Police v B (2001) 20 FRNZ 364 (DC)

Case summary provided by BROOKERS

Reported: [2001] NZFLR 585, [2001] DCR 627
File number: CRN0290031253
Date: 31 January 2001
Court: District Court, Waitakere
Judge: Judge McElrea
Key Title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH), Youth Court procedure, Sentencing - General Principles (e.g. parity/jurisdiction)

Summary:
Youth justice - Transfer of proceeding - Charged with robbery - Assault to head and body - Offence admitted at family group conference - No formal plea - Whether the charge was 'proved' - Whether grounds for transfer established - Children, Young Persons, and Their Families Act 1989, ss 276, 283(o), 290, 284.

Hearing:
This matter dealt with the question of whether the young person should be transferred to the District Court under s 283(o) Children, Young Persons, and Their Families Act 1989.

The accused ('B'), a young person aged 16 years 11 months, was charged with the robbery of a handbag and wallet containing $300. The robbery took place at a petrol station at 11 pm on 18 May 2000. The victim, a bus driver, was refuelling when the offence occurred. The victim heard what sounded like someone in the bus and went to investigate. She was confronted by B who grabbed her arm and punched her twice in the face causing bruising and a black eye. When the victim went inside the bus to call for help, B returned and attacked her again, punching her about the head and body and kicking her in the back when she tried to pick up her handbag. Initially B was charged with the more serious offence of aggravated robbery, but this was withdrawn by the police when the matter was referred back after an appeal to the High Court. The appeal was based on the fact that the purely indictable charge had not been subject to a jurisdictional discretionary decision of the Youth Court Judge under s 276 of the Children, Young Persons, and Their Families Act 1989. No formal plea was taken, but at a family group conference B admitted to having committed the offence. B had appeared before the Youth Court on a considerable number of charges, including another robbery where an elderly man was pulled from his car and beaten. B was previously sentenced to supervision with activity by way of Court order.

Held, convicting B and transferring the case to the District Court for sentencing:

1. Section 283 requires that the matter before the Court be 'proved' before any order is made transferring a young person to the District Court for hearing. There is no requirement under s 283 that a formal plea be taken. A matter is proved sufficiently if it is noted as having been proved by admission at a family group conference, provided that the Youth Court Judge has affirmatively turned his mind to the question of whether that proof is available. (p 366, line 7)
   • C v Police (2000) 19 FRNZ 357 (HC) distinguished
   • Police v M (2001) 20 FRNZ 199, [2001] DCR 385 (YC) per Judge Harding approved
   • R v J CA404/98 2 February 1999 distinguished
2. Grounds for transferring the matter to the District Court were established under s 290(1)(b) and (c). The nature and circumstances of the offence were such that, if B was an adult, a full-time custodial sentence would have been imposed. [(2001) 20 FRNZ 364, 365]. Due to the special circumstances, any order of a non-custodial nature would have been clearly inadequate. The nature and extent of the violence in this case, coupled with B's previous history of violence of a similar nature, demanded a serious sentence that carried a deterrent message and that could operate to cause his confinement in prison if he reoffended. (p 368, line 28; p 369, line 22).

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Police v M (2001) 20 FRNZ 199

Case summary provided by BROOKERS

Reported: [2001] DCR 385
File number: CRN0043004443
Date: 19 January 2001
Court: Youth Court, New Plymouth
Judge: Judge Harding
Key Title: Databank Compulsion Order, Youth Court procedure

Summary:
Children and young persons - Jurisdiction - Youth Court - Application for DNA database compulsion order in relation to young person convicted of sexual offences - Whether Court's acceptance of admission made in family group conference amounts to a finding of guilt - Children, Young Persons, and Their Families Act 1989, ss 282, 283(o); Crimes Act 1961, ss 128, 133; Criminal Investigations (Blood Samples) Act 1995, ss 2(a), 39, 40.

Application:
This was an application for a DNA databank compulsion order in connection with M as a result of his appearance in the Youth Court on a charge of sexual violation.

M was charged with sexual violation by unlawful sexual connection and indecent assault on a child under 12 under ss 128 and 133 Crimes Act 1961. In his initial Court appearance M did not deny the charges and indicated an intention to plead guilty. He was remanded to attend a family group conference and admitted the charges at the conference. When the matter returned to Court, PAFGC ("proved by admission at family group conference"), was noted on the record. The police applied for an order authorising the taking of a blood sample from M under s 39 of the Criminal Investigations (Blood Samples) Act 1995 ("DNA Act"). Section 40 permits taking blood, for DNA databank purposes, from persons convicted of certain specified offences, including sexual violation.

The issue for the Court was whether M had been "convicted" of the relevant offence and, accordingly, whether there was jurisdiction for such an order to be made. Under s 2(a) of the DNA Act "conviction" includes "a finding by a Youth Court that a charge against a young person is proved". The police submitted that the PAFGC notation was a "finding" in terms of s 2. The defence argued that something more than the acceptance of an admission by the Youth Court is required, namely a formal plea of guilty and a positive finding of guilt.

Held, allowing the application:

1. The plain words of s 2 DNA Act include a finding by the Youth Court that a charge against a young person is proved within the definition of "conviction". No particular method of proof is required. (p 203; line 27)
2. Although the Children, Young Persons, and their Families Act 1989 provides express recognition of the special position of young persons, and the need to provide special protection for them, that is a process which precedes a finding that the charge has been "proved". There is no reason why young persons who are found to have committed serious relevant offences should be excluded from provisions that are relevant to the whole population for the future prevention of crime. (p 203; line 30)
3. The finding of a charge proved in the Youth Court contains inherent safeguards to ensure the protection of young persons, including the appointment of a Youth Advocate to advise the young person at the family group conference when the charge is not denied. (p 203; line 37)
4. "Guilt" is only found by the Youth Court under s 283(o) before a transfer to the District Court for sentence. If DNA were only able to be obtained from young persons who were transferred to the District Court there would be no need for the extended definition of "conviction" in the DNA Act. (p 203; line 40)
5. There does not appear to be any proper basis to distinguish between relevant offences, as defined in the DNA Act, proved by a defended hearing in the Youth Court on the one hand, and admitted on the other. In both cases the Court is satisfied to the same standard and the record noted as the charge "proved". (p 203; line 44)
6. Section 2(a) DNA Act is satisfied either by a finding by the Youth Court that the charge has been proved after a defended hearing, or by the positive acceptance in Court of the admission of the charge reported as the result from the family group conference, usually as PAFGC. Accordingly, jurisdiction exists for the application made by the police. (p 204; line 3).

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Police v U-S YC Christchurch CRN 0209005194-96, 12 February 2001

File number: CRN 0209005194-96
Date: 12 February 2001
Court: Youth Court, Christchurch
Judge: Judge Abbott
Key Title: Family Group Conference - Attendance, Delay (s 322)

Summary:
U faced serious assault charge; assault allegedly occurred on 1.4.00; delays; Youth Justice Co-ordinator rang U's family on 31.10.00 to arrange a meeting; meeting held on 8.11.00; Youth Justice Co-ordinator advised he could write up the discussion at the meeting as a record of a Family Group Conference (FGC) or hold a more formal conference with Police and victims present; charge denied so second alternative followed.

Held:
The call by the Youth Justice Co-ordinator to U's family on 31.10.00 did not constitute "convening" an FGC; procedures for convening an FGC import a reasonable degree of formality and conference must be convened in terms of section 2 of the CYPFA before s 253(4) of the CYPFA can apply. "Convene" in s 2 and s 247 read together dictate that it is necessary to fix the date, time and location of an FGC and notify all interested parties to "convene" an FGC. Time limits mandatory, failure to comply is fatal to any charge subsequently laid: H v Police [1999] NZFLR 966 (HC). Delay in terms of s 322 of the CYPFA found.

Decision:
Charged dismissed.

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Police v JL YC Auckland CRN 0255015718, CRN 0255018809, 23 March 2001

File number: CRN 0255015718, CRN 0255018809
Date: 23 March 2001
Court: Youth Court, Auckland
Judge: Judge Boshier
Key Title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection; Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by rape; Care and Protection cross over (s 280) Family Group Conferences/Care and Protection (s 261); Orders - type: Supervision with activity - s 283(m), Jurisdiction of the Youth Court: s 276 offer/election.

Summary:
JL (15) charged with sexual violation by unlawful sexual connection and sexual violation by rape. Complainant was JL's 9 year old sister; mother a victim of vicious physical abuse by first husband, JL traumatised by mother's abuse; JL a victim of sexual abuse from age 4. YC jurisdiction offered and accepted, s 276 CYPFA; case remanded so JL could attend a 'SAFE' programme; Declaration that JL in need of care and protection made; JL made good progress on course and may regress if imprisoned. Crown arguing for s 283(o) order with view to sentence of imprisonment; R v Mako [2000] 2 NZLR 170 (CA) discussed: two sentencing regimes - first where Youth Court jurisdiction applies and the second where case transferred to District Court or if jurisdiction wholly declined and case remanded to High Court. Precedents do not seek to provide a regime for the way in which Youth Court Judges should approach sentencing having regard to the statutory scheme set out in s 284 and s 290.

Key factors here: safety of victim established, victim primarily concerned about violence against her mother; JL's history of abuse; FGC recommendation that JL stay in Youth Court; Police agree with importance of working on rehabilitating JL although arguing for imprisonment; no prior convictions.

Decision:
Supervision with activity order followed by Supervision in accordance with FGC plan.

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Police v W YC Rotorua CRN 1263003406, 22 May 2001

File number: CRN 1263003406; CRN 1263003407; CRN 1263003408
Date: 22 May 2001
Court: Youth Court, Rotorua
Judge: Judge Whitehead
Key Title: Jurisdiction of the Youth Court - s 275 offer/election; Care and protection cross-over (s 280): Family Group Conferences/Care and Protection (s 261), Custody (s 238): Person nominated by Social Worker (s 238(1)(c))

Summary:
W (14) charged with sexual violation of three of his siblings and indecent assault upon another child; charges not denied. W had significant health problems; Court told of major risk of re-offending if security of current placement threatened. Non-agreed Family Group Conference. Full discussion of cases where 14 year olds have received terms of imprisonment; here imprisonment would be detrimental and dangerous; s 283(o) not applicable because of W's age.

Decision:
YC jurisdiction offered and accepted. Remand under s 238(1)(c) continued. Case adjourned until care and protection matters have been heard.

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Police v K (7 August 2001) YC, Lower Hutt, Carruthers DCJ

File number: unknown
Date: 7 August 2001
Court: Youth Court, Lower Hutt
Judge: Judge Carruthers
Key Title: Care and protection cross-over - Misuse of s 48

Summary:
K (15) was charged with assault with a weapon (a knife). K and another youth were with a Black Power gang member when a member of a rival gang jumped out of another car and started a fight. The rival gang member was bleeding badly by the end of the fight but the Black Power member later insisted he had not used a knife. The police officer was unsure whether the young people had been involved in the altercation. They searched K and found no knife. Police were concerned for K's safety given the likelihood of a gang reprisal. The police officer told K that, pursuant to s 48 of the Act, "he had to accompany us back to the Station". K was advised of his rights and a nominated person was found for him. In a video interview K stated that he had stabbed the rival gang member in self-defence.

In considering whether K was validly taken to the police station and questioned under s 48 of the Act, and the admissibility of the resulting video statement, Judge Carruthers emphasised the proper use of s 48 of the CYPFA. Section 48 authorises Police to return young people at risk to their homes or to hand them over to social workers. The Judge made clear that as s 48 is a care and protection provision, it cannot be used to compulsorily detain a young person for questioning even where it is necessary to detain that young person for their own safety.

The Judge accepted a submission by Police that it had been appropriate to use section 48 at the commencement of the incident and that once the young person was safe at the police station it was open to Police to take action under the youth justice provisions of the Act. However, His Honour found that the Police had erred in not telling K that he was no longer being detained under section 48 once at the Police station and that he was free to go. K was, throughout, under the impression that he had been "arrested" under s 48. Further, this confusion was maintained when he was read his rights as to making a statement. Thus, Police needed to make clear to K why he was being taken into custody and, when s 48 no longer applied, he should have been advised of that fact and of the fact that he was free to leave the police station.

Decision:
As K was not informed that section 48 no longer applied, this tainted the subsequent procedures and the admissions obtained. The Judge declined to exercise his discretion to admit the video statement evidence.

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Police v McA (7 September 2001) YC, Upper Hutt, 127800, Mill DCJ

Name: Police v McA
Unreported
File number: 127800
Date: 7 September 2001
Court: Youth Court
Location: Upper Hutt
Judge: Mill DCJ
CYPFA: s 5(f), s 322
Charge: Sexual Violation - Rape
Key Title: Delay

Summary:
McA charged with sexual violation by rape, denied offence; McA arrested but no grounds for arrest; police understaffed leading to delays; time from commission of alleged offence to first hearing was nine months and 18 days; case not complex; evidence of health problems and stress for family members and behaviour problems with McA as a result of the delays. Two step enquiry: BGTD v Youth Court at Rotorua (HC, Rotorua, 15 March 2000, M119/99); need for balancing of individual rights against public interest. Held: Despite severe limitations the detective had in being able to fulfil his obligations to his caseload, the time between the date of commission of alleged offence and the hearing had been unnecessarily protracted.

Decision:
Informations dismissed.

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Police v B YC Te Awamutu MA 88/01, 31 October 2001

File number: MA 88/01
Date: 31 October 2001
Court: Youth Court, Te Awamutu
Judge: Judge Brown
Key Title: Delay (s 322)

Summary:
B (15.5 yrs) appeared in Youth Court on 9 Informations; 5 laid outside 6 month time limit and thus dismissed (Summary Proceedings Act 1957, s 14); whether remaining Informations should be dismissed pursuant to s 322 of the CYPFA.

Offences committed between 17.12.00 and 1.2.01, Family Group Conference (FGC) scheduled for 24.4.01; all Informations laid on 9.7.01. No undue delay; unrealistic where there is alleged repeat offending to place unreasonable emphasis on the date of the first offending; ss 4(f) and 5(f) CYPFA. In Police v C YC Wellington CRN 0285015569 per Judge Carruthers 3 month delay between offending and FGC "not exceptional". FGC did not take place as young person had operation to remove tumour; defendant and family did not attend further FGC on 4.7.01. No dismissal of charges; legal process which rewards illness other than in exceptional circumstances strikes a wrong balance quite apart from potential for abuse; delay of 2.5 months to accommodate illness is not unduly delaying proceedings.

Decision:
Informations not dismissed.

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Police v IB YC Manukau CRN 1292037261, 2 October 2001

File number: CRN 1292037261
Date: 2 October 2001
Court: Youth Court, Manukau
Judge: Lovell-Smith DCJ
Key Title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery

Summary:
IB (15) charged with aggravated robbery; jointly charged with another young person and two adults; IB was armed with an offensive weapon (a claw hammer) and robbed a shop of 3 hooded sweatshirts. In the process IB hit the complainant 4 times with a claw hammer. FGCs held. Victim and family propose Supervision with residence, Police propose s 283(o) CYPFA order. Comments of Judge McElrea on R v Mako [2000] 2 NZLR 170 (CA) from Police v Rangihaka CRN 0255019855: Mako not relevant to young people being sentenced within the Youth Court but extremely relevant if young person convicted and transferred to District Court. Sections 284, 285(6) and 290 of the CYPFA considered.

Aggravating features: premeditation, IB readily took part and volunteered to arm self with claw hammer, IB central to the offending; serious and gratuitous violence; victim suffered head injuries, vulnerability of small businesses, day time attack.

Mitigating features: IB and family remorseful, no previous charges proven in Youth Court. Dysfunctional family, alcohol and cannabis abuse. Principles in ss 4 and 208 CYPFA.

Held:
Due to pre-meditation, violence, victim's injuries, not a suitable case for the Youth Court, having considered all the other alternatives.

Decision:
Order - convicted and transferred to the District Court – s 283(o).

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