W v Police HC Timaru CRI 2006-476-21

[2007] NZHC 30

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2006-476-000021

W

Appellant

v

POLICE

Respondent

Hearing:         9 February 2007

Appearances: WNP van Vuuren for Appellant

I R Murray for Respondent

Judgment:      9 February 2007

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a decision of a District Court Judge exercising a Youth Court warrant in the Timaru Youth Court on 7 November 2006 whereby the appellant’s case was transferred to the District Court for sentence.

[2]      The appellant, as a youth, faced two charges of indecent assault against a female who was a flatmate of his at the time of the offending.   The offence was committed in October/November 2005.  He denied the charges and was remanded for a family group conference in February at which a plan recommending s 282 discharge upon completion was agreed upon.    For a variety of reasons that plan was

not followed through.

W  V POLICE  HC TIM CRI 2006-476-000021  9 February 2007

[3]      The matter then came before the Court in the judgment under appeal at a time when the youth was nearly 17½.  The options then available in the Youth Court to deal with this matter were considered by the learned District Court Judge to be entirely inappropriate.  Part of the problem was of the attitude of the youth that he denied that he had committed the offences and secondly, he did not consider he had caused any harm.

[4]      Section 283 of the Children Young Persons and their Families Act 1989 provides:

283    Orders of the Court

Where a charge against a young person is proved before a Youth Court, the Court may, subject to sections 284 to 290 of this Act, do one or more of the following:

…

(o)      In the case of a young person who is of or over the age of 15 years, enter a conviction and order that the young person be brought before a District Court for sentence or decision, and in any such case the provisions of the Sentencing Act 2002 shall apply accordingly.

[5]      Section 284 provides that the Court is to have regard to a number of matters which are set out in subs (a) to (h), one of which include the attitude of the young person towards the offence.

[6]      Part of the argument on appeal is that the Court did not discuss all of these mandatory considerations.  I am satisfied, however, under the usual principles that it cannot be inferred from the absence of an analysis, paragraph by paragraph, of all of these considerations, that the very experienced Judge did not have regard to them.

[7]     Mr van Vuuren quite properly focussed more on s 290 which imposes restrictions on a transfer.  Section 290 provides:

290         Restrictions  on  imposition  of  supervision  with  residence  or transfer to District Court for sentence

(1)    No order shall be made under paragraph (n) or paragraph (o) of section

283 of this Act in respect of a young person unless— (a)   The offence is a purely indictable offence; or

(b)     The nature or circumstances of the offence are such that if the young person were an adult and had been convicted of the offence in a Court other than a Youth Court, a sentence of imprisonment (within the meaning of section 4(1) of the Sentencing Act 2002) would be required to be imposed on the young person; or

(c)     The Court is satisfied that, because of the special circumstances of the offence or of the offender, any order of a non-custodial nature would be clearly inadequate.

(2)      No order shall be made under section 283(o) of this Act unless the Court has considered all other alternatives available to it under this Part of this Act and is satisfied that none of them is appropriate in the circumstances of the particular case.

(3)      On making an order under paragraph (n) or paragraph (o) of section

283 of this Act, a Judge shall record in writing his or her reasons for making that order.

(4)      Nothing in subsection (1) or subsection (2) of this section limits the powers of a District Court in respect of any young person brought before that Court pursuant to an order made under section 283(o) of this Act.

[8]      In the judgment under appeal the Judge is plainly addressing this section in paragraphs [2] and [3]:

[2]       You have come before the Court at a time where you are nearly 17 and a half.  The options available in the Youth Court for your sentencing are entirely inappropriate to the level of your offending.  The requirements to be held accountable, in the circumstances, warrant consideration of whether you should be transferred to the District Court.  Mr van Vuuren has argued that such a transfer cannot be allowed to happen for two reasons.  One, he says that it is not the offending that has created the difficulty but your attitude and, secondly, that the Court could not determine that if you were an adult that a term of imprisonment would follow.

[3]       The first issue it seems to me is dealt with by the circumstances you place yourself in.  You have chosen to put yourself in a position where you are incapable of carrying out any Youth Court sentence other than a fine, or being admonished and discharged.  Either of those held you accountable for the offending.  The Act says that you may be transferred to the District Court for sentence if the court is satisfied, because of special circumstances of the offence, or of the offender, any order of a non-custodial nature would be clearly inadequate.

[9]      Mr van Vuuren contended that neither of those paragraphs and particularly paragraph [3], relied on by Mr Murray, is an application in satisfaction of s 291(c).

[10]     Mr Murray was able to point out that when this case first came before the

Youth Court clearly orders of a non custodial nature were considered to be adequate.

The Judge in paragraph [3] is saying effectively that is no longer the case because since the offending and the plan, the youth has put himself in a position where he is incapable of  carrying out any Youth Court sentence other than a  fine  or being admonished and discharged and neither of these would hold him accountable.

[11]     Accordingly, the Judge is saying that at this point in time, now at the end of

2006, that any order of a non custodial nature, there being only two, a fine or admonished and discharged, would be clearly inadequate.  Mr Murray says therefore subs (1)(c) has been applied.

[12]     Mr van Vuuren contends that is reading into (c) a qualification not present in (c), namely inserting the word “available” between “any” and “order” and that that concept of availability is a subs (2) consideration, not a subs (1)(c) consideration.

[13]     In the course of the hearing I had considerable dialogue with Mr van Vuuren seeking to identify the different function between subs (1) and subs (2).   Section 90 as a whole is clearly a threshold requirement and I am satisfied that subs (2) is a reinforcing application operating as a double check to ensure that cases before the Youth Court are not transferred to the District Court until the Court has considered all the alternatives available to it under the Youth Court jurisdiction and is positively satisfied that none of them are appropriate.

[14]     I do not consider that subs (2) should be read in a way which reads down subs (1)(c) and consider that reading subs (2) is overlapping a subs (1)(c) consideration does not undermine the purpose of the legislation even if one queries the appropriateness of the drafting.   The principal obligation under s 5 of the Interpretation Act 1999 is to read the text of the statute in the light of the purpose and it is often the case, for one reason or another, that statutory considerations overlap and one may be seen as possibly redundant in some circumstances.

[15]     In the end I am satisfied that the Judge did apply s 290(1)(c) and was entitled to  reach  the  conclusion  he  did  at  that  time.    It  is  implicit,  and  not  seriously challenged, that it was open to the Youth Court at the time to be satisfied that the charge against this young man was proved notwithstanding his denial of the same.

[16]     The scheme of the legislation required the Judge who decided to transfer to enter a conviction.  It would appear the Judge did not do so expressly.  Mr Murray for the Crown submitted that s 204 of the Summary Proceedings Act 1957 provides:

204    Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

He submits that this submission can be corrected on appeal pursuant to s 121(6)

which provides:

121    High Court to hear and determine appeal

…

(6)In any case, the High Court may exercise any power that the Court whose decision is appealed against might have exercised.

[17]     Mr van Vuuren accepted that this power was open to the Court.

[18]     Accordingly, the appeal is dismissed and exercising the jurisdiction under s 121(6) of the Summary Proceedings Act the appellant is convicted of the two charges and this Court confirms the order that he be brought before a District Court for sentence on 22 February 2006.

Solicitors:

Petrie Mayman Clark, Timaru, for Appellant

Crown Solicitor, Timaru, for Respondent