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Alderton-Armstrong, Kelci --- "The Judicial Approach to the Mitigating Factor of Youth in Aotearoa New Zealand" [2022] UOtaLawTD 1

Last Updated: 25 September 2023

The Judicial Approach to the Mitigating Factor of Youth in Aotearoa New Zealand

Kelci Thea Alderton-Armstrong

A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo

October 2022

Acknowledgments

To my supervisor, Dr Danica McGovern, thank you for your invaluable support this year. Without your involvement, this dissertation would have lacked both direction and sense! It was a privilege to have the opportunity to learn from you.

I would also like to thank Adam Simperingham for offering his insight on this subject – the final product was made better by that contribution.

To the friends who made my university experience so memorable – while I am sure you grew tired of hearing the words “youth discount” and “GBH,” I could never tire of you. A special thank you must also go to Jess, for her diligent proofreading skills and comedic timing.

To Callum, Eve and Peter, without you, this year would have been twice as productive, but half the fun. Thank you for reminding me that the world is not all violent offending and journal articles. I will always be grateful for you three – and for Nespresso – “what else?”

To my long-suffering family, thank you for your patience this year and every year before that. To my parents who have always put my education first, I will forever be grateful for the opportunities that has given me. And to my little sister, without you I would take myself far too seriously – thank you for always being the first person to challenge me.

Finally, I would like to acknowledge that behind each of the cases considered as part of this dissertation, there is an untold number of real people who were affected by the offending. This includes defendants, victims, and their families. I hope that this dissertation has not lost sight of that.

Table of Contents

1. Setting the start point 8
2. Assessing the personal aggravating and mitigating factors 8
3. Determining the end sentence 9
1. General legislative framework 9
2. Relevant case law for the youth discount 10
1. Why do young people offend? 13
2. Why do young people stop offending? 13

A POTENTIAL REFORM OPTIONS 33

I Introduction

New Zealand is often recognised as a world leader in restorative youth justice.¹ Significant reforms have transformed this jurisdiction – including the introduction of the Rangatahi and Pasifika Courts,² the implementation of the Department of Corrections’ Hōki Rangi Strategy,³ and a shift towards a more community-led operating model for Oranga Tamariki.⁴ Cumulatively, these initiatives are credited with having substantially reduced the rate of youth offending.⁵ Between 2010 and 2020, the juvenile offending rate fell by 63 per cent.⁶ Māori appearances in the Youth Court fell by 54 per cent between 2016–17 and 2020–21, compared with a 37 per cent reduction for European/other offenders. These findings provide encouraging support for the implementation of evidence-based interventions to address offending rates.

However, the glass is not so full when we consider New Zealand’s young adult offending regime. ‘Young adult’ refers to the age group encompassing people aged 18 to 25 years old. This group has a significant interaction with the criminal justice system. It is also an age group plagued by specific vulnerabilities. Against this background, the sentencing of these offenders has a critical role to play in the reduction of young adult recidivism.

Forty per cent of criminal apprehensions in New Zealand are of young people aged between 15 to 24 years old.⁷ Approximately 11 per cent of New Zealand prisoners are aged between 20 and 24 years old.⁸ Recidivism rates for this age group also remain higher than any other age category. These statistics indicate that every year a significant number of young adults will interact with the criminal justice system.⁹ Amongst that group, many offenders will receive a custodial sentence and a significant number will go on to reoffend.

¹ Judge Andrew Becroft, Children’s Commissioner for New Zealand “Being child-centered. Fad or foundation?” (Wellington, Sector Group presentation, 14 March 2018).

² Ministry of Justice “Rangatahi Courts & Pasifika Courts” Youth Court of New Zealand

<https://youthcourt.govt.nz/about-youth-court/rangatahi-courts-and-pasifika-courts/>.

³ Department of Corrections “Hōkai Rangi Ara Poutama Aotearoa Strategy: 2019-2024” (2019) Department of Corrections <www.corrections.govt.nz/ data/assets/pdf_file/0003/38244/Hokai_Rangi_Strategy.pdf>.

⁴ Office of the Minister for Children Transforming our Response to Children and Young People at Risk of Harm: Paper Five – Youth Justice (2 August 2019) at 1.

⁵ Kris Faafoi “Further reductions in youth offending highlighted in latest Youth Justice Indicators report” (press release, 31 January 2022.”

⁶ Ministry of Justice Youth Justice Indicators Summary Report (December 2021) at 5. Juvenile in this context refers to an offender who is younger than 18 years old. This terminology is adopted throughout the dissertation. ⁷ Peter Gluckman It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand (Office of the Prime Minister’s Chief Science Advisor, 12 June 2018) at 12.

⁸ Department of Corrections “Prison facts and statistics – March 2020” (31 March 2020)

<www.corrections.govt.nz/resources/statistics/quarterly_prison_statistics/prison_stats_march_2020>.

⁹ In 2017, there were 25,268 unique offenders apprehended between the ages of 17 and 24. Referred to by Jan- Marie Doogue, Chief District Court Judge and John Walker, Principal Youth Court Judge “Trial of Young Adult List Proposal” (Memorandum, 29 August 2019).

This age group is also plagued with underlying psychological and social vulnerabilities. Compared to the general population, young adults in New Zealand face higher rates of homelessness,¹⁰ unemployment,¹¹ and mental health issues.¹² Not surprisingly, there is a significant overlap between these factors and criminal offending. Exacerbating this relationship is the chasm between this age group and access to support services. After the age of 16–17 years, access to funded social and health services declines.¹³ That restricted access affects the ability of this age group to live prosocial lives.

Against that background, this dissertation will consider the current judicial approach to youth as a mitigating factor. The youth discount represents the only specific legislative recognition of the relationship between an offender’s age and their offending (for young adults).¹⁴ Therefore, the application of this discount represents an important part of the sentencing process for young adults.

By way of example, if we consider a situation where an offender receives both the maximum discount for an early guilty plea and a significant youth discount, a total discount of 50 per cent could be provided. That is a dramatic reduction in sentence caused by only two mitigating factors. A four-year start point might then result in an end sentence of two years’ imprisonment. At this point the relevant legislative provisions are likely to weigh in favour of the substitution of a sentence of home detention.¹⁵ Therein lies the obvious significance of the youth discount

– it can plausibly be the difference between a custodial and non-custodial sentence.

Given that significance, the application of the youth discount is a matter of concern. Despite the inclusion of the principle of consistency in the Sentencing Act 2002, there is academic suggestion that the current use of the discount is inconsistent.¹⁶ However, there has never been a systematic review of the judicial approach to youth as a mitigating factor. In this dissertation I will conduct such a review to investigate whether the current judicial treatment of the youth discount is consistent. To make that determination, I will review sentencing decisions for offenders aged 18 to 25 years convicted of grievous bodily harm and burglary. The structure of this dissertation is explained below.

¹⁰ Baz Macdonald “NZ had around 19,000 homeless young people. Lockdown leaves them vulnerable to abuse and harm” (21 August 2021) ReNews <www.renews.co.nz/nz-has-around-19000-homeless-young-people- lockdown-leaves-them-vulnerable-to-abuse-and-harm/>.

¹¹ Statistics New Zealand “Youth unemployment rate three times national average” (2 December 2021)

<www.stats.govt.nz/news/youth-unemployment-rate-three-times-national-average>.

¹² Wilson, A and Nicolson, M Mental Health in Aotearoa: Results from the 2018 Mental Health Monitor and the 2018/19 New Zealand Health Survey (Te Hiringa Hauora/Health Promotion Agency, Wellington, 2020) at 1. ¹³ Peter Gluckman It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand (Office of the Prime Minister’s Chief Science Advisor, 12 June 2018) at 13.

¹⁴ Stephen Woodwark & Nessa Lynch “Decidedly but differently accountable? – Young adults in the criminal justice system” [2021] NZLR 109 at [123].

¹⁵ Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).

¹⁶ Stephen Woodwark & Nessa Lynch “Decidedly but differently accountable? – Young adults in the criminal justice system” [2021] NZLR 109 at [125].

The first chapter will introduce the background required to understand the operation of the youth discount. This will begin with an explanation of New Zealand’s sentencing regime. I will then move to examine the case law surrounding the youth discount. This chapter will also include a summary of the relevant psychological evidence that relates to this age group.

The second chapter will present the findings of the case review. I will argue the current judicial use of the youth discount is inconsistent. This inconsistency is present in both the decision to provide the discount and the extent of that provision. I will argue this inconsistency is caused by a collection of sentencing judges having misinterpreted the Churchward decision.¹⁷ That misinterpretation has caused these judges to determine the availability and extent of the youth discount by an assessment of whether the offending is ‘youthful’. In my opinion, that approach does not align well with the rationale underpinning the discount. A discount for youth exists to recognise the causal relationship between an offender’s age and their offending. According to that rationale, the offending is mitigated by a person’s age, not by the nature of their conduct. Therefore, the focus of the assessment should be on the age of the offender, not on whether their conduct appears ‘youthful’.

The third chapter will present my recommendation for the reform of the youth discount in New Zealand. I will recommend the introduction of a guideline judgment, that directs sentencing judges to provide a discrete discount for youth. The extent of that provision will then be guided by the establishment of two presumptive ranges. This approach will provide the much-needed consistency that this area of law is currently lacking. However, the guideline judgment will also retain the degree of flexibility that is required to enable a sentencing judge to provide an appropriate sentence in the case before them.

¹⁷ Churchward v R [2011] NZCA 531.

II Background

A The Sentencing Act 2002

The Sentencing Act 2002 provides legislative guidance on the purposes and principles of sentencing in New Zealand. Section 8 sets out 10 principles that a court should consider when sentencing an offender. These principles include a need to consider the gravity of the offending and the general need for consistency in sentencing between similar offending.

Section 9 sets out a non-exhaustive list of aggravating and mitigating factors to be considered by a court.¹⁸ This provision does not have a historic equivalent. Instead, it largely codified the existing case law.¹⁹

New Zealand's legislation seeks to avoid imposing an unduly mechanical approach to sentencing.²⁰ This is shown by the relatively few provisions which guide the determination of specific sentences.²¹ While legislation will prescribe the maximum penalties for different offence types, the actual calculation of a sentence relies heavily on the exercise of judicial discretion.²² The use of this discretion has been guided by two key judicial developments.

The first is the creation of guideline judgments. As part of its appellate review function, the Court of Appeal issues judgments to guide the use of judicial discretion in the sentencing of specific offences.²³ These judgments often set out a banded approach to determine a start point when sentencing for certain offending. This allows judges to assess the comparative severity of the present offending. Where a relevant guideline judgment exists, it is unlikely that a court would accept submissions relying on alternative authority. As a result, these judgments play an important role in facilitating consistency in sentencing.

The second judicial development has been the creation of a structured approach to sentencing. The case law provides that a judge begins the sentencing process by setting a start point, before moving on to consider the application of any aggravating/mitigating factors. I will set out this approach in more detail below.

¹⁸ Sentencing Act 2002, s 9(4).

¹⁹ Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at [SA9.01-SA9.02]. I also note that a review of Hansard relating to the Sentencing and Parole Reform Bill did not find discussion about what Parliament intended when it included age as a mitigating factor.

²⁰ Ministry of Justice Sentencing Policy and Guidance: A Discussion Paper (Ministry of Justice, Wellington, 1997) at 142.

²¹ Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at [SAC1].

²² Certain types of offences may be subject to mandatory orders or presumptive sentences. An example of a mandatory order includes s 32(1) of the Misuse of Drugs Act 1975 which requires the forfeiture of drug paraphernalia. And an example of a presumptive sentence is found in s 102 of the Sentencing Act 2002 which provides a presumption in favour of life imprisonment for murder.

²³Moses v R [2020] NZCA 296 at [4].

B The Judicial Approach to Determining a Sentence in New Zealand 1 Setting the start point

This first step requires the sentencing judge to set a start point based on the circumstances of the offending.²⁴ The start point should reflect the sentence that would be appropriate for that offence if it were committed by an adult offender and issued after a defended trial.²⁵ This determination is primarily guided by any existing guideline judgments.²⁶ A sentencing judge might also refer to comparable case law to assist their assessment of the gravity of the offence. The Court then considers whether the start point requires any adjustment. This will involve an assessment of any aggravating/mitigating factors relevant to the offence (not the offender).²⁷

Where the offender is being sentenced for a multitude of offences, the orthodox approach is to set the start point for the lead offence and then to apply uplifts for any additional offending. The Judge then considers the totality principle, which refers to the need for a judge to consider each of the committed offences individually, but to also consider the offender’s overall culpability.²⁸ The final start point is an effective sentence for the totality of the offender's conduct.

2. Assessing the personal aggravating and mitigating factors

Once the start point has been established, a court must consider the application of any relevant aggravating and mitigating factors personal to the offender.²⁹ In doing so the Judge tailors the sentence to the specific offender.³⁰

Aggravating factors will result in the application of an uplift to the start point. A common aggravating factor is where the offender has a history of similar criminal offending. The Court of Appeal has settled that this is an aggravating factor personal to the defendant. It is not a feature of the instant offending and should not be considered in setting the start point.³¹

Meanwhile, mitigating factors will result in discounts being applied to reduce the sentence. The age of an offender is a mitigating factor.³² The extent of a discount provided for each

²⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [28]- [30].

²⁵ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA).

²⁶ Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at [SAC6].

²⁷ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [6].

²⁸ See R v Bradley [1979] NZCA 33; [1979] 2 NZLR 262 (CA). And R v Dodd [2013] NZCA 270 at [32]- [33]. The totality principle is codified by the Sentencing Act 2002, s 85.

²⁹ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA) at 179.

³⁰ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [6].

³¹ Stuart v R [2021] NZCA 539 at [15].

³² Sentencing Act 2002, s 9(2)(a).

mitigating factor is a highly discretionary exercise.³³ The case law suggests a preference towards the provision of discrete discounts because this will aid an appellate court in evaluating the end sentence.³⁴ It is also preferable that a discount is provided as a percentage of the start point, particularly for larger discounts.³⁵

3. Determining the end sentence

Finally, the Judge must determine the end sentence to be imposed. Section 8(g) provides that the Court must impose the least restrictive outcome that is appropriate in the circumstances. Section 10A sets out the hierarchy of sentences and orders. A sentence of imprisonment is the most restrictive sentence possible followed by home detention. Section 16 requires a court to have regard to the desirability of keeping offenders within the community when considering whether to impose a sentence of imprisonment. Collectively, these provisions require a court to consider the available range of sentences before determining what end sentence to impose. For example, if an offender is convicted of an offence punishable by imprisonment and the end sentence, arrived at by a judge during this process, is a short-term period of imprisonment (less than 24 months) then home detention becomes available as a sentencing option,³⁶ and the legislative provisions then weigh in favour of the provision of home detention as the final sentence.

C What is the Relevance of an Offender’s Age in Sentencing? 1 General legislative framework

After a person turns 18 years old, they will be treated as an adult in New Zealand’s criminal justice system. Offences committed by younger persons will be handled by the Youth Justice System.³⁷ This youth jurisdiction operates under a separate legislative framework to the traditional justice system. This includes a different set of principles that guide sentencing for juvenile offenders.³⁸ If a juvenile offender is transferred into the District Court system their sentencing will then be guided by the Sentencing Act 2002.³⁹

³³ Kumar v R [2015] NZCA 460 at [81].

³⁴ Pou v Police [2021] NZHC 1068 at [21]; Ekeroma v R [2021] NZCA 250 at [16]; and Moses v R [2020]

NZCA 296[2020] NZCA 296; , (2020) 29 CRNZ 381 at [5]- [10].

³⁵ McCreath v R [2014] NZCA 142 at [19]. See also Ferris-Bromley v R [2017] NZCA 115 at [16]- [17]. Percentage discounts are considered less likely to lead to a mathematical error.

³⁶ Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).

³⁷ Note that the District and High Courts have jurisdiction for certain offences committed by persons under the age of 18 years. This includes murder and manslaughter, as well as the offences set out in sch 1A of the Oranga Tamariki Act 1989.

³⁸ When a person under 17 years is sentenced in the Youth Court, their sentencing will be governed by the principles set out in ss 5 and 208 of the Oranga Tamariki Act 1989. Some of these principles reflect those within ss 8 and 9 of the Sentencing Act 2002, others are incompatible with the adult regime.

³⁹ Pouwhare v R [2010] NZCA 268 at [74].

There is no legislative provision dealing specifically with the sentencing of “young adults”. The inclusion of an offender’s age as a mitigating factor is the only statutory provision requiring a sentencing court to consider the relevance of a young adult’s age in their offending.⁴⁰ This provision sought to codify the longstanding judicial approach of referring to youth as a mitigating factor in sentencing.⁴¹ In doing so, Parliament did not provide any further guidance about the application of this discount.

The current judicial approach to sentencing a young adult is as follows. The judge will determine an appropriate start point as they would have had the offending been committed by an adult.⁴² This will include reference to any applicable guideline judgments. ⁴³ Once the start point has been set, the Court will move to consider the application of any relevant aggravating and mitigating factors. Section 9(2)(a) identifies that the age of an offender is a mitigating factor that must be considered to the extent that it is relevant. This shows that the age of an offender is a factor personal to the defendant and not a feature of the offending itself.⁴⁴ This means that the objective seriousness of an offence (the focus of setting a start point) is not tempered by an offender’s age.⁴⁵

Beyond s 9(2)(a), there is no statutory guidance as to the application of a discount for an offender’s age. Instead, a body of case law has developed to guide the judicial use of a discount for youth. Importantly, there is no specific guideline judgment dealing with this discount.

2 Relevant case law for the youth discount

The case law establishes that there is no fixed discount for youth.⁴⁶ In some cases, it may have a significant effect on the end sentence, while in others the discount might be minimal or even denied.⁴⁷ The decision to grant the discount, and its relative size, is primarily a factual inquiry that should also have regard to comparative cases.⁴⁸ A sentencing judge must weigh the young person’s age and the reasons for their offending, against the objective seriousness of the offending and the prospects of rehabilitation.⁴⁹ In cases where the offending is grave, the scope

⁴⁰ Stephen Woodwark & Nessa Lynch “Decidedly but differently accountable? – Young adults in the criminal justice system” [2021] NZLR 109 at [123].

⁴¹ Geoff Hall “The Sentencing Act 2002 – new bottle, same wine?” (2002) 583 LawTalk 20 at 21. A review of Hansard relating to the Sentencing and Parole Reform Bill did not find discussion about what Parliament intended when it included age as a mitigating factor.

⁴² R v E [2007] NZCA 133 at [19].

⁴³ Overton v R [2011] NZCA 648 at [22]. See also Pouwhare v R [2010] NZCA 268 at [40].

⁴⁴ This is an important point when we consider the way Churchward v R [2011] NZCA 531 has shaped the use of the youth discount. There is a trend now for some judges to grant the discount where the offending is ‘youthful’ – in some ways, that is a comment on the nature of the offending, not about the offender.

⁴⁵ Pouwhare v R [2010] NZCA 268 at [91].

⁴⁶ Diaz v R [2021] NZCA 426 at [39].

⁴⁷ Pouwhare v R [2010] NZCA 268 at [96].

⁴⁸ Pouwhare v R [2010] NZCA 268 at [42].

⁴⁹ Pouwhare v R [2010] NZCA 268 at [83].

to take account of youth may be limited. This is because the factors that may have caused the young person to offend might ensure that the offender continues to pose a risk to public safety.⁵⁰ Therefore, youth as a mitigating factor does not enjoy presumptive, or even paramount, weight over the final sentence.⁵¹

In Churchward,⁵² the Court of Appeal was asked to consider the appeal of two offenders sentenced for murder. They were aged 14 years and 17 years. In the judgment, the Court summarised the reasons why youth had been held to be relevant to sentencing.⁵³ This was preceded by the Court’s review of domestic case law, international sentencing guidelines for youth and relevant psychiatric evidence. The Court concluded:⁵⁴

Youth has been held to be relevant to sentencing in the following ways:

(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c) Young people have a greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

There has not been any substantive authority handed down from the Supreme Court regarding the application of the youth discount. However, in Mehrok,⁵⁵ the Court denied an application for leave to appeal that concerned the provision of the discount. In that decision, the Supreme Court made several interesting comments about this area of law. In Mehrok, the appellant has been sentenced for a manslaughter.⁵⁶ A ground of appeal was that the sentencing Judge had erred in reducing the youth discount for lack of remorse and poor prospects of rehabilitation.⁵⁷ The High Court had granted Mr Mehrok a discount of five per cent "to recognise his impulsiveness, but no more, on the ground that the other main consideration for youth – the prospect of rehabilitation – was not applicable.”⁵⁸ The Court of Appeal upheld this ruling.⁵⁹

⁵⁰ Rapira v R [2003] NZCA 217; [2003] 3 NZLR 794 (CA) at [120].

⁵¹ Pouwhare v R [2010] NZCA 268 at [96].

⁵² Churchward v R [2011] NZCA 531.

⁵³ I note the Court of Appeal was not referring specifically to the application of youth discount here. The appeal in this case concerned the relevance of youth in the decision to impose a life sentence and minimum period of imprisonment.

⁵⁴ Churchward v R [2011] NZCA 531 at [77].

⁵⁵ Mehrok v R [2021] NZSC 155.

⁵⁶ His appeal against the sentence was dismissed by the Court of Appeal, Mehrok v R [2021] NZCA 370.

⁵⁷ See Mehrok v R [2021] NZCA 370 at [5] and [43].

⁵⁸ Mehrok v R [2021] NZSC 155 at [17].

⁵⁹ Mehrok v R [2021] NZCA 370 at [43]. Referred to in Mehrok v R [2021] NZSC 155 at [18].

The appellant submitted that the earlier decisions had wrongly conflated the youth discount with discounts for remorse and efforts at rehabilitation. The Supreme Court acknowledged that it is likely the Court will need to consider this issue in the future. However, it found that the present case did not present an appropriate opportunity to do so because the facts offered insufficient prospects of success.⁶⁰

In my opinion, the refusal to grant leave on that basis can be interpreted as an acknowledgement by the Supreme Court that the application of the youth discount is not a settled area of law. This dissertation will investigate the current judicial use of the youth discount and will offer recommendations regarding the potentially impending reform of this area of law.

D The Current Psychological Evidence Base Surrounding this Age Group

Psychological evidence strongly supports that young adulthood is a distinct age group that requires specialised treatment by the criminal justice system.

The age-crime curve refers to the bell-shaped relationship between offending and age that is found in all western countries.⁶¹ The prevalence of offending increases from late childhood, peaks in adolescence and early adulthood, before declining after the early twenties.

Broadly speaking there are two general trajectories of delinquency:⁶²

• - The life-course persistent pattern is the result of the interaction between certain neurodevelopmental deficits and maladaptive environmental factors. This pattern is characterised by an early onset of offending that continues throughout the stages of development. Without successful intervention, these individuals are likely to continue offending throughout their lifespan.
• - The adolescent-limited pattern is the more common trajectory, and it represents most young offenders. It is characterised by a short-lived period of antisocial and criminal behaviour during a person’s adolescence and early adulthood.

⁶⁰ At [21] the Supreme Court found that the seriousness of the index offence, his age (he was 24 years old), and the fact he had assaulted children before the fatal attack all supported this conclusion.

⁶¹ Machteld Hoeve, Peter H. van der Lann and Rolf Loeber (eds) Persisters and Desisters in Crime from Adolescence into Adulthood (1^st ed, Routledge, London, 2012).

⁶² Thomas Gullotta, Robert Plant and Melanie Evans (eds) Handbook of Adolescent Behavioural Problems (2^nd ed, Springer, London, 2015) at 450.

1. Why do young people offend?

The occurrence of offending in a person’s youth is best understood from a developmental perspective.⁶³ The developmental stage of ‘emerging adulthood’ is a period of transition for all young adults.⁶⁴ During this time, a lot of young people will face limited access to funded support services and an absence of protective factors (such as employment and marriage). ⁶⁵ Importantly, this period of social transition occurs at a time when a young person has not yet reached psychological maturity. Maturation has been linked with impulse regulation, reliance on internal standards in making decisions, and the ability to evaluate the costs/benefits of actions.⁶⁶ The underdevelopment of these skills is implicated in criminal behaviour. These findings support that a young person's offending may not be as culpable as an adult because of their impaired psychological functioning and limited social support.

2. Why do young people stop offending?

The research also suggests that offenders on both trajectories of offending (adolescent-limited and life-course) are likely to reduce their rate of offending as they age.⁶⁷ The offending curve markedly drops off across a person's twenties.⁶⁸ This is often the result of developing maturity and the effect of social protective factors coming into play, for example employment, child- rearing, and marriage.⁶⁹ Historically, young people entered stable employment and marriage much earlier than they do today. For example, in 1971 the median age for first marriage was

23.5 years for men and 21.2 years for women which, by 2019, had changed to 32.5 and 30.8 respectively.⁷⁰ Young adults are now also more delayed in entering stable employment, due to greater education and training requirements. Therefore, the protective factors that are associated with a desistence from offending now occur later in a person's life. This social context affects most young adults, which explains why a natural desistence occurs for most offenders as they mature out of this developmental stage.

⁶³ Laurence Steinberg and Elizabeth S Scott “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty” (2003) 58 Am Psychol 1009 at 1011. ⁶⁴ David Farrington, Rolf Loeber and James Howell “Young Adult Offenders: the need for more effective legislative options and justice processing” (2012) 11(4) Criminology and Public Policy 729 at 730.

⁶⁵ This will be discussed further in the Background Chapter.

⁶⁶ Anne-Marie Iselin, Jamie DeCoster and Randall Salekin “Maturity in Adolescent and Young Adult Offenders: The Role of Cognitive Control” (2009) 33 Law Hum Behav 455 at 455.

⁶⁷ Thomas Gullotta, Robert Plant and Melanie Evans (eds) Handbook of Adolescent Behavioural Problems (2^nd ed, Springer, London, 2015) at 451

⁶⁸ David Farrington, Rolf Loeber and James Howell “Young Adult Offenders: the need for more effective legislative options and justice processing” (2012) 11(4) Criminology and Public Policy 729 at 741.

⁶⁹ Thomas Gullotta, Robert Plant and Melanie Evans (eds) Handbook of Adolescent Behavioural Problems (2^nd ed, Springer, London, 2015) at 451.

⁷⁰ Stephen Woodwark & Nessa Lynch “Decidedly but differently accountable? – Young adults in the criminal justice system” [2021] NZLR 109 at [115].

These research findings cumulatively support that offending in early adulthood should be viewed as less culpable than offending in later life. That is because a person’s youth is causally implicated in their offending. Therefore, the age of the offender directly mitigates their offending. This is the rationale that justifies the provision of a youth discount.

III Case Review

This chapter will begin with an explanation of why I conducted the case review and the reasons for the parameters used, before moving into an analysis of the trends found in that review. I will present my argument that the current judicial approach to the youth discount is marked by inconsistency. That inconsistency in present in both the decision to award a discount and the extent of any discount provided. I will then argue that this inconsistency is the result of some judges having misinterpreted the Churchward decision.⁷¹

A Justification for the Review

The case law I referred to in the Background Chapter suggests the provision of the youth discount is tempered by the seriousness of the offence committed.⁷² In light of this claim, I wanted to investigate whether the current judicial treatment of the discount differed according to the seriousness of an offence. To do so, I considered the judicial treatment of the youth discount in cases of both serious violent offending and less serious offending. Grievous bodily harm (“GBH”) was selected as part of this review because it represents a form of serious violent offending that is not subject to substantial legislative restrictions on sentencing discretion.⁷³ That is compared to an offence like murder, which has a strong legislative presumption that life imprisonment will be imposed.⁷⁴ Without legislative restriction, any trends found in the application of the discount are more likely to be indicative of judicial sentencing practices more broadly. To represent cases involving less serious offending, I included burglary sentencing decisions in this review.

This comparison allowed me to form generalised conclusions about the judicial treatment of

the youth discount.

B Parameters of the Case Reviews

The case review began with the identification and selection of an appropriate body of cases. The parameters of the review were cases where an offender was aged between 18 and 25 years old at the time of the offending and was being sentenced for GBH or burglary as either the sole or the lead offence. Where the decision had been appealed, only the sentencing notes of the appeal were considered. Sentencing decisions were sourced from commercial legal databases using keyword searches.

⁷¹ Churchward v R [2011] NZCA 531.

⁷² Pouwhare v R [2010] NZCA 268 at [96]; Rapira v R [2003] NZCA 217; [2003] 3 NZLR 794 (CA) at [120].

⁷³ I acknowledge that GBH offending was subject to the three strike mandatory requirements during the period of my case review. The Three Strikes Legislation Repeal Act 2022 did not come into force until 16 August 2022. Six cases in the GBH review refer to these requirements. I decided to include these judgments because they offered insight into the way sentencing judges treat an offender’s age in circumstances where Parliament had indicated that the offending is particularly serious.

⁷⁴ Sentencing Act 2002, s 102.

Thirty-six GBH sentencing decisions were identified. Twenty-two of the cases were first instance decisions. Twenty-nine burglary decisions were identified. Twenty-eight of these cases were appeals.⁷⁵

The age range of the offenders for each type of offence is shown below.

C What is the Current Judicial Approach to the Youth Discount?

I argue the current judicial approach to the youth discount is characterised by inconsistency. The way that sentencing judges currently decide the availability and extent of this discount is inconsistent. The judicial approach to this mitigating factor is also divorced from the current base of psychological evidence surrounding the relationship between age and culpability. Once I have established that there is significant inconsistency in the use of this discount, I will present my argument that this inconsistency can be explained by some judges having misinterpreted the Churchward decision.⁷⁶

1. Inconsistency in determining whether the discount is available

The availability of the youth discount is determined by a judge’s discretion.⁷⁷

There is no fixed discount for youth and, by analogy with Huata v R, it was a legitimate exercise of the Judge's discretion to decline to give such a discount.⁷⁸

(22 years) - GBH

... At 20 years of age a discount for youth was discretionary.⁷⁹ (20 years) – Burglary

However, some judges appear to take the view that young offenders are entitled to receive the discount.

You were 18 at the time of this offending and you are entitled to a discount for youth.⁸⁰ (18 years old) – GBH

⁷⁵ R v Lasike & Ors HC Auckland CRI-4-44-7103, 7 September 2006 is the only first instance decision.

⁷⁶ Churchward v R [2011] NZCA 531.

⁷⁷ Diaz v R [2021] NZCA 426 at [39].

⁷⁸ Hukehuke v R [2021] NZHC 817 at [38].

⁷⁹ Gardiner v Police [2015] NZHC 1241 at [14].

⁸⁰ R v Walker [2016] NZDC 2111 at [40].

You are still entitled to a discount for youth, you are still a very young man.⁸¹

(20 years) - GBH

This divergence of judicial opinion is worrying because it can result in the inconsistent application of the youth discount. The table below shows the break down in the use of the discount for each offence. Broadly speaking, two thirds of the cases resulted in the discount being granted (either discretely or in combination with other mitigating factors),⁸² while a third of offenders were denied the discount.

The literature suggests that the gravity of the offence will play a significant role in determining the application of the youth discount.⁸⁴ If this is accurate, you would expect to see the youth discount being granted more frequently and in larger awards for burglary offending than GBH, given that GBH is intrinsically more serious offending. As this chapter will show, this is simply not the case. The seriousness of offending plays an inconsistent role in the application of the youth discount. This observation is supported by two key findings from the GBH cases. First, within those cases there are clear examples of offenders being granted a youth discount with serious offending. This undermines the claim that a denial of the discount is a result of a need to reflect the seriousness of the offending. Furthermore, offenders who were denied the youth discount commonly received substantial discounts for other mitigating factors. If a sentencing judge was primarily concerned with the gravity of the offending, you would expect to see more reluctance to award any substantial discounts.

To demonstrate these findings, I have included the below tables which compare GBH cases where the discount was denied with GBH cases where a discrete discount was granted.

GBH offenders denied the youth discount

⁸¹ R v Douglas-Tera [2019] NZDC 853 at [11].

⁸² A discrete discount would see the youth discount awarded seperately to other discounts. While a combined discount would provide a single discount for a combination of mitigating factors, including youth.

⁸³ In R v Hura [2017] NZDC 3206 the sentencing judge noted that the start point was set with reference to the offender’s youth. Therefore, in this case a discount for youth was neither provided nor declined.

⁸⁴ Geoff Hall (ed) Hall’s Sentencing (NZ) – Sentencing Factors (online looseleaf ed, Lexis Red) at [I.6.2(b)].

GBH offenders granted a discrete discount for youth

By comparing these two tables we see that cases where a youth discount is denied do not represent the highest starting points in the GBH cases. Therefore, some judges are prepared to provide a youth discount even in cases of serious offending. This divergence in judicial approach was also reflected in the sentencing notes. Some judges adopted the view that serious offending prohibits the availability of the discount:

I agree with the Judge's view that the vicious attacks on the victims could not be mitigated by reference to Mr Hukehuke's youth. This was not impulsive, one- punch, reactive offending ...⁸⁶

(22 years) – GBH

Meanwhile, other judges were still prepared to award a discount for youth, even when the offending was particularly grave, or caused serious harm:

⁸⁵ 5.6yrs refers to a start point of five years six months imprisonment. This numbering style is used throughout the tables.

⁸⁶ Hukehuke v R [2021] NZHC 817 at [37].

... Despite the seriousness of the charge, the Judge was correct to acknowledge that all three of the factors mentioned in Churchward are engaged and relevant here.⁸⁷

(18 years) - GBH

Additionally, where an offender is denied the discount, it is not necessarily the case that they will receive relatively limited credit for other mitigating factors. There were numerous examples of offenders facing high starting points also receiving total discounts of more than 30 per cent, resulting in a substantial reduction in sentence. This undermines the claim that a refusal to grant the youth discount is the result of a judicial finding that the gravity of the offence requires a limited reduction in the sentence.

Therefore, the GBH cases have illustrated that the seriousness of the offence does not play a consistent role in the judicial treatment of the youth discount. In fact, a review of both the GBH and burglary cases reveals that the specific age of the offender plays a more significant role in the judicial decision to provide the youth discount. Within the cases, there is a trend for older offenders to be denied the discount or provided a limited discount for their youth.

Cases where a youth discount was denied

⁸⁷ Taiapa v R [2020] NZHC 3355 at [71].

Around the age of 20 years old, judges appear to be more likely to take a restrictive view of the discount’s availability. Of the 19 cases that did not provide a discount for youth, 16 offenders were aged above 20 years old. Therefore, the age of the offender looks to be playing a more significant role in the determination of the discount’s availability than the seriousness of the offence.

However, even the age of the offender is not a reliable predictor of the discount’s treatment. An analysis of the sentencing notes clearly shows that judges take different views on the influence that an offender’s specific age should play in this assessment:

... You were 21 at the time of the offending. This is certainly pushing the upper end of the qualifying range. ⁸⁸

(21 years) - GBH

I account for your youth, your rehabilitative prospects, and your background. At 23 years old, you are only a young man. Overall, a 20% discount would have been awarded for these factors.⁸⁹

(23 years) - GBH

... In my view though, at 24 years of age you are not entitled to a discount for youth.⁹⁰ (24 years) - GBH

... The mitigating features identified by the Judge were appropriate (although only modest credit could be given for his age since he was 24 at the time of sentence).⁹¹

(24 years) – Burglary

However, at 25 years of age, Mr Singh can no longer be considered a youth... I do not consider that Mr Singh’s age warrants a separate discount.⁹²

(25 years) – Burglary

It is troubling that judges who state that an offender’s age precludes them from the discount do not appear to have considered case law where a similarly aged offender did receive a discount for youth. Given the potential impact that this mitigating factor can have on the end sentence, it is important that a consistent approach is applied to the determination of the discount’s availability.

⁸⁸ R v Cameron [2016] NZHC 2604 at [31].

⁸⁹ R v Walford [2022] NZHC 69 at [34].

⁹⁰ R v Taylor [2020] NZHC 3174 at [28].

⁹¹ R v Chin CA43/04, 10 June 2004 at [40].

⁹² Singh v Police [2016] NZHC 1739 at [34].

Therefore, the approach to determining the availability of this discount is plagued with inconsistency. It is important to note that this conclusion was reached from an assessment of the sentencing notes in cases where the discount is explicitly discussed. Within the review there were examples of cases that did not mention the youth discount at all. Section 31 of the Sentencing Act 2002 sets out a general requirement for a sentencing judge to give reasons for the imposition of a sentence or for other means of dealing with an offender. This requirement helps to ensure openness in the administration of justice, it allows an appellate court to determine the lawfulness and appropriateness of the sentence more easily, and it restricts the ability of a judge to impose an arbitrary or inconsistent sentence.⁹³ However, s 31(4) clarifies that a failure of a court to mention a mitigating factor is not in itself grounds for an appeal.

An appellate court will only intervene in sentencing where the sentence imposed was manifestly excessive or involved a material error.⁹⁴ Importantly, it is the end sentence reached which is relevant rather than the process by which it was determined.⁹⁵ This standard represents a degree of deference to the advantages enjoyed by a trial judge, for example the full presentation of evidence.⁹⁶ Where a sentencing judge has not referred to an offender’s age, a successful appeal may occur where the appellate court finds that a youth discount is available. The provision of an additional discount is likely to represent more than “mere tinkering” with the end sentence.⁹⁷ This will enable a finding that the initial sentence was manifestly excessive.⁹⁸

This process does allow for the eventual correction of a sentence that unjustifiably excluded a discount for youth, however, it must be viewed with some scepticism because the correction of a sentence relies on the offender pursuing an appeal. It was more common to see the availability of the discount overlooked in the GBH cases. I am concerned by that finding because the GBH cases had a much higher portion of first instance decisions than the burglary cases (which were predominately appeals). Therefore, it is likely that there are a significant number of sentencing decisions handed down annually that erroneously do not consider the availability of the youth discount.

2. Inconsistency in the extent of the discount provided

Where a sentencing judge does decide that the youth discount is available, the extent and the form of that discount is also inconsistently determined.

⁹³ Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA) at [76]- [82].

⁹⁴ Tutakangahau v R [2014] NZCA 279 [31]-[35].

⁹⁵ Ripia v R [2011] NZCA 101 at [15].

⁹⁶ Kumar v R [2015] NZCA 460 at [81]; and R v Brooks [1950] NZGazLawRp 95; [1950] NZLR 658 (CA).

⁹⁷ Maihi v R [2013] NZCA 69 at [21].

⁹⁸ Judges tend to define tinkering by reference to the proportionate reduction, compared to the time involved. Therefore, it is more common for small variations to be made to the length of a short sentence than to longer sentences. Deslaurier v Police [2022] NZHC 1078.

(a) The form of the discount

The significance of the form of the discount is that it affects the ability of counsel and judges to then compare the credit provided to comparative offenders. Where the youth discount is granted discretely a judge will provide the specific percentage or number of months that are to be deducted to reflect credit for youth. A combined discount will provide a cumulative percentage or time reduction to reflect credit for a combination of mitigating factors. A combined discount can obscure the specific credit that is provided to an offender to reflect their youth. If comparison cannot occur between similar cases, the ability of a court to apply the discount consistently is undermined.

Within the cases reviewed, there did not appear to be a judicial preference towards a certain manner of providing the discount. There was an almost equal number of discrete discounts provided to combined discounts. There was also a trend for the largest discrete discounts to be provided to the younger offenders (specifically those younger than 20 years). The table below sets out the discrete discounts granted.

Cases providing a discrete discount

⁹⁹ Although the judgment elludes to the fact that the offender is in their early twenties.

Here we can see that the start point of the offence does not have a consistent effect on the size of the youth discount provided. This supports the earlier assertation that factors beyond the gravity of the offence play a significant role in the determination of the discount’s availability. There are clear examples of serious offending, represented by high start points, being granted a substantial youth discount. For example, the largest discrete discount (33 per cent) was provided to an offender who received a high start point of six years six months imprisonment

– Douglas-Tera was 20 years old.

In a combined discount, the youth discount is provided alongside a range of factors including remorse, rehabilitative prospects, mental impairment, and cultural deprivation. Twenty-two cases provided a combined discount. Seven of those cases contained a global discount to reflect all the personal mitigating factors present. The remaining 13 cases provided a combined discount (that included youth) and additional discounts for other discrete factors.¹⁰¹

Cases providing a combined discount

¹⁰⁰ This appellate decision does not expressly set out the sentence that should have been provided. Instead, the Court determined that an appropriate sentence would have been less than the time already served. That finding resulted in a decision to commute the sentence to time already served. Although the Court noted that an appropriate sentence would have provided a discount for youth.

¹⁰¹ Two cases in this table are difficult to classify given their departure from the Taueki v R [2005] NZCA 174; [2005] 3 NZLR 372 (CA) sentencing methodology.

(b) Effect of prior convictions

Another area of inconsistency in the use of the youth discount was the effect of an offender’s prior convictions. I argue the current practice of referring to this factor in determining the discount’s availability and extent risks double counting this aggravating factor. Additionally, there is also a growing body of psychological research that undermines the validity of applying this uplift to young offenders.

Risk of double counting

Case law has established that the double counting of any aggravating factor should be avoided in sentencing. For example, it would be erroneous for a judge to refer to prior convictions when setting the start point and to then apply an uplift for this factor.¹⁰² An uplift for prior convictions should only be applied after the start point is set.¹⁰³ I argue the current judicial treatment of the youth discount risks double counting this aggravating factor.

Within the case review, it was common for judges to impose an uplift for an offender’s prior convictions, particularly when these included similar offences. There was also a trend for judges to refer to an offender’s prior convictions when determining the availability and extent of the youth discount.

• [36] For a youth aged 19 years at the time of the offending, Mr Elisaia’s prior criminal history makes disturbing reading. Having previously appeared on a number of occasions in the Youth Court, between 2011 and 2013, Mr Elisaia appeared frequently in the District Court. More recently, he has been sentenced to imprisonment on no fewer than 12 occasions, though some sentences were served concurrently ...
• [37] In those circumstances, Mr Elisaia must be regarded as someone from whom society needs protection. The Judge did not err in failing to give a discrete credit for youth.¹⁰⁴

(19 years old) - GBH

¹⁰² Singh v R [2011] NZCA 139 at [15].

¹⁰³ Stuart v R [2021] NZCA 539 at [15].

¹⁰⁴ Elisaia v R [2015] NZCA 516 at [36]- [37].

There was also a trend where some judges did not appear to consider the availability of the youth discount in cases where the offender had a long criminal history – even when the offender was particularly young.

In the present case the appellant at a regrettably young age has become an experienced criminal, showing little concern for the property of others.¹⁰⁵

(19 years) – No youth discount mentioned – Burglary

[12] We are of the view that the Judge was entitled to sentence Mr Herewini on the basis that he is a recidivist. Although only 19 years old at the time of sentencing, this was his fifth appearance before the Court on burglary charges in a period of less than two years. In light of his prior offending and the nature of these offences, a term of imprisonment of four years, reduced to three years because of the guilty plea, is not considered by us to be manifestly excessive.¹⁰⁶

(19 years) – No youth discount mentioned – Burglary

These approaches involve the risk of double counting because prior convictions can be used to apply an uplift to the start point and then they are also used to refuse or minimise the youth discount. There was no mention in the sentencing notes of this risk. The current absence of a requirement for sentencing judges to consider the relationship between youth and aggravating factors enables this practice to exist unchecked – and unchallenged on appeal.

Undermining the rationale for imposing an uplift for prior convictions on a young offender

Additionally, there is also a growing body of psychological research that challenges whether it is even appropriate for this uplift to be applied with young offenders. The rationale that underpins this uplift is not consistent with the research surrounding this age group.

The justification for applying this uplift relies on three established reasons. Prior convictions are thought to:¹⁰⁷

• - serve as an indication of character and therefore, culpability;
• - support a need for a greater deterrent response; and
• - provide an indication of an offender’s risk of recidivism.

The issue here is the weight of psychological evidence supports that young adults will experience a natural desistence in offending as they reach full maturity.

¹⁰⁵ Te Hau v Police HC Auckland AP55/01, 26 February 2002 at [6].

¹⁰⁶ R v Herewini CA422/01, 2 May 2002 at [12].

¹⁰⁷ Reedy v Police [2015] NZHC 1069 at [19].

The age-crime curve refers to the bell-shaped relationship between offending and age that is found in all western countries.¹⁰⁸ The prevalence of offending increases from late childhood, peaks in adolescence and early adulthood, before declining after the early twenties.¹⁰⁹

Youth offending (between the ages of 18 to 25 years) is best understood from a developmental perspective.¹¹⁰ This is an age group that has not yet reached full maturity – both psychologically and socially. Maturation has been linked with impulse regulation, reliance on internal standards in making decisions, and the ability to evaluate the costs/benefits of actions.¹¹¹ The under- development of these skills is implicated in criminal behaviour. These findings support that a young person’s offending may not be as culpable as an older adult because of their impaired psychological functioning.

We also know that offending will naturally decline after a certain age. This can be explained by reference to an offender’s developing maturity and the effect of protective factors – such as employment and marriage.¹¹² As a person ages, they usually develop the skills necessary to regulate their own behaviour and they become less motivated to offend because of their stabilised lifestyle. A small portion of young people will continue to offend into adulthood – this reflects the life-course pattern of delinquency. However, in early adulthood, recidivism rates for both patterns of delinquency can be reduced through the provision of wraparound support systems and individualised treatment.¹¹³

The judicial approach of imposing an uplift for prior convictions with young adults does not reflect an understanding of that research. One of the justifications for uplifting the start point is the belief that prior convictions reveal a general contempt for the law which escalates culpability.¹¹⁴ This does not fit well with the research findings. A young person’s prior offending is most accurately described as a reflection of their impaired maturity. Therefore, unlike an adult offender, their prior convictions should not be taken as indicating a flawed character. The research also supports that young people will naturally experience a desistence in offending once they reach a certain age, or level of maturity.¹¹⁵ That finding undermines the

¹⁰⁸ Machteld Hoeve, Peter H. van der Lann and Rolf Loeber (eds) Persisters and Desisters in Crime from Adolescence into Adulthood (1^st ed, Routledge, London, 2012).

¹⁰⁹ David Farrington, Rolf Loeber and James Howell “Young Adult Offenders: the need for more effective legislative options and justice processing” (2012) 11(4) Criminology and Public Policy 729 at 741.

¹¹⁰ Laurence Steinberg and Elizabeth S Scott “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty” (2003) 58 Am Psychol 1009 at 1011. ¹¹¹ Anne-Marie Iselin, Jamie DeCoster and Randall Salekin “Maturity in Adolescent and Young Adult Offenders: The Role of Cognitive Control” (2009) Law Hum Behav 33 455 at 455.

¹¹² David Farrington, Rolf Loeber and James Howell “Young Adult Offenders: the need for more effective

legislative options and justice processing” (2012) 11 Criminology and Public Policy 729 at 730.

¹¹³ Thomas Gullotta, Robert Plant and Melanie Evans (eds) Handbook of Adolescent Behavioural Problems (2^nd ed, Springer, London, 2015) at 455.

¹¹⁴ R v Power [1973] 2 NZLR 617 (CA), at 618; Veen v R [No. 2] (1988) 164 CLR 4-65 at 478.

¹¹⁵ David Farrington, Rolf Loeber and James Howell “Young Adult Offenders: the need for more effective legislative options and justice processing” (2012) 11 Criminology and Public Policy 729 at 741.

second rationale of this uplift – that prior offending suggests a need for a greater deterrent response. Prior convictions in this age group are not yet predictive of a future of criminal offending, because that natural desistence will occur for most of this group. That undermines the final rationale that prior convictions indicate a risk of recidivism. The research suggests that the incarceration of a young person has the effect of delaying the onset of the protective factors that are associated with a desistence from offending.¹¹⁶ Interestingly, the sentencing notes revealed a judicial recognition of the relationship between imprisonment and recidivism for young people:

... Furthermore, a sentence of imprisonment would likely be particularly difficult for the appellant, given his young age and challenges with adapting to that environment, an issue that is again augmented by his intellectual disability. The appellant’s prospects for rehabilitation are also positive.¹¹⁷

(18 years) – GBH

On the other side, a lengthy prison sentence will inevitably increase your exposure to, while still young and immature, gang influence. It borders on naïve to think that sending you into a world where brutality is idolised will do anything positive for your rehabilitation. On the contrary, gang recruitment of young Māori men in prisons is a matter upon which I can take judicial notice...¹¹⁸

(18 years) – GBH

Unfortunately, it does not appear that this recognition has resulted in the development of a more nuanced approach to the treatment of prior convictions in sentencing young adults.

(c) Relationship with other mitigating factors

There is also an issue surrounding the judicial understanding of the relationship between youth and other mitigating factors. The case review revealed that the youth discount is commonly provided in combination with other mitigating factors.

[39] I recognise that you are a young man and I recognise you have got rehabilitative prospects and I also recognise that you are remorseful for your offending... I give you a 15 percent discount for that.¹¹⁹

(20 years) – GBH

¹¹⁶ Ian Lambie and Isabel Randell “The impact of incarceration on juvenile offenders” (2013) 33(3) Clinical Psychology Review 448 at 449.

¹¹⁷ Taiapa v R [2020] NZHC 3355 at [71].

¹¹⁸ R v Karekare [2018] NZHC 1364 at [30].

¹¹⁹ R v Forster [2017] NZDC 3787 at [39].

However, in some cases there is a lack of a judicial engagement with the relationship that might exist between a person’s age and other mitigating factors, such as their ability to demonstrate remorse or rehabilitative prospects.

[11] ... You are resigned to a life in prison, believing yourself to be ‘too old to change’. You are 23...

[17] You represent, in Ms Quince’s words, “the worst kind of offender in many ways”: you have an established pattern of violent offending, and there is little evidence suggesting you have any insight into, or active remorse over, your actions. That is what has been modelled to you by much of your family and your community, and you have yet seen no reason to act otherwise. Ultimately, Ms Quince says a finite and proportionate sentence, served in a facility providing for rehabilitation, will enable you to make the changes you need. But you must want to make those changes.¹²⁰

(23 years old) – GBH

Here the sentencing judge has overlooked the relationship that exists between a person’s maturity and their ability to demonstrate remorse. That oversight has resulted in the provision of a harsher sentence than might have otherwise been given if this relationship had been fully appreciated.

In Woodmass v Police, the High Court acknowledged that the sentencing Judge had failed to correctly assess the nature of the appellant’s offending:¹²¹

I do not consider the Judge was correct to decline a discount for Mr Woodmass' youth. The Judge considered the primary driver of the offending was not impulsive offending or immature decision making but Mr Woodmass' underlying personality disorder, substance abuse and gang involvement.

(18 years) – Burglary

Here the appellate Court has determined that the offender’s age was interconnected with his mental impairments (including substance use) and gang involvement. In many ways, these factors are indicative of youth because a person’s age is inherently connected with their impulse control and decision-making ability. Refusing to grant the discount because these factors were involved in the offending misunderstands that causal relationship.

A better judicial approach to sentencing a young person would involve the careful consideration of how a person’s young age might affect the presence of certain aggravating

¹²⁰ R v Sanders [2019] NZHC 164 at [11] and [17].

¹²¹ Woodmass v Police [2019] NZHC 2503 at [39].

and mitigating factors. This type of approach would better align with the psychological evidence surrounding the relationship between youth and the other factors listed in s 9.

Therefore, the current judicial approach to the youth discount is both inconsistent and divorced from the psychological evidence-base. I will now present my argument that this inconsistency is the result of a judicial misinterpretation of the Churchward decision.¹²²

D Why is There Inconsistency in the Judicial Approach to the Youth Discount?

The availability of a discount to recognise the relevance of an offender’s age is codified by s 9(2)(a) of the Sentencing Act 2002. At the time of its introduction, this provision did not reflect a departure from the existing judicial practice of providing a discount on account of a young person’s age.¹²³ Consequently, the legislation did not provide further guidance on the application of this discount. Instead, the courts have been left to develop an area of jurisprudence surrounding the relevance of an offender’s age in the sentencing process. Unfortunately, this jurisprudence has not resulted in a consistent approach to the application of discount.

As demonstrated by the case excerpts included in this chapter, there were a range of ways that judges chose to rationalise their use, or rejection, of a youth discount. There was a noticeable trend for sentencing judges to justify their treatment of the discount by reference to the Churchward decision. These judges appear to have interpreted Churchward as having provided ‘criteria’ from which the availability and extent of the discount can be assessed. That interpretation centres around the following paragraph. ¹²⁴

Youth has been held to be relevant to sentencing in the following ways:

(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c) Young people have a greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

¹²² Churchward v R [2011] NZCA 531.

¹²³ Geoff Hall “The Sentencing Act 2002 – new bottle, same wine?” (2002) 583 LawTalk 20 at 21.

¹²⁴ Churchward v R [2011] NZCA 531 at [77].

Some judges were more likely to award the discount where they considered that one, or all, of these ‘criteria’ were implicated in the offending. To illustrate this trend, I have included quotes below from a pair of unrelated cases decided by Toogood J on the same day. Toogood J rationalised that only the offending of the eighteen-year-old could be described as impulsive and therefore requiring recognition for youth.

I am satisfied that, while the factors relied upon justified a two years nine months’ starting point on the basis of the offending, some discount ought to have been made on account of the appellant’s youth. The brazen nature of the offending, which carried not only a high risk of injury to the participants and bystanders but also a high risk of apprehension, is referable, to a degree which ought to have been recognised, to the impulsive behaviour and risk-taking of adolescents.¹²⁵

(18 years) – Burglary

... This was not impulsive offending of the kind which I considered should be given some acknowledgement in another appeal I heard on the same day [Rarere], and on which the judgment is released contemporaneously with this.¹²⁶

(21 years) – Burglary

It is my position that Churchward has significantly shaped the way that some judges treat the youth discount. Certain judges appear to have interpreted Churchward as having set out the circumstances where a youth discount should be provided or maximised. This is often reflected by a judicial focus on assessing the “impulsivity” of the offending – representing the first point made in the Churchward paragraph. ¹²⁷ This is clearly visible in the sentencing notes of the following cases:

The next issue is your relative youth. You are not under 20 but you are 23 years of age and I have to have regard to what the Court said in Churchwood [sic] ... young men often do not have the mental maturity to be able to think through the consequences of your actions and that is very much the situation that you are in. Therefore, I will give you limited credit for your youth.¹²⁸

(23 years) – GBH

In the present case, Ms Matangi’s offending was certainly serious and the sentencing principles of denunciation and deterrence are engaged. Nevertheless, I also consider it a case where the factors stated in Churchward are relevant.¹²⁹

(20 years) – Burglary

¹²⁵ Rarere v Police [2012] NZHC 779 at [39].

¹²⁶ Skipper v Police [2012] NZHC 783 at [47].

¹²⁷ Churchward v R [2011] NZCA 531 at [77]: “(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.”

¹²⁸ R v Roake [2017] NZDC 18312 at [70].

¹²⁹ Matangi v Police [2018] NZHC 1479 at [62].

Mr Wiseman was 20 years old. Given the correlation between the recognised factors of risk- taking and impulsive decision-making and Mr Wiseman's actions, I consider a youth discount of 20 per cent is appropriate.¹³⁰

(20 years) – GBH

... Although a youth discount may be available for offenders even older than Mr Tinomana in some cases, there is little evidence that Mr Tinomana's offending was as a result of a developing maturity or due to his relatively young age.¹³¹

(22 years) – Burglary

I accept Mr Taumihau's submission that the discount is too low. The present convictions have all of the hallmarks of youthful, impulsive, stupid, substance-fuelled offending, committed by a young person without structure in his life.¹³²

(22 years) – Burglary

Even if youth was not the primary driver, I consider that is not a sufficient reason to deny a discount. While concerning, Mr Woodmass' offending has the attributes of youthful offending: impulsive or spur of the moment offending (to evade Police) and opportunistic, relatively petty crime.¹³³

(18 years) – Burglary

Here we can see clear examples of sentencing judges refusing to grant or limiting the provision of the youth discount because they considered that the offending was not impulsive.¹³⁴ Therefore, judges who have interpreted Churchward in this way will often restrict the provision of the discount to offending that appears ‘youthful,’ that is actions that can be considered impulsive. I am concerned by this misinterpretation for two reasons: (1) it creates another risk of double counting certain aggravating factors; and (2) it unjustifiably limits the availability of the discount to offending that appears ‘youthful’.

Risk of double counting

Where a judge refuses to grant the discount because they consider that the offending was not ‘impulsive,’ it is possible that the offender’s start point has already been elevated by a finding that the offence was premeditated or planned. These factors are relevant to a judge’s assessment of the offence seriousness.¹³⁵ In these situations, the lack of ‘impulsivity’ in the offending has been counted against an offender twice – to increase the start point and to justify the refusal of the youth discount.

¹³⁰ Wiseman v R [2018] NZHC 1684 at [58].

¹³¹ Tinomana v Police [2017] NZHC 794 at [42].

¹³² Nelson v Police [2019] NZHC 2434 at [39].

¹³³ Woodmass v Police [2019] NZHC 2503 at [39].

¹³⁴ See Tinomana v Police [2017] NZHC 794 at [42] and Skipper v Police [2012] NZHC 783 at [47].

¹³⁵ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170; (2000) 17 CRNZ 272 (CA) at [36].

Limiting the discount to ‘youthful’ offending

The case law that establishes the current sentencing methodology clearly provides that the start point must be determined without reference to the factors personal to the defendant.¹³⁶ The age of an offender is not relevant to the setting of the start point because this is a factor personal to the defendant.¹³⁷ It is not a feature of the offending itself. This means that the objective seriousness of an offence (the focus of setting a start point) is not tempered by an offender’s age.¹³⁸

The judicial trend of restricting the provision of the youth discount to offending that appears impulsive begins to blur that distinction. Considering whether the offending appears ‘youthful’ starts to look like an evaluation of the nature of the offending. This approach does not align well with the legislation or traditional sentencing methodology.¹³⁹ It is also out of step with the current base of psychological evidence. A young adult is less culpable than an older person because their age is causally implicated in their offending – due to the associated delays in neurological development and the absence of protective factors. Therefore, it is the age of the offender that should mitigate their offending, not the nature of their conduct, that is whether it appears “youthful.”

In summary, the misinterpretation of Churchward by some judges is problematic because it has shaped their treatment of the youth discount in a way that does not align with sentencing methodology, legislation, or psychological evidence. Treating Churchward as having provided ‘criteria’ for the discount limits its application to circumstances where the offending appears ‘youthful’. This is not just theoretically problematic because it is also having an identifiable effect on young offenders. Some will serve longer sentences or will be imprisoned in circumstances where comparative offenders, who come in front of a different judge, would not be. This is concerning when you consider the negative impact that imprisonment has on young people. Therefore, the current use of the youth discount is in urgent need of reform.

¹³⁶ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA).

¹³⁷ Overton v R [2011] NZCA 464 at [44]; and R v E [2007] NZCA 133 at [19].

¹³⁸ Pouwhare v R [2010] NZCA 268 at [91].

¹³⁹ Under the R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 methodology, the age of an offender is considered during stage two of sentencing – after the start point has been set. See Geoff Hall (ed) Hall’s Sentencing (NZ) – Sentencing Factors (online looseleaf ed, Lexis Red) at [I.4.2] for more guidance.

IV Recommendations

The previous chapter established that the current judicial use of the youth discount is inconsistent. This inconsistency is present in both the decision to award the discount and the extent of its provision. I argued that this inconsistency is the result of some judges having misinterpreted the Churchward decision.¹⁴⁰ This misinterpretation has created a tendency for some judges to determine the discount’s availability and extent from an assessment of whether the offending appeared ‘youthful’. This approach does not reflect the rationale that underpins the youth discount or the growing body of psychological evidence that relates to this age group. A discount for youth should recognise the causal relationship between a person’s age and their offending. Offending does not need to appear ‘youthful’ for the age of the offender to mitigate their culpability. Therefore, reform in this area should be based on that psychological evidence and focused on creating a consistent application of the youth discount.

In this chapter, I will propose my recommendation for the reform of the youth discount. I will present the case for the introduction of a guideline judgment to inform the use of judicial discretion in relation to this discount. In doing so, I will consider the alternative reform options suggested in the literature, before evaluating the guideline judgments used in Scotland and England. My recommendation will include suggestions about the content to be included in a guideline judgment as well as an acknowledgement of the potential limitations of this approach.

A Potential Reform Options

Generally, the literature discusses three different options for the reform of sentencing young adults.

The first requires extending the youth justice jurisdiction to include this age group. Under this reform, young adults would be sentenced according to the youth justice regime.¹⁴¹ The second option would be to create an entirely distinct young adult jurisdiction.¹⁴² This would involve the introduction of new legislation and court processes to reflect the needs of this age group. The third option recommends the reform of the youth discount under the current sentencing regime.¹⁴³

Although others have claimed that the first two proposals would significantly improve the state of young adult justice in New Zealand, I argue that sentencing reform represents the most

¹⁴⁰ Churchward v R [2011] NZCA 531.

¹⁴¹ David Farrington, Rolf Loeber and James Howell “Young Adult Offenders: the need for more effective legislative options and justice processing” (2012) 11(4) Criminology and Public Policy 729 at 737.

¹⁴² Andrea Paroşanu “Young adults and the criminal justice system” [2020] NZLJ 296.

¹⁴³ Stephen Woodwark & Nessa Lynch “Decidedly but differently accountable? – Young adults in the criminal justice system” [2021] NZLR 109 at [126].

realistic solution for this age group. The introduction of a distinct young adult jurisdiction or the extension of the youth jurisdiction would require significant legislative change. That type of reform is resource intensive and would take a long period to implement. The pursuit of those options risks allowing the current inconsistency in sentencing to continue disadvantaging young adults. The introduction of a guideline judgment is a comparatively straightforward option for reform. It would not require legislative change and would go a long way to reduce the inconsistency in this area.

B Scottish and English Approaches

The Scottish Sentencing Council introduced a guideline for the sentencing of young people earlier this year.¹⁴⁴ The guideline applies to offenders who are under the age of 25 at the time they are found, or plead, guilty.¹⁴⁵ This guidance explains that the youth of the offender should be taken into account in assessing the culpability of the offender.¹⁴⁶ The guideline sets out that this assessment should consider the maturity of the offender, including their intellectual and emotional maturity. In assessing maturity, a court should not have sole regard to the offender's age. In selecting the appropriate type of sentence to impose, a court must again have regard for the offender's maturity and the aim of rehabilitating young people.¹⁴⁷ The guideline also makes it clear that a custodial sentence should only be imposed on a young person where no other sentence is appropriate.¹⁴⁸

In England, the age of an offender is discussed in the Sentencing Council’s guideline on general principles in sentencing.¹⁴⁹ A reduction in sentence is justified where an offender’s age or maturity has affected their culpability or their ability to serve a particular sentence. The guideline notes that an offender's chronological age is no more significant than their emotional and developmental age. The guidance then goes on to summarise the research findings that relate to the culpability and rehabilitative prospects of offenders aged between 18 and 25 years.

Each of these guidelines seeks to explain the relevance of an offender’s age in sentencing. However, neither guideline sets out a detailed process by which a judge should approach the sentencing of a young adult. In my opinion, to address the extent of the inconsistency identified in the case review, a more structured guideline judgment would be required in New Zealand.

¹⁴⁴ Scottish Sentencing Council “Sentencing young people: Sentencing guideline” (26 January 2022).

¹⁴⁵ At 2.

¹⁴⁶ At 3.

147 _{At 5}

¹⁴⁸ At 7.

¹⁴⁹ Sentencing Council (UK) “General guideline: overarching principles” (1 October 2019).

C Recommended Guideline Judgment for New Zealand 1 Structure of the youth discount

I will now set out my recommendations regarding the general content of a guideline judgment

for the youth discount.

This judgment should establish a direction that a discount must be given for youth with offenders aged between 18 and 25 years old. The extent of the discount available will then be determined by reference to the offender’s chronological age and maturity. This will be a general guideline that applies to most types of offending. However, in relation to certain types of offending, the available evidence-base might support a departure from the use of this guideline.¹⁵⁰

This direction will operate to ensure that sentencing judges will take the offender's age into account in the sentencing process. This addresses the current inconsistency in the determination of the discount’s availability. This approach would also be consistent with the wording of s 9(2)(a).¹⁵¹ This provision requires a sentencing judge to consider an offender’s age to the “extent that [it is] applicable in the case.” The psychological research conclusively supports that this age group all labour under some form of psychological or social impairment because of their age. That delayed maturity goes directly to the culpability of the offender. Therefore, it is appropriate for a guideline judgment to impose such a direction because the age of the offender will always be applicable in the circumstances of a young adult’s offending.

To guide the extent of a discount that is available, the guideline judgment should establish two general ranges.

Range one would be presumptively available for offenders aged 18–20 years old. The weight of the psychological research supports that this age group represents the category of offenders most likely to show clear signs of immaturity. It also reflects the current judicial preference to provide larger discounts to younger offenders. For offenders who fall within this range, a discount between 15 and 25 per cent should be provided.

Range two would be presumptively available for offenders aged between 21–25 years old. This age group are still likely to show some signs of continued immaturity, although their executive

¹⁵⁰ I will discuss this limitation further towards the end of this chapter.

¹⁵¹ Sentencing Act 2002.

functioning may be more developed than their younger counterparts.¹⁵² Offenders within this range should be provided with a discount between five and 15 per cent.

The available evidence may support treating an older offender (older than 20 years) as falling under range one, displacing the presumptive discount available for that age in range two. Some offenders may show signs of delayed psychological development despite their older age. In these cases, a judge would be able to classify the offender as falling within range one.¹⁵³

The determination of the exact size of a youth discount would fall to be determined by a sentencing judge's discretion. The guideline judgment should establish that the extent of the discount provided should be determined by an assessment of the offender's maturity. This judicial assessment would be aided by the materials generally available at sentencing, such as pre-sentence reports. Section 27 of the Sentencing Act 2002 may also play a key role in this assessment. This provision allows an offender to request that the court hears evidence on matters relating to their background. Under s 27, defence counsel may request that the offender be seen by a relevant professional so that a clinical assessment of their developmental maturity may be obtained. That type of evidence may assist the Judge in determining the extent of a discount to provide. It may also operate to displace the presumptive range of the discount available to the offender. For example, a clinical assessment of an older offender might support the provision of a larger discount than the presumptive five to 15 per cent available under range two.

The proposed guideline judgment should also direct sentencing judges to provide the youth discount as a discrete discount. It should not be provided in combination with any other mitigating factors. The current judicial practice of providing the youth discount in combination with other factors operates to obscure the exact credit for youth being provided. That undermines the ability of sentencing judges to provide comparative discounts in similar cases. Additionally, it is my position that the practice of combining the discount is symptomatic of the misinterpretation of Churchward. If the discount existed to mitigate offending because the behaviour was ‘youthful’ then there is understandably overlap with other mitigating factors because the discount does not focus on a distinct personal feature of the offender. However, I have argued that offenders should receive the discount because they are young. A person’s age is directly relevant to their culpability. That rationale creates a youth discount that is distinguishable from other mitigating factors. Therefore, the youth discount recognises a discrete mitigating factor, which should be acknowledged in a discrete discount.

¹⁵² Higher executive functioning results in improved planning, verbal memory, and impulse control. The research suggests that the brain development associated with these skills is typically completed by 25 years. David Farrington, Rolf Loeber and James Howell “Young Adult Offenders: the need for more effective legislative options and justice processing” (2012) 11(4) Criminology and Public Policy 729 at 736.

¹⁵³ I note that intellectual disability is also considered a mitigating factor in its own right, under the Sentencing Act 2002, per s 9(2)(e).

The direction contained within this proposed guideline judgment would operate to reduce the existence of unjustified inconsistency in the judicial approach to this discount. Importantly, this approach avoids imposing undue restrictions on the exercise of judicial discretion in the sentencing process. It is my position that this approach is entirely consistent with the jurisprudence surrounding the role of guideline judgments in sentencing. New Zealand courts continue to emphasise that sentencing is an evaluative exercise and guideline judgments should not be applied in a mechanistic way.¹⁵⁴ However, the principle of consistency must also be weighed against those considerations.

In creating this proposed guideline judgment, I have remained mindful of the need to retain flexibility in the sentencing process.¹⁵⁵ That is because flexibility allows a sentencing judge to take all the relevant circumstances into account. I have deliberately avoided recommending a highly prescriptive guideline judgment such as that developed by the Court of Appeal in Hessell for guilty pleas.¹⁵⁶ Had I followed that approach, I might have used chronological age as the single factor in determining the size of the discount. Instead, my recommendation is more in line with the holistic approach favoured by the Supreme Court in their replacement of the guideline judgment for the guilty plea.¹⁵⁷ My recommendations seek to provide a more consistent judicial approach to the discount, while also maintaining the ability of a sentencing judge to evaluate the specific circumstances of the case.

Having set out my recommendations regarding the calculation of a discrete youth discount, I will now turn to discuss the additional points that should be contained within this guideline judgment. These additional recommendations relate to the issues identified within the case review surrounding the interaction between youth and other features of sentencing, such as the type of sentence to impose and the assessment of other aggravating and mitigating factors.

2. Relationship between youth and the type of sentence imposed

(a) Youth weighs in favour of a non-custodial sentence being applied

I recommend that the guideline judgment should also comment on the relevance of youth in determining the type of sentence to impose on an offender. This resembles the approach taken in the Scottish sentencing guideline. That guideline explicitly states that a court should have regard to the fact that some sentences could have a more adverse effect on a young person because of their age and maturity.¹⁵⁸ The Scottish guideline also notes that a custodial sentence

¹⁵⁴ Shramaka v R [2022] NZCA 299 at [44].

¹⁵⁵ Ministry of Justice Sentencing Policy and Guidance: A Discussion Paper (Ministry of Justice, Wellington, 1997) at 142.

¹⁵⁶ R v Hessell [2009] NZCA 450.

¹⁵⁷ Hessell v R [2010] NZSC 135 at [70]- [77].

¹⁵⁸ Scottish Sentencing Council “Sentencing young people: Sentencing guideline” (26 January 2022) at 6.

should only be imposed on a young person when the Court is satisfied that no other sentence is appropriate.¹⁵⁹ Applying that approach in New Zealand, I recommend that our own guideline judgment should explicitly state the relevance of the age and maturity of the offender in determining the appropriate type of sentence to impose. Where the end sentence reached is less than two years imprisonment, the age and maturity of the offender should weigh in favour of a non-custodial sentence being imposed. This approach acknowledges the body of psychological research that supports that prison has a particularly detrimental effect on young people and is unconducive to their rehabilitation.¹⁶⁰

(b) Relationship between youth and s 25 of the Sentencing Act 2002

Section 25 of the Sentencing Act 2002 allows a court to adjourn a criminal proceeding to enable a rehabilitative programme or course of action to be undertaken. This provision does provide some scope for the Court to provide young adults with the opportunity to engage in and access support programmes before their sentencing. This might include rehabilitative programmes as well as educational support. The use of this section would enable a court to steer a young offender towards the types of support that might previously have been lacking from their life. That type of intervention is important because the psychological research supports that a desistence from offending can be causally linked with the introduction of certain protective factors into a young person’s life.¹⁶¹ Programmes that focus on developing employable skills and interpersonal relationships would assist an offender in returning to prosocial life – therefore, reducing their risk of recidivism.

I recommended the guideline judgment notes the availability and relevance of this section in the sentencing of young adults. This reflects the approach taken by the Court of Appeal in establishing a guideline judgment for methamphetamine-related offending. The Court explicitly noted that s 25 should be used where independent evidence supports that the offending was partially caused by a factor which a proposed rehabilitative programme is designed to treat.¹⁶² In a similar way, sentencing judges should be encouraged to make use of rehabilitative programmes before sentencing young people. Where the offender engages well with any programme offered, the sentencing Judge might take that evidence into consideration in setting the discount for youth. It may also be a factor that is relevant in determining the type of sentence which is appropriate to impose. For example, a non-custodial sentence that allows the offender to continue engaging with certain programmes may be in the best interests of their rehabilitation.

¹⁵⁹ At 7.

¹⁶⁰ Ian Lambie and Isabel Randell “The impact of incarceration on juvenile offenders” (2013) 33(3) Clinical Psychology Review 448 at 449.

¹⁶¹ Thomas Gullotta, Robert Plant and Melanie Evans (eds) Handbook of Adolescent Behavioural Problems (2^nd ed, Springer, London, 2015) at 451.

¹⁶² Zhang v R [2019] NZCA 507 at [10].

3. Relationship between youth and other aggravating/mitigating factors

To address the concerns identified in the case review, the guideline judgment should set out a general expectation that sentencing judges will consider the relationship between youth and other mitigating and aggravating factors.

(a) Aggravating factors

I argued throughout the second chapter that the current judicial approach to sentencing young adults involves significant risk of double counting certain aggravating factors. This risk was the most pronounced with prior convictions and premeditation.

The guideline judgment should operate to prevent the risk of double counting these factors within a sentence. This is because the guideline judgment will displace the current approach by some judges of determining the discount's availability and extent by reference to 'impulsivity' or prior convictions.

However, it would also be appropriate for the guideline judgment to provide further guidance on the applicability of an uplift for prior convictions in the sentencing of young adults. The guideline should set out the concerns that surround the applicability of this aggravating factor with this age group. In chapter two, I argued that the weight of the psychological evidence challenges the three rationales supporting an uplift for prior convictions. Therefore, in sentencing a young adult, a sentencing judge should explicitly consider whether the rationales for uplifting the start sentence apply in the present case. Where the rationales are not applicable, the sentencing Judge should not impose an uplift for prior convictions.

(b) Mitigating factors

It will also be important for the guideline judgment to encourage sentencing judges to consider the relationship between an offender’s age and maturity, and other mitigating factors. In certain circumstances there might be a need for a nuanced judicial approach to be developed to correctly determine the applicability of a mitigating factor that is influenced by a person’s age or maturity.

I note that there is already an area of case law developing about this issue. In Rolleston, the Court of Appeal recognised that a lack of remorse might be indicative of a person’s youth.¹⁶³ The Court noted that the appellants’ attitude and lack of understanding of the impact of their offending was indicative of a lack of remorse, but it was also “equally indicative of their

¹⁶³ Rolleston v R (No 2) [2018] NZCA 611.

immaturity.”¹⁶⁴ Here we see a Court prepared to acknowledge that youth can affect an offenders ability to demonstrate the type of behaviour associated with remorse. This case law provides scope for a sentencing court to accept an argument that a lack of remorse does not necessarily weigh against an offender’s capacity for rehabilitation.

The proposed guideline judgment should encourage the continued development of more nuanced approaches to assessing the availability of other mitigating factors in cases involving a young adult. Where a relationship can be shown between the offender’s age and maturity, and another mitigating factor, a court should have the scope to consider the applicability of that mitigating factor to the current case. This might require a departure from established case law relating to that mitigating factor. Such a departure would be justified on the basis that young adults represent a distinct group of offenders who require specialised treatment in sentencing.

This feature of the guideline judgment is another example of the retention of judicial discretion in the sentencing process. This direction would encourage a sentencing judge to holistically consider the nature of the offending and the characteristics of the offender. The consequence would be the provision of an end sentence that achieves consistency in sentencing without compromising the provision of justice in a particular case.

D Limitations of the Guideline Judgment

It will be important for the guideline judgment to acknowledge that it is a general guideline. There may be some types of offences where it is not appropriate for judges to apply this guideline. This would allow the opportunity for jurisprudence to develop regarding the types of offending that should be excluded. The justification for the exclusion would be that the specific type of offending does not fit well with the research and assumptions that underlie this guideline.

The rationale that underpins the youth discount is that a young person is less culpable than an adult. That is because there is a causal relationship between a person’s age and maturity, and criminal behaviour.¹⁶⁵ However, this research finding does not necessarily apply to all types of offending.

For example, recidivist sexual offending that is escalating in severity is not well explained by reference to a person’s age or immaturity. Instead, the research supports that sexual recidivism is associated with at least two broad factors: deviant sexual interests, and antisocial

¹⁶⁴ Rolleston v R (No 2) [2018] NZCA 611 at [36].

¹⁶⁵ Anne-Marie Iselin, Jamie DeCoster and Randall Salekin “Maturity in Adolescent and Young Adult Offenders: The Role of Cognitive Control” (2009) 33 Law Hum Behav 455 at 455.

orientation/lifestyle instability.¹⁶⁶ Specialised intervention is required to reduce the risk of recidivism for this type of offending.¹⁶⁷ Therefore, it would be appropriate for recidivist sexual offending to be excluded from the application of this general guideline.

¹⁶⁶ Caton Roberts, Dennis Doren and David Thornton “Dimensions associated with assessments of sex offender recidivism risk” (2002) 29(5) Crim Just & Behav 569 at 570.

¹⁶⁷ Stina Lindegren “A Pilot Study of the Swedish Sexual Offender Treatment Program” (2022) 32(3) Research on Social Work Practice 328 at 328.

V Conclusion

The sentencing of young adults aged between 18 and 25 years in New Zealand is ripe for reconsideration. This is a vulnerable age group that has a significant interaction with the criminal justice system.¹⁶⁸ I have argued that a reform of the youth discount offers a plausible solution to the current state of young adult offending and recidivism.

In the first chapter, I set out the relevant background to the youth discount. I explained that the current sentencing regime does not provide detailed legislative guidance about the sentencing of young adults.¹⁶⁹ For that reason, the judicial treatment of this discount plays a significant role in the administration of justice for this age group. Considering that background it is critically important that we understand how judges currently use the youth discount. This provided the justification for conducting a case review of the sentencing decisions for young adults.

In chapter two, I presented the findings of my case review. Having conducted a review of sentencing decisions for both GBH and burglary offending I was able to comment on the judicial treatment of the youth discount more generally. Throughout this chapter I argued that the current judicial use of the youth discount is inconsistent. Sentencing judges took conflicting approaches in determining whether the discount was available, and the extent of any discount that was provided. I argued this inconsistency is the result of some judges having misinterpreted the Churchward decision.¹⁷⁰ There was a significant trend in the sentencing notes for some judges to refer to this decision as having provided ‘criteria’ by which the discount’s availability and extent could be decided. That approach did not align well with the rationale that underpins this discount or the growing body of relevant psychological evidence.

In chapter three, I presented my recommendation for the reform of the youth discount. This recommendation sought to provide guidance for sentencing judges on the utilisation of their discretion in sentencing young adults. However, I was mindful of the need to retain a degree of flexibility in sentencing.¹⁷¹ I argued that the guideline judgment should contain a direction for sentencing judges to provide a discount for youth to offenders aged 18 and 25 years. The extent of the discount should be guided by the establishment of two presumptive ranges. These ranges reflect the current sentencing practice of providing larger discounts to younger offenders. They also acknowledge the weight of psychological research that suggests that younger offenders labour under a more significant developmental delay than their older

¹⁶⁸ Jan-Marie Doogue, Chief District Court Judge and John Walker, Principal Youth Court Judge “Trial of Young Adult List Proposal” (Memorandum, 29 August 2019).

¹⁶⁹ Stephen Woodwark & Nessa Lynch “Decidedly but differently accountable? – Young adults in the criminal justice system” [2021] NZLR 109 at [123].

¹⁷⁰ Churchward v R [2011] NZCA 531.

¹⁷¹ Hessell v R [2010] NZSC 135 at [70]- [77].

counterparts.¹⁷² The exact extent of the discount would fall to be determined by the sentencing judge’s evaluation of the available evidence regarding the offender’s maturity.

This type of reform offers to reduce the inconsistency which is currently present in the judicial use of the youth discount. This recommendation also reflects an evidence-based approach to the sentencing of young adults. In many ways, offending during a person’s emerging adulthood is more reflective of social failings than it is of individual ones.¹⁷³ By the time a young adult offends, so many people have failed them – including parents, teachers, mentors, and support services. So why then, must a young person stand alone in the dock? At the time when a young adult is labouring under developmental delays, many forms of social support become less accessible.¹⁷⁴ The result is a powder keg of immaturity and social instability. Unfortunately, for so many young adults these factors will ignite into a period of criminal offending. As it currently stands, our criminal justice system is poorly equipped to deal with the specific needs of this age group. This research has presented a workable, evidence-based solution to the current inadequacies of the sentencing practices used with young adults. It is my sincere hope that we are currently standing on the cusp of similar significant reforms being introduced in this area.

¹⁷² Anne-Marie Iselin, Jamie DeCoster and Randall Salekin “Maturity in Adolescent and Young Adult Offenders: The Role of Cognitive Control” (2009) 33 Law Hum Behav at 455.

¹⁷³ The Advisory Council on the Penal System Young Adult Offenders (Home Office, London, 1974) at 158.

¹⁷⁴ Peter Gluckman It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand (Office of the Prime Minister’s Chief Science Advisor, 12 June 2018) at 13.

VI Bibliography

A Legislation

Misuse of Drugs Act 1975. Oranga Tamariki Act 1989. Parole Act 2002.

Sentencing Act 2002.

Three Strikes Legislation Repeal Act 2022.

B Cases

Churchward v R [2011] NZCA 531.

Deslaurier v Police [2022] NZHC 1078.

Diaz v R [2021] NZCA 426.

Ekeroma v R [2021] NZCA 250.

Ferris-Bromley v R [2017] NZCA 115.

R v Hessell [2009] NZCA 450.

Hessell v R [2010] NZSC 135.

Kumar v R [2015] NZCA 460.

Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546.

Maihi v R [2013] NZCA 69.

McCreath v R [2014] NZCA 142.

Mehrok v R [2021] NZCA 370.

Mehrok v R [2021] NZSC 155.

Moses v R [2020] NZCA 296.

Overton v R [2011] NZCA 648.

Pou v Police [2021] NZHC 1068.

Pouwhare v R [2010] NZCA 268.

R v Bradley [1979] NZCA 33; [1979] 2 NZLR 262 (CA).

R v Brooks [1950] NZGazLawRp 95; [1950] NZLR 658 (CA).

R v Dodd [2013] NZCA 270.

R v E [2007] NZCA 133.

R v Hessell [2009] NZCA 450.

R v LB [2020] NZHC 94.

R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA).

R v Power [1973] 2 NZLR 617 (CA).

R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

Rapira v R [2003] NZCA 217; [2003] 3 NZLR 794 (CA).

Reedy v Police [2015] NZHC 1069.

Ripia v R [2011] NZCA 101.

Rolleston v R (No 2) [2018] NZCA 611.

Shramaka v R [2022] NZCA 299.

Singh v R [2011] NZCA 139.

Stuart v R [2021] NZCA 539.

Tutakangahau v R [2014] NZCA 279.

Veen v R [No. 2] (1988) 164 CLR 4-65.

Wilson v R [2015] NZHC 298.

Zhang v R [2019] NZCA 507.

C Journals

Craig Barreto, Sarah Miers and Ian Lambie “The Views of the Public on Youth Offenders and the New Zealand Criminal Justice System” (2018) 62(1) Int’l Offend Therapy & Comp Criminology 129.

Brigitte Bouhours and Kathleen Daly “Youth sex offenders in court: an analysis of judicial sentencing remarks” (2007) 9(4) P & S 371.

David Emanuel, Claire Mawer and Laura Janes “The Sentencing of Young Adults: A Distinct Group Requiring a Distinct Approach” [2021] Crim L R 203.

David Farrington, Rolf Loeber and James Howell “Young Adult Offenders: the need for more effective legislative options and justice processing” (2012) 11(4) Criminology and Public Policy 729.

David Fergusson, John Horwood and Daniel Nagin “Offending trajectories in a New Zealand birth cohort” (2000) 38(2) Criminol 525.

Geoff Hall “The Sentencing Act 2002 – new bottle, same wine?” (2002) 583 LawTalk 20. John Ip “Sentencing guidelines post-Sentencing Act” [2005] NZLJ 397.

Anne-Marie Iselin, Jamie DeCoster and Randall Salekin “Maturity in Adolescent and Young Adult Offenders: The Role of Cognitive Control” (2009) 33 Law & Hum Behav 455.

Ian Lambie and Isabel Randell “The impact of incarceration on juvenile offenders” (2013) 33(3) Clinical Psychology Review 448.

Stina Lindegren “A Pilot Study of the Swedish Sexual Offender Treatment Program” (2022) 32(3) Research on Social Work Practice 328.

Nessa Lynch “Playing catch up? Recent reform of New Zealand’s youth justice system” (2012) 12(5) Criminol Crim Justice 507.

Nessa Lynch “Contrasts in Tolerance in a Single Jurisdiction: The Case of New Zealand” (2013) 23(3) Crim Justice Rev 217.

Nessa Lynch “Manifest Injustice? The Judiciary as Moderator of Penal Excess in the Sentencing of Youth for Murder” (2018) 57(1) The Howard Journal 57.

Nessa Lynch “Towards a Principled Legal Response to Children Who Kill” (2018) 13(3) Y J 211.

Andrea Paroşanu “Young adults and the criminal justice system” [2020] NZLJ 296.

Caton Roberts, Dennis Doren and David Thornton “Dimensions associated with assessments of sex offender recidivism risk” (2002) 29(5) Crim Just & Behav 569.

Julia Roberts “Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002” (2003) 36(3) A & NZ J of Criminology 249.

Tania Singh “Guidance on Discount for Youth: Rolleston & Ors v R [2018] NZCA 611” [2019] NZLJ 161.

Laurence Steinberg and Elizabeth Scott “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty” (2003) 58 Am Psychol 1009.

Stephen Woodwark & Nessa Lynch “Decidedly but differently accountable? – Young adults in the criminal justice system” [2021] NZLR 109.

D Texts

The Advisory Council on the Penal System Young Adult Offenders (Home Office, London, 1974).

Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers).

Hans Göppinger Lifestyle and Criminality (1^st ed, Springer-Verlag, Berlin, 1987).

Thomas Gullotta, Robert Plant and Melanie Evans (eds) Handbook of Adolescent Behavioural Problems (2^nd ed, Springer, London, 2015).

Geoff Hall (ed) Hall’s Sentencing (NZ) – Sentencing Factors (online looseleaf ed, Lexis Red).

Machteld Hoeve, Peter H. van der Lann and Rolf Loeber (eds) Persisters and Desisters in Crime from Adolescence into Adulthood (1^st ed, Routledge, London, 2012).

Judy Paulin, Michelle Moss, Adrian Field, Shaun Akroyd and Nan Wehipeihana Porirua District Court Young Adult List Court Initiative (online looseleaf ed, Artemis Research, 2021).

E Government Materials

Rajesh Chhana, Philip Spier, Susan Roberts and Chris Hurd The Sentencing Act 2002: Monitoring the First Year (Ministry of Justice, March 2004).

Peter Gluckman It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand (Office of the Prime Minister’s Chief Science Advisor, 12 June 2018).

Law Commission Sentencing Guidelines and Parole Reform (NZLC R94, 2006).

Ministry of Justice Sentencing Policy and Guidance: A Discussion Paper (Ministry of Justice, Wellington, 1997).

Ministry of Justice Youth Justice Indicators Summary Report (December 2021).

Office of the Minister for Children Transforming our Response to Children and Young People at Risk of Harm: Paper Five – Youth Justice (2 August 2019).

Wilson, A and Nicolson, M Mental Health in Aotearoa: Results from the 2018 Mental Health Monitor and the 2018/19 New Zealand Health Survey (Te Hiringa Hauora / Health Promotion Agency, Wellington, 2020).

(14 August 2001) 594 NZPD.

(28 March 2002) 599 NZPD.

F Speeches and Press Releases

Judge Andrew Becroft, Children’s Commissioner for New Zealand “Being child-centered. Fad or foundation?” (Wellington, Sector Group presentation, 14 March 2018).

Jan-Marie Doogue, Chief District Court Judge and John Walker, Principal Youth Court Judge “Trial of Young Adult List Proposal” (Memorandum, 29 August 2019).

Kris Faafoi “Further reductions in youth offending highlighted in latest Youth Justice Indicators report” (press release, 31 January 2022).

G Internet Materials

Department of Corrections “Hōkai Rangi Ara Poutama Aotearoa Strategy: 2019-2024” (2019)

<www.corrections.govt.nz/ data/assets/pdf_file/0003/38244/Hokai_Rangi_Strategy.pdf>.

Department of Corrections “Prison facts and statistics – March 2020” (31 March 2020)

<www.corrections.govt.nz/resources/statistics/quarterly_prison_statistics/prison_stats_march

_2020>.

Baz Macdonald “NZ had around 19,000 homeless young people. Lockdown leaves them vulnerable to abuse and harm” (21 August 2021) ReNews <www.renews.co.nz/nz-has-around- 19000-homeless-young-people-lockdown-leaves-them-vulnerable-to-abuse-and-harm/>.

Ministry of Justice “Rangatahi Courts & Pasifika Courts” Youth Court of New Zealand

<https://youthcourt.govt.nz/about-youth-court/rangatahi-courts-and-pasifika-courts/>.

Statistics New Zealand “Youth unemployment rate three times national average” (2 December 2021) <www.stats.govt.nz/news/youth-unemployment-rate-three-times-national-average>.

H Other

Scottish Sentencing Council “Sentencing young people: Sentencing guideline” (26 January 2022).

Sentencing Council (UK) “General guideline: overarching principles” (1 October 2019).

7. Schedule A: Case Review A Grievous Bodily Harm Cases Elisaia v R [2015] NZCA 516.

Fane v R [2015] NZCA 561.

Goulton v R [2014] NZCA 488.

Heke v R [2020] NZHC 2602.

Hukehuke v R [2021] NZHC 817.

Ihaia v R [2021] NZHC 1785.

Kapene v Police [2016] NZHC 3036.

Paraha v Police [2017] NZHC 1887.

Potae v R [2016] NZCA 146.

R v Cameron [2016] NZHC 2604.

R v Douglas-Tera [2019] NZDC 853.

R v Forster [2017] NZDC 3787.

R v Henry [2021] NZHC 3379.

R v Himiona [2019] NZDC 16064.

R v Hura [2017] NZDC 3206.

R v Hurrell [2021] NZHC 2870.

R v Ionne [2018] NZDC 6186.

R v Karekare [2018] NZHC 1364.

R v Nuku [2016] NZHC 2554.

R v Patiole [2019] NZHC 76.

R v Peka [2017] NZDC 10782.

R v Petera [2020] NZDC 16911.

R v Ponga [2014] NZHC 677.

R v Ramirez [2018] NZDC 18130.

R v Roake [2017] NZDC 18312.

R v Sanders [2019] NZHC 164.

R v Tai [2021] NZHC 2769.

R v Taylor [2020] NZHC 3174.

R v Walford [2022] NZHC 69.

R v Walker [2016] NZDC 2111.

R v Wotton-Kerr [2016] NZDC 15371.

Solicitor-General v Milne [2020] NZCA 134.

Su’a v R [2017] NZHC 2794.

Taiapa v R [2020] NZHC 3355.

Westall v R [2021] NZHC 3440.

Wiseman v R [2018] NZHC 1684.

B Burglary Cases

Anderson v Police [2017] NZHC 1566.

Barton v Police HC Auckland A55/03, 6 June 2003.

Bracey v Police [2022] NZHC 476.

Campbell v Police [2019] NZHC 1990.

Gardiner v Police [2015] NZHC 1241.

Leach v Police [2016] NZHC 1565.

Matangi v Police [2018] NZHC 1479.

Moses v Police HC Whangarei CRI-2011-488-6, 24 March 2011.

Nelson v Police [2019] NZHC 2434.

Poole v R [2014] NZHC 1226.

Price v Police [2021] NZHC 3265.

Rarere v R [2012] NZHC 779.

R v Chin CA43/04, 10 June 2004.

R v Herewini CA422/01, 2 May 2002.

R v Lasike HC Auckland CRI-4-44-7103, 7 September 2006.

R v McAllister CA17/01, 31 May 2001.

R v Sherlock [2008] NZCA 555.

Shaw v Police HC Christchurch CRI-2008-409-000188, 3 December 2008.

Singh v Police [2016] NZHC 1739.

Skipper v Police [2012] NZHC 783.

Smaill v Police HC Dunedin CRI-2010-412-16, 14 May 2010.

Te Hau v Police HC Auckland AP55/01, 26 February 2002.

Tinomana v Police [2017] NZHC 794.

Tipiwai v Police HC Wanganui CRI-2007-483-14, 17 October 2007.

Tukaharaina v Police [2019] NZHC 2139.

Tutakangahau v R [2014] NZCA 279.

Tuwhangai v Police [2010] NZHC 670.

Wood v Police [2013] NZHC 1098.

Woodmass v Police [2019] NZHC 2503.