. However, the Court found that new information about W's positive behaviour in residence and acceptance into a rehabilitation program provided a substantial change in circumstances. The Court concluded that reducing the length of the residence component, allowing for an earlier start to the rehabilitation program, would achieve the underlying objectives of the sentence and comply with the principles of the Oranga Tamariki Act.

Accordingly, the appeal was allowed, and a sentence of three months and two weeks' supervision with residence was imposed in substitution for the five-month sentence. An early release hearing was directed to occur on or before 16 July 2018 to allow W to commence the rehabilitation program.

Orders