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New Zealand Police v KW [2021] NZYC 72

Published 04 August 2021

Sentencing — whether to transfer to District Court — aggravated robberies — youth justice principles — wellbeing and best interests of young person — Oranga Tamariki Act 1989, ss 4A, 5, 208, 283(o), 284, 289(1)(a) & 289(1)(b) — Sentencing Act 2002, ss 15B & 18 — United Nations Convention on the Rights of the Child — Convention on Rights of Persons with Disabilities — R v Mako [2000] 2 NZLR 170 (CA) — Police v MQ [2019] NZYC 456 — P v Police [2017] NZHC 2445. The young person faced 25 disposition charges for a range of offences including taking, using and getting into vehicles unlawfully, theft, burglary, three aggravated robberies and one assault with intent to injure. Prior to that the young person had been placed under a supervision order for 28 similar offences, and four months into the supervision order, had reoffended on various occasions. He had subsequently been placed in a youth justice facility and now faced an application to have all 25 disposition charges transferred to the District Court for sentencing, along with three of the aggravated robbery charges first disposed of under the supervision order and eight charges which occurred while the young person was subject to the supervision order. In considering an application for a transfer to the District Court, a court must consider the principles of youth justice, including adherence to the relevant international conventions, and impose the least restrictive outcome relative to the offending. The primary youth justice principles are the well-being and best interests of the young person, accountability of the young person, public interest and interests of the victim(s). The Judge acknowledged the seriousness of the offending and the harm to the victims, who had mixed feelings towards the offending. The Judge also considered the young person's upbringing which provided context towards the spree of offending. In assessing whether a transfer was the appropriate option, the Judge noted that the young person had recently turned 16 and therefore still had two years in the Youth Court's jurisdiction; in the District Court, it was unknown whether a sentence of imprisonment would include an adequate rehabilitation programme focused on young persons. Weighing up all the factors, the Judge determined that a further 12 month order for residence was the appropriate means to hold the young person accountable and the least restrictive outcome relative to the offending. The residence order would be accompanied by rehabilitation aspects and a managed move back into the community. Judgment date: 19 February 2021. * * * Note: names have been changed to comply with legal requirements. * * *

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