Latimer v The Queen

[2013] NZCA 562

IN THE COURT OF APPEAL OF NEW ZEALAND

CA409/2013
[2013] NZCA 562

BETWEEN	TRITAN LATIMER Appellant
AND	THE QUEEN Respondent

Hearing:	25 September 2013
Court:	French, Winkelmann and Panckhurst JJ
Counsel:	G G Barnett for Appellant B D Tantrum for Respondent
Judgment:	14 November 2013 at 12.00 pm

JUDGMENT OF THE COURT

A        The appeal against conviction and sentence is allowed.

B        The conviction is quashed and the sentence of community work set aside.

CThe appellant is discharged without conviction under s 106 of the Sentencing Act 2002 and ordered to pay reparation of $2,500 to the complainant.

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REASONS OF THE COURT

(Given by French J)

Introduction

1. Mr Latimer was found guilty by a District Court jury of one count of burglary.  The presiding Judge, Judge McKegg, sentenced him to 40 hours’ community work and ordered him to pay reparation of $2,500.[1]

   [1]R v Latimer DC Tauranga CRI-2012-070-3468, 24 May 2013.

2. Mr Latimer was aged 16 at the time of the offending but 18 at the time the charge was laid.  He now appeals his conviction and sentence on the grounds that he should have been discharged without conviction under s 106 of the Sentencing Act 2002.

Background

1. Over Waitangi weekend 2010, Mr Latimer and at least one other associate broke into a political party’s electoral office.  They caused $6,000 worth of damage and stole a computer hard drive.

2. Police found fingerprints.  They were able to identify one set as belonging to a Martin Harley, aged 18.  Mr Harley had a criminal record.  He was arrested, pleaded guilty to burglary and was sentenced to a term of imprisonment of seven months.

3. In November 2011, Mr Latimer was charged with possession of cannabis.  His fingerprints were taken and matched to the 2010 burglary.  On 9 July 2012, he was charged summarily with the 2010 burglary.  He denied any wrongdoing and elected trial by jury.  The trial was held in May 2013.

4. Judge McKegg decided to sentence Mr Latimer immediately after the jury returned its guilty verdict.  There was therefore no pre-sentence report.  Counsel Mr Barnett says he asked the Judge to consider all options, including a discharge without conviction.  However, the Judge’s adverse reaction to the suggestion of a discharge meant Mr Barnett did not develop the submission.

5. The sentencing notes are brief.  They read as follows:

   [1]       Tritan Latimer, if anything flows from this trial it is this: that there is no time like the present to be honest.  What you should have done, at the earliest available opportunity, was to have explained your position to your parents, then to the authorities and dealt with this matter when you are a 16 year old.  Now I admit that 16 year olds often do not have that ability to see the future clearly, but perhaps you have learnt that.

   [2]        You, perhaps, even do not even see your role on the matter clearly.  But look, honestly, people who get on roofs and go through windows, in to buildings that they are not allowed to be in, are not in there just for a look around and disappearance.  You were there for trouble and that is what happened.  If you line up with serious offenders then you will commit serious crime.

   [3]       You are convicted by the verdict and you are ordered to undertake 40 hours of community work.  Now that is the sort of community work that would be imposed three years ago when you were a 16 year old.

   [4]       You will also be directed to pay $2500, which is a share of the reparation.  I cannot direct a rate for that because I am not sure that you have any income at the moment, but you will have and there is no reason why you should not.  That is to be paid at a rate to be fixed by the manager for Collections in due course as you get money to pay for it.

6. Mr Latimer completed 16.75 hours community work before lodging his appeal.

The appeal

1. It was common ground that although Mr Latimer was only 16 at the time of the offence, the prosecution was correctly brought in the District Court and not the Youth Court because he was 18 at the time he was charged.[2]

   [2]Children, Young Persons, and Their Families Act 1989, s 2(2).

2. It was also common ground, following Pouwhare v R, that “youth justice principles” did not apply to the sentencing in the District Court.[3]

   [3]Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868. Mr Barnett argued to the contrary in his written submissions but conceded at the hearing that youth justice principles did not apply.

3. Notwithstanding this, Mr Barnett submitted it was unfair that Mr Latimer should now have the stigma of a conviction when he would not have been convicted had he been tried in the Youth Court.

4. In itself that would not be enough to justify a discharge without conviction.  Section 107 of the Sentencing Act stipulates that the court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  However, after careful consideration, we are satisfied that the Judge was wrong not to consider the application and that the s 107 test is met.  Although the burglary was reasonably serious, it did not involve a dwelling house and it was not premeditated or targeted.  Mr Latimer was very young.  He had only just turned 16, was still at school and had no previous convictions.  He was under the influence of an older teenager (aged 18 and a half) who had a criminal record.  Since the burglary, Mr Latimer has tried to better himself by enrolling in tertiary educational programmes and has this year successfully completed a 12 month carpentry course, being one of only 80 out of an original class of 200 to do so.  He now wishes to get work experience and obtain an apprenticeship but is finding that the conviction for burglary is hampering those efforts.

5. In all those circumstances we consider that the consequences of the conviction are out of all proportion to the gravity of the offence and that a discharge should be granted.  Mr Latimer must still, however, pay the reparation of $2,500 and we so order under s 106(3) of the Sentencing Act.

Outcome

1. The appeal is allowed.  The conviction is quashed and the order of community work set aside.  Mr Latimer is discharged without conviction.

Solicitors:
Crown Solicitor, Auckland for Respondent