Summaries 2014

2014
Crown Law Office v TM [2014] NZYC 870
Police v BG [2014] NZYC 540
Police v BP [2014] NZYC 938
Police v CK [2014] NZYC 344
Police v DH [2014] NZYC 276
Police v DT [2014] NZYC 490
Police v KO (No 1) [2014] NZYC 459
Police v KO (No 2) [2014] NZYC 845
Police v JG [2014] NZYC 442
Police v JG [2014] NZYC 985
Police v LP [2014] NZYC 853
Police v KG [2014] NZYC 135
Police v NR [2014] NZYC 438
Police v QP [2014] NZYC 525
Police v SK [2014] NZYC 266
Police v SL YC Manakau CRI-2014-292-000408, 8 May 2014
Police v TL [2014] NZYC 931
R v AR [2014] NZYC 372
R v ED [2014] NZYC 122
R v JO and Others [2014] NZYC 348
R v KM YC Christchurch CRI-2013-209-000286, 13 February 2014
R v RP [2014] NZYC 102
R v T [2014] NZYC 222
R v TW [2014] NZYC 380
SR v Police and MSD [2014] NZYC 484
SR v Police [2014] NZYC 942
Appellate Court Decisions 2014

Crown Law Office v TM [2014] NZYC 870

File number: CRI-2014-219-000162
Date: 20 November 2014
Court: Youth Court, Huntly
Judge: Judge Cocurullo
Key title: Child offenders: Pushback provision - s 280A. 
 
T, aged 13 years, was charged with aggravated robbery. Although T did not deny the offending, his Youth Advocate sought that the Court exercise its discretion to refer proceedings to the Family Court under s 280A of the CYPF Act.

The Judge outlined the two-step process required when determining whether a s 280A order can be made:

  1. There must be sufficient evidence to conclude on the balance of probabilities that T was a child in need of care and protection pursuant to s 14(1)(e) of the CYPF Act. This would require examining the nature, number and magnitude of T’s offences to assess whether such would give serious concern for T’s wellbeing; and 
  2.  If T were found to be a child in need of care and protection, the Court must be satisfied that the public interest would be better served allowing Family Court child offender proceedings to be implemented rather than the continuation and the disposition of the charge before the Youth Court.

The Judge was satisfied that T was a child in need of care and protection. The aggravated robbery was highly serious offending, which T had acknowledged, and highly distressing to the complainant. It had been acknowledged at his Family Group Conference that a s 67 declaration ought to be made.

The Crown did not oppose a s 280A order being made. Therefore, the only issue for the Court was whether the public interest would be best served by continuing T’s proceedings in the Youth Court or ‘pushing back’ to the Family Court. It was considered that: 

  • The Youth Court would be able to deal with T both informally, via a plan, and formally, via specific Youth Court orders; and 
  • The Family Court would inevitably involve another youth justice coordinated Family Group Conference. The Court also had informal judicial monitoring, formal reviews and the ability to make s 83(1)(b) orders which would require T (or his parents) to come before it within a two year period for any other sanctions to be taken if necessary.

It was observed that both jurisdictions would hold T accountable. However there was a strong need to focus on T’s rehabilitation which the Family Court would be able to deal with for a longer timeframe than the Youth Court. The Judge also took into account T’s age and that the Family Court would be better suited to rehabilitating T’s aggression (which was recognised as connected to his offending). Pushing back to the Family Court was also consistent with the principles and objects of the CYPF Act, expressed in ss 4, 5 and 208.

Result:

Proceedings "pushed back" to the Family Court under s 280A.

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Police v BG [2014] NZYC 540

File number: CRI-2014-241-000033
Date: 24 July 2014
Court: Youth Court, Napier
Judge: Judge Callinicos
Key title: Orders - type: Supervision with activity - s 283(m), Orders - type: Alcohol or drug rehabilitation programme - s 283(jc).

These offences (intentional damage of a window at a bicycle shop; and secondly, burglary of the same bike shop) occurred while G was completing a sentence of six months of supervision with activity for a number of other charges.

G had a long involvement in the youth justice system and had already had not engaged with many attempts to steer him away from future offending. G narrowly avoided an order of supervision with residence for the previous offending, due to his history of non-engagement. Only two months into his supervision with activity order, he committed these offences.

G admitted the charges. All agreed no FGC was required. The Judge wanted to make clear to G that there was ample justification for imposing the full six month available supervision with residence order. However, G had previously benefited from a routine and structure for supervision with activity. It was noted that all these positive attributes were then removed by his issues with alcohol and drugs. A report indicated that G was able to mask his drug problems through deceit. He was effectively going about planning for further offending to feed his drug habits but doing it under a guise of being unwell. The Judge noted that unless G took this final opportunity to address his substance abuse issues he would likely be in prison before he was 18 years of age. There was wide support for a rehabilitation plan.

The Judge made several orders:

  • the existing supervision with activity order was cancelled;
  • there was to be a new supervision with activity order for the period of six months;
  • G was to attend an alcohol and drug rehabilitation programme for approximately three months;
  • there was to be reparation to the victim for G’s share of the losses;
  • G was to remain in custody under 228(1)(d), not as a punitive matter but so that the start date at the alcohol and drug programme will be on the Monday at which time the supervision activity order will commence. 

Result:

Existing supervision with activity order cancelled and replaced with another six month of supervision with activity, with a requirement to attend an appropriate drug and alcohol treatment programme.

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Police v BP [2014] NZYC 938

File number: CRI 2014-204-000096
Date: 18 December 2014
Court: Youth Court, Manukau
Judge: Judge Fitzgerald
Key titles: Delay (s 322), Family Group Conferences: Timeframes/limits: Intention to Charge, Criminal Procedure (Mentally Impaired Persons) Act 2011: s 9 issues. 
 
B faced one charge of unlawfully taking a motor vehicle in March 2014, and 18 further charges laid in August 2014. The issue in this case was whether these charges should be dismissed; the first charge due to delay (s 332 of the CYPF Act) and the latter 18 charges because the timeframe for convening the 'intention to charge' Family Group Conferences (ITC FGC) had not been complied with.
Dismissal of charge due to delay

B first appeared in the Whangarei Youth Court in March 2014. B’s fitness to stand trial was raised and Criminal Procedure (Mentally Impaired Persons) Act 2011 (CP(MIP) Act) processes triggered. Proceedings were subsequently transferred to Manukau Youth Court on 31 July 2014

There were a number of adjournments which delayed the s 9 CP(MIP) Act hearing. In particular, the Police had not provided witness statements relied upon for the s 9 hearing so that decisions could be made about cross-examination and duration of the hearing. By November 2014 the s 9 hearing had not yet taken place.

The Judge outlined the two-step process for determining whether the delay was unnecessarily or unduly protracted:

1. The Court must determine whether the timeframe referred to (in this case, from the date of the commission of the alleged offence and the hearing) has been unnecessarily or unduly protracted

  • 'Unnecessarily protracted' means no more than delay that could reasonably have been avoided. It would usually mean delay caused by default or neglect. It must be more than trivial delay.
  • 'Unduly protracted' essentially meant the same as 'undue delay' in the NZ Bill of Rights Act 1990 s 25(b). Cases which dealt with this latter phrase could thus be used to interpret and apply s 322 (e.g. Martin v Tauranga District Court [1995] 2 NZLR 419 (CA)).
  • Also relevant to this inquiry was s 5(f) of the CYPF Act, which states that decisions affecting a young person should, wherever practicable, be made and implemented within a time frame appropriate to the young person’s sense of time.

2. If the Court is satisfied that the time between the date of commission of the alleged offence and the hearing has been unduly or unnecessarily protracted, then the Court must exercise discretion as to whether or not to dismiss the charge (Attorney-General v The Youth Court at Manukau [2007] NZFLR 103 (HC)).

In this case the Judge was satisfied that the delay was unnecessary and undue.

The time taken to coordinate a s 9 hearing and for the Police to provide witness statements to establish B’s involvement was too long. It was acknowledged that while CP(MIP) Act proceedings are notoriously difficult and complex, and delays are therefore common, the scheme of the Act is clear. Once the issue of fitness is raised and the CP(MIP) Act process is triggered, a s 9 hearing is required. The Judge noted that although it is usually makes practical sense to request health reports from health assessors at an early stage, this should not occur so as to delay steps being taken to arrange a s 9 hearing.

Additional relevant factors included:

  • the specific prejudice to B caused by delay;
  • the seriousness of the offending;
  • the public interest in seeing those who commit offences dealt with by the justice system; and
  • B’s personal circumstances, including: his vulnerability because of his young age; his care and protection status; and that he suffers from a disability. B had also been detained in custody in a secure Youth Justice residence for most of the time since his arrest.

The Judge ultimately dismissed the charge on account of the delay.

Non-compliance with FGC timeframes

The other 18 charges were laid in Manukau Youth Court on 21 August after an "intention to charge" FGC (ITC FGC). The application to dismiss the charges was made on the basis that the time limits applicable to ITC FGCs contained in s 249(2) of the CYPF Act had not been complied with.

Section 249(2) provides that every ITC FGC shall be convened no later than 21 days after the date on which the notification is received by the youth justice coordinator. At minimum, convening involves setting the time and place for the conference and notifying those who are invited to attend (Police v S (2004) 20 CRNZ 1046 (YC)). Pursuant to s 249(6)(b), once the FGC has been convened, it must then be completed within one month following the date of convening.

The Judge noted that s 249 timeframes are mandatory (H v Police [1999] NZFLR 966 (HC)). In the context of a s 247(b) conference, the Court cannot consider information laid outside the statutory timeframe for convening a group conference (Police v V [2006] NZFLR 1057 (HC) ).

In this case, the ITC FGC should have been convened by 26 June 2014 to comply with the mandatory time limits in s 249. It was not convened until 21 July. As such, the charging documents were nullities and the charges were dismissed.

Result:

All charges dismissed.

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Police v CK [2014] NZYC 344

File number: CRI-2012-225-000083
Date: 8 May 2014
Court: Youth Court, Invercargill
Judge: Judge Turner
Key titles: Orders - type: Discharge - s 282.

C, aged 16 years old at the time of offending, admitted a charge of intentionally making an intimate video recording of another. He masturbated and took images of two young boys changing the in the cubicle next to his at a local swimming pool. Following his admission of the charge and an FGC, C undertook the STOP programme for two years. His progress reports were exemplary.

When deciding whether to discharge C under s 282 or s 283(a), Judge Turner considered the following factors:

  1.  In November 2012, Judge Phillips indicated that if C successfully completed the STOP programme without further offending, it was probable that a s 282 discharge would be granted;
  2. The offending was serious, but at the lower range of seriousness for sexual offending;
  3. C was originally cavalier about his offending but had made a 180° change in attitude, he had empathy towards his victims, understood his actions were wrong, and the effect it had on others;
  4. C’s family provided a supportive network;
  5. C committed the present offence while on bail for arson, this possibly indicated that there were a number of issues for C which led to offending rather than an indication of a pattern of behaviour over a lengthy period of time;
  6. Adolescent males’ brains are not fully developed until at least the age of 25 and this results in increased impulsivity;
  7. C had taken advantage of everything that was offered to him, he was completing a course at the local polytechnic;
  8. C had not reoffended; and
  9. C had been held accountable for his behaviour to his family, the victims, and the community generally.

Judge Turner also addressed the development of the adolescent brain. He noted that the routine granting of discharges under s 282, even for serious offending, reflected that young peoples’ emotional, psychological and cognitive development is delayed and does not match their physical abilities. This results in high risk taking, impulsive and reckless behaviour as the part of the brain which controls executive thinking, making right choices and foreseeing consequences of actions is underdeveloped in teenagers.

Result:

C was discharged under s 282.

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Police v DH [2014] NZYC 276

File number: CRI-2014-235-000014
Date: 10 April 2014
Court: Youth Court, Masterton 
Judge: Judge Grace
Key titles: Arrest without warrant (s 214).

D, aged 16, was alleged to have been a party to a burglary. The issue was whether D’s arrest complied with s 214, which is concerned with the arrest of children or young persons without warrant.

The police relied on s 214(1)(a)(iii). This provision permits a police officer to arrest a child or young person if the arrest is necessary to prevent the loss of or destruction of evidence. However, the Youth Advocate submitted that D was only liable to be arrested if D had refused to accompany the officer to the police station. In this case D had responded to the officer’s text message and informed the officer where he would wait for him. When the officer arrived, fearing that some of the stolen property had been disposed of already, he arrested D.

The Judge considered that in such situations it was appropriate for the officer to invite D to accompany him and only if D had refused then he could have been arrested. The circumstances of this case did not comply with s 214(1)(a)(iii).

Result:

The charge was dismissed.

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Police v DT [2014] NZYC 490

File number: CRI-2013-255-000060
Date: 26 June 2014
Court: Youth Court, Manukau
Judge: Judge Hikaka
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit.

D was charged with indecent assault and was remanded in custody of the Chief Executive from 8 July 2013 to 16 August 2013. On 5 September 2013 there was a hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)A). There was a hearing under s 14 of CP(MIP)A and D was held unfit to stand trial on 6 March 2014. There were directions made for a report to assess D's needs, it was found that he had an intellectual disability. Both doctors at the hearing confirmed the information in their reports and the court's finding was based on this information.

The matter came back before the court on 10 April 2014. The co-ordinator for the National Intellectual Disability Care Agency (NIDCA) had instructed a specialised assessor under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (ID(CCR) Act) who had reassessed D. This second assessor criticised the first report and found D did not have an intellectual disability. On the basis of the second report the co-ordinator did not approve the individual care and rehabilitation plan.

Judge Hikaka noted that there was legal precedent to confirm the inappropriateness and possible unlawfulness of the steps that the co-ordinator and reassessor had taken. The hearing was to determine the most appropriate way of dealing with D.

Submissions

The Police submitted that D be cared for as a care recipient under the ID(CCR) Act. He had a difficult relationship with his mother and his home could not provide reliable support for him. The police also submitted that an immediate release would expose the public to a significant risk of re-offending, especially of women being exposed to sexual assault.

D's youth advocate pointed out the difficulties faced by the second report citing Police v NJ HC Auckland CRI-2010-404-309, 22 September 2010 that it is highly undesirable and inconsistent with the statutory scheme to reassess a person after a s 14 determination has been made. Police v NJ was referred to and upheld by the Court of Appeal in Balemi v R [2014] NZCA 176 which stated that once the CP(MIP)A process has begun it continues without interruption until disposition.

The youth advocate referred to s 25(3) of the CP(MIP)A which says that before a court makes an order under s 25(1)(b) (an ID(CCR) Act care recipient order) the Court must be satisfied, on the evidence of one or more health assessors that:

  • the defendant has an intellectual disability; and
  • has been assessed under Part 3 of the ID(CCR) Act; and
  • is to receive care under a care programme completed under s 26 of that Act.

He submitted that 'Before the Court makes an order' should have a temporal effect. This seemed to amount to a submission that the most current information be considered. He submitted that there is no need to disturb the finding made at the s 14 stage but there is a need to consider the most updated information at the disposition stage, and that the most updated information is that D is no longer intellectually disabled. Therefore the only available disposition is that D be released immediately under s 25(1)(d) of the CP(MIP)A.

He also submitted that immediate release is the least restrictive outcome and that immediate release was appropriate because:

  • the offence was not the most serious of its kind;
  • the sexual aspect of the offending was denied;
  • there had been no prior offending;
  • the allegation was made a year ago; and
  • there had been no reoffending of any sort.

NIDCA submitted that there was no mention of intellectual disability in the court order and that in the past orders and directions had been made where there was uncertainty about whether an intellectual disability finding had been made. The Judge held that it would not be possible for an order to be made under ss 24 and 25 of the CP(MIP)A unless there was a finding of an intellectual disability.

Despite this, there had been issues in practice which have led to uncertainty. The director of NIDCA attempted to confirm with the Court by way of receipt of the s 14 decision itself, that an intellectual disability finding had been made. But the decision was not immediately available to him, and by the time it was, the second doctor had already started his enquiries and come up with his assessment and finding that D did not have an intellectual disability.

NIDCA submitted that it was inappropriate and unethical not to perform further tests if it appeared that D did not have an intellectual disability. The Judge was referred to RIDCA v VM [2011] NZCA 659 which said that the compulsory care order must be the least restrictive and coercive option available.

Immediate Release

The Judge turned to the process reinforced by McKay v R [2009] NZCA 378; R v Te Moni [2009] NZCA 560 and Balemi v R and applying it to s 25 of the CP(MIP)A and subsection (3) of s 25:

  • there had been a finding that D had an intellectual disability;
  • there had been an assessment under Part 3 of the ID(CCR) Act; and
  • there had been a care programme detailed in the plan.

The only reason for the plan not to be put in place is the updated assessment of the second doctor which says D does not have an intellectual disability and therefore does not qualify for the plan. The difficulty with that is it removes options for the Court for processes to be put in place for people like D, and seems to leave the Court will no option but to discharge the offender back into the community.

The second report was untested, unlike the first. However D's status as having an intellectual was questionable.

Judge Hikaka held that since D's status as having an intellectual disability was questionable, it would be inappropriate to impose a restrictive sanction on him by ordering him to be a care recipient. The Judge was particularly mindful that:

  • it had been almost a year since the offending;
  • D had always denied the sexual aspect of his involvement with the offending;
  • D had spent time in custody;
  • there was no suggestion of reoffending;
  • the Youth Court is not able to offer any more to D given that he is now outside the Court's jurisdiction (except for a limited number of orders which would expire on his 18th birthday).

D was ordered to be immediately released.

The Judge also noted that the offending was at a lower level of seriousness and would not warrant the type of sanctions that would lead to the removal of D's liberty other than ones which would see him comply with programmes designed to address any underlying causes for his behaviour.

Judge Hikaka also looked at how the situation could be avoided in the future. He instructed the amicus curiae to liaise with the director of NIDCA and report back to the Court with discussions and recommendations to get IDCCR specialist assessors involved at an early stage about whether a young person has an intellectual disability. The Judge hoped that the discussions would be able to assist the Court with process and recommended responses/processes tailored to ensure early identification of intellectual disability, with specialist assessments being made early in the process rather than after the event, as happened in this case.

Whether the process should be stayed under s 27(1) CP(MIP) Act

D's youth advocate argued that without a stay, the prosecution could chose to initiate a s 247(b) CYPFA process – consultation with the youth justice coordinator and a family group conference. If D did not admit to the offending the matter would return to Court and the process would start all over again. It could take two years before matters were resolved.

The police submitted that a permanent stay could only be issued in exceptional circumstances, which were not present here, and that, in any event, police were not pursuing that line of inquiry. The Judge held that the situation was not exceptional and refused to grant a stay.

Result:

D released immediately under s 25(1)(d) of the CP(MIP) Act. Proceeding not stayed under s 27(1) of the CP(MIP) Act.

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Police v KO (No 1) [2015] NZYC 459

File number: CRI-2014-292-000162
Date: 17 June 2014
Court: Youth Court Manukau
Judge: Judge Hikaka
Key titles: Criminal Procedure Act 2011, pre-trial admissibility hearing, Evidence (not including admissibility of statements to police/police questioning)

K denied two charges and a subsequent pre-trial admissibility hearing was set down.

Crown Counsel submitted that the provision dealing with pre-trial admissibility hearings, s 78 of the Criminal Procedure Act 2011 (CPA), does not apply to the Youth Court.

The Judge made the following observations on the relevant provisions of the CPA:

  • Section 78 gives the ability for the Court to order a pre-trial admissibility hearing. Section 78 is within subpart 7 of part 3 of the CPA. As subparts 5-7 of part 3 of the CPA do not apply to the Youth Court (CYPF Act s 275(4)), s 78 of the CPA does not apply to Youth Court proceedings.
  • Subpart 3 of part 3 includes ss 54-57 which refer to the case management process. They apply to the Youth Court only if the Youth Court Judge directs that they apply.
  • Section 58 is within subpart 3 of part 3. This provision regulates directions that can be made about the case management procedure. This section provides that if the Court considers that it will facilitate resolution of the proceedings or it would otherwise be in the interests of justice, the Court may authorise a departure from the requirements of ss 54-57, or give any other directions in relation to the management of the case. The Court can do so either of its own motion or upon application by prosecution or defence.

The Judge concluded that it would be in the interests of justice to resolve the admissibility issue at a hearing, because the outcome of the admissibility hearing would be determinative of whether the substantive charged would proceed to trial. Accordingly, the Judge was willing to depart from the requirements of ss 54-57 for this purpose.

Result:

Pre-trial admissibility hearing set down.

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Police v KO (No 2) [2014] NZYC 845

File number: CRI-2014-292-000162
Date: 13 November 2014
Court: Youth Court, New Plymouth
Judge: Judge Hikaka
Key title: Criminal Investigations (Bodily Samples) Act 1995, Databank Compulsion Order/DNA, Lay Advocate (s 326/s 328A).

On 23 October 2014 an application was filed under the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act) after K refused consent for a suspect sample to be obtained. K opposed the application on the basis that K’s Lay Advocate had not been served with the application.

Section 18 of the CIBS Act refers to three people that must be served with the application: the young person; the parent or caregiver; and the Lay Advocate appointed pursuant to s 326 of the CYPF Act.

The Judge noted that s 18 uses the word 'shall' when it speaks of service. Generally, the use of this word suggests that service is mandatory. However, the Judge found that there are times when 'shall'' is used in a more 'directory' way.

The importance of the Lay Advocate’s role as prescribed by the relevant provisions of the CYPF Act was discussed. These provisions include s 328, which refers to a number of analogous rights of a Youth Advocate, sentencing under s 283, representation at a family group conference and any proceedings relating to detention, secure care, and care of a young person in residence

However, the importance of service on the Lay Advocate was weighed against the seriousness of the charges. The Judge ultimately granted an adjournment for the hearing of the application under the CIBS Act, subject to K’s Lay Advocate being served with a copy of the application in the interim.

Result:

Adjournment granted for the hearing of the application under the Criminal Investigations (Bodily Samples) Act 1995.

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Police v JG [2014] NZYC 442

File number: CRI-2013-287-000058
Date: 11 June 2014
Court: Youth Court, New Plymouth
Judge: Judge Courtney
Key titles: Orders - type: Supervision with residence - s 283(n).

J, aged 13 years old at the time of offending, faced three charges:

  • robbing a person of a baseball cap, J punched the victim, causing the cap to fall off;
  • robbing a Four Square of cash and cigarettes. J and associates waited for service a station employee to come to work. An associate grabbed the victim and placed a hand over her mouth, she was directed to unlock the cigarette cabinet and safe. J demanded she fill a bag he had brought with cigarettes. Another employee came on the scene and J and associates fled with about $15,000 worth of cigarettes and $1,700 cash;
  • assault with intent to rob, J and associates entered the store, one associate threw a rock at the victim, J held a screw driver in a threatening manner, swearing at the victim and asking for money.

After the second robbery a family group conference was held. J was remanded to a community home so that a decision about an appropriate sentence be made. On 20 February 2014, J absconded and committed the third offence. He was remanded back to the community home on 28 February 2014, where he absconded again. The community home felt they could not contain J. He was remanded in custody until sentencing.

A whānau hui was held in order for an agreement to be reached between police and whānau. The hui recognised it was not appropriate for J to return to his mother’s care and there was a suggestion that he stay with his older brother and that J receive therapy, education and work experience. CYFS had provided funding for this therapy. The police did not agree with the plan from the whānau hui. They recommended supervision with residence.

When considering an order of supervision with residence (with allowance made for time already spent in custody) Judge Courtney looked to the following:

  • the offending had a significant impact on the victims;
  • J was only 13 when the offending occurred and had only just turned 14 – this was a mitigating factor;
  • the offending was serious, the theft of the baseball cap was at the lower end of the scale, the robbery of the two service stations was at the higher end;
  • J had hard personal and social circumstances which contributed to his offending;
  • J had written letters showing remorse;
  • J’s whānau had supported J with the hui and coming up with recommendations;
  • J had taken measures to apologise for offending;
  • J had previously failed to complete an agreed family group conference plan for the first offence, but there was some positive progress before J’s further and more serious offending;
  • J was progressing well at a placement, but this was unravelled by him absconding and offending;
  • J’s counsel submitted that if whānau are not permitted to assist J in the terms they have agreed, it is not known whether they would still be supportive of J. The Judge hoped the whānau would be supportive whether or not J was in the youth justice system, the Judge said '[t]his is a young man who clearly needs whānau support and it must continue whilst he remains a young person;
  • it was significant that the third offence occurred while J was on remand for the first and second offences, and that there was further absconding from his placement;
  • J receiving a custodial sentence would serve two purposes: protecting the community and sending a message to the community that if there is going to be involvement in offending, especially repeat involvement, then notwithstanding the age of the offender, a custodial sentence is a highly likely outcome.

Result:

Supervision with residence of three months under s 283(n) of the CYPFA to take into account the time already spent in custody followed by a supervision order under s 283(m) of the CYPFA following release.

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Police v J G [2014] NZYC 985

File number: CRI-2014-246-000083
Date: 23 December 2014
Court: Youth Court, New Plymouth
Judge: Judge Lynch
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated Robbery, Principles of Youth Justice (s 208), Sentencing - General Principles (e.g. parity/jurisdiction)

J, aged 14 years and 8 months old, was charged with aggravated robbery. J had a significant offending background, which included a number of aggravated robberies, one of which was committed less than three weeks after being released from a three month period in residence resulting from an earlier aggravated robbery. The Crown sought a conviction and transfer to the District Court for sentence pursuant to s 283(o).

Before dealing with the circumstances particular to J, the Judge first emphasised that transfers to the District Court for sentence are rare, reflecting first, the ethos or principles of dealing with a young person under the CYPF Act; and second, the extended period of six months for residential placement under s 311, following which a supervision order is imposed. 

To illustrate how rare transfers are, it was noted that in 2014 there had been only 10 transfers to the District Court, against the 54 in 2010 when the maximum period in residence was three months. The period changed to six months from 1 October 2010. The Judge reflected that these statistics alone invited significant care in such applications, but which also must be balanced with the relevant statutory factors.


Submissions and social worker's report

The Crown submitted that J had not previously been deterred by serious sanctions in the Youth Court and had formed a predilection for this type of offending. The Group 6 sanction (supervision with residence) had not proved sufficient protection to the community, nor had it deterred J's criminal behaviour. It was further submitted that J has little whānau oversight, which would be the key to J avoiding further offending.

J's Youth Advocate submitted that J's early offending was committed when he was 13 years old and a child in terms of the legislation. The latest offending was committed when J was 14 years old. Emphasis was given to the fact that a sentence of imprisonment will be life altering and will, '…in all likelihood set him on an irreversible course of living his adult life in and out of prison.'  It was contended that now may be the only chance for J to change the course of his life. A sentence of imprisonment would create a situation where J's whānau could potentially forget about him, and it would guarantee gang membership. J would emerge from jail a 'generally hardened and a more criminally savvy adult' of greater risk to the public on release than he is now. J's advocate submitted that the least restrictive outcome would be a Group 6 response, supervision with residence.

The social worker's report noted that J presents with a wide range of issues which contribute towards his offending behaviour including his tendency towards violence, alcohol and drug abuse, gang connections and criminal associates. J has not responded positively to assistance and support offered by his whānau and various professionals. The report recommended supervision with residence. However, it was noted that Child, Youth and Family had essentially run out of options for J.

Discussion on s 284 considerations

The Judge emphasised that sentencing in the Youth Court promotes, in a way that sentencing in the District Court cannot, the purpose that young people are to be held accountable and encouraged to accept responsibility for their behaviour, while being dealt with in a way that acknowledges their needs and will give them the opportunity to develop in responsible, beneficial and socially acceptable ways.  Particular regard was given to the s 208 principles, specifically principles (d), (e) and (f).

The Judge stated that before the Court could decline to sentence, bearing in mind the need to impose the least restrictive outcome and that in imposing a sanction, any less restrictive outcome must be, 'clearly inadequate', it must have regard to the s 284(1) considerations: 

  • s 284(1)(a) - nature and circumstances of the offence: J was involved in the planning of the robbery, the decision to be armed and to wear disguises. J had a weapon.
  • s 284(1)(b) - relevant person history, social circumstances and personal characteristics: The various reports relating to J made for sad reading. J had disengaged from the norm and displayed very concerning attitudes. One psychological report documented J stating he didn't care about being involved with the police and that he would, 'Shoot cops, they deserve it'. J articulated a sense of belonging and affiliation with two predominant gangs.
  • s 284(1)(c) - attitude towards the offence: J expressed remorse by rote. However, true remorse requires maturity and perception which J may not have yet achieved. J's family did not want him transferred to the District Court; however they are unable to exert any real control or influence over him.
  • s 284(1)(f) - effect of the offence on the victim: There was no prospect of reparation for emotional harm being paid. It was the victim's view that '… they should go to jail … as it was serious coming into the shop with knives and robbing me. I don't want to have to deal with them again.'
  • s 284(1)(g) - previous offending and orders: The FGC and social worker recommendation was that J should stay in the youth justice system. However, the '…elephant in the room is that this is a young man who is on a path of committing serious offending as if he thinks he is untouchable'
  • s 284(1)(i) - causes of offending and measures available to address them: J is a complex young man. He has been out of school and lacking structure for most of his life. J's needs include alcohol and drug dependency, mental health, education and therapy for grief and assistance with distress tolerance and emotional disregulation.

Conclusion

The Judge concluded that, despite being troubled by J's young age and the overarching imperative to keep young people in the youth justice system, a transfer to the District Court for sentence was appropriate. This was primarily because the offending was serious; J's propensity to violence of this kind; all other interventions (including residence) providing no deterrence at all; and the public needing protection.


Result:

Convict and transfer to District Court for sentence pursuant to s 283(o).

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Police v LP [2014] NZYC 853

File number: CRI-2013-204-000242
Date: 20 November 2014
Court: Youth Court, Auckland
Judge: Judge Aitken
Keys titles: Evidence (not including Admissibility of statements to police/police questioning) 

L, aged 15 years old, was alleged to have assaulted a police officer and member of the public while trying to avoid arrest after unlawfully taking a motor vehicle. There was no dispute that L unlawfully took the motor vehicle and was involved in a minor accident following which he fled from the scene of the accident. Sergeant W, a police officer, gave chase, along with H, a member of the public. W and H were able to restrain L before other police arrived.

In issue was what happened during the course of that restraint, and subsequently in the holding cell of the police station. L denied three charges: injuring Sergeant W during the course of the restraint; assaulting H during the restraint; and assaulting Constable D, another police officer, in the holding cell at the police station.

Injuring with intent to avoid arrest

L admitted that he was fleeing the stolen vehicle to avoid arrest. He further admitted biting Sergeant W, but contended that these bites were in self defence.

L suggested in his evidence that he bit the sergeant twice on the arm as it was exerting enough pressure on this throat to prevent him from breathing. However, on further inquiry under cross examination, L conceded that the sergeant did not have his arm in the sort of V shape that it sat only across his neck. L’s evidence was that the sergeant’s arm ran from shoulder to shoulder across his chest, but that there was some pressure on his neck.

The Judge was satisfied that, for there to be sufficient force to prevent L from breathing, the sergeant’s arm would have to be held against L’s neck making it extremely difficult for L to bite him in such as evidenced in photographs. It was noted that, at one point in evidence L even claimed that it was not hard to bite the sergeant, as evidenced by L biting him several times. The Judge was satisfied beyond reasonable doubt that L, in an attempt to avoid restraint by repeatedly biting Sergeant W, not as an act of self defence, but in an attempt to break free and run.

Assault with intent to injure

H’s evidence before the Court was that he was bitten by L on the shin. There were some young girls (friends of L) involved in the altercation, who were also trying to bite H. Sergeant W did not see L bite H and no other witnesses have evidence of this incident, other than H. H’s evidence was that he was unaware that he had been bitten by L at the time but noticed the mark on his shin later and gave a full statement at the police station once he had noticed the bite mark. H did not recall being bitten immediately after the incident.

The Judge concluded that, while it may have been highly likely that L bit H, in the absence of other evidence, H’s evidence was not so reliable that Her Honour could be satisfied beyond reasonable doubt that it was L who bit H. For this reason, the charge was dismissed.

Assault

The final charge was that L assaulted Constable D, as L was being transported to the Court. Constable D gave evidence that L had been 'acting out' in an aggressive and physically and verbally threatening way, and when walking from the holding cell to the van an altercation took place in which L head-butted D after being told to behave himself.

CCTV footage was heavily relied upon. A number of observations were made from the evidence. First, there was no evidence from the CCTV footage, on the record, of L behaving in the manner described by Constable D; i.e. 'acting out most of the night, kicking the doors' or generally being abusive. Second, as L travelled along the corridor from his cell to the holding room, there was nothing in the images that portrayed L as staunch or threatening. Third, the CCTV footage did not provide conclusive proof of any assault. The footage showed L saying something after which Constable D puts his hand on L, whose back appeared to be against the wall. It was not concluded that L head-butted D during the subsequent altercation.

The Judge determined that it was not conclusive that L assaulted Constable D by head-butting him. The CCTV did not show such an assault. Some reservations were expressed about the reliability of Constable D’s evidence. It was concluded that the prosecution did not meet the requisite burden of proof in relation to this charge. For this reason, the charge was dismissed.

Result:

Charge of injuring with intent to avoid arrest proved; charge of assault with intent to injure dismissed; charge of assault dismissed.

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Police v KG [2014] NZYC 135

File number: CRI-2013-270-000140
Date: 24 February 2014
Court: Youth Court, Tauranga
Judge: Judge Harding
Key titles: Orders - type: Discharge - s 283(a), Orders - type: Come up if called upon - s 283(1)(c).

K appeared for sentence in connection with charges of possession of an offensive weapon, burglary, unlawfully taking a motor vehicle and sustained loss of traction. His presence in Court was excused due to his being in Odyssey House, a residential drug and alcohol rehabilitation centre.

K had been in custody for the previous three months in connection with these matters, although no formal order for supervision with residence or activity had been made. The Police contended that, given the seriousness of the charges, something more than a discharge under s 282 was required. However, the Judge accepted that any retributive element required had been more than satisfied by the length of K’s remand at Odyssey House to date.

It was expressed by Child, Youth and Family that a further remand under s 283(1)(c) would be required in order to continue funding provision for treatment at Odyssey House, which all parties agreed the young person undoubtedly needed.

K’s Youth Advocate was supportive of K’s continued treatment at Odyssey House, but was concerned about the continued involvement of the Youth Court, when what remained was clearly a care and protection issue rather than one requiring ongoing involvement of a criminal court.

The Judge noted that it was a most unsatisfactory situation if Child, Youth and Family required ongoing Youth Court involvement and remand to continue funding K’s treatment at Odyssey house.

The matter was discharged under s 283(a) on the express expectation that Child, Youth and Family would ensure the ongoing funding for Odyssey House on a care and protection basis, rather than a Youth Court order or remand. It was discussed that a s 283(c) order would require K to appear in Court, which would disrupt his Odyssey House treatment. A discharge under s 283(a) without further penalty prevented the necessity for a further appearance and the interruption of K’s therapeutic intervention.

Result:

Discharge under s 283(a) on the express understanding that Child, Youth and Family would continue to fund K’s Odyssey House placement without the involvement of the Youth Court.

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Police v NR [2014] NZYC 438

File number: CRI-2013-292-001666
Date: 12 June 2014
Court: Youth Court, Manukau
Judge: Judge Hikaka
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 9 issues.

N was charged with two burglaries.

Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)) proceedings were invoked. The first health assessor’s report summarised that N had an intellectual disability and as he was significantly impaired, he would likely be found unfit to stand trial. A second report summarised that N does have mental impairment and a provisional diagnosis of foetal alcohol spectrum disorder (FASD) but that he did not have an intellectual disability. At the s 9 CP(MIP) hearing it was concluded that N caused the acts that formed the basis of the charges and that he had the intent required. At this stage Police signalled that they might seek leave to withdraw charges. Police later confirmed that they did not wish to proceed but preferred leave to withdraw the charges rather than to offer no evidence.

The principle issue was whether Police should be granted leave to withdraw the charges? Sub-issues were raised regarding the granting of leave itself, and whether the Court’s discretion to grant leave is overridden if CP(MIP) processes have been triggered?

Issue one: leave of the Court to withdraw charges

Leave of the Court is required before charges are withdrawn.  The Judge noted that part of the exercise of the Court’s discretion will be informed by consideration of the prosecutorial process involved in the application for leave to withdraw. The Solicitor General’s Prosecution Guidelines were referred to, specifically the independence of the prosecutorial decision maker and the decision to prosecute.  The guidelines also refer to the overarching duty of the prosecutor to act in a manner that is fundamentally fair and that they should perform their obligations in a detached and objective manner, impartially and without delay.

In this case the police application for leave to withdraw was based on public interest considerations. The Judge was satisfied that Police had performed their prosecutorial duty in a manner that was fundamentally fair and had done so with attachment and objectivity. The reasons for this determination included: that there had been a lengthy delay between offending and the hearing in which N had spent four months in custody; N was having his care and protection status regularly reviewed in the Family Court; he was progressing well in his current care placement with extended family; and the youth justice objectives of the CYPF Act had been met.

The Judge observed that, but for the CP(MIP) processes, N’s Youth Court matters would have been resolved long ago, most likely by a s 282 discharge upon completion of an FGC plan.

Issue two: granting leave to withdraw charges when CP(MIP) processes have been triggered

Both Police and N’s counsel referred to three Court of Appeal cases: McKay v Police (2009) NZCA 378; R v Te Moni (2009) NZCA 560; and Balemi v R (2014) NZCA 176, as well as the provisions of CP(MIP) and the CYPF Act.

The Judge noted that each of the Court of Appeal decisions referred to were distinguishable from N’s case on their facts, but they were of significant weight and compelling precedence with respect to due process once CP(MIP) processes have been triggered.

The most important distinguishing point, which was pivotal in this case, was, no matter what stage the process had reached in the Court of Appeal cases, that stage was always underpinned by the intention of the prosecution to continue with the prosecution.  The CP(MIP) process is designed to ensure that those who are vulnerable as a result of mental impairment, receive all the appropriate protections available in law and are dealt with in a fashion that ensures a fair trial by:

  • confirming their involvement in the offending;
  • confirming whether or not they are mental impaired, and
  • if mentally impaired, whether they are fit to stand trial, and
  • if unfit to stand trial, dealing with them in ways commensurate with their impairment and consequential care needs, some of which could have long term liberty implications.

The Court of Appeal decisions confirm that once those processes are invoked and remain on foot, those processes continue on the CP(MIP) path to their lawful conclusion. In N’s case, if the prosecution application for leave to withdraw the charges was granted, there would be no issue of fitness to stand trial because a trial would not occur.  The whole issue of a 'fair trial' would not arise.

There was no intention to prosecute the charges against N and that prosecutorial decision had been responsibly made in a manner that was fundamentally fair. Accordingly, the Judge determined that it would be a breach of natural justice and due process to require continuation of a criminal justice process in order to explore the mental health status to address N’s mental health needs in circumstances where leave was sought to withdraw charges.  To continue the criminal justice process against N, albeit a youth justice, and therefore predominantly rehabilitative, process, would be contrary to the principles underpinning youth justice, by continuing a criminal process to provide welfare assistance when there is an alternative means of dealing with the matter.

Result:

Leave granted to the police to withdraw the charges.

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Police v QP [2014] NZYC 525

File number: CRI-2014-285-000002
Date: 15 July 2014
Court: Youth Court, Wellington
Judge: Judge John Walker
Key titles: Orders - type: Discharge - s 282, Orders - type: Discharge - s 283(a), Family Group Conferences: Attendance, Family Group Conferences: Non agreement.

Q, charged with an aggravated robbery offence that included kicking the victim, had successfully completed his Family Group Conference (FGC) plan. The question for the Judge was whether Q should be discharged under s 282, effectively without a record, or whether he should be discharged under s 283 which creates a Youth Court record.

The FGC was well attended by members of Q’s family, his tutor from Te Wānanga ō Aotearoa and the victim. The Judge noted the significance of having the victim attend the FGC; it was the decision at the FGC that on completion of the plan which was put in place at that conference, that there would be a discharge under s 282. The victim and his grandmother, who also attended the FGC, were very supportive of there not being any record created for Q.

Subsequent to the FGC, the Crown took the position that there should be a recorded discharge under s 283.

The Judge noted that significant improvements had been made in Q’s life which was evidenced to a considerable extent by the huge turnout of supporters and family. It was remarked that there was barely enough room in the Youth Court for all the support people to be able to be seated.

When determining whether a discharge under s 282 or s 283 would be appropriate, the question was asked: what would be achieved by the creation of a record under s 283? The Judge noted that, beyond creating a record, nothing is achieved. Q did not need the imposition of a record to make him understand how serious the charge was, he was aware of the seriousness of his offending. Q had displayed a real desire to move forward with his life in a positive way, despite a very difficult background, and a record of aggravated robbery would be a very substantial obstruction to achieving that. The public interest was determined to be in having Q able to progress positively.

Result:

Q discharged under s 282.

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Police v SK [2014] NZYC 266

File number: CRI-2013-206-000051
Court: Youth Court, Blenheim
Date: 9 April 2014
Judge: Judge Zohrab
Key titles: Child offenders: Pushback provision - s 280A, Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit, Reports: Psychological.

S faced allegations of sexual violation by way of sexual connection. At the time of the alleged offending he was aged 12.

The Judge had previously determined that S was unfit to stand trial (S v K YC Blenheim CRI-2013-206-000051, 11 March 2014). The determination of unfit to stand trial pursuant to s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act) was based on S having an intellectual disability, having insufficient psychological stability because of ADHD and social difficulties, and that consequently he would unlikely be able to participate in Court proceedings adequately. 

Accordingly, and as required by s 23 of the CP(MIP) Act, the Judge made enquiries as to the most appropriate ways of dealing with S under either s 24 or s 25 of that Act. This included having S assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act). It was subsequently determined that S did not have an intellectual disability for the purposes of that Act. The psychologists report also noted that: 

'Given S's age, background history and current situation, even if he was eligible for processes under the IDCCR Act, such processes would not have been recommended for him, as IDCCR Act processes are aimed at adults. Issues around the United Nations Convention on the Rights of the Child come into play when children and youth are considered under the IDCCR Act, and children and youth are only ever placed under those processes when there are no other suitable and safe options available to manage that child and the risks they present cannot be ameliorated through standard procedures available to a person of their age.'

S's advocate submitted that, given that the psychological reports did not recommend IDCCR Act orders, S should be released pursuant to s 25(1)(d) of the CP(MIP) Act. The Police asked the Judge to consider s 280A of the Children, Young Persons and their Families Act (CYPF Act), the provision enabling a child offender to be 'pushed back' to the Family Court in order to consider care and protection issues.

The issue for the Judge to determine was whether the Court could engage the push-back provisions once the CP(MIP) process had been triggered. There was some uncertainty as to whether the this could happen, as the language of s 24 of the CP(MIP) Act is prescriptive: once the Court is satisfied that a detainment order under s 24(2) of the CP(MIP) Act is not necessary, it must make an order under s 25.

The Judge made the following observations:

  1. The provisions under the CYPF Act and the CP(MIP) Act are not conflicting or mutually exclusive and it is not a case of one 'trumping' the other: one may be used in conjunction with the other. The provisions of the CYPF Act apply to all children and young people that fall within its scope, whereas the CP(MIP) Act provisions deal with a specific class of child or young person.
  2. The appropriate reading of the plain wording of 280A is that a Judge has a wide power to refer the matter to the informant to consider whether to make an application for a declaration under s 67 of the CYPF Act at any stage of the proceedings.
  3. Proceedings under the CYPF Act are still on foot during the course of the CP(MIP) enquiry and can be discharged either by making an order under s 24 or 25 of the CP(MIP) Act, or when an application for a declaration under s 67 which first comes before a Family Court Judge under s 280A(3)(b) of the CYPF Act.
  4. The language of s 24 of the CP(MIP) Act is prescriptive; however, if an application for a declaration under s 67 is made before a Judge directs an order under s 25 of the CP(MIP) Act, there are effectively no 'live' proceedings to which an order under the CP(MIP) Act could be made, because they have already been discharged.
  5. There is Court of Appeal authority in McKay v R [2009] NZCA 378 that once the fitness to stand trial process has been triggered, the procedure and its sequencing must be followed. However, the focus is in ascertaining whether or not the accused person is capable of instructing their lawyer.
  6. In this case, the discretion to push-back to the Family Court can be used at any point before an order is made under s 24 or s 25 of the CP(MIP) Act .The requirement to continue the CP(MIP) Act process is dependent upon there being proceedings on foot. If, for example, proceedings are discharged, there are no proceedings to which the CP(MIP) Act order could be attached.

Because S had been found unfit to stand trial, there was no question of him being held criminally liable. It was clear to the Judge that S appeared to be in need of care and protection, and that S's interests, the complainant's interests and the public interest would be better served if the informant made an application for a declaration under s 67 of the CYPF Act. Accordingly, the proceedings were referred back to the informant to consider an application for a direction under s 67 that S was in need for care and protection in the Family Court.

Result:

Matter referred to the informant under s 280A for consideration of an application to 'push-back' to Family Court.

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Police v SL

Media neutral citation: unreported 
File number: CRI-2014-292-000408
Date: 8 May 2014
Court: Youth Court Manukau
Judge: Judge Harvey
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 14 mentally impaired/unfit to stand trial.

S faced a number of charges including unlawfully interfering with a motor vehicle.

Application of s 15 of the Criminal Procedure (Mentally Impaired Person) Act 2003 (CP(MIP) Act )

Section 15 provides that hearings concerning a defendant’s fitness to stand trial can take place in the defendant’s absence if he or she is too mentally impaired to come to court. S was not present so the hearing was held, in his absence, pursuant to s 15. S usually relied on a social worker to bring him to Court, but on this day the social worker was not available. It was noted that in light of that it was quite explicable that S’s non-attendance at Court arose from the fact that he was unaware of the importance or necessity of coming to Court and that is attributable to his mental impairment.

Application of s 14 of the CP(MIP) Act

Section 14 sets out the procedure for determining if a defendant is unfit to stand trial. Based on the reports the Judge held that S’s understanding and awareness of the Court proceedings and of his obligations was very, very peripheral. 

First consideration: is S is mentally impaired?

It was noted that 'mental impairment' is not defined in the Act because it allows the Court to have a wide consideration for what mental impairment might mean. It was argued that some assistance may be derived from the meaning of intellectual disability contained in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Judge Harvey applied the principles in P v Police [2007] 2 NZLR 528 (HC). Both of the reports made it clear that while there is no mental illness there was some form of mental impairment as defined by the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. Judge Harvey held that S was mentally impaired. 

Second consideration: is S unfit to stand trial?

The reports noted, in the context of the principles set out in P v Police that S had some understanding of what is going on, but his understanding of concepts of guilt or not guilty appears to be limited and he struggled to apply them to his own situation. The report suggested that S only has a superficial understanding of the consequences of entering a plea. He knew who some of the key participants were, but did not really understand fully their roles. He has some understanding of potential evidence, but little understanding of the way in which evidence can be challenged or contested. The reports stated that S had only a superficial understanding of the Court process and the possible consequences of the proceedings. Furthermore, his cognitive difficulties negatively impact upon his ability to communicate meaningfully and to instruct counsel. He would experience difficulties in understanding and following the Court process given his cognitive impairment.

Result:

S found mentally impaired and unfit to stand trial in his absence under ss 14 and 15.

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Police v TL [2014] NZYC 931

File number: CRI-2014-219-000141
Date: 17 December 2014
Court: Youth Court, Manukau
Judge: Judge Fitzgerald
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 14 mentally impaired/unfit to stand trial.

T was charged with unlawful taking of a motor vehicle, dangerous driving, failing to stop and charges associated with unlawful taking of a motor vehicle.

At a previous hearing under s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act), T was found to have a mental impairment but fit to stand trial.

Mental Impairment

The Judge identified the following issues relating to the question of mental impairment in T’s case:

1. T did not meet the diagnostic criteria for most forms of mental impairment, but did satisfy the diagnostic category for conduct disorder. Conduct disorder is not a mental impairment but is something more likely to manifest in T being hostile towards the process;

2. T has significant cognitive impairments which are relevant in the context of fitness to stand trial considerations:

  1. T’s full scale IQ of 75 means he is in the bottom 5% of his peer group on this measure, and only slightly above the level that could possibly qualify him as intellectually disabled;
  2. T has a very low reading age and as such, very limited ability to understand documents shown to him. He is therefore dependent on having others explain things to him;
  3. Given T’s extremely low verbal comprehension skills, he will have difficulty understanding and following conversations;
  4. Such limitations will impact on his ability to communicate and give instructions to his youth advocate and also to participate in the legal process which involves a lot of written and verbal communication; and
  5. It is necessary to tease apart the issues that contribute to T’s lack of participation in processes from those that are outside of his control; i.e. his low cognitive functioning.

3. Both health assessors also identified a recurrent theme in assessments as being T’s lack of motivation to fully engage in the process. This, they thought, was probably due to T’s sense of disempowerment and feelings that his views were neither heard nor acknowledged. T exhibited a sense of hopelessness about his situation and his ability to have any active role in what happened to him, especially with such things as where he lives and what contact he had with his family. It was noted that T was desperate to see his family and that cause of some of T’s offending had simply been to go see his mother. It was the health assessor’s initial view that a finding of unfitness to stand trial might further exacerbate T’s feelings of not being heard and being unable to participate because he would incorrectly attribute his emotional state to mental impairment.

The Judge concluded that, on the balance of probabilities, T has a mental impairment. This finding was on the basis of the health assessor’s evidence, their caution regarding the issues to do with irritability and poor engagement in processes, T’s low IQ and extremely low written and verbal comprehension levels.

Fitness to stand trial

When considering the question of fitness to stand trial under s 4 of the CP(MIP) Act, the Judge referred to the Court of Appeal in Solicitor General v Dougherty [2012] NZCA 405 (CA). The Court in Dougherty held that the issue of fitness is a case specific contextual assessment that must have regard to the nature of the impairment, how it manifests itself and the complexity, nature and number of charges, which can affect the complexity and also the length of trial time, therefore increasing stress. Stress can in turn affect the severity and impact of the mental impairment.

The Judge held that, in determining fitness in the context of Youth Court proceedings, a young person’s ability to participate in an Family Group Conference (FGC) is an appropriate consideration. It was noted that the FGC process is quite unlike sentencing in the adult Court (which is a largely passive exercise), as the FGC process requires active participation. Young people are expected to engage and take part in the formulation of their plan. The process can often require young people to meet directly with the victims of their offending. The young person is then expected to carry out and complete the plan in an acceptable fashion. An inability to engage and participate in the process is likely to lead to poor outcomes for the young person.

Both health assessors believed that with the appropriate support and flexibility, T would be able to participate in the FGC process adequately. This would require the Youth Justice Coordinator taking time in advance to prepare T and others in light of T’s limitations. There would need to be breaks taken when necessary, and more time taken for explanations and to check T’s understanding and ensure he was not overwhelmed by too much information (written or verbal) to process.

Similarly, Court process could be modified to address such issues and ensure adequate support and guidance was provided. T would likely have some difficult with lengthy and detailed Court proceedings. Clear, unambiguous, simplified language must be used with frequent breaks to ensure T’s comprehension was sustained and checked regularly.

Having regard to all of the evidence, and the requisite accommodations in order for T to participate in the FGC and Court processes in a proper and meaningful way, the Judge concluded that T was fit to stand trial.

Result:

T was found fit to stand trial.

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R v AR [2014] NZYC 372

File number: CRI-2013-216-000042
Date: 14 May 2014
Court: Youth Court, Gisborne
Judge: Judge Taumaunu
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by rape, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection.

A appeared for sentencing in relation to two representative charges of unlawful sexual connection with a male under 12. The offending was very serious and involved numerous occasions of anal and oral penetration over a number of months. The offending occurred in 2012 when A was 15. A was charged at 16 but at the time of this hearing, A would turn 18 in less than 6 months.

The proceedings had taken some time to reach this hearing. A had originally denied the charges. He did not change his plea to not denied until almost a year after his first appearance. At that point a social worker’s report was requested and following the receipt of that report the proceedings were further adjourned while a s 333 psychological report was completed.

The Judge considered whether an s 283(o) order was appropriate in this case. The primary consideration was A’s age. A had reached an age where effective Youth Court interventions had become limited by the time that was available.

The Crown indicated that they would not seek a term of imprisonment. The Judge indicated that A would be sentenced in the District Court to intensive supervision along with an appropriate community-based sentence. All parties were agreed that a conviction and transfer to the District Court was the appropriate next step. The Judge concluded there was really no other option.

Result:

A was convicted and transferred to the District Court for sentencing under s 283(o).

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R v ED [2014] NZYC 122

File number: CRI-2013-290-000133
Date: 17 February 2014
Court: Youth Court, Waitakere
Judge: Judge Fitzgerald
Key titles: Orders- type: Supervision with activity - s 283(m), Orders - type: Mentoring programme - s 283(jb), Reports: Psychiatric..

E, aged 14, appeared for sentencing for 17 charges including an aggravated robbery committed when he was 12 and assault with intent to injure committed at the age of 13. Since turning 14, E's ongoing offending had largely related to the unlawful taking of motor vehicles but also included thefts, trespass, wilful damage and assaulting a police officer.

As well as his continual offending, E had consistently breached conditions of bail and failed to engage in courses and rehabilitative programmes. After failing to comply with the terms of an FGC Plan, he was made subject to a supervision with activity order for three months. He not only failed to comply with that order but committed further offences during that period.

The supervision with activity order was cancelled and the issue for determination was what replacement order should be made to cover the further offending.

Discussion on neurodisability and approach taken

Given the impulsive, repetitive nature of E's offending, his inability to comply with seemingly simple rules and instructions, and inability to engage appropriately in programmes, the Judge ordered a neuropsychological assessment. The Judge indicated that E's behaviours were strongly suggestive of a serious neurodisability and hoped that this assessment would reveal whether the underlying causes of E's offending and non-compliance could be attributed to such a neurodisability.

As a result of that assessment, E was diagnosed with a foetal alcohol spectrum disorder (FASD), namely alcohol-related neuro-developmental disorder (ARND). E was also diagnosed with attention deficit hyperactivity disorder (ADHD), conduct disorder and substance disorder (predominantly alcohol and cannabis). E had not previously been medicated for his ADHD.

The psychiatrist who conducted one of the assessments pointed to clear evidence that E's brain had damaged frontal lobes, with ARND being the most likely cause. E also had a history of adversity and loss, as a consequence of which he had care and protection proceedings in the Family Court. It was concluded that there were a complex range of factors underlying his offending. The psychiatrist further noted that the repetitive cycle of offending, incarceration, absconding and then more offending resulted in considerable frustration, expense and harm to others, but mostly to E himself. The reason for E not learning from this cycle, despite his best efforts, was due to his brain damage, the 'Swiss cheese' nature of the disturbance, and as a consequence of his FASD.

A concern was that that the Youth Justice residence, where E had been detained both recently and several times before, was not a therapeutic environment for a child with disabilities such as E's. It was a high stress and over-stimulating place where E was being constantly agitated and where his emotional volatility worsened. E was likely to mimic anti-social behaviours and become more impressed by the criminal thinking of older and more intellectually sophisticated young people. It was reinforced that FASD literature highlights the fact that punishment will not change behaviours that are brain-based. Therefore, E will not learn to behave appropriately through his containment in a residence.

Both the Crown and Police acknowledged that the FASD diagnosis put a new light on proceedings. However, it was noted that no community-based orders had been successful to date. These orders had included electronic monitoring, with which E was not compliant. It was pointed out that most of E's offending stemmed from his living arrangements, home life and the inability of his mother to control him.

E's advocate noted that the proposed supervision with activity plan was more comprehensive than anything provided previously. As well as involvement with the MYND programme, Youth Horizons Trust were working intensively with E and his mother with the knowledge of the FASD and its implications and therefore had better strategies to deal with E's behaviour. As well as the activity order, a mentoring order was also proposed to better cover and support E during weekends.

After taking into consideration all the aforementioned matters, as well as the objects and principles of the Act, the Judge was satisfied that a supervision with activity order for six months would satisfy all the requisite criteria. The order was made subject to monthly judicial monitoring. A significant factor in making the activity order six months long, rather than the suggested three months, was advice from MYND that the longer period would enable them to provide significantly greater involvement during the week, which was a key feature of the plan. A mentoring order was made for 12 months.

Result:

Order for supervision with activity for six months with judicial monitoring; order for mentoring for 12 months.

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R v JO and Others [2014] NZYC 348

File number: CRI-2013-229-000068
Date: 6 May 2014
Court: Youth Court, Kaitaia
Judge: Judge Lindsay
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated Robbery, Sentencing - General Principles (e.g. parity/jurisdiction)

There were four defendants involved in an aggravated robbery: M (aged 15 years 8 months), W (aged 15 years 6 months), T (aged 16 years 8 months), and J (aged just over 16 years). Each admitted responsibility shortly after the charging documents were filed.

Late on December 26 the four went to a service station with disguises. J presented a rifle at the two employees when he entered. One of the two employees came out to confront the young men as they entered. W grabbed the bat T had carried to service station and struck that employee twice. J pointed the rifle directly at the two employees and ushered them to the front of the store. Lollies, cans of drink, cash from the register and cigarettes from a cupboard were taken. The four then ran out of the service station and separated.

Following the above offending J was charged with attempted aggravated robbery of another store. He entered that store having covered the lower part of his face with a bandana, armed with a black handled knife. He entered the store and demanded money from the employee behind the counter. The employee stepped forward and J walked backwards holding the knife out. He then turned and ran out of the store.

The Crown submitted that there were good reasons to transfer the proceedings to the District Court under s 283(o) including the seriousness of the offending, the effect on the victims, the lack of suitability of Youth Court orders to rehabilitate the offenders, and to denounce the offending. 

Discussion

The Judge considered that s 283(o) contains a presumption that young people are not transferred to the District Court unless they cannot be dealt with appropriately under CYPF Act. The Judge noted that she must have regard to the s 4 objective and the guiding principles in s 5 of the Act as well as the youth justice principles of s 208 and the factors in s 284. In addition she must consider least restrictive outcomes in circumstances.

In terms of s 284 the Judge noted that this was serious offending, it was category three and carried a maximum penalty of 14 years. There were aggravating features in the presentation of a firearm, threats, the presence of the bat, actual physical violence, the use of disguises and the young men presenting themselves in a menacing way. The victim impact statements also made for sad reading. One person had an early departure from his place of employment. He has anxiety, ongoing physical pain and there was a likelihood of serious psychological effects.

The Judge considered each of the defendants’ personal circumstances:


M

No previous offending, played a lesser role in robbery, made early admissions to charge, had shown remorse and had written letters before the appointment of counsel. He was from a supportive family, was receptive to input and support from local iwi groups, and was already displaying positive change. He had maintained his place in his school environment and abided by restrictive bail conditions for 5 months. His explanation to police was that he thought the other young men were involved in a game and this revealed extent of his naivety. He also had health issues that impacted on him personally.

J

16 at the time but is soon to turn 17 and also become a father. He faces a second serious charge for offending committed while in Youth Court and while on bail conditions. He did plead guilty to both charges early on. His family fully understand the seriousness of his situation. The attempted aggravated robbery was seemingly driven by his drug habit, the extent of this has only recently been revealed through reports complied for the Court. He has some previous offending which was dealt with by way of alternative action but it is concerning that his offending has escalated. He carried the firearm and pointed it at the victims, took cash from the till and presented a knife. Both times he presented in a menacing, threatening manner which would have caused fear and anxiety. However his remand in custody and forced detox has caused his family to record positive change in him.

T

Carried a bat to the service station and allowed his younger brother to take the bat and use it against the victim. There was a submission that no gain will be made in T’s corrective or prosocial rehabilitation by a term of imprisonment and there was a grave risk for T in transfer to District Court and facing adult sentencing outcomes. T was young and immature, lacking the wherewithal to withdraw from offending. In his letter of apology he acknowledged he could only begin to imagine how unsafe or insecure the victims may be left feeling, he acknowledged that he caused stress and pain to them and their family. He said he was lost in the moment, not thinking straight, and without regard to others. He has shown remorse and has been successful on a training course. 

W

From a young age W showed propensity to be led by others. But he grabbed bat off his brother and struck the victim with such force that the victim suffered a serious injury. It was blind luck that prevented serious harm or injury or even loss of life. W has previous Youth Court history.

Result:

M, T and W remained in the Youth Court jurisdiction. J was transferred to the District Court for sentence under s 283(o).

 
M

The Judge directed the filing of a social worker’s plan for an order of supervision with activity for six months, with involvement in the Fresh Start programme.

J

The Judge noted that there was insufficient time for the Youth Court to best meet the needs of J in his circumstances. Taking into account the need to denounce this behaviour J was transferred to the District Court. However he is to be sentenced by a judge in the District Court who is Youth Court warranted and will be in a position to take into account all information before the court. A pre-sentence report was ordered with appendices. The s 333 report was released to the District Court along with additional reports on the Youth Court file.

T

This was a finely balanced decision as the offending was serious. The Judge decided that a comprehensive approach by the Youth Court would most appropriately deal with this matter. A social worker’s report was directed, to explore the possibility of supervision with residence for six months along with an extended supervision order.

W

The Judge considered W’s young age, deciding that the appropriate period of supervision with residence should be close to, if not the full, six months along with a supervision order to follow for an extended period to ensure best possible outcomes for both W and the community.

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R v KM Christchurch CRI-2013-209-000286, 13 February 2014

Media neutral citation: unreported
File number: CRI-2013-209-000286
Date: 13 February 2014
Court: Youth Court, Christchurch
Judge: Judge McMeeken
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection.

K faced one charge of sexual connection with a young person under the age of 16. By the time the charging document was laid, K was 17 and was also facing similar charges in the District Court.

The Family Group Conference outcome agreed that K should be convicted and transferred to the District Court for sentence, which would result in one sentence imposed in respect of a group of offending that was all very similar. The social worker’s report concluded that K’s age precluded him from receiving a Youth Court sentence that could adequately address all of the issues surrounding his offending.

At the time of appearance, K was almost 18, had been given a sentence indication in the District Court and also agreed that the best option was for all matters to be dealt with together in one Court. After considering all of the Youth Court options, the Judge decided it was appropriate in all the circumstances, particularly given that the offending was part of a pattern, K’s age and the fact that he was to be sentenced for some matters in the District Court, that all the matters be dealt with in the District Court.

Result:

Conviction and transfer for the District Court for sentencing under s 283(o).

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R v RP [2014] NZYC 102

File number: CRI-2013-225-000037
Date: 13 February 2014
Court: Youth Court, Invercargill
Judge: Judge Turner
Key titles: Orders - type: Discharge - s 283(a), Jurisdiction of the Youth Court: Age.

R was charged with sexual violation of a nine year old relative in December 2012. R admitted the offending and it was decided after the Family Group Conference that he would complete the STOP programme before any formal order was made. R attended the STOP programme for 12 months, and had turned 18 three days before appearing. He had no prior convictions in the Youth Court.

The issues for the Judge were twofold: first, whether Youth Court jurisdiction should be offered to R; and secondly, if so, what disposition orders should be made following the completion of the STOP programme.

The Judge acknowledged the serious nature of the offending. R was 11 years old when the offending started, and it carried on for some years. It was acknowledged that if R was in the adult Court, the seriousness of offending would see him sentenced to imprisonment. On the jurisdictional issue, the Crown supported R’s request to be dealt with in the Youth Court, which was accepted by the Judge.

The Judge gave weight to the fact that the victim had accepted R’s apology and that there had been some reconciliation within the family. The victim did not want R to be dealt with in a punitive way and supported a discharge.

R’s personal circumstances and family background were also considered. R’s family had shown a considerable amount of support to R throughout his therapeutic intervention and acknowledged a significant change in R as a result of the STOP programme.

The social worker at the STOP programme reported that R had been an outstanding participant, noting that she had never seen a young person engage in the programme to the level that R had. He had a perfect attendance at the programme and engaged fully, to the point where he developed his own safety plans and adhered to them without issue. The most significant feature of R’s progress had been the assessment of dynamic factors, both at the beginning of the programme and at its completion.

At the beginning of the programme, R’s attitude was seen to be supportive of sexual offending, exhibiting interpersonal aggression and escalation in anger. Twelve months later, R did not display any of those factors, significantly reducing the risk of re-offending. It was determined that the prospects of R leading a valuable and crime-free life were high, given his engagement in the programme and willingness to adopt safety plans.

R had obtained enough NCEA credits to enrol in a joinery course. He had also become involved in a number of sports teams, some at a representative level.

Having regard to these factors, the Judge determined that the least restrictive outcome would be a discharge under s 283(a).

Result:

Discharge without conviction.

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R v T [2014] NZYC 222

File number: CRI-2013-270-000107
Date: 27 March 2014
Court: Youth Court, Tauranga
Judge: Judge Rollo
Key title: Consent, Orders - type: Supervision with residence - s 283(n), Orders - type: Mentoring programme - s 283(jb), Evidence (not including admissibility of statements to police/police questioning).

T, aged 13, denied the three charges which were the subject of the defended hearing. These were two counts of sexual violation by unlawful sexual connection and one count of sexual violation by rape.

Facts

T attended a birthday party at a Tauranga address. Also at that party was L, a 16 year old girl, together with her friend J. L and T were witnessed 'hooking up' at the side of the house during the course of the evening. Their kissing was described as mutual, although witnesses described seeing L firmly resisting T's attempts to put his hands down her pants. Sometime after midnight, L and J left the house where the party was taking place and walked across an adjacent small park. While walking, L alleged that she was grabbed from behind, forced to the ground and then sexually violated by T. After returning from the park to the party, L accused T of raping her. T denied any wrongdoing to T and others who were present at the house.

After making her complaint to the Police, L was medically examined. This assessment showed signs of a number of recent abrasions and lacerations, and redness to one cheek. Some of those abrasions were to her inner thighs, and lacerations were to her genital and perianal area. Some of these lacerations were still bleeding, and in some instances, were also quite long and deep. Swabs for DNA analysis were taken. In short form, the DNA evidence was to the effect that there was strong scientific support that T's, or a close male relative's, DNA was in L's vagina and in the saliva stains of a scarf found in close proximity to where the sexual intercourse took place in the park. 


Law and analysis

The Judge reiterated that the legal onus was on the Crown to prove each charge beyond reasonable doubt. A charge of sexual violation by unlawful sexual connection required the Crown to prove four matters, beyond reasonable doubt:

  1. That the sexual connection actually took place on each count (the alleged 'fingering' of L's genetalia; the alleged oral sex; and the alleged sexual intercourse); and
  2. That L did not consent to the sexual connection in each case; and
  3. That there were no reasonable grounds for T to believe that L was consenting to the sexual connection in each case; and
  4. That T knew that such sexual connection in each case, without L's consent, was wrong.

The Judge addressed each question in turn.

1. Was there a sexual connection?

There was no issue that T had sexual connection with L on all three counts. T admitted this in his DVD interview and again in his evidence in Court. Those admissions were consistent with the evidence of L, and also with the medical evidence. It was satisfied, beyond reasonable doubt, that T did have sexual connection with L.

2. Did L consent?

L's evidence was very clearly that she did not consent to any of T's actions and that she tried to resist him. An exception to this was that L offered to 'do something else' during the alleged digital penetration in an attempt to try to desist his actions, which were described as incredibly painful.

T's evidence was that L did consent, that she 'wanted it', and that L initiated and encouraged the sexual connections.

In considering all of the evidence, the Judge preferred L's evidence, rejecting T's as untruthful and unreliable in critical aspects. It was deemed relevant that T and L did not know each other at all and did not socialise with each other that night before going to the park. T followed L and J to the park uninvited. All of L's evidence of the alleged assault was entirely consistent with an absence of consent to the sexual connections. It was satisfied beyond reasonable doubt that K did not consent to any of the sexual connections.

3. Were there reasonable grounds for belief in consent?

It was found as fact that T grabbed L from behind, spun her around and slapped her hard on her cheek. Similarly, it was found as fact that L did not consent to T's subsequent actions, and that she resisted them throughout, including calling out to her friend for help. L's friend J called out for T to 'get the fuck off her'. It was noted that these actions were not consistent with someone who was consenting to sexual intercourse. After carefully considering all the evidence, the Judge rejected T's account that he thought or believed that L was consenting to his actions. It was satisfied beyond reasonable doubt that there were no reasonable grounds for T to believe that L was consenting to any of the three sexual connections.

4. Did T know what he was doing was wrong?

It was also satisfied beyond reasonable doubt that T knew that forcing himself sexually on a female in such circumstances, without her consent, was wrong.

In an evidential interview T was able to distinguish the difference between right and wrong sexual acts.

Despite being 13 years old, it was noted that T had a significant interest in sexual matters with the female sex. Material from T's Facebook page was produced as evidence that T had a degree of sexual interest and apparent sexual maturity well beyond that of an innocent young boy.

Other matters

T stated in evidence that he thought L was making allegations of rape against him because he had run away from the park, leaving her there after having sex. It was held that L's immediate return to the party after the rape, and her telling an adult mother what had happened to her, was strong evidence in support of her allegations. L's actions were entirely consistent with her having been raped in the circumstances as she described them. Witnesses completely independent of L described her as extremely upset, crying hysterically, clutching her vagina and complaining of pain, bleeding quite profusely and asserting that she had been raped by the male whom she accurately described as T. All of this was determined to be entirely consistent with the truthfulness of her allegations.

T also denied any sexual contact with L in the initial part of his Police interview. He said he did so because he was afraid and embarrassed. The Judge did not take those lies to mean that T had lied about everything, merely that they reflected how reliable his evidence otherwise might be. The nature of specific lies cast doubt on the general truthfulness of T's evidence.

Determination

The Judge accepted L's evidence as truthful and reliable. Her evidence was significantly supported, in all respects, by her actions immediately after the sexual assaults, and by the evidence of other witnesses who were present. Additionally, the medical evidence substantially supported what L alleged happened to her.

The Judge was satisfied beyond reasonable doubt that the Crown had proved each of the three charges of sexual violation against T.

Sentencing decision

T subsequently appeared for sentence in front of Judge Rollo on 27 May 2014.

The Judge noted that T, along with his whānau, the victim and her family, had undergone an excellent Family Group Conference. The FGC took five hours and facilitated full, frank and emotional discussions. T's commitment and engagement in this process was acknowledged, as was that of the victim.

The recommendation from the FGC was that T receives a sentence of six months supervision with residence. This was adopted by the Judge, with an additional 12 months' supervision with conditions, including attendance at the SAFE programme. That will be followed by a 12 month mentoring order to provide T with some additional, but decreasing, supervision as he transitions more fully back into the community.

Result:

Order under s 283(n) for six months supervision with residence followed by a 12 month mentoring order under s 283(jb).

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R v TW [2014] NZYC 380

File number: CRI-2013-235-000037
Date: 21 May 2014
Court: Youth Court, Masterton
Judge: Judge Walsh
Key titles: Orders - enforcement of, breach and review of (ss 296A-296F): Supervision. Orders - type: Supervision with residence - s 283(n), Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection, Principles of Youth Justice (s 208).

T appeared regarding two sentencing matters. First, he had failed to comply with a supervision with activity order in respect of charges relating to aggravated robbery, two burglaries, assault, and receiving. A declaration was made pursuant to s 296B(1) and the supervision with activity sentence was suspended.

Second, T was charged with sexual conduct with a young person. T did not deny the charges. They related to serious sexual offending against two girls. 

Discussion

In determining whether a s 283(o) order was appropriate in this case, the Judge considered the following factors:

1. The principles in ss 4, 5, and 208 of CYPF Act and in particular the principles at ss 208(d), (e), (f), (fa), and (g):

  • Keeping T in the community balanced with public safety
  • Age as a mitigating factor
  • Any sanctions to promote and maintain T’s development in the least restrictive form
  • Sentence must address causes of his offending
  • Court must have regard to the views of the victims

2. T was now 16 years, 7 months so this was the last opportunity to deal with him in the youth jurisdiction.

3. The Court could not consider a sanction short of supervision with residence or conviction and transfer to the District Court for this offending.

4. The offending was serious. The maximum sentence for the offence is 10 years imprisonment.

5. Victim A was 14 and not known to T. They began kissing consensually but T then lay on top of the victim, forced her pants down and penetrated her vagina with his penis repeatedly. Victim B was known to the defendant and was 12 years old. T lured her out to a park by threatening to kill himself. She came with two friends but when he ran down to the river saying he was going to kill himself she followed alone. When he got her alone he forced himself on her, kissing her and then pinning her down, holding her arms, removing her pants and penetrating her vagina with her penis repeatedly. He stopped when her friends came looking for her, took her cell phone and walked away. The Judge concluded that the girls were vulnerable and T knew full well they were not consenting. The Judge noted that T was lucky not to be facing more serious charges.

6. Public interest must be taken into account and there were issues of safety that needed to be taken into account.

7. Based on the reports (s 333, Wellstop, and social worker’s), T had a tragic upbringing. T was sexual abused at the age of 3 by a girl aged 12. A total of 3 incidents involving sexual abuse by different offenders were recorded by CYFS.

8. In February 2010 T and another boy were accused of sexually assaulting two girls aged 10. An investigation indicated there was some consent. T was given a police warning.

9. T’s relationship with his mother was problematic and was currently broken down.

10. Problems had arisen in the past over placements for T because of his attitudes and 3 FGCs had broken down because T refused to comply.

11. T grew up in an environment where adults abused each other and he developed a distorted world view.

Balancing Exercise

When the Judge came to the balancing exercise he indicated his concern that despite the likelihood that T would be eligible for home detention if sentenced in the District Court, he did not have a home to go to. The District Court might then have no option but to impose a short term of imprisonment. The Judge considered that more harm than good would come from this outcome and so he declined to convict and transfer to the District Court.

However, there were concerns over T’s attitude. His attitude to sentencing in the past was illustrated by his lack of completion of his previous sentence of supervision with activity. Further, his WellStop report noted that if T’s situation remained the same the likelihood of him engaging in further abusive sexual behaviour was high. The report set out a number of recommendations. The s 333 report echoed some of the concerns in the WellStop report. It would be possible for T to have some specialist treatment from WellStop while in residence.

The report from the residence showed some positive progress from T. Overall, having regard to all the factors, the Judge was convinced that the appropriate sentence was one of supervision with residence.

Finally the Judge noted his intention to sentence T to a term of supervision for 12 months at the expiration of the supervision with residence sentence. The Judge noted that supervision should not be considered a soft option and if T did not comply the consequences could include a conviction and transfer to the District Court.

Result:

Judge declined to convict and transfer T to the District Court for sentencing. T sentenced to supervision with residence.

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SR v Police and MSD [2014] NZYC 484

File number: CRN 14244000056
Date: 10 July 2014
Court: Youth Court North Shore
Judge: Judge Fitzgerald
Key titles: Youth Court Procedure, Criminal Disclosure Act 2008.

S was charged with sexually violating J between July 2011 and December 2013. The boy's families had been close friends for a number of years and regularly spent time together. At the time of appearance, S was aged 16 and J was aged 13. S applied for a non-party disclosure hearing under s 24 of the Criminal Disclosure Act 2008 (CDA) seeking information relating to J held by Child, Youth and Family (CYF).

The application was brought because of information in a Police job sheet dated 8 January 2014. In that job sheet, Police refer to a telephone conversation with a social worker for CYF in which it was revealed that J was involved in some quite serious and extensive sexual activity with another child when he was younger, of which he was frequently the aggressor. It was submitted that this information was relevant to the charge S faced as it may provide evidence as to why J might know about sexual activities such as those S was alleged to have committed. It was also submitted that there were potential issues of transference and a concerning tendency for J to lie and exaggerate.

S's counsel acknowledged that the provision of such information should be subject to strict confidentiality and would not need to be admissible in trial. Rather that it was relevant and potentially crucial to S's defence.

With respect to the application process, the Judge noted that the strict requirements of service of application under s 26 of the CDA were not complied with. Neither the Court nor the Registrar served the persons or agencies concerned with the specified documents. However, all parties concerned, including J and his parents, were aware of the situation and were happy with the way the hearing had proceeded. Therefore, the Judge dealt with the application on this bases that the spirit of s 26 was complied with on an informal basis, even if the precise form was not.

When assessing the relevant statutory provisions and competing interest the Judge made the following observations:

  1. The basis upon which the Court must determine the application is set out in s 29 of the CDA. Citing R v Medcalf [2013] NZCA 333, it was observed that, although ss 29(2) and (3) indicate circumstances in which a judge might grant or refuse a disclosure order, the ultimate test must be exercised under s 29(1) after consideration of all relevant factors. Only if the information (or part of it) is relevant to a trial issue and it is necessary, in the public interest, for it to be disclosed, can the court exercise its discretion to make a non party disclosure. There is no presumption in favour of disclosure.
  2. The Court in R v Medcalf also commented that in almost all opposed cases, examination of the information will be necessary for the judge to undertake the 'relevance' and 'public interest' inquiries required by s 29(1). Privacy and confidentiality considerations are part of the 'public interest' inquiry and must be brought into account when considering what order should be made.
  3. The competing interests of privilege and confidentiality under ss 16(1)(j) and (k) and fair trial issues for the defendant need to be carefully weighed. To be factored into the exercise of judgment is the possibility that privilege and confidentiality issues might be adequately protected by importing conditions under s 29(4).
  4. Given the case specific assessment required, the nature of the special relationship that gives rise to the confidentiality is an important consideration (see R v Moore [2001] 2 NZLR 761 (CA) at [26]).
  5. In R v W HC Timaru CRI 2005-009-000818, 22 September 2005, it was held that counselling notes were relevant and should be disclosed, despite the extreme importance of the integrity of the counselling process. Although there was not an analysis of the nature of the confidential relationship that existed in that case, the fair trial issues were seen as being of such importance that the balance tipped in favour of ordering disclosure.
  6. Particular care is required when dealing with issues such as [privilege and confidentiality concerning children who are vulnerable, not only by virtue of their age, but where they are victims of abuse, as J is alleged to be. Such children are dependent on adults to ensure their needs are met and necessary protection provided. Failure to do so might have long term impact on their confidence and trust in people and agencies they should be able to turn to for help when needed. Also, when such children are interviewed by professionals and disclose sensitive, personal information, they would expect to have done so in confidence.

It was considered important to recognise that sexual abuse is a complex area and that literature suggests that children can honestly believe an event occurred when it did not; this may be due to things such as suggestion, misattribution or transference. Therefore information regarding past involvement in sexual activity, either as a perpetrator or a victim, will have relevance to possible defences as might information regarding behaviour or personal characteristics that might indicate a propensity to lie or exaggerate.

Having regard to these factors, the Judge ordered that CYF disclose some aspects of J's file that were relevant to in the context of the case including parts of the SAFE reports and social workers notes. It was ordered that many irrelevant parts of the file either not be disclosed, or that details be redacted so as not to be identified.

Finally, the disclosure was subject to certain conditions, including that the information be disclosed to S's counsel only for the purposes of conducting a defence and only to the extent that it relates and refers specifically to S.

Result:

Disclosure ordered subject to strict conditions.

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SR v Police [2014] NZYC 942

File number: CRI-2014-244-000024
Date: 22 December 2014
Court: Youth Court, North Shore
Judge: Judge Fitzgerald
Key titles: Youth Court Procedure, Criminal Disclosure Act 2008.

S sought an application for non-party disclosure from the Accident Compensation Corporation (ACC) and SAFE Network Incorporated (SAFE), relating to information about J. It was claimed that the information was relevant as it 'may provide evidence as to why J knows about sexual activities such as those S is alleged to have committed, plus potential issues of transference and questions concerning J's alleged tendency to lie or exaggerate'.

Counsel submissions

Counsel for SAFE opposed the application. He emphasised that there exists a relationship of trust between SAFE and its clients, and that by breaching confidentiality through disclosure this trust would be hampered. This would in turn affect the therapeutic services SAFE provides. He argued that much of the information sought can only be properly interpreted by a registered psychologist, and misinterpretation of the raw data has the potential to cause harm. Furthermore, it was submitted that the information pertaining to J was privileged, and that the public interest in confidentiality outweighed its probative value. Counsel also noted that by breaching J's trust and confidence, he may be dissuaded from seeking further treatment from SAFE or engaging in future treatment programmes in an effective way.

S's advocate argued the credibility of J will be an important issue at trial, and that the information sought might be relevant to that issue.

Discussion

The Judge pointed to s 29 of the Criminal Disclosure Act 2008 as the relevant basis from which to determine the application. He referred to R v Medcalf [2013] NZCA 333, which observed that although s 29(2) and (3) set out circumstances in which a judge might grant or refuse disclosure, the ultimate test must nevertheless be exercised under s 29(1) after consideration of all relevant factors. The Judge held that 'only if the information (or part of it) is relevant to a trial issue and it is necessary, in the public interest, for it to be disclosed, can the court exercise its discretion to make a non party disclosure order'.

What therefore needed to be weighed were the 'privilege and confidentiality issues on the one hand, and fair trial issues for the defendant on the other'.

The Judge referred to R v W HC Timaru CRI-2005-009-000818, 22 September 2005, where Hansen J held that counselling notes were relevant and should be disclosed, despite the extreme importance of the integrity of the counselling process. The Judge also noted that particular care needs to be taken when dealing with issues of privilege and confidentiality concerning children who are vulnerable. J is allegedly the victim of abuse. He relies on adults to provide him with protection, and if disclosure is required then this may have long-term effects on his ability to have trust and confidence in the people and agencies that he should be able to turn to for help.

The Judge said he must be satisfied that the information is relevant and necessary in the public interest before ordering that it be disclosed.  He also noted that he must take into account:

  • The extent to which the information will assist S to properly defend the charge; and
  • The probative value of the information; and
  • The nature and extent of any reasonable expectation of privacy with respect to the information, including any expectation of the person to whom the information relates; and
  • The effect of the determination on the fairness of the trial or hearing process.

Decision

The Judge held that the information that ACC held comprised only of administrative data, and was not relevant to the proceeding.

Much of the SAFE information was also administrative in nature and not relevant to the proceeding. The Judge emphasised that the remaining information contained psychometric data, questionnaires, test narratives and reports that he did not know how to interpret. Only a registered psychologist would be able to make sense of that information.

While acknowledging the undesirability of allowing personal and sensitive information given by J in confidence to SAFE to be disclosed, the Judge made the following orders:

  • Reports that have previously been disclosed are not to be disclosed again;
  • The remaining information is only to be released to a psychologist engaged by S, who is capable of properly interpreting and translating the data and related information to counsel;
  • Only copies of the information, and not the originals, are to be disclosed to the psychologist;
  • The names and information of parties not related to the proceeding shall be redacted from the information;
  • The psychologist may discuss the information with counsel, but may not give a copy of it to counsel or any other person without the Court's permission;
  • The information the psychologist discloses to counsel for S is not to then be disclosed by counsel to S, 'other than to the extent that any of it relates specifically to S'.

Result:

No disclosure was ordered.

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