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Sentence quashed in first Criminal Cases Review Commission referral

23 Feb 2024

| Author: Jamie Dierick

Criminal Cases Review Commission Act, s 17 – Criminal Cases Review Commission – wrongful conviction – sentenced while still a young person – incorrect date of birth – appeal against sentence

G v New Zealand Police [2024] NZHC 189 per Thomas J.

 

This case concerns the first referral made by Te Kāhui Tātari Ture The Criminal Cases Review Commission under s 17 of the Criminal Cases Review Commission Act 2019.

G and his family came to New Zealand after fleeing their war-torn country. As a result, G’s documentation, including documents indicating his date of birth, had been lost.

G was convicted by the District Court in 2001 on nine charges, including male assaults female, and was sentenced to 11 months’ imprisonment. At the time, he was believed to be 17 years old; the original charging documents listed his birthdate as 4 April 1984.

In 2020, G applied to the Commission to review his convictions and sentence on the primary ground that he was wrongly convicted and sentenced to a term of imprisonment while still being just 15 years old. His conviction appeal related only to the fact of his age; he didn’t deny the offending.

The Commission raised two issues with the High Court:

  • that G should have been dealt with in the Youth Court as he was 15 at the time of the offending; and
  • his custodial sentence was imposed contrary to the prohibition contained in s 8 of the Criminal Justice Act 1985, which forbad those aged under 16 years from being sentenced to imprisonment except for purely indictable offences. In G’s case, not one of his offences fell within the exception.

The Police argued that G used different birth dates at various times during his dealings with official agencies. Therefore, the inconsistency meant the court couldn’t be satisfied there was an error in the 1984 date of birth being used in 2001. Thomas J accepted G’s submission that while conflicting information had been given, it didn’t disentitle him from any available remedy on appeal. Following evidence given by G’s aunty and cousin as to his correct date of birth, the High Court found he was born in 1986. As a result, G was 15 years old.

Had the police realised this in 2001, G would’ve been dealt with by the Youth Court under the Children, Young Persons and their Families Act 1989. There was nothing to suggest the offending was serious enough to warrant the court remitting G to the District Court, despite the fact the charge of male assaults female was considered to reflect serious violence. The most severe sanction available to the Youth Court would’ve been one of three months’ residence in a social welfare institution followed by six months’ supervision from the Chief Executive. Imprisonment couldn’t have been imposed – there was no jurisdiction to do so, Thomas J said.

Given that convictions and a term of imprisonment were imposed over 20 years ago, the judge held the appropriate outcome was to set aside both.

While setting aside a conviction would mean a sentence appeal is redundant, the Youth Court context made the High Court reconsider it. While it was possible for the sentence of 11 months’ imprisonment to be replaced with a sentence that would have been imposed in the Youth Court, Thomas J held the term of imprisonment had long been served and any substitution would be too late.

 

Applicable principles: jurisdictional error – procedural error – incorrect sentence – youth justice – differential treatment of youth.

 

Held: G’s conviction was set aside and sentence quashed.

 

Jamie Dierick is a Law Clerk working for an Auckland Criminal Defence Barrister.

 

G v New Zealand Police [2024] NZHC 189.

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