X v Police HC Auckland CRI 2004-404-374 - [2005] NZHC 1256

STATUTORY PROHIBITION ON PUBLICATION OF NAME OR ANY PARTICULARS LIKELY TO IDENTIFY COMPLAINANTS: SECTION 139 CRIMINAL JUSTICE ACT 1985. PROHIBITION ON PUBLICATION OF ANY INFORMATION LIKELY TO IDENTIFY THE APPELLANT: SECTION 140 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-404-374

BETWEEN
X

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 February 2005

Coram:Heath J Courtney J

Appearances: G W Wells for Appellant
M L Rogers and A J Pollett for Respondent L C Rowe, Amicus Curiae

Judgment: 7 February 2005

Reasons: 11 February 2005

REASONS FOR JUDGMENT OF THE COURT

Solicitors:
Crown Solicitor, PO Box 2213, Auckland Armstrong Barton, PO Box 441,Wanganui Counsel:
G W Wells, PO Box 6078, Wellesley Street, Auckland

X V NEW ZEALAND POLICE HC AK CRI 2004-404-374 [7 February 2005]

Appeal and outcome

[1] It is generally recognised that young offenders ought to be treated differently from adult offenders. It is the vulnerability of younger people and their (generally) more immature judgment that leads to that conclusion. Recognition of that principle has led to enactment of an alternative criminal justice regime to deal with young offenders. That regime is to be found in Parts 4 and 5 of the Children Young Persons and Their Families Act 1989 (the CYP Act). Primarily, young offenders are dealt with by the Youth Court established under that Act.

[2] Ordinarily, when exercising jurisdiction under the CYP Act, the Youth Court will apply what are known as “youth justice principles”. The difference in approach between the Youth Court system and the “adult” jurisdiction was described graphically by Williamson J (in E v Police (1995) 13 FRNZ 139 at 140) as requiring “concentration upon a restorative justice system rather than a retributive or deterrent system”. Youth justice principles are set out in s208 of the CYP Act.

[3] In this appeal, from a sentence imposed in the District Court on charges of sexual violation, a Youth Court Judge decided to enter a conviction and to transfer the appellant for sentence before a District Court. The important issues on appeal were:

a)whether the sentencing Judge ought to have taken account of youth justice principles set out in s208 of the CYP Act and,

b)had he done so, whether a different sentencing outcome would have resulted.

[4] The appeal first came before Heath J in December 2004. It was adjourned for hearing by a Full Court because of the importance of the issue to the youth justice system and the absence of appellate authority on the point. Amicus Curiae was appointed to assist the Court.

[5] We allowed the appeal in a judgment given on 7 February 2005. We indicated that the Judge ought to have taken youth justice principles into account and that, taking those principles into account, the appropriate sentence was one of 2 years imprisonment. The formal orders we made were:

The appeal is allowed. The sentences of 3 years imprisonment imposed on each sexual violation charge are set aside. In lieu thereof, X is sentenced to a term of imprisonment of 2 years on each sexual violation charge, the terms to be concurrent. Leave to apply for home detention is granted. We impose the standard conditions described in s14(1) of the Parole Act 2002 and the following special conditions:

a)The offender shall reside at such place as may be determined from time to time by his probation officer.

b)The offender shall participate in any programme (of a type described in s16 of the Parole Act) that his probation officer may require from time to time to reduce the risk of further offending through rehabilitation and reintegration. We order that conditions shall expire six months after the “sentence expiry date” as that term is defined in s4 of the Parole Act.

[6] We also made an order prohibiting the publication of any information likely to lead to the identification of the appellant, whom we have described as X in this judgment to preserve his anonymity. We made that order primarily so that this judgment, and our reasons for judgment, may be published generally without inadvertently identifying the complainants, contrary to the statutory prohibition on publication of any information likely to identify complainants: s139 Criminal Justice Act 1985.

[7] We indicated we would give reasons for our judgment later. We did that to ensure our reasons were expressed in a manner that would assist both Youth Court and District Court Judges. Our reasons for judgment now follow.

The charges and the sentence imposed

[8] X was charged with unlawful sexual connection on a male aged between 12 and 16 years (x2), unlawful sexual connection on a male under the age of 12 (x2), indecent assault on a boy under 12 (x3), indecent assault on a boy aged between 12

and 16 years (x5), careless driving and unlawful taking of a motor vehicle. The sexual offending related to two young male complainants.

[9] X was aged 17 years when he came before the Youth Court, but between 14 and 15 at the time of the particular offending with which he was charged. Initially, the Youth Court accepted jurisdiction to deal with X. However, after a Family Group Conference had been held, a Youth Court Judge (based on admissions) decided to enter a conviction on each charge. The Judge ordered that X be transferred to the District Court for sentence. The conviction was entered and the order for transfer made under s283(o) of the CYP Act.

[10] In the District Court, Judge Rota (also a Youth Court Judge) imposed a sentence of 3 years imprisonment on each of the sexual violation charges. x was convicted and discharged on each of the other charges. The terms of imprisonment were imposed concurrently. No appeal is brought from the discharge of X on the related charges.

[11] The experienced Judge described the balancing of competing factors in this particular case as “difficult”. We agree. He added:

I would suggest that probably in this case there is no one who would envy the Court in its task today in dealing with this matter. Broadly speaking, we have a person before the Court who has yet to mature. (para [11])

The offending

[12] As the sentence imposed in the District Court relates solely to the sexual violation charges, it is unnecessary to discuss the nature of the offending in detail. What follows is a succinct summary of essential aspects of it that are relevant to sentencing issues.

[13] The charges were representative in nature. Therefore, we describe the ages of the boys at material times in general, rather than specific, terms.

[14] The offending involved two complainants. While the offending that gave rise to the charges occurred when X was aged between 14 and 15 years, there is some

suggestion that X’s aberrant sexual behaviour commenced much earlier, perhaps as early as the age of 9 years.

[15] The two complainants (to whom we shall refer as Complainant A and Complainant B) were aged approximately 12 to 13 years and 9 to 10 years respectively at the time of the offending that came before the Court. They and X lived in a small and remote community.

[16] The offending against Complainant A took place in X’s bedroom and in a tree-hut at X’s home address. The unlawful sexual connection that occurred was of an oral nature, between X’s mouth and Complainant A’s penis.

[17] The offending involving Complainant B took place at a hut X had built in bush. The sexual connection that occurred was between X’s penis and Complainant B’s anus.

[18] Unsurprisingly, the sexual violation and the indecencies committed on both Complainant A and Complainant B caused great distress to each. The reports available to the District Court Judge on sentence demonstrate that they were traumatised. Indeed, at one stage, Complainant A attempted to commit suicide.

Reasons for sentence imposed in the District Court

[19] We summarise, very briefly, the reasons that led Judge Rota to impose a sentence of 3 years imprisonment on each of the sexual violation charges.

[20] The Judge noted that the CYP Act provided “some leeway” for those who came before the Court on serious offending and were recognised to be immature. On the other hand, he observed that there were serious consequences that followed from X’s conduct to which he had to pay due regard. Those consequences were the impact of the offending on the victims and their families.

[21] After referring to the various reports tendered to the Court and to the submissions made by counsel, the Judge approached sentencing as follows:

a)He reminded himself that a maximum term of 5 years imprisonment was available to the Court on the purely indictable charges but noted that it was open to the Court to impose cumulative sentences to take the maximum sentence beyond 5 years. Having noted that possibility the Judge did not adopt it because he thought it unnecessary to do so. However, he determined that a term of imprisonment was necessary and appropriate.

b)Recognising the totality of all offending, the Judge used a starting point of 4 years imprisonment. A credit of 12 months imprisonment was given for both mitigating factors accepted by the Judge, namely his youth and the early acceptance of responsibility for the offending. That left the Judge with a sentence of 3 years imprisonment on each charge.

c)In discussing aggravating factors the Judge took account of the trauma caused to the victims, their vulnerability, the premeditation and duration of the offending and an “element of preying on victims”. The Judge accepted that the “preying” factor was qualified by the immaturity of the offender and his inability to control his sexual urges.

[22] While taking into account restorative justice principles, the Judge held that there was little likelihood that X or his family would be in a position to make the kinds of amends that would make a difference to sentencing. Accordingly, while referring to “restorative justice principles” it is clear that the Judge was not referring to the youth justice principles in s208 of the CYP Act.

[23]The Judge concluded by saying:

[43] I take this approach also, knowing full well of the implications of it. Very seldom in any sentencing process is [it] lost on the Court or on the Judge, but the likely outcome for a person is to be given the options that the Court has to impose. I do not doubt that this young man will be adversely affected by what I do today. But I hope that by what I do, at least the victims will take courage and think that they are of value, that their feelings too have been recognised, and that that will be some sort of spur on to repair.

The statutory scheme for youth justice

[24] The nature of the youth justice system was considered in Police v Edge [1993] 2 NZLR 7 (CA). Delivering the judgment of the Court of Appeal, Hardie Boys J said, at 12:

This survey of the Act’s provisions shows the very great differentiation that is made between children and young persons on the one hand and all other alleged offenders on the other hand. The whole scheme of the Act is to make provision for the perceived special needs and circumstances of children and young persons. The procedures that are to be followed, and the controls and sanctions that are available, are all age-related. They recognise the limited understanding and particular vulnerability to influence of young people.

[25] The Crimes Act 1961 controls the age of criminal responsibility. No person may be convicted of an offence by reason of any act done or omitted by him or her when under the age of 10 years: s21(1). No person may be convicted of an offence done or omitted when of the age of 10 years, but under 14 years, unless he or she knew either that the act or omission was wrong or that it was contrary to law: s21(2).

[26] The CYP Act prescribes the way in which children and young persons are prosecuted for criminal offending under New Zealand law. The term “child” is defined in s2(1) of the CYP Act to mean a “boy or girl under the age of 14 years”. The term “young person” is defined by s2(1) as “a boy or girl of or over the age of 14 years but under 17 years”, excluding any person who is or has been married.

[27] The differentiation between a “child” and a “young person” in the CYP Act is of relevance in considering the statutory scheme. A child is much more likely to lack maturity and the ability to tell right from wrong. That explains the different approach reflected in s21(2) of the Crimes Act, to prosecution of a person under the age of 14 years. On the other hand, a “young person” is an adolescent, a person who is likely to lack the maturity or experience of an adult. The culpability of an adolescent for offending may depend much on his or her background, his or her understanding of the nature and quality of the acts or omissions in issue and the parental or educational supervision that has been exercised over him or her.

[28] The provisions of the CYP Act dealing with young offenders must be read in that context. The learned author (Judge O’Driscoll) of Laws NZ, Children and Young Persons said, at para 172 of that text:

Measures for dealing with young offenders are designed to eliminate the blurring of principles and processes which occurred between those two areas and which was characteristic of the earlier approach. Under the previous legislation, the centre of the juvenile criminal justice system was the Children and Young Persons Court. This Court was seen as the principal means of dealing with young offenders. By contrast, published figures suggest that under the new Act approximately 90 per cent of offending is diverted away from the Youth Court. It has been noted that this has occurred without any consequential increase in offending. (footnotes omitted)

[29] Where any “child” who is of, or over the age of, 10 years is alleged to have committed an offence (other than murder or manslaughter) proceedings cannot be commenced against the child under the Summary Proceedings Act 1957: s272(1) CYP Act.

[30] Generally, where a young person has been charged with an indictable offence he or she must be brought before a Youth Court to be dealt with in accordance with the provisions of the CYP Act. There are three exceptions to that general rule: (a) where a young person is charged with murder; (b) where a young person is charged with manslaughter and (c) where a young person is charged with a traffic offence not punishable by imprisonment. All of those matters are addressed in s272(3) of the CYP Act.

[31] Notwithstanding the general exceptions set out in s272(3), the procedures that would otherwise be followed in respect of charges of murder, manslaughter and traffic offences not punishable by imprisonment are modified by the CYP Act. In the case of charges of murder or manslaughter, the preliminary hearing of the charge must take place before a Youth Court with the procedure for a preliminary hearing being modified by s274 of the Act: see s272(4). Where a young person is charged with a traffic offence not punishable by imprisonment that information is heard and determined in the Youth Court if that Court considers it appropriate having regard to the criteria in s272(5).

[32] Another difference between the youth justice system and the “adult” system is what might be termed the “second opportunity” for a young person to elect to have indictable proceedings determined by a Youth Court. That opportunity arises after evidence in the preliminary hearing has been completed. It applies to all preliminary hearings, save for those in respect of murder or manslaughter. If, when all the evidence has been given, the Youth Court is of opinion that the evidence adduced is sufficient to put the young person on trial for the offence, the Youth Court may give that person an opportunity of foregoing the right to trial by jury and electing trial summarily in the Youth Court by a Youth Court Judge. If that opportunity is accepted and an election made the charge is dealt with in the Youth Court: s275.

[33] That process highlights important differences in procedure and the consequences of any finding that the charge has been proved. If an election for trial by jury were made and confirmed after the preliminary hearing, the young person is committed for trial either to the District Court or to the High Court. Youth Court jurisdiction is thereafter spent. Thus, notwithstanding the constitutional right to elect trial by jury enshrined in s24(e) of the New Zealand Bill of Rights Act 1990, the young person is precluded from gaining the benefit of sentencing options available in the Youth Court, by virtue of maintaining a plea of not guilty and electing trial by jury.

[34] The consequences of electing trial by jury are also significant as to potential sentence. There are two ways in which a conviction may be entered once a young person has been committed for trial. First, a plea of guilty may be entered prior to or during the trial. Second, a verdict of guilty may be returned by the jury. In either case, once committal has occurred, the maximum penalties available on conviction increase, in the case of sexual violation that maximum penalty becomes 20 years imprisonment. That is to be contrasted with the maximum penalty that can be imposed by a District Court following a transfer for sentence from the Youth Court; that maximum is 5 years imprisonment for the reasons given by the Court of Appeal in R v P (CA59/03, 18 September 2003, Keith, Hammond and Paterson JJ) at paras [12]-[18] (inclusive). Principles of parity may well require any term of imprisonment imposed after committal to reflect the age of the offender and the degree of culpability he or she may have, depending upon his or her developmental

stage. A recent example of how that issue can be addressed can be found in R v Rapira [2003] 3 NZLR 794 (CA) at 828-835, paras [124]-[155] (inclusive).

[35] The method of disposal of criminal proceedings in the Youth Court is unique. First, (subject to limited and express exceptions) the Youth Court cannot make any order unless a Family Group Conference has been convened and has had an opportunity to consider ways in which the Court might deal with the young person in relation to the charge: s281(1). The procedures to be followed in relation to Family Group Conferences are set out in ss249-271 of the CYP Act. See also, more generally, ss247, 248, 281, 281A and 281B of that Act.

[36] Another distinction between the general criminal justice system and that applying in the Youth Court is that the Youth Court does not enter convictions after proof that the offence has been committed. Rather, “where a charge against a young person is proved before a Youth Court” the Court may make one or more of the orders set out in s283 of the CYP Act. A charge can be proved by admission or by findings made after a defended hearing.

[37] In the case of young persons of or over the age of 15 years the Youth Court is empowered to enter a conviction and order that the young person be brought before a District Court for sentence under s283(o) of the CYP Act. That provision states:

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

[38] In determining whether to transfer a young person for sentence in the District Court, the criteria set out in s290 of the CYP Act must be applied. In particular s290(1) and (2) provide:

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

(1) No order shall be made under … 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.

Section 290(2) is of some importance. In effect, an order for transfer is a recognition that sanctions available solely in the Youth Court are inappropriate to respond to the particular offending in issue.

[39] There is a requirement, under s290(3) of the CYP Act, for any order made under s283(o) to be recorded in writing together with the reasons for making the order. In this case no record in writing of the reasons for transfer was made. We emphasise the mandatory nature of s290(3). Such an order is required not only for the sake of transparency of process in the Youth Court but also to assist this Court when considering an appeal or application for judicial review.

[40] Some of the orders that can be made under s283, if a charge is proved, are of a different character to sentencing options available in the District Court. For example, while the Youth Court can make an order placing the young person under the supervision of the Chief Executive of the Department of Child Youth and Family, or such person or organisation as may be specified in the order, for a period not exceeding six months (s283(k)) or a supervision with residence order (ss283(n) and 311), it cannot impose a sentence of imprisonment. On the other hand, while the Youth Court can admonish (s283(b)) the District Court cannot impose a sanction of that type.

[41] If imprisonment were inevitable that would be a sufficient reason to transfer a young offender to the District Court for sentence. However, a transfer order does not make a sentence of imprisonment inevitable. Nor is it determinative of the length of any sentence of imprisonment. What the transfer order does is to remove the option of purely Youth Court sanctions being imposed for the offending. A transfer order indicates that a wider range of sentencing options ought to be considered.

In making sentencing decisions the Youth Court is guided by

a)the principles of youth justice (s208 of the CYP Act),

b)the objects of the CYP Act (s4),

c)the principles to be applied generally in the exercise of powers conferred by the Act (s5) and

d)the Long Title to the Act (emphasising the purposes of an Act passed “to reform the law relating to children and young persons … who offend against the law”)).

The question is whether those principles, objectives and purposes can also be applied on sentencing by the District Court.

[43] The CYP Act contains additional provisions dealing with jurisdictional issues where a young person is charged jointly with an adult. They are set out in s277 of the CYP Act. No such issue arises on this appeal and we say no more on that subject.

Authorities on applicability of youth justice principles outside Youth Court

[44] Our impression is that case law dealing with the sentencing of young offenders outside the Youth Court, particularly at an appellate level, has developed in an ad hoc fashion. There are dicta in the cases that can be seen as conflicting.

The issue of applicability of youth justice principles outside the Youth Court does not appear to have been addressed squarely by any appellate Court.

[45] The general desirability of consistency of approach in sentencing (s8(e) Sentencing Act) and the need for predictability when a Youth Advocate (see ss323- 325 CYP Act) advises an alleged offender require, in our view, a more principled analysis to be undertaken. The need for such an analysis has been heightened by the codification of sentencing principles and purposes in the Sentencing Act 2002.

[46] Prior to enactment of the Sentencing Act, two quite different approaches can be discerned in Court of Appeal decisions about the applicability of youth justice principles.

[47] In R v Crime Appeal 212/91 (CA 212/91, 17 October 1991, Cooke P, Richardson and Gault JJ), Gault J said:

When the wide ranging and flexible remedies open to the Youth Court is seen as inappropriate to deal with an offender and jurisdiction is declined the provisions of the Criminal Justice Act are to be applied and the age of the offender is only one of the factors to be taken into account.

On this approach, the general sentencing legislation applies, with youth being treated as a mitigating factor of some weight.

[48] In contrast, the same three judges, in a judgment given just two months later, again delivered by Gault J, noted:
The Judge in his sentencing remarks first stated that he was required to take into account certain matters laid down by the Children, Young Persons, and Their Families Act and he mentioned particularly s 5, s 6 and s 208. Once the Youth Court declines jurisdiction in favour of the High Court the offender falls to be sentenced under the Criminal Justice Act and strictly speaking the provisions of the Children, Young Persons, and Their Families Act cease to be applicable. However, the principles underlying the sections referred to by the Judge normally should underlie consideration of any sentence in respect of a young offender. [R v Cuckow (CA 312/91, 17 December 1991) at 8]

On this approach, although the youth justice principles are not directly relevant, they are to “underlie consideration of any sentence” and should be applied “by analogy”.

[49] Cuckow was followed in R v C (CA 332/95, 28 September 1995, Richardson, Thorp and Williamson JJ) in which the Court said:

… while strictly the provisions of the Children, Young Persons and Their Families Act 1989 ceases to be applicable following transfer of the case to the High Court the principles underlying particular sections normally should underlie consideration of any sentence in respect of a young offender. (at 3)

[50] R v C also emphasised that youth did not automatically justify leniency in sentence but that it may be a highly relevant consideration; the younger the youth, ordinarily the more significant its relevance. Those observations were made in the context of a consideration of both s5 of the Criminal Justice Act 1985 (relating to imprisonment for violent offending) and s128B of the Crimes Act 1961 (specific to sexual violation offences). As Richardson J (delivering the Court’s judgment) observed,

Both create a statutory presumption in favour of full time custodial sentences displaced where, in the language of s128B(2), having regard to the particular circumstances of the offence or the offender including the nature of the conduct constituting the offence, the Court is of the opinion that the offender should not be sentenced to imprisonment. (at 3)

See also R v Accused (CA265/88) [1989] 1 NZLR 643 (CA) and R v N [1998] 2 NZLR 272 (CA) at 283-286 and R v Rapira, at 835, para [155]. In Rapira, Elias CJ, delivering the judgment of the Court of Appeal, made it clear that, in the particular circumstances of that case, youth was outweighed by the need to impose a sentence which both condemned the offending and held the young people accountable for their actions.

[51] In R v N, the Court of Appeal considered again the relevance of s5(1) of the Criminal Justice Act and s128B(2) of the Crimes Act to the sentencing of a young person convicted on a charge of sexual violation. Section 5 of the Criminal Justice Act has since been repealed.

[52] In R v N, the Court of Appeal emphasised the need for a Judge to have regard to all sentencing principles and policies. In the context of sexual violation offences, s128B(2) of the Crimes Act requires, at least on a prima facie basis, everyone convicted of sexual violation to be sentenced to imprisonment. The difficulties of

treatment in custody were also discussed, as was the need to impose a sentence that took proper account of the effect of the offending on victims and their families. However, all of those comments must be read in the context of the particular case, one in which the sentencing Judge had imposed a non-custodial sentence. On the facts of that case, the Court of Appeal held that the legislative injunction in favour of imprisonment ought to prevail.

[53] In R v Mahoni (1998) 15 CRNZ 428 the Court of Appeal had cause to consider the weight to be given to mitigating factors in the context of convictions having been entered for serious offending, including sexual violation by rape, oral connection and digital anal penetration respectively. The appellants were aged between 15 and 17 years when sentenced. The sentencing Judge held that the only mitigating factors were age and the plea of guilty. Delivering the Court’s judgment, Eichelbaum CJ referred to the tariff case of R v A [1994] 2 NZLR 129 (CA) and noted that the conventional starting point for sentence on a charge of sexual violation by rape following a trial where guilt had been contested was 8 years imprisonment. The Chief Justice continued, at 436-437:

The question of the allowance for the youth of the appellants is more difficult. The principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is well established. See R v Titoko [(CA114/96, 11 August 1996] where this Court drew attention to s 7 of the Criminal Justice Act and art 37(b) of the United Nations Convention on the Rights of the Child. It should be noted that the principle is not founded solely on consideration for young persons; there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in. However, the principle is not absolute and there are situations where it must yield to the public interest, see for example R v Wilson [1989] 2 NZLR 308; (1989) 5 CRNZ 165 (CA) where this Court upheld a sentence of 11 years on a 17-year-old youth who together with another abducted a woman from a public toilet and committed acts of sexual violation. In that case given the grave nature of the offending the public interest was seen as paramount. There are decisions to similar effect overseas, eg. R v Serra (1997) 92 A Crim R 511 (Court of Criminal Appeal, Northern Territory) and R v Gonidis, McCullough and Stevenson (1980) 57 CCC (2d) 90 (Ontario Court of Appeal). Further, an allowance would be made more readily in a case having features encouraging leniency, for example where the event could fairly be described as a youthful indiscretion, something plainly resulting from immaturity; or an impulsive action immediately regretted; or a first offence by someone with good prospects. No such circumstances are present here. To the contrary the attacks were planned (although not necessarily the sexual offending) and repeated, in conformity with the creed of the gang referred to at the outset.

[54] Later, in W v Registrar, Youth Court (Tokoroa) [1999] NZFLR 1000, Thomas J, for the Court of Appeal, said, at 1005-1006, para [22]:

We would point out that placing offenders in the District Court for sentencing does not mean that the principles of youth justice will be ignored by the sentencing Judge. The District Court Judge will be well aware of the desirability of keeping young offenders in the community where that is possible. He or she can also impose supervision, community work and other orders recommended by the Family Group Conferences if thought fit. At the same time the Judge will have greater scope to tailor community based sentences to the needs of the young persons engaged in serious offending of this kind. Certainly nothing we say in this judgment is to be construed as a suggestion on our part that the principles of youth justice are not applicable. Within the limits of the relevant legislation in case law the imposition of the appropriate sentences is entirely a matter for the sentencing Judge and this Court has no wish in giving this judgment to influence or to be thought to be influencing his or her discretion in carrying out that task.

[55] Particular difficulties arise with regard to tariff cases which purport to give guidance to lower Courts on applicable sentencing levels for particular offending. Examples of such tariff cases are R v A (sexual violation by rape), R v Mako [2000] 2 NZLR 170 (CA) (aggravated robbery), R v Wallace [1999] 3 NZLR 159 (CA) (Class B controlled drugs) and R v Terewi [1999] 3 NZLR 62 (CA) (Class C controlled drugs). Problems arise because the District Court is not empowered to sentence, on a s283(o) transfer, to a term of imprisonment in excess of 5 years imprisonment, for the reasons explained in R v P: see para [34] above. Tariff cases must be applied in the context of the maximum term of imprisonment available for imposition. Accordingly, when the District Court sentences as a result of a transfer order the guidelines in those cases must be adapted.

[56] Only one case, to our knowledge, has attempted directly to analyse the interface between the CYP Act principles and the Sentencing Act in the context of a transfer for sentence in the District Court under s283(o) of the CYP Act. The case involved an aggravated robbery to which the tariff case of R v Mako ordinarily applies. In R v Thompson-Jackson (2002) 20 CRNZ 1051 (DC) at 1060-1061, paras [25]-[30], Judge Harvey said:

[25] Although these sections are for the guidance of Judge sitting in the Youth Court they assist in underpinning the suggestion that Youth Justice principles must continue to be available in the District or Sentencing Court. By emphasising that there is not an automatic presumption in favour of imprisonment by such removal or refusal to exercise the discretion. Often it

is recommended that a designated Youth Court Judge deal with the matter in the District Court. Rather the approach has been to recognise that there were aspects of the Criminal Justice Act and now the Sentencing Act, that may provide better outcomes for a young person that are nevertheless consistent with Youth Justice principles.

[26] Certainly Youth Justice principles take precedence over Mako and a consideration of whether or not the discretion under s 283(o) or a refusal of the discretion under 276 is to be exercised. Indeed in Mako itself the Court of Appeal has stated that the youth of an offender must be taken into account as does the Sentencing Act 2002.

[27] The issue is, however, whether or not having regard to the integration between the principles of the Sentencing Act and the Children and Young Persons and Their Families Act that Youth Justice principles should be applied in the consideration of the type of sentence to be imposed on a young person. In addition, according to the Court of Appeal authorities referred to such an approach can be justified on the following bases:

a) The commonality of themes between the two pieces of legislation.

b) The number of common principles present within the two pieces of legislation.

c) The recognition that young people occupy a particular position in terms of their relationships with the law that justify special consideration in terms of the imposition of sentence.

d) The fact that the Sentencing Act itself does not exclude consideration of Youth Justice principles in terms of the imposition of sentence. In enacting the Sentencing Act 2002 the existence of the Children and Young Persons and Their Families Act must have been well known to the legislature and within its contemplation. Had it been legislative intention that the principles of the provisions of the Children Young Persons and Their Families Act be excluded one would have expected the legislature to say so.

[28] This does not mean that sentences of imprisonment should never be imposed upon young people. What it does mean is that there should be a consideration and an attempt by a Judge to integrate the various principles having regard to the circumstances of the case before the Court.

[29] In considering both Youth Justice and sentencing factors and principles, a weighting of those factors in the determination of the particular sentence, taking into account the various sentencing authorities, must be applied with the goal being consistency of approach but also a recognition that offenders should not be stereotyped. Recognition must be given to individual characteristics and that the law has made special provision in terms of the age of responsibility in the way in which it treats young persons.

[30] Once the Judge, having taken into account the various principles, has decided upon a sentence the duration or term of such sentence must also be measured against the requirements of the Sentencing Act, in particular the age of the offender. Thus the youth of an offender for those who fall within

Children Young Persons and Their Families Act provision, demand an application of Youth Justice and Sentencing Act principles in the determination of the type of sentence, and also a consideration of the duration thereof. It should not be forgotten that although Youth Justice provides a certain set of outcomes, the extent of those outcomes in the adult Court may be more extensive and provide a better and greater opportunity to fulfil Youth Court principles and goals. This does not necessarily mean that consideration of Youth Court principles in terms of the type of sentence to be imposed will achieve a result, that may be different from that which may be reached after a consideration of normal sentencing considerations. What it does mean is that in the imposition of a sentence upon a young person the consideration of Youth Justice principles along with Sentencing Act principles, the Judge must exercise a special degree of care in giving weighting to the various factors that influence the outcome before automatically imposing a sentence, particularly of imprisonment.

Competing submissions

[57] We express our gratitude to all counsel for the quality of their submissions. In particular, however, we acknowledge the assistance of Mr Rowe, an experienced Youth Advocate, appointed as Amicus Curiae to assist the Court on the issues of principle that arise for decision. We record that while we heard submissions from Mr Rowe on questions of principle, we did not draw him into the arena on what ought to be done on the actual appeal before us.

[58] Mr Wells, for X, submitted that the learned District Court Judge imposed a sentence that was manifestly excessive. Alternatively, he submitted that the sentence was inappropriate. He maintained those submissions whether or not youth justice principles set out in s208 of the CYP Act were relevant to the sentencing decision. In essence, the submissions of both manifest excess and inappropriate sentence were based on the alleged failure of the Judge to adopt a sentencing package that more appropriately reflected a public interest in ensuring X was treated and rehabilitated.

[59] The case for the Crown was advanced by Ms Rogers, on questions of principle, and Ms Pollett, on the particular sentencing decision.

[60] Ms Rogers submitted that youth justice principles set out in s208 of the CYP Act, while relevant to certain criteria specified in the Sentencing Act 2002, had no application to sentencing in the District Court. She submitted that the District Court was, as a matter of law, precluded from taking into account youth justice principles

set out in s208. Ms Rogers advanced two reasons for that submission. Her first reason was that the narrow definition of the term “Court” in s2(1) of the CYP Act (defining the term as the Youth Court) precluded such an approach. Her second reason was that the Youth Court, having effectively determined that the sanctions for youth offending set out in s283 were not appropriate in this case, it would be wrong for the District Court to adopt youth justice principles for sentencing in that jurisdiction.

[61] Ms Rogers also submitted that s283(o) of the CYP Act, by referring to the applicability of the Sentencing Act 2002 on transfer to the District Court, gave primacy to the Sentencing Act regime. That, she submitted, explained why the legislature had deliberately limited the application of youth justice principles to penalties imposed by the Youth Court. However, she accepted that while, for reasons of construction, the s208 principles could not themselves inform the decision of the District Court on sentence, the general principles set out in s5 of the CYP Act could be applied.

[62]Ms Rogers also relied on s128B(2) of the Crimes Act 1961 which provides:

128B Penalty for sexual violation

(2) Every one who is convicted of sexual violation shall be sentenced to imprisonment unless, having regard to the particular circumstances of the offence or of the offender, including the nature of the conduct constituting the offence, the Court is of the opinion that the offender should not be so sentenced.

[63] On the sentence imposed, Ms Pollett submitted that the Judge had adequately balanced relevant factors that he was required to take into account under the Sentencing Act. She submitted that his decision was both appropriate and within the range properly available to him. Hence, she submitted that this Court ought not to interfere with the learned District Court Judge’s decision.

[64] Ms Pollett made the same submission even if we were to hold that youth justice principles were applicable. Ms Pollett submitted that the Judge considered rehabilitative options but considered that they were outweighed by sentencing goals

based on deterrence, denunciation and the need to protect the community against potential future offending.

[65] Mr Rowe submitted that youth justice principles set out in s208 were applicable because, for the purposes of s208, the District Court exercised powers conferred by Part 4 of the CYP Act. For that reason, he submitted that the term “Court” ought not to be given the strict definition for which Ms Rogers contended. Rather, the term should be interpreted in a manner consistent with the overall statutory scheme for youth offenders.

[66] Mr Rowe also emphasised those cases in which Courts had had specific regard to the philosophy underpinning the CYP Act in determining what sentence ought to be imposed. Those submissions were buttressed by reference to arts. 37(b) and 40(4) of the United Nations Convention on the Rights of the Child 1989, a Convention held applicable to the sentencing of young offenders in New Zealand in R v Titoko (CA144/96, 11 September 1996, Henry, Tompkins and Anderson JJ) and R v Mahoni.

[67] In essence, Mr Rowe’s submissions boil down to the proposition that youth justice principles, when applied, require the District Court (in cases involving young offenders) to impose a sentence that is the least restrictive outcome.

Analysis of competing submissions

(a) The applicability of youth justice principles

[68] The starting point for analysis is s283(o) of the CYP Act. In effect an order for transfer has the effect of removing a young offender from the youth justice regime. An order may only be made if the young person is of or over the age of 15 years. Expressly, the District Court is required to sentence in accordance with the Sentencing Act 2002.

[69] The Sentencing Act provides a framework for analysis when imposing sentence. It identifies nine specific purposes of sentencing in s7(1). Ten principles of sentencing are set out in s8. Although each of the ten principles of sentencing commence with the words “must take into account” it is clear that some principles will not be relevant to particular cases. Depending on the nature of the case, the weight to be accorded to relevant principles will differ.

[70] Lists of aggravating and mitigating factors to be considered by a sentencing Court are set out in s9(1) and (2) of the Sentencing Act respectively. Importantly nothing in either of those subsections “prevents the Court from taking into account any other aggravating or mitigating factor that the Court thinks fit”: s9(4)(a). The need to tailor consideration of aggravating and mitigating factors to the facts of the particular case is emphasised by the opening words of both s9(1) and (2) which require the Court to “take into account the [relevant factors] to the extent that they are applicable in the case”.

[71] When a Youth Court determines if a young offender should be sentenced in the District Court it must apply the criteria set out in s290 of the CYP Act to which reference has already been made: see para [29] above. The factors of particular importance relate to the likelihood of a custodial sentence being imposed: see s290(1)(b) and (c). When the Youth Court makes that assessment, ss16 and 18 of the Sentencing Act are also relevant. Those provisions state:

16 Sentence of imprisonment

(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b) those purposes cannot be achieved by a sentence other than imprisonment; and

(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

(3) This section is subject to any provision in this or any other enactment that—

(a) provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or

(b)requires a court to impose a sentence of imprisonment in relation to a particular offence.

…

18 Limitation on imprisonment of person under 17 years

(1) No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a purely indictable offence, if, at the time of the commission of the offence, the offender was under the age of 17 years.

(2) In subsection (1), purely indictable offence means any indictable offence within the meaning of section 2(1) of the Summary Proceedings Act 1957, other than an offence for which, under section 6 of that Act, proceedings may be taken in a summary way in accordance with that Act.

[72] In determining whether a District Court is obliged to have regard to youth justice principles the wording of s208 of the CYP Act assumes importance. Section 208 provides:

208 Principles

Subject to section 5 of this Act, any Court which, or person who, exercises any powers conferred by or under this Part or Part 5 or sections 351 to 360 of this Act shall be guided by the following principles:

(a) The principle that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:

(b) The principle that criminal proceedings should not be instituted against a child or young person solely in order to provide any assistance or services needed to advance the welfare of the child or young person, or his or her family, whanau, or family group:

(c) The principle that any measures for dealing with offending by children or young persons should be designed—

(i) To strengthen the family, whanau, hapu, iwi, and family group of the child or young person concerned; and

(ii) To foster the ability of families, whanau, hapu, iwi, and family groups to develop their own means of dealing with offending by their children and young persons:

(d) The principle that a child or 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:

(e) The principle that a child’s or young person’s age is a mitigating factor in determining—

(i) Whether or not to impose sanctions in respect of offending by a child or young person; and

(ii)The nature of any such sanctions:

(f) The principle that any sanctions imposed on a child or young person who commits an offence should—

(i) Take the form most likely to maintain and promote the development of the child or young person within his or her family, whanau, hapu, and family group; and

(ii) Take the least restrictive form that is appropriate in the circumstances:

(g) The principle that any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending:

(h) The principle that the vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

The first two principles have no applicability, in any event, to sentencing in the District Court. Both relate to the institution of criminal proceedings against a young person. Prima facie, the balance of the principles set out in s208 are relevant to sentencing, whether in the Youth Court or the District Court.

[73] Section 5 of the Act, to which s208 is expressly subject, refers to principles to be applied by any Court exercising powers conferred by or under the Act. In the context of offending by young persons those principles are:

(a) The principle that, wherever possible, a child's or young person's family, whanau, hapu, iwi, and family group should participate in the making of decisions affecting that child or young person, and accordingly that, wherever possible, regard should be had to the views of that family, whanau, hapu, iwi, and family group:

(b) The principle that, wherever possible, the relationship between a child or young person and his or her family, whanau, hapu, iwi, and family group should be maintained and strengthened:

(c) The principle that consideration must always be given to how a decision affecting a child or young person will affect—

(i) The welfare of that child or young person; and

(ii) The stability of that child's or young person's family, whanau, hapu, iwi, and family group:

(d) The principle that consideration should be given to the wishes of the child or young person, so far as those wishes can reasonably be ascertained, and that those wishes should be given such weight as is appropriate in the circumstances, having regard to the age, maturity, and culture of the child or young person:

(e) The principle that endeavours should be made to obtain the support of—

(i) The parents or guardians or other persons having the care of a child or young person; and

(ii)The child or young person himself or herself—

to the exercise or proposed exercise, in relation to that child or young person, of any power conferred by or under this Act:

(f) The principle that decisions affecting a child or young person should, wherever practicable, be made and implemented within a time-frame appropriate to the child's or young person's sense of time.

[74] Because the opening words of s208 refer only to a Court exercising powers conferred by or under Part 4 or Part 5 (or s351-360) of the CYP Act, two questions of construction arise: namely;

a)What is the meaning of the term “any Court”?

b)What is the meaning of the phrase “exercises any powers conferred by or under” the relevant provisions of the CYP Act”?

[75] It is true, as Ms Rogers submitted, that the term “Court” is expressly defined in s2(1) of the CYP Act as meaning the Youth Court. What is far from clear, however, is whether the draftsperson of Parts 4 and 5 of the CYP Act used the term “Court” in a consistent sense in those Parts. For example, in s214(1)(a) (arrest of child or young person without warrant) the term “Court” plainly refers to a Youth Court. However, in other provisions, for example s272 (dealing with the jurisdiction

of the Youth Court), reference is made specifically to “Youth Court”. The reference in s208 to “any Court “ must be read in that context.

[76] We are satisfied that the lack of any clear legislative intent to limit the term “any Court” to the Youth Court requires the words to be given their ordinary meaning. In our view, s208 refers to any Court (Youth Court, District Court or High Court) that is exercising powers conferred under Parts 4 and 5 of the CYP Act or under the specific provisions within Part 6 to which s208 refers dealing with appeals from decisions of the Youth Court.

[77] The next question is whether the District Court, when sentencing a young person pursuant to a s283(o) transfer order, exercises a power conferred by or under Parts 4 or 5 of the CYP Act. We hold that it does because the CYP Act mandates an exclusive regime to deal with young persons, that regime conferring on the Youth Court, by s283(o), the power to transfer the young person for sentence in the District Court. An order to that effect can only be made because the Youth Court is expressly empowered to make it by the CYP Act. Conversely, the District Court is empowered to sentence only because the Youth Court has made the transfer order.

[78] We have considered whether that construction causes an inconsistency between those cases in which the young person is tried summarily in the Youth Court (whether in respect of summary or indictable offences) and those in which trial by jury is elected and the option to revert to the Youth Court jurisdiction is either not offered or not accepted. A consistent approach is desirable in the interests of a coherent youth justice system.

[79] In our view, s5 of the Interpretation Act 1999 requires the legislation to be interpreted in a manner that promotes a coherent youth justice system and the consistent application of youth justice principles to young offenders. A young person does not grow any older by virtue of being transferred to the District Court for sentence.

[80] We accept that the argument that sentencing exercised after trial by jury is a power “conferred by or under [Part 4] or Part 5” of the CYP Act (for the purposes of

s208) is more tenuous. But, we have come to the view that it is a valid interpretation given that, even in the most serious offence of murder, a modified preliminary process is mandated by the CYP Act. For that reason we hold that the CYP Act empowers the sentencing Court by providing for the way in which different Courts deal with particular charges in specified circumstances.

[81] As s4 (objects of the CYP Act), s5 (general principles) and the Long Title to the CYP Act are located within earlier parts of the statute, there is nothing in s208 of the CYP Act that could preclude a sentencing Court, other than the Youth Court, from taking those objectives, purposes and principles into account. In our view, Parliament could not have intended that s208 not be taken into account on sentence in the District Court while other principles and purposes were. That does not cause violence to the statutory sentencing scheme. All that must be done is to take account of those factors. Those factors may well be outweighed in particular cases by the need to denounce conduct, hold offenders accountable for their actions and to deter the particular offender and others of like mind: R v Rapira at 835, para [155], is a good example.

[82] That approach is consistent with the way in which the Court of Appeal has viewed the interface between the Sentencing Act and the Resource Management Act 1991 in respect of prosecutions brought under the latter statute. In R v Conway (CA234/04, 8 November 2004) the Court of Appeal said:

[68] We are also satisfied that, in determining the appropriate sentence to impose for offending against the Act, a sentencing Judge is entitled to have regard to the policies underpinning the Act. In this particular case, the provisions of ss 5, 6(a) and 7(c), (d) and (f) of the Act assume relevance.

...

See also the functions conferred on Regional Councils, in respect of water management issues, by s 30 of the Act.

[69] The extended definition of sustainable management in s 5(2) emphasises (amongst other things) the statutory purpose of avoiding, remedying or mitigating adverse effects on the environment. Section 6(a) recognises the national importance of the preservation of the coastal environment while s 7 draws attention to the need to consider not only the maintenance of environmental quality but also its improvement.

[70] In cases such as this, these provisions assist the sentencing Judge to identify the matters Parliament considers to be significant where breaches under the Act are alleged and to assess accordingly the impacts of the offender’s conduct as well as the extent of culpability.

[83] Our interpretation of s208 is consistent with the conclusion reached by Judge Harvey in Jackson-Thompson. But our reasons for reaching that conclusion differ a little. There are three aspects of Judge Harvey’s reasoning (set out at para [21] above) with which we respectfully disagree. They are:

a)In para [25], Judge Harvey referred to the need to apply youth justice principles to emphasise that no automatic presumption in favour of imprisonment arises from jurisdiction being declined or an offender being transferred for sentence. We take the view that s16 of the Sentencing Act, read in conjunction with the limitation on imprisonment of young persons in s18 of that Act, deals adequately with that concern. Imprisonment must always be “appropriate” before it is imposed. In relation to sexual violation charges the provisions of s128B of the Crimes Act must also be applied. And, the sentencing Court is entitled to hold that other sentencing goals assume primacy on the facts of a particular case.

b)Second, with reference to para [26], the ability to deal adequately with tariff cases arises not only from youth justice principles but also from the fact that the District Court’s jurisdiction to impose a sentence of imprisonment is itself restricted to five years for the reasons given by the Court of Appeal in R v P: see para [44] above.

c)Third, we do not agree with that portion of para [30] of Judge Harvey’s judgment in which he suggested that the application of youth justice principles in tandem with Sentencing Act principles required the Judge to “exercise a special degree of care in giving weighting to the various factors that influence the outcome before automatically imposing a sentence, particularly of imprisonment”. We express our views on that issue in the next paragraph.

[84] It may assist Youth Court and District Court Judges if we outline some important principles which we consider ought to be followed when District Court Judges are asked to sentence under s283(o) of the CYP Act:

a)In many cases the Youth Court will have inquired, both through the receipt of specialist reports and at a Family Group Conference, whether adequate family support groups exist to assist an offender to rehabilitate. Findings on that issue ought to be included in the reasons for transferring the young offender to the District Court for sentence because a finding, one way or the other, may influence the District Court on sentence. Similarly, any findings as to the nature of such a support group are also likely to be helpful.

b)The extent to which the youth justice principles set out in s208 and the purposes of the CYP Act can be taken into account will fall for consideration on a case by case basis. A District Court Judge will need to be reasonably specific in his or her analysis of the weight to be given to particular factors so that an appellate Court can understand the reasons why the sentence was chosen. In particular, it is important that the District Court Judge take account of the reasons for transfer given by the Youth Court because the decision to transfer necessarily means the case is too serious for Youth Court sanctions alone.

c)In cases of sexual violation, non-custodial sentences can rarely (if ever) be justified because of the existence of s128B of the Crimes Act 1961 and the dicta of the Court of Appeal in R v N. Nevertheless, the principles of youth justice are still relevant in fixing the length of the appropriate term of imprisonment. Often, the youth justice principles will be relevant to the sentencing goal of imposing the least restrictive outcome available in the circumstances: s8(g) of the Sentencing Act.

d)Many of the principles and purposes of sentencing reflect goals set out in s208 of the CYP Act. For example, s8(h) and (i) and the mitigating

factor of age (s9(2)(a)) can be seen as directly relevant to the principles in s208(c), (d), (e) and (f).

[85] Finally, and most important of all, we reinforce what was said by Judge Harvey in Jackson-Thompson. The application of youth justice principles does not prevent the District Court from imposing a sentence of imprisonment. Nor does it they prevent the District Court, in appropriate circumstances, from holding that sentencing goals of accountability for harm done, denunciation and deterrence require a longer custodial sentence because those factors assume primacy over the youth justice principles. Each case must be determined on its own facts. The point is that the sentencing of a young person must take account of youth justice principles.

(b) Impact on sentence imposed

[86] A fair reading of the sentencing notes of Judge Rota suggests that he sentenced primarily on “adult” grounds without reference to youth justice principles. Generally, he undertook precisely the type of analysis envisaged by the Sentencing Act. He did not stand back and consider the impact of youth justice principles on the sentence he intended to impose.

[87] We do not criticise the Judge for taking that approach. While rehabilitation was put to him in submissions on sentence, he did not have the benefit of argument on the applicability of youth justice principles in the same way we have had.

[88] Nevertheless, it is our view that the sentencing process has miscarried due to the lack of reference to youth justice principles in determining the appropriate sentence to impose. While imprisonment can be seen (as the Judge saw it) as the appropriate sentence, the length of the term of imprisonment to be imposed must be informed by youth justice considerations.

[89] In those circumstances, we apply R v Finau (2003) 20 CRNZ 333 (CA) at 337 and approach the question of sentencing afresh. We sought submissions from counsel on whether it was appropriate for us to sentence should we reach this

position, raising the possibility of remission to the District Court for re-sentence. All counsel were agreed that we should proceed to sentence given the time that has elapsed since sentencing in the District Court.

(c) What sentence ought to be imposed?

[90] We share the Judge’s apprehension at attempting to sentence in this case. There are important, yet conflicting, sentencing goals that must be addressed. Ultimately, we see this case as one in which the Court must determine the sentencing goal to be given primacy so that a sentence can be imposed which reflects the need for that goal to be met. We regard the case as one of a relatively rare variety in which the applicability of youth justice principles makes a difference to the appropriate sentence.

[91] It is unnecessary for us to go into detail on the nature of the offending. Its seriousness and its tragic effect on both victims is plain enough from the summary set out earlier. What is clear is that we must consider how best to balance the following purposes of sentencing set out in s7 of the Sentencing Act:

a)To hold X accountable for the harm done to the victims and to the community by his offending (s7(1)(a));

b)To promote in X a sense of responsibility for, and an acknowledgement of, that harm (s7(1)(b));

c)To provide for the interests of the victims (s7(1)(c);

d)To denounce the conduct of X and to deter him or other persons from committing the same or similar offences (s7(1)(e) and (f);

e)To protect the community from X (s7(1)(g));

f)To assist X’s rehabilitation and reintegration into the community (s7(1)(h)).

As s7(2) of the Sentencing Act makes clear, it is not mandatory to give any particular purpose greater weight than others. Each must be addressed in the context of the particular case under consideration.

[92] The goals of accountability and promotion of a sense of responsibility can be dealt with together. We are satisfied that X well understands, now that he has had proper expert help, the trauma he has caused to the victims. The letters he wrote to the Judge and to both victims make that abundantly clear. It is clear that he accepts he has a very serious problem that needs to be addressed before he can become a responsible member of society. In his letter to the Judge X said:

I find it so hard to deal with how my totally unacceptable actions have affected my victims, their parents and family not to mention my Mum and Dad along with my family who have supported me the whole way through all of this and done everything possible after they found out to keep the community and myself safe. Even as I am writing this I feel so much pain and anger as how I did such a stupid and damaging action.

He continued by saying that he had been “and desperately” wanted to “continue to prove” that he would change by doing his best in the SAFE programme.

[93] We are satisfied from the material before us that X has acknowledged responsibility for his actions, understands the consequences of those actions and wants to alter his behaviour to prevent others becoming victims of similar behaviour in the future. Those acknowledgements deal with accountability for harm done to the victim and the community by the offending. The Court is not required to impose a punitive sanction to meet those sentencing goals.

[94] The sentence must, of course, provide for the interests of the victims. But, that is simply a factor to be taken into account on sentence. It is not a factor that necessarily guides the outcome of sentencing if other factors assume primacy. That is clear from s8(f) of the Sentencing Act.

[95] Those observations do not understate the effect of the offending on the victims and their families. But they do recognise that in sentencing the Court is dealing primarily with the offender. It would be wrong in principle to impose a

sentence longer than was otherwise justified simply to assuage the feelings of distress and anger of the victims and their families.

[96] Although we consider that the offending was very serious we do not regard the interests of the victims as elevating the seriousness of the offending for sentencing purposes. In reality the seriousness of the offending and the effect of the offending on the victims are opposite sides of the same coin.

[97] It goes without saying that serious offending of this type must be denounced in strong terms. Similarly, if the objective can be achieved, the sentence imposed ought to reflect the need to deter the offender, or others in a like position, from committing the same or a similar offence. But, as the Court of Appeal observed in R v C (at 4):

Viewed more broadly in terms of the wider public interest, we cannot see that a sentence of imprisonment on a 14 year old for this offending a year after the event and against [the background described] would act as a general deterrent to like minded youths or that it would send a signal to the youth and the wider community denouncing his offending.

[98] We consider next the sentencing goals of protection of the community from the offender and rehabilitation and reintegration of the offender into the community.

[99] The two sentencing goals are not mutually exclusive. Rehabilitation of a sexual offender by appropriate treatment is likely to lead, if successful, to protection of other members of the community who, otherwise, might be at risk of offending by the offender. Put bluntly, if future paedophilic or aberrant sexual behaviour is arrested the public interest is enhanced.

[100] It seems to us that if the twin goals of rehabilitation and protection of the community can be jointly met, a sentence to achieve those goals ought to be imposed in the public interest. We are reinforced in that view by applying the youth justice principles set out in s208 of the CYP Act in conjunction with the other statutory statements of purposes, objects and principles of that Act. They underscore the need, if possible, to impose a rehabilitative sentence; as opposed to what Williamson J, in E v Police described as a “retributive or deterrent” sentence. In a finely balanced

case, as this is, the youth justice principles tilt the balance in favour of a rehabilitative sentence.

[101] The reports made available on sentencing disclose that X was placed in foster care from a young age. Ultimately he was adopted by his parents. His parents suspect, but cannot establish, that X experienced sexual abuse before the time he was adopted at about three years of age.

[102] X’s motivation and readiness to change his behaviour has been assessed as “high”. Prior to sentencing he was participating voluntarily, in the SAFE programme. He did so while residing at the Kauri Trust, a specialist home for young people with conduct disorder. Remorse was expressed by X for his actions before sentencing, something that was reinforced by his early acceptance of responsibility for his offending.

[103] The Social Worker’s report recommended, because of the seriousness of the offending and X’s age, that sentencing occur in the District Court.

[104] In the unusual circumstances confronting X the probation officer did not recommend a sentence of imprisonment. Instead supervision was recommended with special conditions requiring completion of the SAFE programme, undertaking any other assessment and counselling directed by the probation officer, to live where directed by the probation officer and the provision of some reparation.

[105] Reports were available from the SAFE Community Programme prior to sentence. We have also had the benefit of an updating report. The essence of the author’s view is that prison is a place that potentially puts X at increased risk of exposure to a behaviour. Scientific literature is said to demonstrate that that exposure would serve to undo the good X had already done by undertaking the programme. The author also expressed the view that imprisonment would “place the community at greater risk when he is finally released”.

[106] In our view, the combined need to rehabilitate and the likelihood of decreasing risk to the community if X is treated immediately, justifies on the particular facts of this case, primary reliance being placed on those sentencing goals.

[107] Nevertheless, we are satisfied that a sentence of imprisonment is appropriate to meet the sentencing goals to which s16 of the Sentencing Act refers. We differ in our approach from that taken by the District Court Judge because we regard the length of imprisonment as being something that can be affected by the weight to be given to youth justice principles.

[108] The starting point for sentence, in our view, ought to be 4 years imprisonment. Having regard to the seriousness and duration of the offending, the effect on the victims, the particular vulnerability of the victims and premeditation of the offender a lower starting point cannot be justified. In reaching that starting point we have had regard to s9(1)(g) and (i) of the Sentencing Act.

[109] In mitigation, the early acceptance of responsibility in the Youth Court must be taken into account together with the age of the offender and his expressions of remorse. An allowance of one-third would, in our view, be sufficient as credit for the early acceptance of responsibility, which is akin to a plea of guilty for the purpose of s9(2) of the Sentencing Act. The age of the offender takes account of his vulnerability and immaturity which in turn operate to lessen (at least to some degree) the weight to be given to premeditated offending. Further, any credit should take account of genuine expressions of remorse. Those three mitigating factor together justify a credit of 50% from the starting point for sentence.

[110] That leaves the end point for sentence as 2 years imprisonment which is the sentence we imposed.

[111] In reaching our end sentence we compared our proposed sentence with two recent cases involving offending, both of which resulted in sentences of 4½ years imprisonment being imposed for sexual violation. The first case dealt with an historical allegation of sexual violation going back to the 1970s when maximum penalties were much lower than those applicable now.

[112] In R v R (CA244/04, 2 November 2004, Glazebrook, Panckhurst and Gendall JJ), the Solicitor-General sought leave to appeal against a sentence of 3½ years imprisonment imposed for serious sexual offences committed between 1970 and 1977. The offending was inter familial, the appellant having sexual violated his sister. The brother was aged between 14 and 21 years at the time of the offending while his sister was aged between 10 and 17 years. The trial did not proceed until 2004 due to a late complaint by the sister after her father had been convicted of serious sexual offences relating to another sister and her aunt. She did not agree with the jury’s verdict in respect of her father and complained about her brother’s conduct at that stage. The Court of Appeal accepted that the appellant had an unblemished character from 1977 on. Nevertheless, it held that in terms of sentencing levels applicable at the time a starting point of at least 6 years imprisonment was justified with mitigating factors being sufficient to reduce the final sentence to 4½ years imprisonment.

[113] The end sentence imposed in R v R may be usefully compared with an Informant’s appeal, Police v C (High Court, Auckland A49/03, 22 May 2003, Rodney Hansen J). In that case a sentence of imprisonment for sexual offending by a youth aged 14 years was increased from 2 years to 4½ years.

[114] Neither of those cases considered the applicability of youth justice principles. The point was not argued in Police v C. In R v R the argument would not have been open as the offending occurred before the CYP Act was enacted.

[115] Both of those cases reveal offending of a more serious character than that with which we are required to deal. Further, Police v C is a case in which the prospect of rehabilitation being successfully undertaken was much less than is likely in this case.

[116] Having decided to impose a sentence of 2 years imprisonment three further issues arose. The first was whether leave ought to be granted to apply for home detention. The second was whether conditions of release ought to be imposed under s93(2) of the Sentencing Act. The third was the duration of any conditions of release: s97(2A).

[117] We deal first with the issue of home detention. We had regard to the criteria set out in s97(3) of the Sentencing Act. The factors that, in our view, justified leave being granted were the age of the offender, the undesirability of him serving his sentence in prison if that can be achieved without causing risk to the community and the general desirability of treatment programmes being implemented as soon as possible, both to rehabilitate the offender and to safeguard the community from further risk: s97(3)(b), which we give primary in the circumstances. Leave to apply for home detention was granted accordingly.

[118] While it is a matter for the Parole Board to address, we have real reservations about home detention being granted within the remote area in which X formerly resided, primarily out of concern for the victims but also out of concern for X. We have no doubt that the Parole Board will address that issue appropriately.

[119] We imposed the standard conditions described in s14(1) of the Parole Act 2002. In addition, we imposed special conditions, both to reduce the risk of reoffending by the offender and to facilitate or promote the rehabilitation and reintegration of the offender into the community: s15(2) Parole Act 2002. The conditions we imposed are set out in para [5] above.

Conclusion

[120] For those reasons, on 7 February 2005 the appeal was allowed with the consequences set out in para [5] above.

[121]We thank all counsel for their assistance.

P R Heath J P Courtney J