Police v H (27 January 1999) YC, Hamilton, CRN 80219027561; 8219027567, Twaddle DCJ

Name: Police v H
Unreported
File number: CRN 80219027561; 8219027567
Date: 27 January 1999
Court: Youth Court
Location: Hamilton
Judge: Twaddle DCJ
CYPFA: s 245
Key Title: Family Group Conferences - Attendance; Family Group Conferences - Convened/Held

Summary:
Jurisdiction of Court challenged on grounds that s 245 CYPFA as to FGC not complied with. YJC unsuccessful in contacting H's mother despite many attempts; statement from victim's father obtained; YJC could not contact victim; YJC set FGC date but only YJC and Youth Aid Officer present at FGC; YJC did not adjourn conference but laid Informations in the YC; s 245 CYPFA; s 2 CYPFA definition of "convene"; s 250 and s 251 CYPFA; whether matter "considered" by FGC pursuant to s 245(1)(c): Re a Child (1989) 6 FRNZ 44 considered; Police v BM (1993) 11 FRNZ 29 distinguished; s 4(f) CYPFA; reasoning in Police v L & G (11 July 1990) YC, Wellington, Carruthers DCJ adopted although that case dealt with s 281 CYPFA - reasoning of Carruthers DCJ equally applicable to s 245. Held: H and his mother given every opportunity to attend, they failed or refused; YJC and Youth Aid Officer properly present at Conference and they considered the matter and decided that Informations should be laid in Court; s 4(f) should be upheld.

Decision:
FGC properly convened and properly considered the matters in terms of s 245(1)(c) CYPFA.

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Jones v Police [1999] DCR 182 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Jones v Police
Reported: [1999] DCR 182
File number: CRN 8009033908, 41174; 7009023457 (1987); 1009006188 (1991); 8009022254 (1998)
Date: 12 February 1999
Court: District Court, Christchurch
Judge: Abbott DCJ
Key Title: Disqualification from Driving - s 283(i); Youth Court procedure

Summary:
Transport - Driving while disqualified - Application for rehearing - Whether disqualification orders made by Children and Young Persons Court or Youth Court were a 'conviction' for the purposes of section 30A Transport Act 1962 - Whether Court had jurisdiction to convict and sentence for breach of those orders - Transport Act 1962 - Children and Young Persons Act 1974 - Children, Young Persons, and Their Families Act 1989.

The applicant had pleaded guilty to two charges of driving while disqualified. In the course of sentencing the Judge considered that there might be a real issue as to whether at the time of the alleged offences the applicant was validly disqualified. The disqualification orders which had allegedly been breached were indefinite disqualifications. The applicant sought a rehearing in respect of those disqualification orders. The applicant also sought a rehearing as to both conviction and sentence in respect of a separate charge of driving while disqualified, and a rehearing as to conviction in respect of the current two charges.

Held (granting the application for rehearing):
The issue was whether, for the purposes of s 30A(1)(b) of the Transport Act 1962, the defendant had been 'convicted' of an offence when he had appeared in the Children and Young Persons Court, admonished, fined $200 and disqualified from holding a driver's licence for nine months. The scheme of the Children and Young Persons Act 1974 ('CYP Act') had been that a conviction would be entered against a young person only if the power contained in s 36(1)(j) of that Act was exercised, while s 283(o) of the Children, Young Persons, and Their Families Act 1989 ('CYPTF Act'), which replaced the former Act) was to similar effect (and s 290(2) of the latter Act now provided that the power to convict and transfer to the District Court was a power of last resort). In view of the fact that the CYP Act and the CYPTF Act respectively contained several 'deemed conviction' provisions, and in view of the fact that s 293A(4) of the CYPTF Act provided to that effect in respect of the power of the Youth Court to impose an indefinite disqualification under s 30A of the Transport Act, it would have been a simple matter for Parliament to have included an appropriate 'deemed conviction' provision in s 30A itself, in particular when s 293A was enacted. However it had not done so. Having regard to those matters as well as other legislation such as the Criminal Justice Act 1985 and the Criminal Investigations (Blood Samples) Act 1995, a disposition of a charge in either the Children and Young Persons Court (under the CYP Act) or the Youth Court (under the CYPTF Act) was not a conviction for the purposes of triggering the District Court's jurisdiction under s 30A(1)(b) of the Transport Act, unless a conviction was entered pursuant to s 36(j) of the CYP Act or s 283(o) of the CYPTF Act respectively. That was consistent with the rehabilitative rather than punitive objectives of the Youth Court. Accordingly rehearings were granted in relation to conviction and sentence for the applicant's previous offences.

Application:
This was an application for rehearing pursuant to s 75 of the Summary Proceedings Act 1957.

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Police v G YC Hamilton, 10 February 1999

File number: unknown
Date: 10 February 1999
Court: Youth Court, Hamilton
Judge: Judge D R Brown
Key Title: Evidence (not including admissibility of statements to police/police questioning)

Summary:
G's fingerprints taken in connection with a burglary; G's counsel argued that the Police Act 1958, s 57 did not authorise that taking of fingerprints as 'person' in s 57(1) does not include children and young people. Further, that s 57(3) is evidence that no attention has been paid to the provisions of the CYPFA in the application of that subsection; use of word 'acquitted'.

Held:
'Person' in s 57(1) includes children and young people; as to s 57(3), when a charge against a young person is dismissed in the Youth Court, the generic term for this is acquittal; if someone is acquitted in the Youth Court their fingerprints are to be destroyed.

Decision:
Argument to exclude G's fingerprints dismissed.

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Police v M (1999) 18 FRNZ 185 (DC)

Case summary provided by BROOKERS

Reported: [1999] NZFLR 588 also reported as Police v I [a young person].
File number: CRN8209004448
Date: 19 February 1999
Court: District Court, Christchurch
Judge: Judge Strettell DCJ
Key Title: Jurisdiction of the Youth Court: Age, Jurisdiction of the Youth Court: s 275 offer/election, Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Aggravated robbery

Summary:
Youth justice - Jurisdiction - 15-year-old young person charged with aggravated robberies committed when aged 14 - Judge's jurisdiction to make order under s 283(o) Children, Young Persons, and Their Families Act transferring young person to District Court for sentence - No jurisdiction to transfer where young person under 15 at time of offending - Appropriateness of sentencing options - Importance of rehabilitation goals for young offenders - Option to hear and determine case in Youth Court - Children, Young Persons, and Their Families Act 1989, ss 2(2), 283; Criminal Justice Act 1985, ss 4(2), 8.

Rehearing:
This was a rehearing of a Judge's decision to allow a young person charged with armed robbery to have his case heard and determined in the Youth Court.

M, a 15-year-old young person, faced two counts of aggravated robbery committed when he was 14 years old. The police opposed a family group conference recommendation that M be dealt with in the Youth Court and sought his transfer to the High Court for sentence. The Judge initially permitted M to remain in the Youth Court. He considered that s 283(o) Children, Young Persons, and Their Families Act 1989 allows the Court to make an order convicting a person 15 years old or over and ordering that person to be brought before a District Court for sentence. The Judge considered a transfer to the High Court inappropriate as a sentence of more than 5 years' imprisonment was unlikely.

The police applied for a rehearing. They claimed the Judge had no discretion to transfer M to the District Court for sentence and that the sentencing options in the Youth Court were inadequate to deal with such serious offences.

Held, allowing M to elect to have the information heard and determined in the Youth Court:

1. 1. In the absence of any words limiting its scope, the meaning of s 4(2) of the Children, Young Persons, and Their Families Act 1989 is plain and unambiguous. It is that the only penalties which may be imposed on an offender are those available at the time of the offence. The inclusion of the words 'against the offender' make it plain that the Legislature had in mind the personal characteristics of an offender, including his or her age. (p 188, line 40)
   2. Where a young person, who has been given the option of being dealt with in the Youth Court, was 14 years old at the time of the offence but is 15 at the time of sentence, a Youth Court Judge has no power to convict the young person and transfer him or her to the District Court for sentence. If Parliament had chosen to make the application of s 283(o) dependent on the young person's age at sentence, it would have been a simple matter for the section to say so. (p 189, line 41)
      Police v Edge [1993] 2 NZLR 7; (1992) 9 FRNZ 659 (CA)
      Police v W [1995] DCR 756 considered, Police v S [1996] NZFLR 906 (DC) distinguished
   3. Where the exercise of a Court's discretion to allow a young person to be dealt with in a Youth Court is shown to be based on an erroneous understanding of the law, the Court has the inherent power to rehear the matter and execute its discretion based on a proper understanding of the law. (p 190, line 15)
   4. The Court's jurisdiction to make orders is limited by s 283 Children, Young Persons, and Their Families Act. Transfer to the High Court is not available under this section. The custodial sentencing options available to the Court are limited to residence with supervision, which may not reflect the nature and gravity of the offending. (p 190, line 28)
   5. If M admitted the charges and was declined the right to remain in the Youth Court, he would be transferred to the District Court for sentence. (p 191, line 7)
   6. In exercising its discretion under s 275 to allow a young person to have proceedings dealt with in a Youth Court, the Court must have regard to a number of factors. The seriousness of the offence alone is not determinative. Although the seriousness of these offences and M's part in them could not be doubted, M and his family had clearly approached the matter seriously and appropriately. They were conscious of M's obligation to be accountable for his actions. Although the robberies were traumatic for the victims they had not objected to the outcome and recommendations of the family group conference. (p 191, line 42; p 192, line 41)
   7. Rehabilitation of 15-year-olds must be a high priority in any sentencing process. As M was a first offender, the Youth Court, although limited as to length of sentence, had jurisdiction in relation to M for a further 2 years. It was open for further follow-up, such as counselling, to be available outside the specific sentencing options, and M's family appeared to support this. On balance it was appropriate to grant M the opportunity to have the information heard and determined in the Youth Court. (p 193, line 1)

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Police v Y YC Otahuhu CRN 8204003909, 5 February 1999

File number: CRN 8204003909
Date: 5 February 1999
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Jurisdiction of the Youth Court - s 275 offer/election, Jointly charged with adult; Principles of Youth Justice (s 208)

Whether to offer YC Jurisdiction under s 275 CYPFA; question of sentencing options available in the DC and their relevance to the matters that should be considered by a Judge in the exercise of the discretion under s 275, including the principles of accountability and rehabilitation; discussion of sentencing options after a s 283(o) transfer; discussion of de facto severance by the exercise of the discretion under s 275. Y (16 at time of offence) and adult associate approached complainant outside his school; drove him to a beach location and threatened and intimidated him; alleged triad connection; complainant also the complainant in a previous matter currently before the Courts. Principles from Police v R and Others (YC Upper Hutt CRN 9278004028, 12 June 1990) and Police v S and M (1993) 11 FRNZ 322 considered in light of these facts particularly the public interest: Police v W (YC Otahuhu CRN 8248016224, 23 July 1998 per Carruthers DCJ). Where matter purely indictable and transferred to DC under s 283(o) of the CYPFA, trial Judge does not have the option of considering the maximum sentences available under s 28F of the District Courts Act 1947: R v M [1986] 2 NZLR 172. It follows then that in the absence of specific legislative authority enabling a District Court Judge to impose maximum sentences, the Court is cast back to s 7 of the Summary Offences Act where the Judge's sentencing powers are limited to a maximum of 5 years imprisonment. If Y is offered the discretion under s 275 it will result in de facto severance; this factor should not predominate but it should be considered as an aspect of the public interest. Economy of time and money also not to be predominant but the desirability that the same verdict and the same treatment be returned against all concerned in the same offence must be important.

Held:
given the seriousness of this case; that Y has allegedly committed these crimes against the complainant who is the complainant in another case; the limited sentencing options in the YC given that Y nearly 17; the need for deterrence and particularly in light of the public interest, this matter should be dealt with in the HC. Principles surrounding severance taken into account.

Decision:
YC jurisdiction declined.

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R v O [1999] DCR 434 (DC)

Case summary provided by LEXISNEXIS NZ

Name: R v O
Reported: [1999] DCR 434
File number: T 982505
Date: 20 April 1999
Court: District Court
Location: Auckland
Judge: McElrea DCJ
Charge: Indecent Assault
CYPFA: s 322
Key Title: Jurisdiction of the Youth Court - Age; Delay; Rights

Summary:
Criminal procedure - Discharge - Abuse of process - Alleged offending occurred before defendant turned 17 years of age - Defendant initially charged in District Court - Proceedings re-laid in Youth Court but discharged as defendant had turned 18 years of age - Delay of 26 months from date charges first laid - Denial of right to Family Group Conference - Children, Young Persons, and Their Families Act 1989, s 332 - Crimes Act 1961, s 347 - New Zealand Bill of Rights Act 1990, s 25(b).

The defendant applied for a discharge under s 347 of the Crimes Act 1961 on the grounds of abuse of process. The defendant was charged with three counts of indecent assault. The alleged offending came to light after the defendant turned 17 years of age, with the offending having been committed before the defendant turned 17. The defendant was aged 17 years and five months when charges were first laid. The defendant was initially, but mistakenly, charged in the District Court on middle band matters that were referred to the High Court. Shortly before trial in the High Court it was held that those proceedings were a nullity because of the defendant's young age. The proceedings were re-laid in the Youth Court, but were ultimately dismissed on the grounds that the Youth Court did not have jurisdiction, the defendant having turned 18 years of age. The charges were then re-laid again in the District Court. The procedures had taken a total of two and a half years.

Held (granting application for discharge)

1. The right to have the matter considered by a family group conference if it was not denied, the right to a family group conference before any summons was issued, and the right to be dealt with promptly, were important rights that ensured that matters concerning young persons were, where possible, dealt with by the family group conference process with its restorative justice underpinning.
2. It was profoundly unsatisfactory for the Court to have to choose between denying the complainant a trial of his allegations and requiring the defendant to proceed when delays not of his making had denied him rights which the law provided to all young persons. But it seemed repugnant to justice that the defendant should be forced on to trial in the adult jurisdiction by virtue of mistakes made by other people which together had deprived him of his rights given by law.

Observations:

1. The defendant lost the potential benefit of the Youth Court in at least two respects - a conference convened prior to issuing a summons may have concluded that no charges need be laid, ie that the matter could have been dealt with on a diversionary basis; and if charges were laid, the defendant might have been advised not to deny the charges and to see if a satisfactory community based outcome could have been agreed at a family group conference.
2. There were three different legal bases for the application being advanced. One was the inherent power to dismiss for abuse of process; the second was s 25(b) of the New Zealand Bill of Rights Act 1990 affirming the right to be tried without due delay; and the third was s 332 of the Children, Young Persons, and Their Families Act 1989 which provided that a Youth Court Judge might dismiss any information charging a young person with the commission of an offence if the Judge was satisfied that the time that had elapsed between the date of the commission of the alleged offence and the hearing had been unnecessarily or unduly protracted.
3. The application was for a discharge under s 347 of the Crimes Act 1961. There was the alternative course of granting a stay. There was no reason why a defendant in this situation was not entitled to a complete discharge rather than a stay which simply left the proceedings afoot without bringing them to trial. Section 347(1)(c) entitled a Judge in his/her discretion after perusing the depositions and consideration of such other evidence and other matters as were submitted for consideration by the prosecutor or the accused, to direct that no indictment should be filed, or if it had been filed to direct that the accused should not be arraigned thereon, and in either case to direct that the accused be discharged. Those provisions were wide enough to encompass the [current] situation.
4. The same result would probably have been reached applying the cases under the New Zealand Bill of Rights Act 1990, dealing with undue delay.

R v Drew (1998) 4 HRNZ 614, referred to.

Cases referred to in judgment:
Martin v Tauranga District Court [1995] 2 NZLR 419
R v Drew (1998) 4 HRNZ 614

Application:
The defendant applied for a discharge under s 347 of the Crimes Act 1961 on the grounds of abuse of process.

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Police v T YC Otahuhu CRN 9248006223, 8 June 1999

File Number: CRN 9248006223, 225, 226, 232, 234, 241, 242, 233, 243.
Date: 8 June 1999
Court: Youth Court, Otahuhu
Judge: Judge Boshier
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Explanation of Rights, Evidence (not including admissibility of statements to police/police questioning)

Summary:
Principal issues were admissibility of a statement, examination of whether the evidence proved beyond reasonable doubt, guilt of accused; defendant under surveillance, Police alleged that the defendant was selling cannabis; discussion of when defendant made aware of his rights in relation to statement presented to Court, Court concludes that he was made aware of his rights in accordance with CYPFA before he made statement or that there was 'reasonable compliance' with the Act.

Decision:
T found guilty of possession of cannabis for sale or supply.

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Police v Andrew [2000] DCR 607 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v Andrew
Reported: [2000] DCR 607
File number: CRN 922008506
Date: 20 August 1999
Court: Youth Court, Napier
Judge: McElrea DCJ
Key Title: Jurisdiction of the Youth Court: Age; Jointly charged with adults (s 277)

Summary:
Children and young persons - Jurisdiction of Youth Court - All four defendants alleged to have taken some physical part in offences - Two defendants likely to be transferred to District Court from Youth Court because they would be 18 by the time the matter was heard - Whether indictable offence can be divided to be heard in the Youth Court - Whether depositions must be held in the Youth Court - Serious charges of sexual violation of unconscious victims - Children, Young Persons, and Their Families Act 1989, ss 275,277,283(o).

Six defendants, four of whom were aged under 17 at the time of the offending, were charged with sexual violation by means other than rape. The violations were of a serious nature and were carried out on two victims who were unconscious through the imbibing of excessive alcohol. All four youth offenders took an active part in the assaults and either victim could have died from intoxication.

The question before the Court involved the jurisdiction of the Youth Court. Firstly whether the Youth Court had jurisdiction to hear depositions where some of the defendants were youths and some adults; and secondly whether it was appropriate when the charges were proceeding indictably, to divert the hearing of charges against the young persons to the Youth Court from the District Court or High Court, which would inevitably involve severance of trials.

Held:(accepting that depositions should be held in the Youth Court but refusing the Youth Court jurisdiction to hear the charges)

1. Section 275 of the Children, Young Persons, and Their Families Act 1989 required a Youth Court Judge to hear and preside over depositions of young persons so that he or she can then make the decision as to whether Youth Court jurisdiction was being offered to the young person. In all cases where young persons were involved in purely indictable matters jointly charged with adults, the depositions must be conducted in the Youth Court.
2. It follows that the two defendants who were aged 17 years or over at the time of the alleged offending must be tried by Judge and jury either in the High Court or the District Court.

Police v Manuel (1998) 16 CRNZ 62, followed.

3. There were several considerations to weigh in deciding whether to exercise the discretion and grant the four youth defendants a separate hearing in the Youth Court. Firstly the nature of the offence; secondly the part the defendants played; thirdly the sentencing consequences; fourthly the forum in which the case was likely to be heard first; fifthly one has to consider the principles of the Children, Young Persons, and Their Families Act.

Police v Richard (Youth Court, Upper Hutt, 12 June 1990, Judge Lee), adopted.

4. Having looked at all those aspects the question of severance arose because to offer the young people Youth Court jurisdiction would involve having two trials instead of one.
5. Weighing all those matters in the balance, there was a compelling case for saying that all defendants should be tried together in a jury jurisdiction and that none of the young persons should be offered the opportunity of forgoing the right of trial by jury and having their case dealt with in the Youth Court.

Cases referred to in judgment:
Police v Manuel (1998) 16 CRNZ 62
Police v Richard (YC Upper Hutt 12 June 1990 per Judge Lee)
Police v W (1996) NZFLR 902

Application:
This was an application by the Crown to determine the jurisdiction of the Youth Court to hear depositions and charges proceeding indictably where some of the offenders were adults and some young persons.

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Police v A Young Person FC Hamilton, 18 August 1999

File number: unknown
Date: 18 August 1999
Court: Family Court, Hamilton
Judge: Judge Twaddle
Key Title: Care and Protection cross over (s 280): Family Group Conference/Care and Protection (s 261); Custody (s 238): CYFS

Summary:
Young person (15.5) appeared on 10 charges of performing anal intercourse on persons under the age of 16 and 3 charges of indecent assault. Court also required to review an order granting custody of the young person to the Director-General of Social Welfare under the care and protection provisions of CYPFA. Youth and Family matters dealt with together.

Young person had long history of aggressive, sexualised and antisocial behaviour, a conduct disorder and was under 24 hour surveillance. At Family Group Conference family and victims recommended young person should attend the Christchurch Adolescent Offender Rehabilitation Programme; police sought conviction and transfer to District Court.

Custody order made in favour of Director-General of SW and Director-General to be young person's sole guardian - review directed for 12 months time. Necessary to make final effort to rehabilitate young person. Youth justice matters require timely disposition but Christchurch programme not delivered in residence registered under the Act's youth justice provisions. Accordingly young person cannot be placed there under Youth Court orders and admission must be by way of care and protection proceedings. This weighed against immediate final disposition of the criminal charges. Sections 104 and 105 relied upon to ensure young person remained at the Programme.

Decision:
Custody and sole guardianship orders made.

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Police v D [2000] NZFLR 237 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v D
Reported: [2000] NZFLR 237
File number: CRN 9255025991
Date: 17 September 1999
Court: District Court
Location: Papakura
Judge: Hole DCJ
Charge: Burglary
CYPFA: s 5(f); s 322
Key Title: Delay

Summary:
Youth Offenders - Delay - Assessment of time frame from receipt of information through to completion of implementation of any decision - Police had delayed in speaking to informant - Offender was then spoken to - Whether delays were too great having regard to young person's age and his sense of time - Young person was aged 14 years - Discretion to dismiss proceedings - Children, Young Persons, and Their Families Act 1989, s 322.

The young person, D at the centre of these proceedings was charged with burglary. The police had received information from a possible informant on 25 January 1999 and it was recommended that she be spoken to. Though her address and school was known and it was understood that she was not on the phone she was not in fact spoken to until 20 May. D was then spoken to three days later and denied the offence. The matter was referred to the Manurewa Youth Aid centre which contacted D's parents advising that a family group conference would be set down. The information was laid on 10 August 1999, presumably after that conference had been held.

D applied to have the information dismissed either under s 322 of the Children, Young Persons, and Their Families Act or under the Court's inherent jurisdiction on the basis of delay. D submitted that the Court must have regard to s 5(f) of the Act which required that decisions affecting the young person should be made within a timeframe appropriate to the child or young person's sense of time.

Held (Dismissing the information)

1. The Court was entitled to look at the chronology and consider whether any period amounted to unnecessary or unduly protracted delay. It appeared that there was such delay between 10 February 1999 and 23 May 1999. D had been contacted little was done until the middle of June. This was enough to dispose of the application in itself.
2. The Court was also entitled to exercise its inherent jurisdiction and have regard to the principle set out in s 5(f). The Court was required to ask itself whether decisions affecting D who was 14 could be made and implemented with a timeframe appropriate to his sense of time. Any sentence imposed, even for a minimum term would take the matter through to the beginning of the year 2000. That meant a period of one year from the receipt of the information to the end of the matter. That was simply too long, even having regard to the serious nature of the offence. And the Court could dismiss the proceedings under its inherent jurisdiction as well.

Cases referred to in judgment:
Police v BRR (1993) 11 FRNZ 25

Application:
This was an application to dismiss an information laid against D on the grounds of unnecessary or unduly protracted delay.

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Police v M YC Otahuhu CRN 8248025626, 28 September 1999

File number: CRN 8248025626
Date: 28 September 1999
Court: Youth Court, Otahuhu
Judge: Boshier DCJ
Key Title: Youth Court procedure

M charged with aggravated robbery; YC jurisdiction not offered under s 276 CYPFA; M committed to High Court for sentence; sentenced to 4 years imprisonment. M appealed to Court of Appeal arguing non-compliance with Summary Proceedings Act 1957, s 153A in that no proper plea was taken. Court of Appeal allowed the appeal, and the conviction and sentence were set aside (R v Matagiaga CA155/99, 22 July 1999 per Richardson P, Doogue J, Goddard J); matter remitted to Youth Court pursuant to Crimes Act 1961 for proper plea to be taken 'according to law'; YP endorsed the Information 'I plead guilty to the within information' pursuant to Summary Proceedings Act 1957, s 153A. Youth Court Judge noted this statement was more relevant to Summary Proceedings Act 1957, s 168; s 153A includes no requirement to endorse the Information; Judge requested a written request to be completed pursuant to s 153A(2) to establish jurisdiction. Judge opted not to offer s 276 jurisdiction as matter had already been before the High Court; guilty plea; thus matter should be dealt with according to Summary Proceedings Act 1957, s 153A, not CYPFA s 276.

Decision:
Defendant remanded to High Court for sentence.

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Police v K (5 October 1999) DC, Otahuhu, CRN 8255014302-8; 8255018342, Harvey DCJ

Name: Police v K
Unreported
File number: CRN 8255014302-8; 8255018342
Date: 5 October 1999
Court: District Court
Location: Otahuhu
Judge: Harvey DCJ
CYPFA: s 296
Key Title: Review of orders; Community Work Order

Summary:
Application for cancellation or other consideration of a community work order; community work order has expired; social worker recommended the matter be transferred to the District Court as K was now over 17 and a half; nothing to act upon; no jurisdiction to review or cancel; the order should have been suspended thus keeping it alive pending the review proceedings but this was not done in this case.

Decision: Defendant released from custody as no jurisdiction to deal with the application for review.

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Police v B (6 October 1999) YC, Hamilton, CRN 9219024334/24318-9, Twaddle DCJ

Name: Police v B
Unreported
File number: CRN 9219024334/24318-9
Date: 6 October 1999
Court: Youth Court
Location: Hamilton
Judge: Twaddle DCJ
CYPFA: s 5(f); s 322
Charge: Sexual Violation; Indecent Assault
Key Title: Delay

Summary:
B (14 at time of alleged offences) charged with sexually violating a female and two charges of indecent assault of a 9-year-old girl; charges denied; application to dismiss charges on grounds that time elapsed between offences and hearing unnecessarily and unduly protracted pursuant to s 322 CYPFA. Complaint made on 20/11/98, hearing date still not set on 6/10/99. Nine months of this delay due to Police workloads, annual leave, unavailability of suitable nominated person. Section 5(f); s 322 CYPFA; Police v C (Undated, circa 1990, YC, Wellington, CR 0285015569, Carruthers DCJ) and Police v BRR (1993) 11 FRNZ 23l discussed; also R v Mackenzie (20 June 1995, YC, Blenheim, CRN 4218004914, McAloon J) where Martin v DC Tauranga 12 CRNZ 509 and Bill of Rights Act 1990, s 25(b) referred to: "the fact that delay is systemic does not justify it", McAloon J in R v Mackenzie adopted this statement as relevant to s 322 delay and added that the seriousness of the offending does not have any relevance to the exercise of the discretion under s 322. Held: Delay of nine months between file being received and Informations being laid unnecessary. Taking into account the length of the delay to date and that by the time of the hearing the delay will be more than 15 months and having regard to s 5(f), delay would be unduly protracted and unnecessary; no need for any particular criticism for finding that passage of time unduly protracted.

Decision:
Information dismissed.

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Re AM [2000] NZFLR 97 (FC)

Case summary provided by LEXISNEXIS NZ

Name: Re AM
Reported: [2000] NZFLR 97
File number: CYPFS 048/73/97
Date: 30 November 1999
Court: Family Court, Otahuhu
Judge: Judge Boshier
Key Title: Care and protection cross-over (s 280): Family Group Conferences/Care and Protection (s 261), Medical treatment (s 306(2)), Report: Psychiatric, Guardian.

Summary:
Children and young persons - Child in need of care and protection - Young person had propensity for sexual offending - Young person currently under the guardianship of the Family Court - Wish to have young person treated with the drug Prozac - Treatment opposed by young person's mother - Whether appropriate for Family Court to order Prozac treatment programme - Directions appropriate for conduct of programme - Children, Young Persons, and Their Families Act 1989, ss 110, 117, 120 - Guardianship Act 1968, ss 8, 10B, 10D.

Application:
This was a hearing to determine whether it was appropriate for a treatment programme involving a young person under the guardianship of the Family Court to be treated with the drug Prozac.

A declaration that the young person (A), now aged 17, was in need of care and protection had been made in December 1995. A had been the subject of a custody order in favour of the D-GSW. This followed several incidents of A committing sexual indecencies on young girls. Further offences occurred after 1995. In June 1999 A was placed under the guardianship of the Family Court pursuant to s 10B and was staying with caregivers. The independent psychiatrist's report obtained by the Court advised that A was at a very high risk of sexually re-offending. The psychiatrist concluded that Prozac would be an appropriate treatment for A and suggested that it be prescribed as a trial. A's mother opposed treatment fearing side effects and long-term consequences.

A had indicated that he would like to stay with his present caregivers and would like to try Prozac.

Held (appointing the Chief Executive of the Department of Child, Youth and Family Services as the Court's agent pursuant to s 10D of the Guardianship Act 1968 to facilitate and oversee a medication programme for A)

1. Given the likelihood of A reoffending; the devastating and long-term consequences of sexual offending on young children; and A's informed consent to a trial period of Prozac, the Court concluded that a trial period of Prozac was responsible and should be undertaken.
2. When the Court made an order that A be placed under the guardianship of the Family Court the making of that order automatically caused the cessation of the guardianship order under the Children, Young Persons, and Their Families Act. The position in law at present was that although A had been under the guardianship of the D-GSW, and more recently the Chief Executive of the Department of Child, Youth and Family Services, he was no longer under that guardianship. The Family Court now had the responsibility to see through A's immediate destiny.
3. Orders were made as to commencement of the programme and future reporting and contact between A and members of his family.

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