File number: CRN 0204000567
Date: 21 December 1990
Court: Youth Court, Auckland
Judge: Brown DCJ
Key Title: Orders - enforcement of, breach and review of (ss 296A-296F): Supervision
Supervision and supervision with residence orders made but R's sexuality lead to difficulties with placements in both young womens' and young mens' units; R absconded; placement found and agreed to by family and Matua Whangai co-ordinator.
Decision:
Supervision with residence order substituted with supervision with activity order.
File number: S 116/90
Date: 21 November 1990
Court: High Court, Auckland
Judge: Robertson J
Key Title: Sentencing in the adult Courts - Class A drugs; General Principles of Sentencing eg Parity/Jurisdiction
Summary:
Imported and sold LSD; offences committed while under 17 have been dealt with in Youth Court; High Court considering sentence for offence committed at 17; defendant liable to life imprisonment but need for parity and equity with co-offender who has been dealt with solely as a young person.
Decision:
Remanded for six months pending a report at that stage on defendant's response to Youth Court requirements. If not carried out, custodial sentence likely.
File number: CRN 0232007023-4
Date: 11 October 1990
Court: Youth Court, Lower Hutt
Judge: McKerr DCJ
Key Title: Jurisdiction of the Youth Court - s 276 offer/election; Media reporting (s 438)
Summary: Defendant aged 15; serious offending; guilty plea; FGC held - victim's relatives sought to have matter heard in High Court, defendant's family argued for matter to be heard in Youth Court. Youth Court jurisdiction declined due to seriousness of offence and in line with previous High Court authorities.
Order made suppressing publication of all submissions and facts and circumstances of offending until matter resolved in High Court.
Decision:
YC jurisdiction declined.
Name: Police v C & N
Unreported
File number:
Date: 24 October 1990
Court: Youth Court
Location: Auckland
Judge: Gilbert DCJ
Charge: Under Misuse of Drugs Act
CYPFA: s208; s283(n)
Key Title: Principles
Summary: Notes on sentencing; several charges under Misuse of Drugs Act; s 276 offer previously made and accepted but A to be sentenced for one offence in High Court as committed when 17. Police argue that a conviction should be entered against C so that a record of his offending exists for the future. C and N to stay in Youth Court as although Misuse of Drugs Act requires a custodial sentence, the youth of an offender is a factor that can be taken into account by the Court under that Act for not sending a young person to prison. Youth Court principles/available avenues of detention more appropriate for young people and transfer to District Court still a possibility under s 283(o).
On first charge, both C and N sentenced to supervision with residence. On second charge, C remanded to District Court to allow a conviction to be entered against him. A remanded to the High Court for sentence on second charge. Interim order for name suppression imposed in respect of C and A.
Decision:
On first charge, order for supervision with residence for 3 months - C and N remanded to higher Courts in respect of second charge.
Case summary provided by BROOKERS
Name: W v Ministry of Transport
Reported: (1990) 7 FRNZ 75
File number: AP232/90
Date: 23 October 1990
Court: High Court
Location: Wellington
Judge: Ellis J
Charge: Under Transport Act 1962, s 66
CYPF no: s 272
Key Title: Jurisdiction of the Youth Court - Charge type
Brooker's Summary:
Youth justice - Transfer of proceedings - Statutory interpretation - Young person committed a series of offences - One offence dealt with in District Court, the rest in Youth Court - Young person appealed District Court conviction on ground that Judge should have ordered a transfer of the charge to the Youth Court - Children, Young Persons, and Their Families Act 1989, s 272.
In December 1989, the appellant, a young person in terms of the Children, Young Persons, and Their Families Act 1989 ("the Act") was charged in the District Court for committing an offence under s 66 Transport Act 1962. She was convicted and discharged without penalty in July 1990. The appellant, a solvent abuser, had also committed various offences between October 1989 and January 1990 for which she was brought before the Youth Court. She now appealed on the ground that in terms of s 272(5) of the Act, the District Court should have exercised its discretion under s 272(5)(c) to transfer the charge to the Youth Court to be dealt with along with all the other charges the appellant was facing.
Held, allowing the appeal:
(1) There are two matters of fact which must first be determined before the Court's discretion can be exercised under s 272(5)(c). The first is that the young person must be charged with another offence before the Youth Court and that offence and the traffic offence must "arise out of the same events or series of events". There is no need to limit the events to any particular defined period of time but the offences must have a degree of commonality so that they could be described as a "series". Plainly, discrete events must be serial in nature when viewed in terms of time, but the legislation directs attention to the events being grouped more by reference to a suitable common disposition in the Youth Court.
(2) The prosecution for traffic offences not punishable by imprisonment will ordinarily be commenced by the enforcement authority in the District Court. It must follow that the Court which will consider whether it is desirable that the charges commenced in the District Court and those in the Youth Court will be heard together, will be the District Court. Hence, the Court referred to in s 272(5)(c) includes the District Court. It follows therefore that the District Court Judge was obliged to consider evidence available relating to the charges in the Youth Court so that he could decide whether or not the traffic prosecution was to be dealt with before the Youth Court together with the other charges. It does not appear that satisfactory evidence was placed before the Judge to enable him to consider the position and in particular, whether the present traffic offence arose out of the same event or series of events that gave rise to the other charge or charges[(1990) 7 FRNZ 75, 76]
Appeal
This was an appeal against a conviction of a traffic offence by the District Court Judge.
The facts appear from the judgment.
Case summary provided by BROOKERS
Police v K [1992] DCR 100
File number: not available
Date: 26 October 1990
Court: Youth Court, Tauranga
Judge: Callander DCJ
Key Title: Orders - type: Community Work - s 283(l)
BROOKERS Summary:
DESCRIPTION: Criminal law| Sentencing hearing under Children, Young Persons, and their Families Act 1989; K committed offences before age of 17; Family Group Conference to make punitive recommendations; objective to hold K responsible for his behaviour and prevent him reoffending; 3 months supervision with activity recommended; and to perform 150hr community work; held, whether 'activity' or 'programme' includes an order for 150 hours 'community work'; s 285(5) Court can impose activity or work; one or the other, but not both; underlying concern that swamping youth with too many responsibilities could be counter-productive; 'work' a wide concept involving most purposeful human endeavour; used in contradistinction to 'activity'; under s 307 'activity' intended to include human action other than work; statute does not allow both recommendations
WORDS: 'work'; 'activity'.
File number: S 89/90
Date: 14 September 1990
Court: High Court, Auckland
Judge: Gault J
Key Title: Sentencing in the adult Courts: Aggravated robbery, Sentencing in the adult Courts: Aggravated burglary
Defendant 14 or just 15 at the time of the various offences; proprietors of shops held at knifepoint; two offences committed after defendant had absconded from Dept of Social Welfare custody; defendant had a 'background of extraordinary offending' still to be dealt with involving around 50 summary offences. No mother or father - extended family's attempts to control defendant unsuccessful.
Older co-offenders had been sentenced to corrective training; here defendant too young for corrective training but eligible for prison - situation anomalous. Periodic detention and supervision unsuitable as defendant would not respond to or comply with those sentences. Necessary to impose sentence with similar 'short, sharp, shock' value as that given to co-offenders.
Decision:
Imprisonment for six months in respect of each offence to be served concurrently. Conditions on release imposed pursuant to Criminal Justice Act, s 77A(2).
Case summary provided by BROOKERS
Name: Police v W
Reported: (1990) 6 FRNZ 711
File number: AP185/89
Date: 24 September 1990
Court: High Court
Location: Auckland
Judge: Gault J
Charge: Incest
CYPF no: s 2
Key Title: Jurisdiction of the Youth Court - Age
Brooker's Summary:
Children and young persons - Statutory interpretation - Jurisdiction - Accused, aged 29, charged with offence allegedly committed when a young person - Relevant date for calculating age was date of offence and not date when proceedings were contemplated or taken - District Court had no jurisdiction to hear case - Informations correctly dismissed - Children and Young Persons Act 1974, s 2(1) and (2).
In 1988, the respondent, then aged 29, was charged with committing incest with his two sisters when he was 16 years old. Although the District Court Judge found the charges proved, she dismissed the informations on the basis that the Court did not have jurisdiction to hear the informations because the respondent was a "young person" at the time of the offences (s 2(1) and (2) Children and Young Persons Act 1974). The essential issue in this appeal by way of case stated was whether the relevant date for calculating the age of a person was the date of the offence or the date when proceedings were contemplated or taken (s 2(2)).
NB: Although the case came before the Court under the 1974 Act, the appeal is not just of academic interest, because the new Children, Young Persons, and Their Families Act 1989 is the same in all respects for the purpose of determining jurisdiction.
Held, the proper interpretation of s 2(2) is that the age of the respondent is to be taken as at the date of the alleged offence. Parliament would not have intended that a question of jurisdiction between any Court should depend on the time when a person first "contemplated" a thing or matter. Questions of jurisdiction must be clear and unambiguous. Accordingly, s 34 applies to confer exclusive jurisdiction on the Children and Young Persons Court where a young person is charged with a summary offence, or indictable offence punishable summarily. The District Court Judge was clearly right to dismiss the informations having found that she had no jurisdiction and in the absence of any power to remit proceedings from the District Court to the Children and Young Persons Court.
Obiter, as a matter of principle, the District Court should not determine guilt if it does not have the jurisdiction to enter into the legal inquiry, especially in a case like the present where the offences alleged are of such a serious nature.
Cases referred to:
Griffiths v Winikeri (1989) 4 CRNZ 313
Police v W [1941] 2 MCR 85[(1990) 6 FRNZ 711, 712]Powierza v MOT 20/2/84, Thorp J, HC Auckland M1673/83
R v M [1986] 2 NZLR 172
Appeal
This was an appeal by way of case stated on a question of law.
The facts appear from the judgment.
File number: CRN 0204000415-19
Date: 3 September 1990
Court: Youth Court, Auckland
Judge: Brown DCJ, Principal Youth Court Judge
Key Title: Care and protection cross over (s 280): Family Group Conferences/Care and Protection (s 261), Principles of Youth Justice (s 208)
Serious charges remanded pursuant to CYPFA, s280; matter referred to Care and Protection Co-ordinator but no action taken; matter referred back on advice of Police; inaction contrary to CYPFA and delay inappropriate as to young person's sense of time.
Decision:
Matter remanded for 3 weeks for FGC.
Case summary provided by BROOKERS
Name: Police v W
Reported: (1990) 6 FRNZ 711
File number: AP185/89
Date: 24 September 1990
Court: High Court
Location: Auckland
Judge: Gault J
Charge: Incest
CYPF no: s 2
Key Title: Jurisdiction of the Youth Court - Age
Brooker's Summary:
Children and young persons - Statutory interpretation - Jurisdiction - Accused, aged 29, charged with offence allegedly committed when a young person - Relevant date for calculating age was date of offence and not date when proceedings were contemplated or taken - District Court had no jurisdiction to hear case - Informations correctly dismissed - Children and Young Persons Act 1974, s 2(1) and (2).
In 1988, the respondent, then aged 29, was charged with committing incest with his two sisters when he was 16 years old. Although the District Court Judge found the charges proved, she dismissed the informations on the basis that the Court did not have jurisdiction to hear the informations because the respondent was a "young person" at the time of the offences (s 2(1) and (2) Children and Young Persons Act 1974). The essential issue in this appeal by way of case stated was whether the relevant date for calculating the age of a person was the date of the offence or the date when proceedings were contemplated or taken (s 2(2)).
NB: Although the case came before the Court under the 1974 Act, the appeal is not just of academic interest, because the new Children, Young Persons, and Their Families Act 1989 is the same in all respects for the purpose of determining jurisdiction.
Held, the proper interpretation of s 2(2) is that the age of the respondent is to be taken as at the date of the alleged offence. Parliament would not have intended that a question of jurisdiction between any Court should depend on the time when a person first "contemplated" a thing or matter. Questions of jurisdiction must be clear and unambiguous. Accordingly, s 34 applies to confer exclusive jurisdiction on the Children and Young Persons Court where a young person is charged with a summary offence, or indictable offence punishable summarily. The District Court Judge was clearly right to dismiss the informations having found that she had no jurisdiction and in the absence of any power to remit proceedings from the District Court to the Children and Young Persons Court.
Obiter, as a matter of principle, the District Court should not determine guilt if it does not have the jurisdiction to enter into the legal inquiry, especially in a case like the present where the offences alleged are of such a serious nature.
Cases referred to:
Griffiths v Winikeri (1989) 4 CRNZ 313
Police v W [1941] 2 MCR 85[(1990) 6 FRNZ 711, 712]Powierza v MOT 20/2/84, Thorp J, HC Auckland M1673/83
R v M [1986] 2 NZLR 172
Appeal
This was an appeal by way of case stated on a question of law.
The facts appear from the judgment.
File Number: MFP 101/90
Date: 23 August 1990
Court: Youth Court, Weymouth Residential Centre
Judge: Brown DCJ, Principal Youth Court Judge
Key Title: Secure Care (ss 367-383A)
Awaiting sentence in High Court on two charges of aggravated robbery; history of prior absconding; risk of physical harm to self and others (s 368(1)(b)); service effected on persons as required under s 371. [Note: CYPFA s 368 repealed and substituted on 8/1/95 by 1994 No 121, s 41].
Decision:
Order made for continued detention in secure care.
File number: S 74/90
Date: 31 August 1990
Court: High Court, Auckland
Judge: Gault J
Key Title: Sentencing in the adult Courts - Aggravated Robbery
Two offences of aggravated robbery; defendant had just turned 16; matter sent from Youth Court which "does not quite know how to cope with young people of your kind"; where Youth Court has this difficulty Court will respond with strong measures to protect the public. Imprisonment considered but given N’s age and "faint" hope that strict supervision may deter him from "road to becoming a hardened criminal", N sentenced to corrective training.
Decision:
Sentenced to corrective training, N to remain at Weymouth Centre in secure care, subject to the normal review.
File number: CRN 0285007668
Date: 6 July 1990
Court: Youth Court, Porirua
Judge: Brown DCJ, Principal Youth Court Judge
Key Title: Order - type: Supervision with residence - s 283(n); Family Group Conferences: Non agreement
Notes on Sentencing; F (15) charged with assaulting a taxi driver, large knife used; FGC but no agreement reached; taxi driver unable to resume work at time victim impact report given; if an adult a sentence of 3 to 7 years appropriate; considering all the alternatives, supervision with residence appropriate.
Decision:
Order - Supervision with residence - s 283(n).
File number: not available
Date: 27 July 1990
Court: Youth Court, Otahuhu
Judge: Brown DCJ
Key Title: Victims, Custody (s 238): Chief Executive (s 238(1)(d))
Counsel for victim given leave to appear under s 329(m); victim a District Court judge; F had been kept in police custody; counsel argued that F should be kept in secure care; all parties agreed to secure care at Kingsley in Christchurch; police undertook to travel with F between Auckland and Christchurch. Measures for dealing with offenders should have due regard to the interests of the victim, s 208(g)
Decision:
Matter remanded pursuant to s 238(1)(d) - F detained in the custody of the Director-General of Social Welfare on specific undertaking of Director-General that F will be kept in secure care throughout the entire time that he is in custody.
File number: CRN 0232004024
Date: 6 July 1990
Court: Youth Court, Porirua
Judge: Judge Brown
Key Title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Other, Family Group Conferences: Plan
E charged with theft; charge not denied; Family Group Conference had recommended a letter of apology and 20 hours community work; letter completed; work not done. Section 284 matters considered particularly E's personal characteristics (s 284(b)) - his many previous convictions, some serious; and whether E had learned from previous offences and penalties (s 284(g)). E now 17; imprisonment a possibility; CYPFA alternatives not appropriate.
Decision:
Proceedings transferred to District Court where convicted and sentenced to Periodic Detention for 1 month.
File number: CRN 9225006004-05
Date: 23 July 1990
Court: Youth Court, Auckland
Judge: Brown DCJ
Key Title: Orders - type: Come up if called upon - s 283(c); Report: Social Worker.
Serious offending; charges laid indictably; guilty plea; supportive family; FGC recommendations included that C not go further south than Manukau; no report of long term trauma to victim; C offered Youth Court jurisdiction. Three months later Social Welfare report stated that C had completed 350 hours of community work when 200 hours had been informally arranged; abstained from alcohol; not travelled south of Manukau; had paid $240 of the $600 agreed; written a letter of apology to victim; adhered to the curfew and started an engineering course. Recommendation for s 283(a) discharge denied and s 283(c) order considered more realistic.
Decision:
Order - Come up if called upon - s 283(c).
File number: CRN 0211000184; CRN 0211000196; CRN 0211000197; CRN 0211000198; CRN 0211000234; CRN 0211000820
Date: 12 July 1990
Court: Youth Court, Dargaville
Judge: Principal Youth Court Judge Brown
Key Title: Orders - Conviction and transfer to the District Court for sentencing - s 283(o): Other.
Several charges of theft including theft of bicycles, a farm bike and a handbag; charges not denied; YC jurisdiction elected; FGC held; informal arrangement for placement with academy in Napier made but C absconded and committed further offences; further FGC held - recommendation that matter be transferred to District Court and penalty should be a term of corrective training.
Held:
Because of the special circumstances of the offences, the continuing nature of the offences and the attitude of the offender, a non-custodial alternative would be inadequate as would any other alternative presented by the CYPFA.
Decision:
Convicted and transferred to District Court for sentence pursuant to s 283(o).
File number: CRN 0032004736-40, CRN 0032005540
Date: 5 July 1990
Court: Youth Court, Lower Hutt
Judge: Principal Youth Court Judge Brown
Key Title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Class A drugs.
C (now 17) charged with receiving; not denied; and theft of breath testing equipment while doing community work at Police Station. Offending overtaken by drug offences, allegedly committed after the age of 17, now before the District Court. Judge Brown had earlier disqualified C from driving when dealing with a further charge in the YC. Family Group Conferences recommended transfer to District Court on these matters. Not purely indictable matters or matters for which a full time custodial sentence would necessarily be required but because of offender's circumstances, concern as to drug matters and further offending while on bail on Youth Court matters, custodial sentence a possibility. Alternatives not appropriate in these circumstances especially as C now 17.
Decision:
Order - Convicted and transferred to District Court for sentence - s 283(o).
File number: CRN 9078003995; CRN 9078003996; CRN 9278004028
Date: 4 July 1990
Court: Youth Court, Wellington
Judge: Brown DCJ, Principal Youth Court Judge
Key Title: Youth Court Procedure
Three persons jointly charged with aggravated robbery; youngest a young person; Youth Court jurisdiction offered/accepted by young person; decision made to hear all three cases in Youth Court. Crown indicated that it did not intend to call evidence; asked for the matters to be withdrawn by leave. Two defence counsel initially argued (although one later resiled from this position) that the proceedings should not be allowed to be withdrawn and that if no evidence was adduced the correct procedure was to dismiss the proceedings as opposed to a dismissal for want of prosecution. Judge saw some merit in this argument as offence had occurred more than one year before and depositions hearings had been held so inappropriate to allow withdrawal by leave.
Decision:
On each charge, as Crown not in a position to call evidence, matters dismissed for want of prosecution.
File number: CRN 0232004448-57
Date: 5 July 1990
Court: Youth Court, Lower Hutt
Judge: Principal Youth Court Judge Brown
Key Title: Family Group Conferences - Plan, Orders - type: Supervision with activity - s 283(m), Orders - type: Supervision - s 283(k), Orders - type: Restitution - s 283(g), Orders - type: Disqualification from driving - s 283(i).
Summary:
L had a history of offending; final warning given last time but no sense having a justice system that "may as well be done by computers"; L recently taken under the wing of a community trust which presented a comprehensive plan for his rehabilitation; Judge considered it was important to show confidence in the community as it was beyond the State's ability to deal with situation; supervision with residence would have been imposed but for the plan.
Decision:
Conviction entered on each charge. Sentenced as per plan submitted. Plan included supervision with activity and supervision. Also restitution of $50 imposed and disqualified from driving for six months.
Name: Police v S
Unreported
File number: CRN 0204000483
Date: 23 July 1990
Court: Youth Court
Location: Auckland
Judge: Brown DCJ, Principal Youth Court Judge
Charge: Assault
CYPFA: s 260
Key Title: Family Group Conferences - Plan
Summary:
FGC plan was excellent in that it included its objectives, details for the services involved and assistance required, it specified the persons providing the services, it specified the responsibilities of S and those his family had undertaken and it set out personal objectives for S. S participated in the plan and it included his goals.
Decision:
Order - Supervision with residence, s 283(n).
File number: CRN004810867; 004810865; 004810868; 0048012016; 004810866; 0248011053
Date: 2 July 1990
Court: Youth Court, Otahuhu
Judge: Simpson DCJ
Key Title: Youth Court Procedure, Family Group Conferences: Convened/Held.
Six defendants were jointly charged with aggravated robbery, five of them were young persons; Nine issues arose:
Name: Police v G
Unreported
File number: CRN 020005035
Date: 30 July 1990
Court: Youth Court
Location: Henderson
Judge: Harvey DCJ
CYPFA: s 208; s 214
Charge: Resisting a Police Officer in the Execution of his Duty
Key Title: Arrest without warrant; Principles
Summary:
G (16) charged with resisting Police officer in the execution of his duty after pushing a Police officer in the chest. G had already given his particulars to one inexperienced Police officer but the Police officer making the arrest did not ascertain those details, particularly as to age. Counsel argued no case to answer because s 214 CYPFA not complied with making the arrest and resisting charge invalid: Williams v Police [1981] 1 NZLR 108; ACC v Dixon [1985] 2 NZLR 489; Galvin v Police (Unreported, 22/4/86, HC, Rotorua Registry, M44/85, Bisson J); Morris v Beardmore [1980] 2 All ER 753, 759. Counsel further argued that, as there was no evidence that s 214(3) CYPFA was complied with, this retrospectively invalidated the arrest; Judge considered Counsel on "thin ground" with this latter point; evidence as to s 214(3) may be useful where there is an issue as to the credibility about the circumstances of the arrest but not for establishing whether the arrest was valid.
The provisions of s 214(1) limit the general power of arrest without warrant that may be vested in enforcement officers where young people are concerned. If the validity of an arrest without warrant is challenged it is incumbent upon the prosecution to establish beyond reasonable doubt that the preconditions contained in s 214(1)(a) and (b) have been satisfied. No "reasonable compliance" section in the CYPFA relating to s 214 as there is in s 224 for s 221. Where CYPFA silent on a point, Judge should look to s 208 principles to test whether or not an action or a set of circumstances are in accordance with the statement of principles; question is whether the enforcement officer took the necessary steps to ensure the special protection of the young person during the investigation including such steps as necessary to ascertain whether or not the young person was subject to the CYPFA; each individual case will need to be determined upon its own facts. Here, Police officer suspected G was a young person but did not ask; his fellow inexperienced officer knew G was 16 but the two did not discuss the issue; thus, the Police officers did not take the necessary steps to ascertain whether G was covered by the CYPFA; none of the factors in s 214(1)(a) and (b) were motivating factors for the officers, the reason for the arrest was that G had assaulted a Police officer. Held: arrest not in accordance with s 214(1) and (2) CYPFA and the actions of the constable following upon that invalid exercise of the power of arrest were not justified by law; G's efforts to struggle were actions in self defence. Arrest without a warrant is a serious matter. It must be exercised properly and such proper exercise should be scrutinised where appropriate by the Court
Decision:
Power of arrest invalid.
File number: CRN 0285006796; CRN 0285006292-5
Date: 4 July 1990
Court: Youth Court, Wellington
Judge: Principal Youth Court Judge Brown
Key Title: Orders - Conviction and transfer to the District Court for sentence - s283(o): Other, Orders - type: Reparation - s 283(f), Orders - type: Come up if called upon - s 283(c).
Summary:
T charged with burglary and theft of $67,000 from a computer company; co-offender an adult employee of the computer company; insurance company resisting reimbursement. Family Group Conference decided burglary should be dealt with in Youth Court; Social Welfare report recommended transfer to District Court under s 283(o). Section 290(1) considered. Given the magnitude of the offence, a custodial sentence was likely. T, a drug addict, was 8 months pregnant.
Following s 290(1)(c), the Judge stated that he needed to be satisfied that none of the alternatives to a custodial sentence were 'appropriate in the circumstances of the particular case'. He found that here the appropriate penalty was reparation. T's father had suggested reparation and this was taken into account under s 284(1)(e).
Decision:
Declined to transfer proceedings to the District Court. Order to come up if called upon - s 283(c). Reparation of $20,000 at a rate of $100 per week - not an order against the parents but a moral obligation on them.
Name: Police v L & G
Unreported
File number:
Date: 11 July 1990
Court: Youth Court
Location: Wellington
Judge: Carruthers DCJ
Charge: Theft, Burglary
CYPF Act: s 281
Key Title: Family Group Conferences - Attendance; Family Group Conference - Convene/held
Summary:
Whether FGC has been held when young person's family refuse to attend and whether Youth Court has jurisdiction if family have refused to attend the FGC. Properly convened FGC is an essential statutory step and a pre-requisite to the Court having jurisdiction; the question is whether s 281 has been complied with and whether FGC has had an opportunity to consider ways in which the Court might deal with the young person. In re A Child CYPF 1/89 (1989) 6 FRNZ 44, where Judge Mahony held that an FGC cannot be said to have been held without family members present, distinguished.
Held: The convening of the conference as required by the Act and giving family members the opportunity to attend is sufficient compliance with the requirements of s 281 and sufficient to found jurisdiction in the Youth Court. Attendance cannot be compelled.
Judge Carruthers stressed that co-ordinators must nevertheless invite family members and make wide enquiries to ensure immediate and wider family are present. A FGC includes people other than family members but family is at its core.
Decision:
Warrant to compel both L & G's attendances.
File number: CRN 0204000483
Date: 25 June 1990
Court: Youth Court, Auckland
Judge: Brown DCJ, Principal Youth Court Judge
Key Title: Reports - psychiatric
Charges laid as not possible to send S to Auckland Hospital - as recommended by a psychiatrist; S in police cells overnight; matter remanded for one week for psychiatric report as per s 333; need for urgency stressed.
Decision:
Remanded for one week to obtain psychiatric report.
Name: Police v R
Unreported
File number: CRN 0004026582
Date: 29 June 1990
Court: Youth Court
Location: Auckland
Judge: Brown DCJ, Principal Youth Court Judge
Charge: Robbery, Attempted Theft
CYPFA:
Key Title: Bail
Summary: Application for bail. R (possibly 16) involved in robbery; attempted to snatch tourist's bag; a transient and 8.5 months pregnant; Police opposed bail; previously warrant had been issued on her failure to attend on one other attempted theft charge. R should not be in prison given her age and pregnancy; attempt to be made to bail R to foster parent's address.
Decision:
Remanded on bail to District Court.
File number: CRNs 0043002271; CRN 0043002111
Court: Youth Court, New Plymouth
Date: 12 June 1990
Judge: Ryan DCJ
Key Title: Jurisdiction of the Youth Court: Age
NOTE: Amendment to s 2(2) as from 8 January 1995. This decision could not now be reached on the basis of the law now applying.
A & K had allegedly committed indecent acts while YPs but now aged 27 and 19; discussion of pre-CYPFA test under which the relevant age is the age of the child at the time of their attendance at Court. Judge unwilling to depart from s 2(2) of the CYPFA and long-standing practice which dictates that if alleged offender is a YP at the time of the offence, then proceedings should commence in the YC. Practice is not detrimental to A & K's interests and may better accommodate the interests of the complainants.
Result:
Jurisdiction of YC upheld.
Director-General of Social Welfare v L
File number: CRN 0204000464-65
Date: 12 June 1990
Court: Youth Court, Owairaka Boys Home
Judge: Brown DCJ, Principal Youth Court Judge
Key Title: Secure Care (ss 367-383A)
L (14) faced 42-48 serious charges; had repeatedly absconded from custody; current charges included car conversion and firearms charges; FGC held and plan to send L back to Niue for at least 3 years presented. Absconding and firearm charges sufficiently serious to keep L in custody; s 368(b) satisfied and probably s 368(a). [Note: CYPFA s 368 repealed and substituted on 8/1/95 by 1994 No 121, s 41].
Decision:
Order for detention in secure care for 14 days.
File number: CRN 0204000041-42; CRN 0204000469
Date: 29 June 1990
Court: Youth Court, Auckland
Judge: Principal Youth Court Judge Brown
Key Title: Orders - type: Supervision with residence - s 283(n)
Summary:
Charges admitted; FGCs recommended W be placed under a supervision with residence order; orders made although adult in this situation unlikely to get a custodial sentence; special circumstances meant that non-custodial order would not be appropriate (s 290(1)(c)).
Decision:
Order - Supervision with residence - s 283(n).
Name: Police v P
Unreported
File number: CRN 0263000654
Date: 14 June 1990
Court: Youth Court
Location: Rotorua
Judge: Brown DCJ, Principal Youth Court Judge
Charge:
CYPFA: s 208; s 275
Key Title: Jurisdiction of the Youth Court - s 275 offer/election; Principles
Summary:
Prima facie case acknowledged and conceded as per Summary Proceedings Act 1957, s 160A; sufficient evidence existed to put P on trial. FGC recommended YC jurisdiction; opposed by Crown. Discussion of CYPFA principles and importance of public interest/safety and victim's interests.
Decision:
Youth Court jurisdiction declined. Matter committed to High Court.
File number: CRN 9277003813
Date: 21 June 1990
Court: District Court, Tokoroa
Judge: Principal Youth Court Judge Brown
Key Title: Sentencing in the adult courts: Sexual violation by unlawful sexual connection.
Summary:
Notes on sentencing; M pushed female off her bike; sexually violated her via digital penetration; YC jurisdiction offered/accepted; M denied offence; defended hearing lead to conviction and transfer to District Court.
Held:
Although M from abusive home and recently expelled from school there is a need for deterrence and no real difference between the circumstances of this case and others like it: Q v Accused CA 265/88.
Decision:
Convicted and sentenced to 15 months imprisonment; Criminal Justice Act 1985 s 277(A) conditions imposed.
File number: CRN 0024001306; CRN 0024001308; CRN 0224001683
Date: 29 June 1990
Court: Youth Court, Auckland
Judge: Brown DCJ, Principal Youth Court Judge
Key Title: Orders - type: Supervision with residence - s 283(n)
K was a Maori youth living with Black Power members; K had acted as a driver for the gang; K wanted a transfer to the District Court to get corrective training as it would be a form of entrance to full gang membership; Orders necessary to stop K becoming a gang member and career criminal.
Decision:
Order - Supervision with residence, s 283(n).
Date: 5 June 1990
Court: High Court, Wellington
Judge: Eichelbaum CJ
Key Title: Sentencing in the adults Courts - application of Youth Court principles; Family Group Conference - Convened/Held
Brooker's Summary:
Youth justice - Sentencing - Appeal against s 283(o) orders - Record of reasons for orders unavailable - Uncertainty as to whether Judge handled case in accordance with procedures under the Act - Rights of young person to be upheld - Children, Young Persons, and Their Families Act 1989, ss 13, 281(2), 283(o), 290, 340.
Appeal
These were appeals from orders made by the Youth Court under s 283(o) Children, Young Persons, and Their Families Act 1989.
The facts appear from the judgment.
The appellant appeared before the Youth Court on two occasions on a total of nine informations. On the first occasion, following a family group conference, the Youth Court made orders under ss 298 and 307 Children, Young Persons, and Their Families Act 1989 ("community work" and "supervision with activity"). These orders were not complied with. The Department of Social Welfare then applied for a review of those orders, and proposed that the appellant be convicted and remanded to the District Court for sentence under s 283(o). The Youth Court Judge so ordered. On the second occasion, convictions were entered and the Judge also made orders under s 283(o). The appellant appealed against these s 283(o) orders on the following grounds:
Held, allowing the appeal:
In relation to grounds (i) and (ii), in the absence of a record of reasons, it is unclear whether the Judge took all alternatives into account; as to (iii), no direction was given for the convening of a further family group conference, contrary to s 281(2) of the Children, Young Persons, and their Families Act 1989; and as to (iv), while it is unclear whether the Judge gave reasons, none were furnished to the appellant, contrary to s 340(1)(b) of the Act. Although the conclusion that the Youth Court Judge reached may have seemed irresistible in the circumstances of the case, the fact remains that in separate respects, down by the Act, or it is not possible to be certain that this was so. One must be conscious of the principle contained in s 13 of the Act, i.e. that the rights of young persons must be upheld.
R v Police (1997) 14 CRNZ 590
File number: T14/90
Date: 11 May 1990
Court: High Court, Rotorua
Judge: Fisher J
Key Title: Appeals to the High Court: Jurisdiction
BROOKERS Summary:
Children, young persons, and their families - Judicial review - Guilty plea to offence - Whether sentencing process to be conducted in Youth Court or High Court - Common law principles and natural justice - Informant not prevented from making submission on choice of jurisdiction in the interest of the public - Children, Young Persons, and Their Families Act 1989, s 276.
Application
This was an application under the Judicature Amendment Act 1972 seeking to review the decision of a Youth Court Judge.
The facts appear from the judgment.
The 16-year-old applicant pleaded guilty to a charge of rape. On exercising its jurisdiction under s 276 Children, Young Persons, and Their Families Act 1989, the Youth Court held that the police, as informant, were entitled to be heard on the question of whether the applicant should be sentenced in the Youth Court or the High Court. The Youth Court Judge went on to decline jurisdiction and committed the applicant to the High Court for sentence. The applicant sought a judicial review of the Youth Court's decision to permit the police to make submissions on that subject.
Held, dismissing the application:
The starting point is the general principle that every Court has as inherent power to control its own procedures in the absence of any statutory or common law directive to the contrary. A second important common law principle is that a person or body determining a justiciable controversy between parties must give each party a fair opportunity to put his view. In a criminal prosecution, the prosecutor normally represents the community. The interests of the community are normally a legitimate consideration in the sentencing process. For that reason, one might expect that the community, through the prosecutor, would have a right to be heard on a a subject in which it is vitally interested. These natural justice principles however, must always remain subject to contrary provision by statute. In this case there is nothing is either the express procedural provisions or the underlying objects of the Children, Young Persons, and Their Families Act 1989 to rebut the effect of the fundamental common law principles. As one of the principal parties to the proceedings, the informant has a right to be heard to be heard on all matters relating to sentencing in the Youth Court including the exercise of the power to decline jurisdiction under s 276 of the Act.
File number: CRN 9278004028; CRN 9078003995; CRN 9078003996
Date: 8 May 1990
Court: Youth Court, Upper Hutt
Judge: Lee DCJ
Key Title: Adult co-offenders; Jointly charged with an adult; Family Group Conference - Report from
R jointly charged with R and S with aggravated robbery; R a young person but R and S both over 18; s 277 CYPFA; decision made that proceedings should take place in the YC; Judge's reasoning in making this decision considered:
Here, factors (5), (7) and (8) indicated that the case should remain in the YC and the other factors were not sufficiently compelling to tip the balance the other way. Further, the view of a FGC not required to assist the Court in coming to a decision as to where the proceedings should be heard although family not precluded from making recommendations to the Court and any such recommendations would not be ignored. Consideration of s 246, s 247, s 258, s 259 of CYPFA.
Decision:
Proceedings to take place in YC and FGC not required to assist the Court in making this decision.
File Number: not available
Date: 5 April 1990
Court: Youth Court, Wellington
Judge: Carruthers DCJ
Key Title: Secure Care (ss 367-383A)
G faced serious charges; had absconded from Social Welfare custody several times. Drug and alcohol problem and dangerous driving placed G's physical well-being at risk. G's mother informed of the application and approved of it. Consequently, all limbs of ss 368 and 371 satisfied.
[Note: CYPFA s 368 repealed and substituted on 8/1/95 by 1994 No 121, s 41].
Decision:
Order made for continued detention of G.
File number: CRN 922006469
Date: 21 December 1989
Court: Youth Court, Hastings
Judge: Hole DCJ
Key Title: Orders - type: Disqualification from driving - s 283(i), Principles of Youth Justice (s 208), Objects/Principles of the CYPFA (ss 4 and 5)
Conflict between Transport Act 1962 and CYPFA; Ministry of Transport v Jaggard (CRN 9054004120, 4 December 1989) considered; principles of statutory interpretation discussed; Judge used general Youth Court sentencing principles from ss 4, 5, 208 and 284 of CYPFA to surmise that the Court should assist resolution through family intervention and should pay close regard to Family Group Conference (FGC) recommendations. In this case, FGC had recommended that prosecutions should be made in respect of the excess breath alcohol charge and its mandatory penalty and the family thought the court should impose a disqualification; thus power to impose the disqualification exists.
Decision:
Suspended sentence, disqualified from holding or obtaining a motor drivers licence for 6 months.
NOTE: s 283(i) as discussed in this case was repealed and substituted on 1 April 1990.
Case summary provided by BROOKERS
Name: T v Department of Social Welfare
Reported: (1989) 6 FRNZ 100
File number: M2031/89
Date: 19 December 1989
Court: High Court
Location: Auckland
Judge: Gault J
Charge: Aggravated Robbery, Kidnapping, and Unlawfully Taking a Motor Vehicle
CYPF no: s 368
Key Title: Secure Care
Brooker's Summary:
Children and young persons - Secure care - Custody orders made in respect of young person - 16-year-old charged with serious offences involving violence - Application for review of decision to detain young person in secure care - Procedure - Civil proceedings to be proved to the satisfaction of the Court - Welfare and interests of child or young person paramount factor - Children, Young Persons and Their Families Act 1989, ss 368, 375, 376, 379, 440.
The applicant, a 16-year-old, had been in the care of the department for some time residing at the Owairaka Boys Home. He had a background of absconding from the home and on one occasion had threatened suicide. In November 1989 he was placed in secure custody at Owairaka Centre following his arrest on charges of aggravated robbery, kidnapping, and unlawfully taking a motor vehicle. The Youth Court Judge held that both grounds under s 368 Children, Young Persons and Their Families Act 1989 ("the Act") had been made out and ordered continued detention of the applicant in secure care for a period of 14 days. The applicant applied for a review of that decision under s 379 of the Act.
Held, declining the application:
Obiter, upon an application for renewal of approval to detain a young person in secure care, the department must present to the Court its assessment of the appropriateness of continued detention in light of the detention under the previous order or orders, any response to counselling and other programmes and any relevant changes in attitudes of the family or whanau and to bring to the Court such material as will assist it at the time of the application for renewal in determining whether continued secure care is necessary.
Obiter, it is a real likelihood that Youth Court Judges will come to know particular young persons well and, while knowledge of background must never intrude into consideration of the proof of criminal offences, it is appropriate that it should be taken into account where it may assist in determining the appropriate form and circumstances of care of a young person. The Act clearly permits it and there is no reason in principle why this should not occur, so long as opportunity is given to the young person by his or her advocate to address any matters to be relied upon.
Cases referred to:
Angland v Payne [1944] NZLR 610 (CA)
Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203
Graebar Holdings Ltd v Taylor [1989] 2 NZLR 10; (1987) 1 PRNZ 608 (CA)
Hopper Group Ltd v Parker 24/9/86, Wylie J, HC Auckland A192/84
Application:
This was an application under s 379 Children, Young Persons and Their Families Act 1989 for a review of the decision of a Youth Court Judge that the applicant, a young person, be detained by the Department of Social Welfare in secure care.
The facts appear from the judgment.
Case summary provided by LEXISNEXIS NZ
Name: Police v M - Alt cit Police v R
Reported: [1990] DCR 544
File number: CR9270009012
Date: 7 December 1989
Court: Youth Court
Location: Tauranga
Judge: Callander DCJ
Charge:
CYPF no: s 276; s 284
Key Title: Jurisdiction of the Youth Court - s 276 offer/election
LEXISNEXIS Summary:
Criminal procedure| Application by M to be dealt with by the Youth Court rather than High Court; M aged 16; charged with three crimes all laid indictably; M wished to plead guilty and be dealt with by Youth Court pursuant to s 276 Children, Young Persons and their Families Act 1989; held, procedures of criminal law applicable to adults to be tempered when dealing with a youth; in exercising discretion under s 276 CYPFA 1989 Court must consider factors in s 284 CYPFA 1989; juvenile justice system sometimes unable to adequately deal with some of the older or more troublesome delinquents; in some cases it will be necessary for penalties of HC to be employed; sentencing provisions of Criminal Justice Act to be considered; in this case M had "not denied " the charges thus s 246 CYPFA 1989 applied; proceedings had only reached stage where M accepted that the evidence adduced at preliminary hearing was sufficient to put him on trial; proper for Court to adjourn proceedings and direct Youth Justice Co-ordinator to convene a family group conference; information as to factors in s 284 needed to be obtained by Youth Advocate
STATUTES:
Children & Young Persons Act 1974, s 34(2)(c)
Children, Young Persons, & their Families Act 1989, s 208, s 334, s 246, s 246(b), s 274, s 275, s 276, s 283, s 284
Crimes Act 1961 s 191(1)(c)
Criminal Justice Act 1985
Summary Proceedings Act 1957 s 153A, s 160A, s 168(1)
Young Offenders Act 1982, (Canada) s 16(2)
CASES CITED:
R v M & C 1 CRNZ 694 considered
TEXTS:
Child Welfare Legislation Review Committee Report: Department of Youth, ; Ethnic & Community Affairs; 1975 New South Wales Phibbs Report pp 56-57.
Name: Ministry of Transport v J
Unreported
File number: CRN 9054004120
Date: 4 December 1989
Court: Youth Court
Location: Palmerston North
Judge: Ryan DCJ
Charge: Reckless or Dangerous Driving Causing Death or Injury to Another
CYPFA: s 283(i), Transitional provisions - s 458
Key Title: Orders - Disqualification from driving - s 283(i)
Summary:
J (16) drove dangerously and collided with on-coming car causing serious injury to occupant; J admitted charge; whether J liable to mandatory disqualification for the offence with which he is charged, which disqualification is provided by s 30 of the Transport Act 1962; s 283(i) CYPFA establishes Parliament contemplated the prospect that young person may be disqualified from driving in some circumstances but there is no power in s 283 for the court to disqualify a young person who has committed traffic offences punishable by imprisonment.
NOTE: s 283(i) as discussed in this case was repealed and substituted on 1 April 1990.
Case summary provided by BROOKERS
Name: Director-General of Social Welfare v Television New Zealand Ltd
Reported: (1989) 5 FRNZ 594
File number: CP2249/89
Date: 19 October 1989
Court: High Court
Location: Auckland
Judge: Gault J
Charge:
CYPF no: Children and Young Persons Act 1974, s 24
Key Title: Media Reporting
Brooker's Summary:
Children and young persons - Press reporting - Injunction - Restraint of television broadcast in the interest of child - Whether mere identification of the child as a foster child constituted a "report of the proceedings" in terms of s 24 Children and Young Persons Act 1974.
On 16 October 1989, an interim order was made restraining the broadcast of a television item on the respondent's programme "The Holmes Show". The item dealt with the removal of an 8-year-old foster child from her foster parents by the applicant. The applicant submitted that it would be contrary to the interests of the child if the item was broadcast on the basis that the identification of the child as a foster child would constitute a "report of proceedings" in terms of, and prohibited by, s 24 Children and Young Persons Act 1974.
Held, dismissing the application:
Proceedings under the Children and Young Persons Act 1974 include all matters in which the jurisdiction of a Court is invoked for adjudication or determination and may be taken to extend to the execution or enforcement of judgments or orders. However it does not extend to encompass the continuing status of the person consequent upon a determination of proceedings. That status, while it might be a result of the proceedings, is not itself part of them. If it had been intended that the mere fact that a child is a foster child, or is under the care of the Director-General, were to be prohibited from disclosure, much clearer language would have been used in s of the Act.
Cases referred to:
T v A-G (1988) 4 FRNZ 582
Application:
This was an application for an injunction to restrain the broadcast of an item on the respondent's television programme.
The facts appear from the judgment.
Case summary provided by BROOKERS
Name: R v D
Reported: (1989) 5 FRNZ 549
File number: S51/89
Date: 7 September 1989
Court: High Court
Location: Christchurch
Judge: Holland J
Charge: Aggravated Robbery
CYPF no: Children and Young Persons Act 1974, s 34(2)(c)
Key Title: Jurisdiction of the Youth Court
Brooker's Summary:
Youth justice - Jurisdiction - Procedure - Guilty plea to indictable offence not punishable summarily - Offender under 15 - Judge at first instance must make a positive decision whether or not to give the young offender an opportunity of electing to have the information heard and determined in the Children and Young Persons Court - Children and Young Persons Act 1974, s 34(2)(c).
The offender, aged 14, was charged indictably in the Children and Young Persons Court that he committed aggravated robbery, an indictable offence not punishable summarily, which accordingly came within s 34(2)(c) Children and Young Persons Act 1974. He pleaded guilty to the charge. The Judge in the Children and Young Persons Court declined jurisdiction and the offender was committed to the High Court for sentence. The question here was whether the proper procedure had been observed prior to the young offender appearing in this Court.
Held, in the ordinary course of events a person under the age of 15 should be given the option of electing to be dealt with in the Children and Young Persons Court at first instance unless it were considered that a sentence in excess of 3 years imprisonment might be appropriate, or there is some other jurisdiction available to the High Court and not to the District Court or Children and Young Persons Court. However, if the Judge decides not to give that election, what is required then is a positive decision, preferably recorded on the information, that the young offender should not be given the opportunity to elect in terms of s 34(2)(c) Children and Young Persons Act 1974. The committal here being invalid, the offender was properly still before the Children and Young Persons Court.
Cases referred to:
R v M [1986] 2 NZLR 172
Application:
This was an application to have the young offender committed to the High Court for sentence on a guilty plea for aggravated robbery.
The facts appear from the judgment.
File number: AP62/89
Date: 26 May 1989
Court: High Court, Auckland
Judge: Anderson J
Key title: Admissibility of statement to police/police questioning (ss 215-222): Reasonable compliance.
Brooker's summary:
Evidence - Admissibility - Unfair treatment of 16-year-old - Interview without presence of parent or responsible adult - Necessity to observe principles of fairness.
Appeal:
Appeal against conviction for burglary.
The appellant aged 16 was charged with burglary and taken into custody. At the time he was suffering from a wound by a police dog. He was interviewed by a police officer who took no steps to ensure compliance with general instructions regarding such interviews.
Held:
wider issues of general relevance are to be taken into account as well as the subjective aspects of the case. The possible consequences of admitting a confessional statement in these circumstances should have been taken into account. If a confessional statement is taken in such circumstances one fears that the rules directed to fair play are irrelevant.
Appeal upheld, conviction quashed.
Court of Appeal
File number: CA54/88
Date: 14 April 1988
Judge: Cooke P, Somers J, Gallen J
Key Title: Evidence (not including admissibility of statements to police/police questioning), Rights, Admissibility of statements to police/police questioning (ss 215-222): Reasonable Compliance, Appeal to High Court/Court of Appeal: Jurisdiction
Brooker's summary:
Evidence - Similar facts - Indecent assault - Evidence of other employees of defendant sought to be admitted - Test of striking similarity satisfied - s 344A Crimes Act 1961.
Application:
This was an application for leave to appeal from a pre-trial ruling determining that certain police evidence was admissible at the trial despite non-compliance with s 215 Children, Young Persons, and Their Families Act 1989.
The facts appear from the judgment. The applicant was charged with indecent assault of an employee in 1986. The Crown sought to have admitted evidence of previous employees who had had similar experiences. In the District Court, the Judge had held that the evidence was admissible at the trial. The applicant then sought leave (out of time) to appeal against that decision.
Held:
Subject to appropriate warnings, and to the discretion of the trial Judge to exclude evidence if a significant difference emerges at the trial it would be wrong to shut the evidence out from the jury's consideration. In justice and common sense the alleged practice of the accused, though its details may have varied somewhat, is admissible on the charges against him. The test of striking similarity is satisfied.
Held, declining the application:
Although there was considerable deviation from the requirements of s 215 (arising from the fact that there was no express reference to entitlement to the presence of a barrister or solicitor or to any person nominated by the young persons), on the evidence before him, the High Court Judge was entitled to find reasonable compliance in terms of s 224. The spirit and object of the relevant part of the Act being that adequate protection be provided for children or young persons in police interviews regarding a possible offence, enough was done here to ensure no significant contravening of the purposes and the provisions of the Act (although the case is not far from borderline).[(1991) 8 FRNZ 119, 120]
There was a clear indication that legal advice could be obtained and, although the boy was not invited to nominate any person for consultation or attendance, the mother was manifestly the very sort of person contemplated by the Legislature.
Obiter:
This is far from suggesting that these sections impose mere formalities and may be disregarded with impunity by investigating police officers. A factor of importance here is that, the Crown having tendered evidence to discharge the burden of showing reasonable compliance and having adduced enough evidence to establish that prima facie, no evidence in response was called for the accused. The impression which is left is that the points arising under the Act are more of a technical nature in this case and that nothing substantially unfair or seriously contrary to the purposes of the Act took place.
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