Court of Appeal
File number: CA400/07 CA504/07
Date: 26 February 2008
Judge: O’Regan, Robertson and Ellen France JJ
Key title: Orders - type: Reparation - s 283(f)
Case Summary:
Issues:
Are parental fault, and a causative link between parental fault and young person's offending, preconditions for making a reparation order against parents?
Was the original HC dismissal of the Youth Court reparation order of $10,000 still allowable?
X and Z are parents of J (a young person). J is a persistent offender, responsible for damages and losses to victims in excess of $100,000. J committed a number of burglaries while on bail and living at his parents' house in 2005. J was sentenced to supervision with residence, and the Youth Court subsequently granted an application by a victim of the burglaries for reparation against the parents. The Youth Court Judge said that J's father should have been more proactive in telling Police when he knew J was in breach of his bail by being out with friends, and being in possession of stolen firearms.
The High Court overturned the reparation order after the parents appealed. Mallon J held that parents could only be liable for reparation if they were at fault, and if there was a causative link between that fault and the offending of their child.
CA has now held that, while fault will always be a relevant consideration in deciding whether or not to make a parental reparation order, the purpose of a reparation order is compensation, not punishment. The Court argues that there can be no necessary link between parental fault and a reparation order against parents, if the purpose of reparations is compensation and not punishment. The Court further held that the Bail Act does not impose such a high standard of responsibility on parents, and the statutory scheme of Children, Young Persons and Their Families Act 1989 (CYPFA) does not make parental fault a precondition for a reparation order.
In response to submissions from counsel for the parents, the Court said there was still nothing hindering the ability of the Youth Court to sanction reparation orders against parents where parents have consented to those orders.
Decision:
Parental fault, and a causative link between that fault and a young person's offending are not necessary preconditions for the making of a reparation order against parents under s283(f) of the CYPFA. However Mallon J's quashing of original order in the HC is untouched, as her reasoning was based on an assessment of the total circumstances of the case, not simply the issues of causation and fault. The judge in the original YC case put too much emphasis on the fault of the parents, as they had no obligation to proactively contact Police.
File number: CRN 07292000771-000988
Court: Youth Court, Manukau
Date: 13 February 2008
Judge: Judge Harvey
Key title: Evidence (not including admissiblity of statements to police/police questioning)
Case Summary:
GC faces two charges of stealing a handbag, and assisting another to avoid conviction.
Whether two associated defendants, who are being dealt with separately, can be compelled as witnesses for the prosecution in terms of s 73 of the Evidence Act 2006. The two associated defendants have followed Youth Court procedure, insofar as they have ‘not denied’ the allegations against them, have been to a family group conference, have completed plans devised by those conferences, and have had their matters concluded. The issue is whether the two associated defendants have plead guilty, or been found guilty, or, having been found guilty of the offence, have been sentenced or otherwise dealt with for that offence in terms of s 73? The concept of pleading guilty is generally not used in Youth Court procedure.
Crown argued that the Youth Court’s use of proof by admission is essentially the same as a plea of guilty.
Judge Harvey refers to C v Police [2000] NZFLR 769 (HC), in which Hammond J suggests that not denying, or admitting a charge could not support a conviction in terms of s 283(o) of the CYPFA. The Judge compares that ruling with Police v M (2001) 20 FRNZ 199, in which Judge Harding takes the Court’s notation of 'PAFGC' as providing for sufficient 'intent and legal consequences' and being equivalent in the summary jurisdiction of proof at defended hearing or proof by pleading guilty. PAFGC stands for 'proved by admission at a family group conference', and is a notation made by the Court on the information following a family group conference at which a young person has admitted a charge which has previously been not denied.
In finding for the Crown, Judge Harvey focuses on the concept of proof, and equates proof following a defended hearing in the Youth Court, with proof following an admission by an accused young person. He distinguishes C v Police by explaining that a plea of “not denied” is not about an acknowledgement of criminal responsibility, but simply allows a Court to order a family group conference.
Also discussion of whether one the co-defendants was compellable if proceedings were found not to be ‘determined’ for the purposes of the Evidence Act because that young person had gone through the Youth Court process, and subsequently been discharged under s 282(1) of the CYPFA. Crown argued that s 282 discharges are legal fictions, and therefore a young person discharged under this section should be considered as a simple eye witness, and not a co-defendant. The Court cited Police v JL (2006) DCR 404 (YC), and held that a discharge under s 282(1) is a determination in a proceeding, defining determination a dispositive act in a proceeding.
Decision:
For the purposes of s 73(3)(c) of the Evidence Act 2006, proof by admission in Youth Court has the same legal effect as a plea of guilty. A discharge under s 282(1) of the CYPFA 1989 is a determination for the purposes of s 73(2)(b).
File number: CRN 07292001132, CRI-2008-292-000017
Court: Youth Court, Manukau
Date: 4 February 2008
Judge: Judge Malosi
Key title: Family Group Conferences: Held/Convened
Case Summary:
Successful application by EM, a Young Person for dismissal of a charge of wounding with intent to cause GBH.
EM applied on the grounds that s 245(1) had not been complied with.
The Police unsuccessfully opposed the application and unsuccessfully sought leave to withdraw the charge and start again if the Court found that it had no jurisdiction to hear the charge.
Facts
EM was involved in offending in 2007 and was sentenced to supervision with residence on 14 December 2007. On 14 September 2007, EM escaped from the custody of the Chief Executive and was apprehended on 18 September and remained in custody from that date. On 20 September two people were interviewed in respect of a wounding charge. Both named EM as a participant. A Family Group Conference (FGC) was held on 1 October in relation to EM’s earlier offending. The wounding charge was not discussed as the Police did not interview EM until 17 October 2007. The Police charged EM following the interview and on 19 October 2007 an information was laid in the Youth Court (YC). EM was summonsed to appear on 23 October, the same date that he was to appear on the earlier charges (which were the subject of the FGC on 1 October). The Detective’s affidavit acknowledged, amongst other things, that a FGC was not arranged in respect of the wounding charge and that he was not advised by anyone that he should speak to a Youth Justice Coordinator about convening an FGC.
Counsel for EM submitted that s 245(1) is mandatory and cited Pomare v Police HC Whangarei AP8/02, 12 March 2002, in which compliance with the three cumulative steps in s 245(1) was said to be ‘an essential prerequisite to laying a lawful information’.
Counsel for the Police submitted that the Court apply the purposive principles of the CYPFA and cited RSR v Police HC Tauranga CRI-2007-470-000027, 20 October 2007; Police v L (1991) 8 FRNZ 123 and Police v V and L [2006] NZFLR 1057 (HC) where the Judge reasoned that the focus on cases where failure to comply with statutory obligations is in issue, should be on the cause, nature and consequences of non-compliance and then the implications of non-compliance could be addressed on the facts of each case and charges dismissed if warranted. Counsel argued on the basis of s 248(3) of the CYPFA, which provides there is no requirement to convene a FGC if a FGC has been held within the preceding 6 weeks.
Decision
Dismissing the charge.
The gateway through which all young people must pass to the YC must be ‘vigilantly guarded’.
The reasoning in Police v V and L (above) could not have intended to apply to something so elementary as the processes be to followed in order to summons a Young Person to the YC. ‘The intention to charge process that must occur prior to charges being laid in Court (unless there has been an arrest or s 248(3) applies) is much more fundamental than that.’
The importance of s 245(1) is imbedded in the s 208 youth justice principles.
There was no justifiable reason for circumventing the s 245(1) procedures, and unless caught by s 248(3), those steps are mandatory.
Section 245(1) had been breached in every respect. The Police had fallen ‘short of the mark in a monumental way’. While the complainant would be left without recourse through the YC, that was completely avoidable and hopefully ‘a mistake the Police will not repeat'.
File number: CRI 2007-292-359
Court: High Court, Auckland
Date: 5 February 2008
Judge: Heath J
Key title: Sentencing in the adult courts: Aggravated robbery
Summary
IM appeared in the Youth Court, following offending that occurred in May 2007, when IM was aged 14 years 7 months. Indicated that charges were not denied, but application for Youth Court jurisdiction denied by Youth Court Judge, primarily on public interest grounds and well publicised increase in serious youth offending. IM was transferred to High Court due to age, and entered guilty pleas to both charges.
Heath J commented on the seriousness of the charges, and reminded IM of the maximum sentences of imprisonment available for the offences (14 years, and 10 years respectively).
Robbery involved a plan to snatch a handbag from a suitable victim, aided by older brother (18 years old) and his partner (24 years old), who both waited in the car. Victim was pushed to the ground and suffered minor injuries.
Second plan was made to rob a superette. IM and brother entered superette with bandanas over their faces and carrying an empty wine bottle, and a fence paling, respectively. Brother’s partner waited outside as getaway driver. Shop assistant struck in the head by brother after struggle. Some cigarettes were taken.
Court comments that IM was “impressionable and easily led”, and had been given methamphetamine before embarking on the offending. Though youth justice principles applying in the Youth Court are more rehabilitative in nature, age can be given considerable weight as a mitigating factor in sentencing in the adult courts. Refers to X v Police (2005) 22 CRNZ 58 (HC) and R v Patea-Glendinning (2006) 22 CRNZ 959 (HC), but takes the view that the Court is:
“…entitled to apply youth justice principles in sentencing in a case such as this. Application of those principles recognises the immaturity which someone of your young age will have and the impressionability and likelihood that they will succumb to the influences of older people.”
Both counsel agreed that imprisonment would not be justified for “a 14 year old who has no prior history of offending and who has acted under dark influences of an elder brother”. Court recognised twin demands for sentencing that denounces the wrong and forces the young person to be accountable for their actions, as well as providing an opportunity for rehabilitation. Heath J welcomed new Sentencing Act options including intensive supervision, and combination sentences. Reports indicate that IM has had a significant change in attitude while on remand.
Decision
100 hours community work on both charges (concurrent), 20% of which can be converted by a probation officer into basic work and living skills training. Two years intensive supervision on both charges (concurrent) with special conditions. A “…first and last chance”.
File number: CRI-2007-270-000073
Court: Youth Court, Tauranga
Date: 25 February 2008
Judge: Judge Harding
Key title: Delay, Objects/Principles of the CYPFA (ss 4 and 5)
Case Summary:
Application to adjourn preliminary hearing. HSP a young person, so matter called in Youth Court. Preliminary hearing scheduled, in line with practice note of 1 March 1998, which recommends depositions to be held no more than 12 weeks after the defendant is first charged, as well as s5(f) CYPFA.
Police first sought an adjournment by letter to the Court, which was also copied to all other counsel (each defendant was separately represented). Court described this letter as an informal and ex parte application. The application was declined due to it not being made in the presence of all counsel, and relying on matters that were known to police when depositions first scheduled.
Police applied again by letter, again informally, and again ex parte. This application was also declined. The Court commented '[such] informal ex parte applications are not appropriate'.
Police applied a third time, this time formally, together with a memorandum signed by all counsel, and a supporting affidavit.
Decision:
Application granted.
File number: CRI-2008-290-000073
Court: Youth Court, Waitakere
Date: 19 December 2008
Judge: Judge Taumaunu
Key title: Arrest without warrant (s 214)
Summary:
TS with a group of others spoken to by Police at night on the street. Police gave evidence that TS said words to Police as they were leaving the group. TS arrested and taken to Police station for using insulting language likely to cause violence. Constable admitted not turning her mind to whether she could have issued a summons instead. Pomare v Police HC Whangarei AP8/02, 12 March 2002 authority for what constitutes a lawful arrest under s 214 of the CYPFA, and that non-compliance with s 214 renders the information invalid and gives the court no jurisdiction to determine the information.
Court found that arrest was not made in the midst of rising crowd hostility. Also found that the urgency of the case did not require the police not to consider issuing a summons.
Decision:
Arrest unlawful. Information invalid and dismissed.
File number: CRI-2006-0698-000514
Court: District Court, Hamilton
Date: 4 March 2008
Judge: Judge RLB Spear
Key title: Evidence (not including admissibility of statement to police/police questioning)
Case Summary:
Defence objects that evidence obtained from L's son J during investigation of drug charges was obtained unfairly under s 30(5)(c) of the Evidence Act 2006.
J (15 years old at the relevant time) was found at school by Police Youth Aid (PYA) with cannabis tinnies. J was arrested pursuant to powers under s 214(1) CYPFA. J was taken to the police station and questioned by another officer. The PYA officer decided not to contact J's father L, as he suspected that L might be involved in further offending. J's mother was also not contacted despite J asking for his mother to be present.
J confirmed that he did not want a solicitor, and was then provided with a list of adults who could attend, assist, and support him during the interview. J selected a local ‘Youth pastor” H. H was provided with a document setting out the responsibilities of a nominated person. H was present at the interview with J and co-signed his statement. H did not speak during J's interview with Police as he considered that J did not need any assistance to understand the Police questions. The Court found that H seemed to take his responsibilities seriously, and that the 10 text messages he sent during J's 3 hour interview did not interfere with his responsibilities to J.
During the interview J identified the source of the cannabis as a shed near his father's house. A search warrant was issued and cannabis was located in the garage of L's house.
J was never charged. Counsel for L submitted that J's rights as a young person were abused by the police and that it would be unfair for the police to rely upon J's statement. By extension, the Crown should not be permitted to lead evidence of the cannabis found in the search.
The question was whether the evidence was admissible pursuant to s 344A of the Crimes Act 1961.
The Court found that Police acted impeccably as far as J was concerned. There was a difficulty in respect of informing J's parents that he had been arrested, but it would have been quite impractical to do so, given that the police were not sure as to whether J had a stash or more cannabis at his home, and whether that home was with his mother or father. The police did not act contrary to the responsibilities imposed under the CYPFA in respect of J.
Decision:
The evidence of the search and the cannabis found on L's property was admissible.
File number: CRI-2008-070-000015
Court: Youth Court, Tauranga
Date: 10 March 2008
Judge: Judge Rollo
Key title: Bail (s 238(1)(b)), Family Group Conferences: Agreement, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH)
Case Summary:
Sentencing. FGC had recommended conviction and transfer to District Court. Judge agreed, and called for home detention, and community detention additions to pre-sentence report.
Application to vary conditions to provide some more time away from home. Previous bail conditions included 24 hour curfew. Not long to go now until hearing. Police opposed as charges very serious. Young Person lucky to be on bail at all. Judge referred to public expectation that L be supervised at all times.
Decision:
Application to vary bail denied. Order for conviction and transfer to District Court for sentencing.
File number: CRI-2007-270-000125
Court: Youth Court, Tauranga
Date: 31 March 2008
Judge: Judge Bidois
Key title: Jurisdiction of the Youth Court: s 276 offer/election
Case Summary:
Should T be offered Youth Court jurisdiction?
T and co-offender both young people, absconded from Youth Court ordered course, broke into a property in possession of a firearm. T later presented firearm at Police and discharged weapon at pursuing police car. T charged with attempted murder following events connected with this offending. T acquitted of attempted murder in High Court, but co-accused found guilty of other charges relating to the incident and to be sentenced shortly in High Court.
T entered non-denials to all current charges in Youth Court. High Court has already heard all evidence relating to offending, so sentencing both young people in High Court is consistent. The offending is serious and a starting point of 3 and a half to 4 years is likely. T's early guilty plea will be recognised by the High Court.
Decision:
Remanded to High Court for sentence.
File number: CRI-2008-270-000016
Court: District Court, Tauranga
Date: 19 March 2008
Judge: Judge Rollo
Key title: Sentencing in the adult courts: Arson, Sentencing in the adult courts: Other
Case Summary:
Sentencing of T in the District Court, following conviction and transfer from the Youth Court. T (now 17 years of age ) was 16 at the time of the offending. T was charged with arson, escaping from CYFS, intentional damage, burglary, unlawful taking of a motor vehicle and assault. This was the third time that T had been transferred from the Youth Court to the District Court. Aggravating features:
Prior convictions in the Youth Court, including appearances for dishonesty, unlawful taking of a motor vehicle, car theft, aggravated assault and escaping
Convictions in the District Court for burglary, theft and unlawfully being in a motor vehicle
At the time of the current offending T was on a community work and supervision sentence.
Judge Rollo warned T that if he continued to offend, there would only be one penalty imposed next time, a substantial sentence of imprisonment.
Sections 15(b) and 18 of the Sentencing Act 2002 prevented imposing any sentence other than a community-based sentence.
Decision:
Orders
Current sentence of supervision cancelled.
T convicted and a sentence of 400 hours community work imposed, to be concurrent with 230 hours presently serving.
Authorisation of conversion of hours to training, given Ts age and circumstances,
Supervision for 9 months, with special conditions that T undertake assessments, counselling and programmes as directed by the Probation Officer.
Reparation (sought at $11,000) not imposed as T not in a position to pay.
File number: CRI-2006-204-000748
Court: High Court, Auckland
Date: 2 April 2008
Judge: Allan J
Key title: Evidence (not including admissibility of statements to police/police questioning), Reports: Psychiatric
Case Summary:
Application pursuant to s 344A of the Crimes Act 1961 for order that evidence of a child and adolescent psychiatrist is admissible at trial.
F (16 at the time of the alleged offending) and associates drank wine then went by car to a event at a local high school. The event was crowded, and there was not enough space for many of those who wanted to attend. Large numbers of young people ended up on the school grounds and on the road outside. Crown allege F threatened five people with a knife, stabbing two of them, one of whom died at the scene. The victims were apparently innocent and chosen randomly, and the attacks were unprovoked.
The court accepted that the psychiatrist was qualified to speak as an expert. Psychiatrist presented brief in two parts: First part concluded that F was within the normal range on a number of cognitive tests and did not meet the tests for mental disorder or mental retardation. Second part gave general information and recent research findings about adolescent brain development, including the opinion that adolescents are biologically inclined to act impulsively and instinctively when confronted with stressful or emotional decisions without understanding the consequences of their actions.
Counsel for F submitted that the psychiatrist’s evidence will be useful to a jury asked to decide, under s 167(b) of the Crimes Act 1961, whether or not F actually appreciated that death was a likely consequence of his action, and that he was willing to run that risk, see R v Dixon [1979] 1 NZLR 641 (CA) at 647. The jury would be warned against assuming that the conscious appreciation of risk expected of a mature adult will not necessarily be found in someone of F’s age.
The Court held that the psychiatrist’s evidence, that F was a completely normal adolescent, would be of no help to the jury, and therefore not admissible under s 25 of the Evidence Act 2006. It also commented that the psychiatrist made no attempt to link evidence about adolescent brain development in general to the facts of this case.
The Court’s view was that the psychiatrist’s evidence can only be admissible if it was associated with and tended to support a recognised defence to murder. No recognised defence was identified to the satisfaction of the Court. Allan J referred to the Court of Appeal in R v Makoare [2001] 1 NZLR 318 (CA) at 323, in which it warned against letting a jury hear expert evidence on so-called “murderous intent”. Allan J distinguished instances of evidence relating to mental abnormality, and battered woman’s syndrome, which would be beyond the experience and knowledge of jurors.
The Court commented that admitting evidence such as this would '… tend to support the creation of a de facto common law defence, based on the proposition that adolescents were less able than older offenders to form the necessary murderous intent. There is no warrant for the creation of such a precedent.'
The Court did, however, accept that the psychiatrist’s evidence may be admissible and helpful in mitigation at sentencing if F was found guilty on one or more of the counts.
Decision:
Application refused.
File number: CRI-2008-232-000018
Court: Youth Court, Lower Hutt
Date: 18 June 2008
Judge: Judge John Walker
Key title: Youth Court Procedure
Case Summary:
Application for leave to change plea.
In first appearance, BH indicated charges were not denied. Charges also admitted at Family Group Conference (FGC). Court pointed out that 'not denied' is not a plea in Youth Court, but merely a record of the jurisdiction to order an FGC.
Held:
Recording of not denied is not tantamount to a plea of guilty; indication that charges are admitted by young person at FGC cannot be regarded as a formal guilty plea; proved means something more than admission at a FGC and requires a formal admission in Court.
Court noted that it is convention for a charge to only be proved once admission at FGC is noted by, and confirmed in Court. In this case, no admission had been recorded previously in Court.
Decision:
Leave not required. Denial of charges entered subject to election of Youth Court jurisdiction.
File number: CRI-2007-241-000106
Court: Youth Court, Napier
Date: 27 June 2008
Judge: Judge von Dadelszen
Key title: Orders – type: Conviction and transfer to District Court for sentencing - s 283(o): Other, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Indecent assault/indecent act.
Summary
Minute dealing with police application to transfer MM to District Court for sentence under s 283(o), so that he can undergo intensive supervision beyond the period of six months after his 17th birthday. Need to satisfy s 290(1)(c) of the CYPF Act – that any order of a non-custodial nature would be clearly inadequate, before ordering conviction and transfer to the District Court.
Police acknowledge that a term of imprisonment is not what MM needs. They seek a period of intensive supervision to enable MM to undergo a programme to address the causes of his offending. Such a programme will take much longer than the time that is available for MM in the Youth Court, partly due to his age. MM is already 17 years old.
The Court is not satisfied that a non-custodial order would be clearly inadequate. Also, if MM had been an adult at the time of the offending, he would not have received a custodial sentence in the District Court. No jurisdiction to transfer.
Case considered:
Wilson v Police HC Timaru CRI 2006-476-000021, 9 February 2007 per Fogarty J
Decision
Application to transfer to District Court for sentence is declined.
File number: CRI-2008-206-000028
Court: Youth Court, Blenheim
Date: 27 June 2008
Judge: Judge Grace
Key title: Bail (s 238(1)(b)): Breach of bail (non-attendance at Court), Custody (s 238): Police (s 238(1)(e))
Case Summary:
IDK, a young person, entered non-denials in the Youth Court to two charges of unlawfully taking a motor vehicle, and driving whilst forbidden. Bail was granted. Two other charges of burglary were also pending.
IDK breached a non-association with co-offenders condition of bail. The police advised that IDK had been trying to contact a co-offender via a Bebo site. This would also constitute a breach of bail. There were no available beds with the CYFS, and IDK would be seventh on a waiting list.
Decision:
Due to the strong risk of IDK continuing to offend, the only proper course was to remand him in police custody pursuant to s 238(1)(e) of the CYPFA. This placement is to be discussed at the FGC. If positive firm arrangements are agreed upon the matter could be revisited, otherwise IDK was to remain in either police or CYFS custody.
The Judge commented to IDK that he only had himself to blame as he had broken his word to the Court.
File number: CRI-2007-204-000758
Court: Youth Court, Waitakere
Date: 10 June 2008
Judge: Judge Recordon
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery, Orders - type: Supervision with residence - s 283(n)
Case Summary:
Charges that CH (aged 15 years at the time of the offence) and associate broke into a service station with metal bar, produced a gun, and committed a robbery, gun was an air pistol. Victim handed over cash. Cigarettes also stolen. Victim suffered psychologically. Offending occurred while CH on bail. FGC held but no agreement as to transfer. No history of offending.
Whether or not to convict and transfer to District Court? CH has already made progress despite no remorse at first, and Crown admits that CH has potential. Family argues to stay in Youth Court despite CH being known to CYF since age 3. Family generally supportive.
Crown submits that all wrap around services available in Youth Court also available in District Court through probation officers, and that transfer to District Court does not automatically result in prison sentences these days, due to new sentencing options in District Court. Mentions R v IM HC Auckland CRI-2007-292-000359, 5 February 2008 where Heath J gave 50% discount for an early guilty plea by the young person. This Court does not share Crown's faith in probation service, as they are not social workers.
Decision:
Supervision with residence ordered.
File number: CRI-2006-204-000748
Court: High Court, Auckland
Date: 10 July 2008
Judge: Allan J
Key title: Sentencing in the adult courts: Murder/manslaughter, Sentencing in the adult courts: Serious assault (including GBH)
Case Summary
Sentencing of F (16 years old at the time of the offence) for murder, wounding with intent to cause grievous bodily harm, and on two counts of assault with weapon; F and associates were socialising and drinking; F received text invitation to large scale social function sponsored by church group at local college; many young people unable to get into event were milling about around entrance to college and some were gathered in nearby streets; F and associates arrived in vicinity of college; F went on rampage with switch blade knife with blade release button and 10 cm blade; he approached two young men, who escaped F's unprovoked lunging knife attacks; he then stabbed 14 year-old in chest and caused his death; following fatal attack he chased 16 year-old into school grounds and stabbed him in forearm before running away and challenging another; F and associates finally made retreat to car pursued by dozens of young people and were later apprehended by police.
Decision
Sentence of life imprisonment imposed; factors justifying minimum term of imprisonment of 17 years not present; aggravating and mitigating factors warranting 11 years minimum non-parole were
Final sentence of life imprisonment with 11 years minimum non-parole together with concurrent sentences of six years' imprisonment for wounding with intent and six months' imprisonment for assaults with weapon; orders accordingly.
File number: CRI-2008-216-000042
Court: Youth Court, Gisborne
Date: 11 July 2008
Judge: Judge Taumaunu
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Other
Case Summary:
Sentencing. AT (15 at the time of the offence) and 2 associates punched and kicked the victim, then stole some personal items, after drinking and smoking cannabis together in a local park. Almost a month later, AT and one other associate attacked the victim's twin brother, referring to him as a nark as they were assaulting him, and later admitting that they were attempting to send a message top the victim not to proceed with a robbery complaint. AT later admitted that he had mistaken the victims brother for the original victim. The victim's brother later committed suicide.
Charges against AT were proved by admission at a family group conference, but the FGC could not agree on jurisdiction and outcome. Police applied for conviction and transfer to the District Court, supported by the victims whanau. AT opposed the application.
In deciding whether to convict and transfer AT, the Judge mentioned that AT had played a principle role in the offending, that the offending was serious, that the assault against the victims brother was done while on bail. The Judge placed great weight on the harm done to the victim and his whanau as a result of this offending. Another factor in favour of conviction and transfer was the public interest in denunciation and deterrence of this type of offence. If convicted and transferred, the District Court has the ability to impose longer sentences of supervision and judicial monitoring than are available in the Youth Court, and, if a sentence of imprisonment is not imposed, the District Court can also make a non association order.
The Judge also described ATs personal history, and the attitude of his whanau, which is in favour of Youth Court jurisdiction and a community based sentence. AT's whanau have expressed willingness to engage in restorative justice processes with the victims whanau. The social workers report recommended supervision with residence, despite the seriousness of the offending, and a full programme of rehabilitation and counselling after release from residence.
The Judge reviewed a number of relevant authorities for both sides, but decided that the offending was too serious to remain in the Youth Court, despite the real possibility that a sentence of imprisonment could be imposed in the District Court.
Decision:
AT convicted and transferred to the District Court for sentence.
File number: CRI-2008-027-000048
Court: Youth Court, Kaikohe
Date: 11 July 2008
Judge: Judge Druce
Key title: Arrest without warrant (s 214)
Case Summary:
Arrest. J (aged 15) was charged with fighting in a public place. J was still fighting another young person when 2 police constables arrived at the scene. The police stepped between the two who were fighting, and one of the constables held J by the arms. J continued to use threatening language, was agitated, and tried to break free from the constable's grip. That constable decided to arrest J to prevent him continuing to fight. The constable gave J a Bill of Rights caution as if he were an adult, acknowledging that he did not consider whether J was a young person, or whether CYPFA, s 214(1) applied. The other young person was also arrested and a youth justice explanation of his rights was given pursuant to CYPFA, s 215.
The Judge noted Police v HG [2004] DCR 685 (YC) regarding onus of proof on police to prove elements of s 214 to beyond a reasonable doubt, and the lack of a provision allowing reasonable compliance.
Does s 214(1) require the arresting officer to establish the age of the person being arrested? Comments of Judge Harvey in Police v G YC Henderson CRN 020005035, 30 July 1990 mentioned, but Court preferred reasoning of Judge Moss in Police v JC [2006] DCR 465, who held that an officer only needs to satisfy himself on reasonable grounds that an arrest is necessary to prevent further offending. However, Court advises police faced with youths who might be young persons to satisfy themselves of the persons age, as the law requires strict compliance with s 214(1).
Police case did not rely on any statement made by J after arrest.
Decision:
Constable had reasonable grounds on which to satisfy himself that arrest was necessary to stop further fighting, and that his intended and subsequent use of Court bail (as opposed to summons) to prevent further fighting was reasonable.
Arrest was lawful, despite constable not ascertaining J's age, or responding to him as a young person. Constable subjectively satisfied himself of the two requirements under s 214(1).
Charge proved.
File number: CRI-2006-244-000075
Court: High Court, Auckland
Date: 25 July 2008
Judge: Venning J
Key title: Sentencing in the adult courts: Sexual violation by unlawful sexual connection, Sentencing in the adult courts: Application of Youth Justice Principles.
Case Summary:
CS 14 at the time of the offending (2006). Victim was aged 10. When first questioned, the facts were accepted by CS, and guilty pleas have subsequently been entered in the HC. Jurisdiction was declined in the Youth Court. CS received counselling, and had saved more than $2,000 during recent employment.
CS attended a SAFE programme, with positive reports by probation and counsellors, resulting in an assessment that CS was of low risk of further sexual offending. Counsellors submit that a custodial sentence would not be in CSs best interests.
Court noted devastating effect on victim, and the general consequences of sexual offending by older family members. Court also considered sentencing principles, including those expressed in R v N [1998] 2 NZLR 272 (CA). Court also commented on the seriousness of the offending in terms of planning and frequency.
Youth justice principles
The Court cited R v Cuckow CA312/91, 17 December 1991, saying that, strictly speaking, the principles of the CYPF Act cease to apply in the adult court. However, the Court went on to say that the proper approach is that the principles which underlie the CYPF Act should underlie sentencing of young offenders. R v Uili CA148/06, 20 October 2006 was also cited in support of the principle that rehabuilitation and reintegration are central to the sentencing of youth offenders under the Sentencing Act 2002.
In setting the starting point of four years, the Court considered a number of relevant authorities. Factors in mitigation included: youth, guilty pleas, no previous convictions, remorse, offer of $2,000 to the victim, and CS's positive response to counselling.
The Court reviewed the principles applicable to sentencing for home detention following a decision to discount the original sentence by 50%. Home detention was considered appropriate by the Court, but subject to doubts raised about the suitability of the proposed residence, given the criminal history of one of the occupants (brother-in-law).
Decision:
Sentence of two years imprisonment, with leave to apply for cancellation of the sentence and apply instead for home detention if a suitable residence becomes available.
File number:CRI-2008-292-000004
Court: Youth Court, Manukau
Date: 4 July 2008
Judge: Judge Malosi
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: disposition if unfit, Adjournment
Case Summary:
For disposition under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)). Previously found that PM was unfit to stand trial on two sexual violation charges. A report was provided to the Court pursuant to s 23 of the CP(MIP). The grounds were not made out that PM be detained in either a hospital or secure facility.
Mr W, a compulsory care coordinator from Access Ability (a national organisation that provides RIDCA services) asked the court to consider:
Mr W expressed concern about PM being placed within an adult-based service. The Youth Court Judge acknowledged that this was not a new issue and noted that the Ministry of Health and the Principal Family Court Judge are attempting to resolve this completely unsatisfactory situation.
Decision:
The YCJ adjourned the matter with bail to continue, so that a suitable facility to be found for PM.
File number: CRI-2008-204-151
Court: Youth Court, Auckland
Date: 7 July 2008
Judge: Judge Fitzgerald
Key title: Orders - type: Supervision with residence - s 283(n)
Summary
Whether to convict and transfer.
AR and associates held a knife to the victim's throat, hit him, took his wallet, keys and car. AR well known to the Youth Court and Family Court. AR has attended 17 different schools. Police seek conviction and transfer to District Court (CYPFA, s 283(o)). Taking into account time already spent in custody, total time likely to be served in a residence would be the same whether AR was sentenced in the Youth Court or the District Court. Public interest in trying to turn around offending behaviour. Comprehensive supervision plans submitted to Court.
Decision
Not convicted and transferred to District Court. Dealt with in Youth Court. Supervision with residence, followed by 6 months supervision.
File number: CRI-2008-292-000119
Court: Youth Court, Manukau
Date: 4 July 2008
Judge: Judge Malosi
Key title: Jurisdiction of the Youth Court: s 275 offer/election, Jointly charged with adult (s 277)
Case Summary:
Youth Court jurisdiction. Adult co-accused. Aggravated robbery.
P (16 yrs 4 months at the time of the alleged offence) is charged with aggravated robbery. Following a depositions hearing in the Youth Court, 3 other co-accused, all adults, conceded a prima facie case existed, pleaded not guilty, and were committed to the High Court for trial. The Judge commented that these trials were likely to be middle-banded to the District Court. Evidence for a prima facie case against PB also found.
Court cited Police v H (a young person) [2004] DCR 97 (YC) where Judge Thorburn considered the discretion to offer Youth Court jurisdiction under s 275 of the CYPF Act, and said "The election [to forego a jury trial and remain in the Youth Court] should be offered to young persons unless there was some good reason not to offer it".
The Court discussed the relevant factors for consideration in exercising the discretion under s 275. The Court judged the alleged assault to be at the more serious end of the scale. The Court also expressed concern that PB would not have the emotional capacity to cope with the stress of a jury trial in an adult court, and that PBs ability to appropriately instruct counsel might be impaired. It was noted that PB has had no family support in Court, and, as a result, has been remanded in custody since arrest. PB also has a 9-month old baby which she has only seen once since her arrest. The Court commented that downstream effects for PB and her child could be colossal if permanent estrangement were to occur. Court also considered the stress and inconvenience to the complainant of having to appear at two trials, given that he had left the country, although noted the fall back position of giving evidence by video link.
PB has signalled that her statement to Police will be challenged pursuant to s 215 CYPF Act, and the Judge commented that the Youth Court would be best placed to determine that issue, and the speedier resolution timetable available in the Youth Court (especially given the separation of mother and child, and the lack of a suitable bail address). The Court also stressed that the need for a timely resolution if PB became subject to orders in the Youth Court, or even in the event of an eventual conviction and transfer to the District Court for sentence.
Decision:
PB offered the chance to forego the right to a jury trial, and to have her case determined in the Youth Court.
File number: CRI-2008-241-000039
Court: Youth Court, Napier
Date: 8 July 2008
Judge: Judge von Dadelszen
Key title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Indecent assault/indecent act, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection
Case Summary:
P sentenced to 6 months supervision on charges of theft, committing indecent acts on a child under 5, and unlawful sexual connection with a child under 5. Subsequent charge of indecent act on child aged 7. Consent to cancel original sentence.
Application by Ministry for Social Development for order to convict and transfer P to the District Court (CYPFA, s 283(o)). Jurisdiction available, as one or more of the charges is indictable. Application opposed by P.
P will 'age out' of Youth Court jurisdiction on March 2009, but Court acknowledges that help will be needed well beyond this date. Court would prefer to impose a sentence of 2 years supervision within Youth Court jurisdiction.
Decision:
Order to convict and transfer to DC for sentence with probation report.
File number: CRI-2008-041-000060
Court: Youth Court, Napier
Date: 8 July 2008
Judge: Judge von Dadelszen
Key title: Sentencing - General Principles (e.g. parity/jurisdiction), Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery, Reports: Social worker
Case Summary:
2 charges of aggravated robbery. Social workers report recommends supervision with residence (s 283(n)). Q would turn 17 and a half during residence order, so supervision component would be unavailable. Qs adult co-offender sentenced to home detention in District Court. Court highlights parity issue if Q sent to residence.
Court notes Q's preference to be convicted and transferred to District Court.
Decision:
Q convicted and transferred to District Court with probation report.
File number: CRI-2007-292-000762
Court: Youth Court, Manukau
Date: 4 July 2008
Judge: Judge Malosi
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 14 mentally impaired/unfit to stand trial, Reports: Medical, Reports: Psychological, Reports: Psychiatric
Reasons why disability hearing not required:
Reports obtained pursuant to s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 persuaded the Youth Court Judge that a disability hearing was no longer necessary.
Section 333 reports stated that H met the criteria for mild mental retardation. This was consistent with all of the information presently before the court. H's IQ was assessed at 61, and was found to have deficits in adaptive functioning and living skills, academic skills and community skills, thus meeting the definition of intellectual disability in terms of s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act. The report writers concluded that H was still able to plead, understand the purpose and consequences of sentencing and to instruct counsel.
None of the report writers would confirm their current position on fitness to plead, hypothesising that if H were facing more serious charges, or before the adult Court their conclusions may have been different. Bail was going well.
Decision
On basis of reports and the fact that no party sought determination under the CP(MIP) Act, a disability hearing was not required.
On the remaining charges (not-denied) a FGC was directed along with a Social Workers report and plan. H remanded on bail.
Bail variation changing 24 hour curfew so that H could go out at night time with his mother.
File number: CRI-2008-292-000196, CRI-2008-255-000036
Court: Youth Court, Manukau
Date: 3 July 2008
Judge: Judge Malosi
Key title: Sentencing in the adult courts: Aggravated robbery, Sentencing in the adult courts: Other
Case Summary:
This case involved the sentencing of KF following conviction and transfer to the District Court pursuant to s 283(o) of the CYPFA.
KF (16 years and 5 months of age) was charged with aggravated robbery (a purely indictable charge) and other charges including theft, dishonestly getting into a motor vehicle and escaping. KF offended only ten days after being sentenced to 18 months intensive supervision, 6 months community detention and 100 hours community work on previous charges.
Judge Malosi agreed with the probation officers assessment that KF was at very high risk of re-offending and that his ability to comply with a community-based sentence was extremely doubtful. KF had association with a youth gang and had admitted to cannabis and methamphetamine use.
Section 18 of the Sentencing Act 2002 prevented the Judge from sentencing KF to prison on the summary charges (due to KF being under 17 years of age). On the aggravated robbery charge a sentence of imprisonment was available. Penalty for aggravated robbery is 14 years, but under s 283(o) CYPFA maximum term of imprisonment available is 5 years.
Aggravating features: a level of premeditation, KF showed little regard for victims safety as he pulled him from his car in broad daylight.
Mitigating features: None, although account taken of relatively early guilty plea and KFs age.
On basis of R v Mako [2000] 2 NZLR 170 (CA), the offending fell into category of street robbery, attracting starting point of 18 months to three years. Starting point of 2 years adopted and reduced to 18 months for young age and guilty plea.
Decision:
All of sentences imposed on May 1 2008 cancelled.
On the aggravated robbery charge KF was sentenced to 18 months imprisonment.
On the burglary, theft, being a party to an attempted theft, dishonestly getting into a motor vehicle and escaping KF was convicted and discharged.
File number: CRI 2007-287-000077
Court: Youth Court, Opotiki
Date: 3 July 2008
Judge: Judge Harding
Key title: Adjournment, Presence at hearing (s 329).
Case Summary:
T (14 years old at the time of the offence) was charged with two offences of sexual violation by rape and unlawful sexual connection, both purely indictable charges. The victim (aged 16) was a member of T's whanau.
Decision on jurisdiction to be made.
Either: to retain in the Youth Court and have Youth Court supervise a plan for 2 years; or decline jurisdiction and require T's matter to be dealt within the adult Court.
The family proposal: T has been accepted into a High School, the SAFE programme confirmed its availability to T, CYFS would remain involved.
Decision
For the family proposal to have serious consideration it will need to be much more detailed than was submitted today. The family is to provide a detailed plan addressing both rehabilitative aspects, the SAFE programme, and the accountability aspects.
Matter adjourned.
File number: CRI-2008-292-000034
Court: Youth Court, Manukau
Date: 3 July 2008
Judge: Judge Malosi
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery
Case Summary:
CA had previously been offered Youth Court jurisdiction under s 276 of the CYPF Act. The charges were not denied. Police submitted s 283(o) conviction and transfer to District Court appropriate. Social worker's report recommends s 283(n) supervision with residence.
CA grew up in large family, supported only by his mother, but Court comments that his challenges have been nothing particularly remarkable. CA expresses remorse, and accepted, at a family group conference, that conviction and transfer was appropriate.
Charges all in relation to superette robberies, and involving a wrench or a knife as weapons. Court commented that vulnerable superette employees should be able to go about their business without fear, and singling them out for premeditated attacks is unacceptable.
The Court considered that there was enough time left until CA turned 17 and a half to let a sentence of supervision with residence run its course, but that such a sentence would not be commensurate with the number, nature or seriousness of the charges. The Court also notes that a previously completed FGC plan will be taken into account by the sentencing court.
Decision:
CA convicted and transferred to the District Court for sentence. Full pre-sentence report ordered including home detention appendix, which should not be taken as a sentencing indication, but to obviate the need for any further remands.
File number: CRI-2008-292-000119
Court: Youth Court, Manukau
Date: 8 August 2008
Judge: Judge Harvey
Key title: Admissibility of statements to police/police questioning (ss 215-222): Explanation of rights, Admissibility of statements to police/police questioning (ss 215-222): Reasonable compliance, Rights.
Case Summary:
Application to determine the admissibility of an interview recorded at the Manukau Police Station. The admissibility of the interview was challenged on the grounds of a breach of s 215 of the CYPFA. Before and after the interview, PM was not under arrest therefore the rights pursuant to the CYPFA, s 215 were applicable.
At the time of the interview there was some difficulty locating PM's family and therefore a nominated person from a list of volunteers was present. The detective set the scene for the interview, explained the allegation of robbery. He read her rights to her and explained her entitlement to consult a lawyer/and or any adult person nominated by her. He also explained that her right to consult a lawyer could be exercised for free under the Police Detention Legal Assistance Scheme.
After review of the video recorded interview, the Youth Court Judge considered that the interview was carried out in a fair and balanced manner. However, PM was not informed of her right pursuant to s 215(1)(b) that she was not obliged to accompany the police officer to any place for questioning, and that if she consented to doing so, she may withdraw her consent at any time. That section does not apply where a young person is under arrest.
PM was not under arrest. She was therefore unlawfully detained.
Issues
Whether or not the absence of being informed about that statement, rendered the statement inadmissible? Whether the statement in its entirety was admissible? Whether or not part of the interview should be admitted because there was a clear indication that the interview process should have been stopped because the young person was withdrawing her consent to proceeding further with the interview process. Whether the breach could be cured by the reasonable compliance section (s 224)? If yes, then under the CA decision R v Z [2008] NZCA 246, there must be an inquiry as to whether or not there was some kind of serious interference with the principles set out in s 208(h) of the CYPFA. That section provides that children and young people are entitled to special protection during an investigation due to their vulnerability. Whether or not the statement could be rendered admissible pursuant to s 30 of the Evidence Act 2006?
Decision
Holding the statement to be inadmissible, the right provided for in s 215(1)(b) is fundamental to the liberty of the subject absent arrest (s 215(2)). It is a fundamental right that any citizen has, under this legislation and under s18 of the Bill of Rights Act 1990, not to have their freedom of movement interfered with by the authorities.
The failure to advise of that right could not be cured by reasonable compliance. Judge Harvey commented, in obiter, that had he held that the matter could have been cured by reasonable compliance, the statement would have been admissible.
File number: CRI-2008-292-000179
Court: High Court, Auckland
Date: 27 August 2008
Judge: Priestly J
Key title: Sentencing in the adult courts: Aggravated robbery, Sentencing in the adult courts: Application of Youth Justice Principles
Case Summary
Sentencing of MTV (a young person) in the HC following a guilty plea and conviction on charges of aggravated robbery, a purely indictable offence.
If MTV was not a young person, he would be sent to jail. R v Mako [2000] 2 NZLR 170 (CA) applied. The appropriate starting point would have been about four and a half years applying R v Taueki [2005] 3 NZLR 372. When discounted for the guilty plea and youth the result would have been a reduction to two years three months to two and a half years, with an additional discount to two years.
However, Priestly Js decision was not to send MTV to jail. The two adult co-offenders were sentenced to two and a half years imprisonment and the three young people were sentenced to 12 months home detention. For reasons of parity, commonsense, MTVs youth and a last ditch attempt at rehabilitation and reintegration, a sentence of home detention was appropriate.
Priestly J considered as highly relevant the youth justice principles set out in s 208 of the CYPFA, in particular s208(d) and(f). The divergent views regarding the applicability of youth justice principles were considered.
Case law
Priestly J preferred the reasoning of Miller J in X v Police (2005) 22 CRNZ 58 (HC) to that in R v Patea-Glendinning [2006] DCR 505 (HC). He considered the Court of Appeal's observations in R v Cuckow CA312/91, 17 December 1991 and R v C CA332/95, 28 September 1995 to be correct. In those decisions it was noted that when the Youth Court declines jurisdiction and a High Court is sentencing, strictly speaking the provisions of the CYPFA cease to be applicable. Further, that the principles underlying the sections should underlie consideration of any sentence in respect of a young offender.
Priestly J considered that the sentencing higher courts should not be blind to the fact that a young person remains a young person and that each case started in a Youth Court (which is bound by s 208 principles). From a strict jurisdictional standpoint, youth justice principles may not be applicable, however, there is no sound reason why a sentencing court should not continue to have regard to those principles.
Decision
On the charge of aggravated robbery, MTV was sentenced to 12 months home detention.
Special conditions pursuant to s 80C(1)(b) of the Sentencing Act 2002.
File number: CRI-2007-292-000753
Court: Youth Court, Manukau
Date: 6 August 2008
Judge: Judge Malosi
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit.
Case Summary:
At the hearing pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)A) it was found on the balance of probabilities that:
Accordingly a report was called for under s 23(1) and (5) of the CP(MIP)A to determine the most suitable method of dealing with RA. She was remanded to a CYF care and protection unit pursuant to s 23(2)(b) pending a dispositions hearing.
Determining the sufficiency of the evidence as set out in s 9 of the CP(MIP)A.
The court must be satisfied on the balance of probabilities that the evidence is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence charged. As the offence was purely indictable, the normal course would have been to proceed to a preliminary hearing under Part 5 of the Summary Proceedings Act 1957, unless RA had indicated a desire to plead guilty. Section 11(2) of the CP(MIP)A allows the Court to hold a special hearing to determine RAs involvement in the offence. Pursuant to s 11(4), that hearing (by consent) replaced the preliminary hearing under Part 5.
Determining the mental impairment/Determining fitness to stand trial.
These steps are contained in s 14 of the CP(MIP)A. The term mentally impaired is not specifically defined. Judge Malosi commented that the more flexibility the Court has in relation to making a finding of mental impairment, the wider the net to catch those people who fall through the cracks in our system.
Even when a person is found to have an intellectual disability as defined in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation ) Act 2003, they might still be found fit to stand trial. Conversely, a person who does not meet the s 7 definition might be considered unfit to stand trial. Unfit to stand trial is defined in s 4 of the CP(MIP)A.
Step 1: RAs involvement
The evidence established that in October 2007, RA had been sniffing petrol at a relatives home. She went out into a caravan after arguing with her grandmother. She then called out to her 3 year old cousin. She placed a plastic bag over his head, struck him several times on the back with a hammer, punched his head and face and placed him in a cupboard, believing he was dead. The victim was found and taken to hospital. He sustained heavy bruising to his spine and buttocks. When interviewed by Police, RA was open about what she had done, but could not offer any rational explanation. Judge Malosi was satisfied on the balance of probabilities as to RAs involvement in the actus reus of the offence.
Step 2 and 3: Mental impairment and fitness to stand trial
Two health assessor reports (under s 14(1) of the CP(MIP)A) and a s 333 of the CYPFA) were provided. RA had been raped twice when she was 12 years, old, her parents were alcoholics and substance abusers, and RA may have been sexually exploited through prostitution. RA was a glue-sniffer and has a history of fire setting. Tests to determine RAs intellectual functioning assessed her at having a mild mental retardation. That report accepted that the findings were suggestive of intellectual disability, but that a more definitive response might be forthcoming following enquiries under s 23 of CP(MIP)A. The report was clear that mild mental retardation could constitute a mental impairment under s 23 CP(MIP)A. One report writer, a Clinical Psychologist agreed that RA did fulfil all of the requirements under s 7 of the ID(CCR) Act.
Having regard to the specialist reports, Judge Malosi concurred that RA was intellectually disabled as defined in s 7 of the ID(CCR) Act.
All report writers also agreed that, due to her mental impairment, RA was unfit to stand trial. Any ability she had to understand the proceedings and instruct counsel was rudimentary at best. RA was assessed as being at a such a distinct disadvantage as to be repugnant to justice.
Comments
Judge Malosi commented that it appeared that the CP(MIP)A and ID(CCR) Act were passed without thought being given to how services would be delivered to young people who were processed through the Youth Court. All secure residential facilities under the ID(CCR) Act appear to be geared towards adults, and males at that.
RA did not fall into either category and she needed the highest level of care and protection that either the CP(MIP)A or the ID(CCR) Act could provide.
File number: CRI 2007-287-000077
Court: Youth Court, Opotiki
Date: 14 August 2008
Judge: Judge Harding
Key title: Jurisdiction of the Youth Court: s 276 offer/election, Youth Court procedure
Case Summary:
T (14 years old at the time of the offence) was charged with two offences of sexual violation by rape and unlawful sexual connection, both purely indictable charges. The victim (aged 16) was a member of T's whanau. T indicated a desire to plead guilty pursuant to s 276 of the CYPFA. A detailed FGC plan was agreed upon by the whanau of both T and the victim (essentially the same group).
Whether to offer YC jurisdiction
Unless YC jurisdiction was offered, the Youth Court (YC) would only be involved at depositions. If there was not an indication of a desire to plead guilty following depositions, the matters, as middle-banded matters, would be sent to the High Court where a middle banding decision could be made. In most cases the matters would return to the District Court (DC) under the middle-banding process.
Alternatively T could be offered YC jurisdiction. However, due to T's age (14 at time of the offence) he could not be later convicted and transferred to the DC pursuant to s 283(o) of the CYPFA, see D v Youth Court at Tauranga HC Tauranga CRI-2007-470-000767, 3 October 2007 per Baragwanath J.
The Youth Court Judge considered the relevant factors in deciding whether or not to offer YC jurisdiction to T. These factors include the seriousness of the offence, Ts age, the time within which Youth Justice measures could apply, Ts offending history, the principles of accountability, the victims interests and the rehabilitative provisions of the CYPFA. Of particular importance was the response by the wider whanau, including T's victim.
Decision:
Deciding not to offer YC jurisdiction, the YC does not have within its range of sentencing options, any system which would enable a two year supervision with appropriate sanctions. The matter was remanded for depositions.
Possible outcome
The YC depositions process would continue. T need not end up in the High Court. An option for T would be to plead guilty pursuant to s 153A of the Summary Proceedings Act 1957 (SPA). If a guilty plea were then entered, there would be committal for sentence in the DC.
Section 28F of the District Courts Act 1947 enables sentence by a jury-warranted Judge in the DC. If a supervision order was made with a view to implementing the plan, and the supervision order was subsequently breached, the DC has the jurisdiction to substitute a different sentence, including imprisonment (s 54 of the Sentencing Act 2002). Section 72 of the Sentencing Act provides for cancellation of sentences of supervision and s 72(1)(b) provides that an application is to a DC provided over by a trial Judge if the sentence was passed by a District Court Judge on conviction on indictment.
Addendum
Counsel for the defendant advised that a s153A application would be filed and therefore depositions would not be required. In that event directions that the psychologists report, the plan and the Crowns submissions to be made available to Community Probation along with the YC decision.
File number: CRI-2008-076-001217
Court: Youth Court, Timaru
Date: 1 August 2008
Judge: Judge Neave
Delay: Delay (s 322)
Summary:
PB charged under Films, Videos and Publications Classification Act 1993. Seven months between execution of search warrant and first call of the charges. PB filed application to dismiss. Court commented on difficulty of detecting and preparing cases brought for this type of offending. Permission of the Attorney-General also required before prosecution could proceed in this case.
Factors contributing to delay; time consuming procedure, care needed in preparation of case, Attorney-General's approval, parental involvement. Court considered AG v YC at Manukau [2007] NZFLR 103 (HC) per Winkelmann J for the tests for unnecessary delay and unnecessary protraction. Found no drawing out of the procedure, or potential for loss of remedies or prejudice if case could not be considered in the Youth Court because PB had 'aged-out' of the jurisdiction by the time the matter came to court. Found delays not as significant as if PB had been younger. Diversion still available in District Court. Public interest in pursuing prosecution strong. PB's interest in not becoming a sex offender also strong.
Decision:
Application refused.
File number: CRI-2008-242-000028
Court: Youth Court, Nelson
Date: 28 August 2008
Judge: Judge Zohrab
Key title: Orders - type: Supervision with residence - s 283(n)
Case Summary:
KW was charged two offences, threatening to kill, and wounding with intent to cause GBH (a purely indictable charge). A Family Group Conference (FGC) was held to consider the issue of jurisdiction. After consideration, the initial Youth Court Judge decided to offer KW Youth Court jurisdiction. A further FGC was held where agreement was unable to be reached regarding sentencing. KW also had a drink/drive matter in the District Court. The original Youth Court Judge suggested that KW be sentenced to supervision with residence in the Youth Court. Once the sentence expires (when KW turns 17.5 years of age) he could then be subject to a sentence of supervision imposed in the District Court.
Decision:
On the two indictable offences, KW was sentenced to supervision with residence. The Youth Court Judge warned KW that if he breached his sentence, the whole process could be unwound and he could end up being transferred to the District Court and potentially be given a prison sentence.
On the drink/drive matter, KW was remanded with bail to continue. KW was to come back on that matter later for sentence. Then, provided KW had not breached on the other matter, he would be sentenced to extended supervision.
File number: CRI-2008-204-000279
Court: Youth Court, Rotorua
Date: 19 August 2008
Judge: Judge MacKenzie
Key title: Orders - type: Conviction and transfer to the DC for sentencing - s 283(o): Aggravated robbery, Orders - type: Supervision - s 293(k), Orders - type: Reparation - s 283(f), Orders - type: Community Work - s 283(l)
Case Summary:
MA (16 years and 8 months at the time of offending) travelled to Auckland with a co-offender (20 years old) and robbed a mobile restaurant. MA disguised himself with a hoodie and a bandana, and armed himself with a wooden handled tomahawk. MA approached the restaurant, produced the tomahook and demanded money from the victim. MA then struck the mobile restaurant with the tomahawk, leaving a dent in it. The co-offender produced a BB gun, pointed it at the victim and demanded money. The victim refused the demands and eventually MA and the co-accused left the scene.
The YCJ accepted that MA felt a considerable degree of victim empathy. The Family Group Conference was unable to reach agreement regarding whether the matter should remain in the Youth Court or not. Consideration of the relevant principles under ss 283(o), 290(1)(a)(b) and (c), 284, 4,5, and 208 of the CYPFA 1989. The key factors to consider were the seriousness of the offence, the circumstances surrounding the offence, MAs background and the public interest.
Aggravating factors identified:
Mitigating factors:
MAs personal circumstances
Police v Rangihika followed rather than R v Mako [2000] 2 NZLR (CA) (the tariff case for aggravated robbery in the adult jurisdiction).
The decision R v IM HC Auckland CRI-2007-292-000359, 5 February 2008 per Heath J was relevant to the consideration of whether Youth Court alternatives were available. In that case Youth Court jurisdiction was declined primarily on the grounds of public interest.
Decision:
Deciding not to convict and transfer MA to the District Court for sentencing, The Youth Court Judge ordered 6 months supervision (with special conditions) and 200 hours of community work. Order to pay $1000 emotional harm reparation.
Whilst the offence was serious, with aggravating features, there were also several mitigating features. This was not a situation which fell into the most serious category. In addition, the lack of prior Youth C offending and MAs personal circumstances were other relevant factors. The necessary deterrence and accountability could be adequately met by the Youth Court sentence.
File number: CRI-2008-292-000119
Court: Youth Court, Manukau
Date: 9 September 2008
Judge: Judge Malosi
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit, Secure care (ss 367-383A)
Case Summary:
Hearing to determine what orders, if any should be made pursuant to ss 24 or 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)). If PM was made a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act (ID(CCR)), whether this order could be carried out in his family home.
The Police and the Ministry of Health agreed that the most appropriate order would be under s 25(1)(b) of the CP(MIP), deeming PM to be a care recipient and triggering processes in relation to his care and protection.
Decision
The Youth Court Judge ruled out the possibility under s 24 of CP(MIP) that PM be placed in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act, or in a secure facility as a special patient under the ID(CCR). Neither option is appropriate nor was sought.
Remaining options:
Given the seriousness of the offending, and multiple diagnoses in respect of PM, making no order was not an option. Significant weight was placed on the fact that if there were no order under ID(CCR) there would be no possibility of RIDCA (the specialist administrator of support services for intellectually disabled) providing support and PMs family would be left to battle for support from mainstream Disability Support Services. PM needed that highest level of care and the family would be unable to address the issues identified without clear and mandatory structure.
Any decision under the ID(CCR) must take into account PMs sense of timeframe, which was directly relevant to the need to finally deal with these matters today and in determining the length of time that any order is made for.
After considering Counsels submissions, correspondence from RIDCA, the Specialist Assessors report, the needs assessment, the cultural assessment, a letter from the Principal of PMs school and submissions from the family and Justice Action Group, the Youth Court Judge decided that PM was to be made a care recipient pursuant to s 25(1)(b) of the CP(MIP).
Meaning of facility
Whether PM's home could be deemed to be a facility within the definition in s 9 of the ID(CCR).
Section 9(1) defines facility as a place that is used by a service for the purpose of providing care to persons who have intellectual disability (whether or not the place is also used for other purposes).
Section 9(3) Provides: A facility that is not a secure facility need not have any particular features and, accordingly, a building (such as a residential home) that is not an institution can be used as such a facility.
Counsel for the Police submitted that s 9 does not preclude the use of a family home. Counsel for the Ministry of Health rebutted that submission and his argument was accepted by the Youth Court Judge. He argued that once the Court makes an order under s 25(1)(b) of the CP(MIP), the Court then has the authority under s 26(2) only to direct whether or not PM is to be detained in a secure facility, and the term of the order pursuant to s 46 ID(CCR). The Youth Court Judge stated the situation is analogous to s 238(1)(d) of the CYPFA. The Youth Court makes an order that a young person be detained in custody and the Chief executive of the MSD determines where such detention shall be.
The Youth Court Judge accepted submissions that a care recipient subject to compulsory care with consequent powers cannot be delivered the full force of those powers if the care recipient remains in the family home. In any case, given the serious nature of the offending it would not have been appropriate for PM to carry out his care plan at home.
The Youth Court Judge commented: The next big challenge just around the corner is what do we do with young girls who are found unfit to plead, but we will save that for another day, coming to a town near us all soon.
Orders
File number: CRI-2005-254-000111
Court: Youth Court, Palmerston North
Date: 30 June 2006
Judge: Judge Ross
Key title: Orders - type: Reparation - s 283(f).
Summary:
Burglary. NA's share of losses $11,919 (uninsured) and $47,360.86 (insured). Inability to pay taken into account.
Decision:
Order for $4,000 reparation
File number: CRI-2007-219-000335
Court: High Court, Hamilton
Date: 30 September 2008
Judge: Lang J
Key title: Admissibility of statements to police/police questioning (ss 215-222): Explanation of rights
Summary
Admissibility of video interview. Understanding of rights when young person had English as a second language.
Body discovered. Cause of death determined to be head injuries. Police asked NV (16 years old) and his sister K to come to the police station to talk about the discovery of the body and an earlier assault. NV not arrested, and told by police that he was not required to go to the station. NV told of his right to nominate a person to be with him while he was being interviewed but that his sister would not be an appropriate person as she too was being interviewed. NV responded that there was no one that he trusted. Police explained that, in that case, they would nominate someone, and NV indicated that he understood this advice. NV was told of his rights under the CYPFA, including his right to talk to a lawyer, and that a video interview would not start until a nominated person was present.
A male nominated person was contacted from a list kept by the police and spoke to NV for 10 minutes before the video interview began. NV did not request to speak to a lawyer. During the interview, NV made admissions later relied on the Crown.
NV born in Tonga and came to NZ at 14 years old. English was his second language. Video interview conducted in English. Police explanation of rights would have been sufficient if NV was an adult with English as first language.
R v Z CA604/07 17 July 2008 cited. Question whether NV's rights were explained in a way that he actually understood. Discussion of factors suggesting NV had, and didn't have, sufficient ability to understand police explanation, including oral evidence of NV in court. Court also considered expert psychiatric report, written after interviewing NV in the presence of a bilingual youth worker who acted as interpreter.
Court concluded that, at the time of the interview, NV did not have the necessary language skills to enable him to readily engage in conversations concerning complex or technical concepts. Accepted expert opinion that the level of detail provided in NV's answers gave a clear indication of the extent to which he understood the police questions. Court not convinced that the role of a lawyer was explained in a way that was understood by NV. A v R HC Auckland CRI-2003-292-001224, 23 June 2004 at [49] per Miller J cited. S v Police (2006) 25 FRNZ 817 (HC) at [78], and R v Kurariki (2002) 22 FRNZ 319 (CA) at [36] referred to regarding the role of a nominated person.
Court concluded that there was doubt over whether NV understood the role of a lawyer, despite saying that he did not need to consult one. The right to legal advice is a fundamental requirement.
Decision
Video interview inadmissible.
File number: CRI-2006-244-000075
Court: High Court, Auckland
Date: 5 September 2008
Judge: Venning J
Key title: Sentencing – General Principles (e.g. Parity/Jurisdiction)
Case Summary:
Earlier sentenced to two years imprisonment (see R v CS HC Auckland CRI-2006-244-000075, 25 July 2008). Home detention considered but proposed address not suitable as occupant had extensive criminal history and had assaulted another person who had verbally abused CS while on bail. CS had called for assistance at the time. 6 weeks spent in custody. Alternative home detention address proposed. Proximity to victim's address could be dealt with by conditions.
Decision:
Previous sentence of 2 years imprisonment cancelled. 46 weeks home detention with conditions ordered (taking into account 6 weeks already served).
File number: CRI-2008-0085 -006456, CRI 2008-085-005911
Court: Youth Court, Palmerston North
Date: 9 September 2008
Judge: Judge Walker
Key title: Bail (s 238(1)(b)), Remand at large (s 238(1)(a))
Case Summary:
HT faced two sets of proceedings straddling his 17th birthday.
He faced a charge of breaching a sentence of home detention and a related application for cancellation of that sentence for breach. The sentence of home detention was imposed when he was under 17 years of age. The breach occurred when he was 17.
He also faced a charge of wounding with intent to cause GBH (purely indictable), which occurred 1 month before his 17th birthday. He was offered and accepted the opportunity of foregoing trial by jury and that matter will be heard on a defended basis in November. Bail was granted on that matter.
When HT was arrested on the wounding charge, he was subject to post-release conditions in relation to a 10 month sentence of imprisonment on a wounding with intent to injure charge. He had been convicted in the Youth Court and transferred to District Court for sentencing under s 283(o) of the CYPFA. HT was granted home detention.
HT breached the post-release conditions in respect of the wounding with intent to injure charges (above). He breached those conditions and four charges were subsequently laid in the District Court. HT was 16 at the time He pleaded guilty to those four charges and was sentenced to 8 months home detention.
Issues
HT now faced charges of breach of home detention by removing the ankle bracelet and absconding. He was arrested and brought before the Youth Court on that charge and for breaching bail on the Youth Court charge. HT pleaded guilty to the breach of home detention and he was convicted and remanded in custody. Counsel were asked to consider s 205 of the SPA 1957.
Decision
It would not be proper to remand in custody in prison on the current charge in the District Court when the basis for it may have been an invalid sentence. HT was remanded at large on that charge.
On the Youth Court charge (wounding with intent to cause GBH), absconding from what appeared to be an invalid sentence was not a basis for refusing bail, so that action was put to one side when reconsidering. Bail granted.
File number: CRI-2008-054-003657
Court: Youth Court, Palmerston North
Date: 9 September 2008
Judge: Judge Ross
Key title: Arrest with warrant (s 214)
Case Summary:
K (16 years old at the time of the offence) denied each charge. He was arrested without warrant and now challenged the validity of the arrest pursuant to s 214(1)(a) and (b) of the CYPFA. The arresting police officer, Constable O, had conducted enquiries in relation to K on 10 to 15 previous occasions. On those occasions K's behaviour had been aggressive and abusive towards the investigating police. Constable O's evidence was that K was a member of a group of older associates, who were known active offenders. K's behaviour in this group was anti-police and anti-authority. On his own, K's behaviour was fine.
In a previous incident in July 2008, Constable O and another police officer stopped a vehicle in the main street. K was a passenger. There were members of the public around. K got out of the vehicle, and became verbally abusive towards the police.
In July 2008 K and another had gone to a local garage to retrieve a stereo out of an impounded vehicle. The proprietor of the garage had called the police. The police found K at the rear of a carpark near the garage. Constable O's evidence was that she saw K and another male close by the garage. She asked K about the stereo and he denied knowing anything about it. Constable O told K that if she did not get the stereo back she would consider a theft charge against him. The immediate stereo incident was apparently soon resolved and the stereo was recovered.
Constable O's evidence was that she warned K about his behaviour two or three times.
From her evidence:
The police case was that the arrest was necessary for the purpose of preventing K from committing further offences. The defence submitted that there was no prospect of further offending once the police left, and that the arrest was really a for a miscellany of misbehaviour in the past.
Discussion
The Judge accepted the defence submissions:
Decision
The clear statutory injunction is against criminal proceedings being instituted against a young person if there is an alternative means of dealing with the matter, unless the public interest requires (s 208 CYPFA). The obligation is on the police to prove beyond reasonable doubt that the grounds for arrest were met. That onus was not met in the present case.
The aggravated disorderly behaviour charge was dismissed. Resisting arrest charge dismissed.
File number: CRI-2008-092-000298
Court: Youth Court, Manukau
Date: 4 September 2008
Judge: Judge Malosi
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery
Case Summary:
SL (16 years and 9 months at the time of the offending) faced charges of aggravated robbery (a purely indictable offence), receiving, and theft. On the latter charges, 6 months supervision and a community work order for 100 hours was ordered. The supervision order was cancelled on 17 June after SL absconded on 5 May. Between 24 April and 17 June 2008, SL committed 8 further offences, including aggravated robbery. At an Family Group Conference on 4 July there was no agreement on jurisdiction, and therefore a social worker report and plan were ordered.
The social worker indicated that SLs attitude had changed significantly, and asked the Youth Court Judge to consider a sentence of supervision with activity or supervision with residence. The police argued that due to the serious nature of the offending, SL should be convicted and transferred to the District Court for sentencing.
Aggravated robbery
SL and another young person drove a stolen car though a shopping centre in Auckland. They spotted the victim, an Asian woman in her 40s. SL pulled up beside the victim, the other Young Person leaned out of the passenger window, reached out and grabbed her handbag. SL then accelerated, causing the victim to fall to the ground and hit the concrete face first. She was dragged for a short time. In the bag there was $1,400 cash, 3 credit cards, 4 EFTPOS cards, a driver's licence and other items. The victim received cuts, scrapes and bruising to her face and legs. Her lip had to be stitched.
The objects and principles of the CYPFA under ss 4, 5 and 208 were referred to. The circumstances of the offending met the s 290(1)(a) and (1)(b) requirements.
Issue: whether any Youth Court options were still available to SL. SL recently turned 17, leaving just under 6 months for top-end Youth Court orders to run.
Factors taken into account:
Against offering Youth Court jurisdiction
For offering YC jurisdiction
The Crown indicated that if SL were to be transferred a community-based sentence would not necessarily be out of the question, depending on the probation report.
Decision:
Judge Malosi considered that the District Court would be bound to take into account many of principles applicable to Youth Court. Neither supervision with activity, nor supervision with residence were appropriate.
File number: CRI-2008-004-322
Court: Youth Court, Auckland
Date: 22 September 2008
Judge: Judge Fitzgerald
Key title: Jurisdiction of the Youth Court: s 275 offer/election.
Summary
Whether to offer Youth Court jurisdiction.
Preliminary hearing. Sufficient evidence to put EP (14 years old) on trial. Complainants aged 4 and 6. No Family Group Conference (FGC) held yet. Court discusses s 4(f) CYPFA principles. FGC process not available if case goes to adult court, but longer sentencing timeframes in District Court would allow for EP to take part in a SAFE programme for young sexual offenders if CYF funded programmes are available through community probation services.
Youth Court capable of offering earlier hearing date than District Court. Families under much stress connected to alleged offending. Youth Court hearings less stressful for those giving evidence. Police v H [2004] DCR 97 cited. EP's age a positive factor when considering delaying disposition in the Youth Court in order to complete SAFE programme before jurisdiction runs out.
Decision
Youth Court jurisdiction offered.
File number: CRI-2008-206-000022
Court: Youth Court, Blenheim
Date: 16 September 2008
Judge: Judge R J Russell
Key title: Orders - type: Discharge - s 282
Summary
Sentencing. Not principal offender. 14 year old.
DF (14 years old) encouraged co-offender to fight victim who was listening to an i-pod. Co-offender punched the victim 6 times, resulting in surgery and permanent facial injuries.
DF a first time offender. Loving and supportive family. Comprehensive Family Group Conference plan successfully completed. No re-offending. Decision by a fine margin. Unlike the victim, no lifetime consequences.
Decision
Section 282 discharge granted.
File number: CRI-2007-270-000104
Court: High Court, Tauranga
Date: 26 September 2008
Judge: Heath J
Key title: Sentencing in the adult courts: Murder/manslaughter, Sentencing in the adult courts: Other
Summary
Sentencing. Manslaughter. Illegal street racing.
C (aged 16 at the time of the offence) was found guilty at trial. C and others were street racing. C and L decided to race. F was the starter. L's car suffered mechanical difficulties on the way to the finish line. On the way back to the start, L's car struck and killed F. C and L were found to have been racing on the way back. C denied this in a video interview, and at trial. L plead guilty. C was on a restricted licence, and was part of a group that had ignored police attempts to stop the street racing earlier in the evening. F would have been struck by either C or L, depending who happened to be on his side of the road.
Crown said C was as liable as L for F's death, and was not a suitable candidate for home detention because of his lack of acceptance of responsibility, as well as denunciation and deterrent. L was sentenced to 1 year 10 months imprisonment from a starting point of 3 years 6 months, with discounts for early guilty plea, cooperation, remorse and previous good character.
Court singles out loss of life as main aggravating factor, and age as the main mitigating factor: R v Pretty CA 227/00 26 October 2000 at [13]. Court also mentions sentencing principles including consistency and parity. Starting point 3 years 6 months imprisonment. No acceptance of responsibility. No real remorse. Discount of 1 year for age.
Decision
2 years 6 months imprisonment. Disqualification from holding or obtaining a driver licence for 4 years.
File number: CRI-2008-204-000296
Court: Youth Court, Auckland
Date: 17 September 2008
Judge: Judge Fitzgerald
Key title: Orders - type: Supervision with residence - s 283(n).
Summary
Sentencing. Aggravated robbery.
Seven charges of aggravated robbery admitted at Family Group Conference (FGC) and confirmed in Court. Court accepted FGC recommendation to offer MA Youth Court jurisdiction. FGC could not agree whether or not to convict and transfer MA to District Court for sentencing.
Discussion of MA's role in offending. MA pressured by older associates to approach strangers with a knife and demand their possessions. MA admitted guilt early, and also had a long history of behavioural (ADHD) and educational difficulties, as well as drug and alcohol use. MA showed remorse, and had a supportive family. No previous Youth Court appearances.
MA's actions out of character, and still too young to consider the consequences of his actions. Social work report addressed offending-related needs, and would not necessarily be available in District Court.
Decision
MA sentenced to supervision with residence, then 6 months supervision with conditions.
File number: CRI-2008-254-000158
Court: Youth Court, Palmerston North
Date: 9 September 2008
Judge: Judge Becroft
Key title: Lay advocate (326/328A)
Case Summary:
Appointment of a lay advocate in the case of CCT (a young person) under s 326 of the CYPFA. The appointment was on a one-off basis given the lay advocates obvious support to CCT and his family.
Judge Becroft commented that this would seem to be exactly the position envisaged in the CYPFA, where a lay advocate can add meaningful value to the process and work parallel with the youth advocate. Judge Becroft hoped that the lay advocate could work with the family and support them in the creation of the social workers report and a plan leading to a comprehensive supervision with activity programme.
The lay advocate was to be contacted by the court about the Lay Advocates Guidelines and the general remuneration rates. As she was employed at the Ministry of Social Development as a cultural advisor at a Youth Justice residence, it would not be appropriate that she be paid twice for her work with CCT.
It would be appropriate that the lay advocates functions in respect of the family be remunerated under the guidelines set out by the Ministry for lay advocates. Copy of the memo to be sent to the lay advocate, so that it is clear that the payment as a lay advocate could only be made for her separate work with the family over and above her work with CCT as a cultural advisor.
File number: CRI-2008-292-000092
Court: High Court, Auckland
Date: 14 October 2008
Judge: Heath J
Key title: Jurisdiction of the Youth Court: s 276 offer/election, District Court - limitations on sentencing.
Case Summary:
Reasons for ruling of 10 October 2008. 14 year old. SO indicated desire to plead guilty in earlier Youth Court appearance. Court declined to offer SO jurisdiction and remanded him to the High Court, as he was 14 years old, and therefore excluded from being convicted and transferred to the District Court under s 283(o) of the CYPFA.
The Law
The ruling points out that s 276 of the CYPFA gives no explanation as to the outcome for a young person who indicates a desire to plead guilty but is denied Youth Court jurisdiction. The Court highlights the option offered by s 153A of the Summary Proceedings Act 1957, which is incorporated by reference into the youth justice system by s 274(2)(a) of the CYPFA.
Section 153A(6) of the SPA directs that a young person who pleads guilty shall be sentenced in the District Court, as long as the offence is indictable (or, in Youth Court terms, purely indictable), and is not on a list of offences for which only the High Court has trial jurisdiction (including murder and manslaughter).
R v DJB HC Christchurch T26/01, 17 May 2001 discussed, and used to support view that the High Court did have jurisdiction to sentence previously. Any procedural inaccuracies were mere technicalities.
File number: CRI-2007-404-362
Court: High Court, Auckland
Date: 7 October 2008
Judge: John Hansen J
Key title: Sentencing in the adult courts: Murder/manslaughter, Media reporting (s 438)
Summary
Sentencing. Manslaughter. 14 year old. Name suppression.
Guilty plea. DV (14 years old at the time of the offence) and 3 others (all associated with Tongan youth gangs) attacked innocent passerby. DV had good upbringing but went 'off the rails' after associating with gang. Pre-sentence report not positive. Court concludes DV has a tendency to violence and has a high risk of re-offending. Serious aggravating feature - two previous charges proven in Youth Court arising from offending occurring 24 hours before this attack. Mitigating factors early guilty plea, and age.
Other sentencing cases involving violence and young people considered. Starting point set at 8.5 years. Credit given for 'your extremely young age', guilty plea, and personal factors not detailed in the judgment. Discount of 3.5 years.
Application for name suppression. Defence claim that close media interest taken in cases of young people involved in violence, such as in the case of B J Kurariki, could influence and impede rehabilitation. Court refers to the need for openness, and the guilty plea to 'a quite horrendous offence of violence'.
Decision
Sentenced to 5 years imprisonment. Final name suppression refused.
File number: CRI-2008-270-000239
Court: Youth Court, Tauranga
Date: 20 October 2008
Judge: Judge C J Harding
Key title: Youth Court Procedure
Summary
Procedure. Sexual violation. Indecent assault. Purely indictable charge. Preliminary hearing. No proper basis for arrest.
Indecent assault charge not purely indictable, so cannot be laid indictably.
Preliminary hearing (depositions) scheduled to determine whether or not there was enough evidence to proceed on all charges. No indication of desire to plead guilty. Submissions filed from both sides addressing question of whether there was a proper basis for arrest. That question not capable of answer because no jurisdiction in District C summary jurisdiction or in Youth Court to hear preliminary arguments on points of law before evidential basis established to put JDH on trial. Youth Court only capable of hearing legal arguments after evidential basis established, and an offer of Youth Court jurisdiction (s 275 CYPFA) has been made and accepted.
Decision
Indecent assault charge dismissed. Depositions on charges of sexual violation adjourned.
File number: CRI-2008-292-000092
Court: High Court, Auckland
Date: 10 October 2008
Judge: Heath J
Key title: Sentencing in the adult courts: Aggravated robbery
Case Summary:
Young person aged 14 at the time of the offence. Guilty plea. Declined Youth Court jurisdiction (see R v SO HC Auckland CRI-2008-292-000092, 14 October 2008). Offender and two others (aged 13 and 16) planned to rob a service station. Disguises were worn and a boning knife was used to threaten the attendant. SO helped take cigarettes, and $300 cash was also taken.
Serious offending with the possibility of death, if the knife had been used. Certain jail if offender was an adult. Early guilty plea indicated acceptance of responsibility. Young age, early guilty plea and remorse taken into account. SO also showed talent and prospects at rugby. Imprisonment inappropriate as it would bring SO into contact with people that he should avoid. Eligible for home detention. SO also emotionally affected by traumatic deaths of family members. Strong cultural background.
Decision
Starting point 4 years imprisonment. 50% credit for age and guilty plea. 100 hours community work. 6 months community detention. Two years intensive supervision, with special conditions relating to alcohol, drug, and life skills programmes, as well as judicial monitoring. A last opportunity.
File number: CRI-2008-292-000005
Court: District Court, Manukau
Date: 2 October 2008
Judge: Judge Malosi
Key title: Sentencing in the adult courts: Aggravated robbery
Summary
Sentencing. Aggravated robbery.
Convicted and transferred from Youth Court. After a night of drinking, MR (15 years old) and 2 associates (17 and 14 years old) demanded money and other items from 2 Argentinean tourists who were parked in a campervan. When the demands were not met, MR pointed an air pistol at the victims and threatened to shoot them. The victims handed over money and personal items.
Probation report recommended imprisonment as no suitable home detention address available. Older co-offender sentenced to 9 months home detention. 14 year old co-offender remained in Youth Court with no prospect of imprisonment.
Court described attack as like a home invasion, and that the victims were vulnerable, and chose to visit New Zealand because they perceived it as a safe destination. They endured psychological terror that cannot be underestimated. MR was the primary offender. No mitigating factors in this offending.
In the debate about the place of youth justice principles in sentencing young people in the adult courts, Judge Malosi preferred the "pragmatic" reasoning of Mallon J in P v Police HC Wellington, 14 August 2007. Categories in R v Mako were only a "useful guide". Crown points to two cases of aggravared robbery on campervans: R v Gladstone HC Gisborne, 5 October 2005 per Venning J; R v Growden CA67/05 25 October 2005 per Potter J. Court points out that it is restricted to a final sentence of no more than 5 years imprisonment. Argument that starting point must always be less for a young person than for an adult rejected.
Starting point of 5 years. Early guilty plea. Not dealt with grief after early death of father. One of 11 siblings, some of whom are also offenders. Drug and alcohol problems. Severe child onset conduct disorder. Known to Police Youth Aid from age 10. Care and protection history with CYF. Support from brother and auntie. Not in school since the age of 11. MR Remorseful, and interested in becoming a mechanic. 50% discount for offender's mitigating factors. Time in residence taken into account in parole decisions. Direction to prison authorities to keep MR apart from adult prisoners.
Decision
2.5 years imprisonment.
File number: CRI-2008-292-100/407/300
Court: District Court, Manukau
Date: 2 October 2008
Judge: Judge Malosi
Key title: Sentencing in the adult courts: Aggravated robbery
Summary
Sentencing. Aggravated robbery. Conversion of motor vehicles. Theft. Receiving.
These charges started out in the Youth Court. SL pleaded guilty and was convicted and transferred to District Court for sentencing. SL received a cellphone stolen from a car, was involved in a bag snatch with 2 co-offenders, was involved (with 1 co-offender) in a bag snatch from a moving car that injured the victim, and stole 3 cars.
Probation recommendation of community detention, intensive supervision, and community work. Parents successful and supportive. SL involved with Killer Beez gang. SL has built strong relationships and shown leadership qualities in his time spent in a youth justice residence on remand. Showed considerable talent as a poet. Father to help with engineering apprenticeship.
Starting point 2 years imprisonment (based on Taueki, and Mako cases). 25% discount for early guilty plea. 25% discount for age (16 years old at the time of the offending).
Decision
6 months community detention with conditions. 18 months intensive supervision with counselling, plus cultural involvement. 250 hours community work.
File number: CRI-2008-269-000056, CRI-2007-269-000078
Court: Youth Court, Taupo
Date: 1 October 2008
Judge: Judge N A Walsh
Key title: Bail (s 238(1)(b))
Summary
Bail. HH entered non-denials to robbing a 13 year old of his wallet, and taking 4 mountain bikes. Police oppose bail, and report that HH has been intimidating witnesses. Family say they will take HH to live with his uncles in a remote area, where he will be under 24 hour curfew. HH involved in a burglary at his school and was suspended. Court directed authorities to prepare education report.
Decision
Bail granted with conditions.
File number: CRI-2008-204-000412
Court: Youth Court, Auckland
Date: 24 November 2008
Judge: Judge Fitzgerald
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Indecent assault/indecent act
Summary
Whether to convict and transfer to the District Court.
1am attack by SL on a woman in the central city. Forced touching outside underwear, forced kissing, ignored pleas to let her go.
Delays in the court process mean SL would only be amenable to Youth Court orders for a further 6 months. Crown argued this is not long enough given the seriousness of the offending, and the length of time required for specialist sex offender programmes to be effective. Social work report called for supervision with activity with special conditions that allow for a mentoring programme and assessment by a sex offenders treatment organisation.
Court discusses seriousness of the offence, school attendance, lack of Youth Court history, good family support, remorse, victim's ongoing emotional impact, history of concussion and cognitive impairment, specialist psychological reports, effects of alcohol. No appropriate alternatives available. Section 290(2) of the CYPFA satisfied. Likelihood of final sentence of intensive supervision.
Decision
Convicted and transferred to DC for sentence. Probation report to include assessment by SAFE programme.
File number: CRI-2008-290-000487
Court: Youth Court, Waitakere
Date: 20 November 2008
Judge: Judge Fitzgerald
Key title: Care and Protection cross over (s 280): Care and Protection (s 261), Jurisdiction of the Youth Court: s 276 offer/election.
Summary
Jurisdiction.
J and T forced 14 year old complainant into their house. It was intended that at least one of them would have sex with the complainant, who was unwilling. After resisting, the complainant was allowed to leave. No touching underneath clothes. No physical injury. No premeditation. Offences carried out while carrying out a Family Group Conference (FGC) plan for previous offending.
FGC unable to agree about whether J and T (both 14 years old) should be offered Youth Court jurisdiction. FGC adopted s 261 of the CYPFA procedure to decide that both young people were in need of care and protection on the grounds set out in s14(1)(d) of the CYPFA. Applications made for s14(1)(d) declaration, and s101 custody order made, and adjourned in the Family Court.
Discussion of factors to be considered not including usual sentencing factors as all usual sentencing information not available to the Court, as no charge yet proved, and so no ability to order s 334 report. Section 290 cannot apply as J and T are not yet technically within Youth Court jurisdiction.
Factors relating to facts of the offending are relevant. Both J and T had difficult family backgrounds, and have previous involvement with CYF for care and protection issues, and experienced bullying. Both have conduct disorder, assessed as at high risk of reoffending, and of sexual recidivism. Forensic reports recommend programmes for sexual offending, conduct disorder, and drug and alcohol. Consultative management group recommended to deal with the complexity of J and T's issues.
Principles in sections 4,5, and 208 of the CYPFA mentioned. Discussion of therapeutic and public interest factors for and against offering Youth Court jurisdiction. Discussion of elements in CYPFA that go beyond therapeutic justice, and provide for restorative procedures, and procedures specifically designed for young people. The Act also enables and empowers families of young offenders.
Seriousness of the charge, and a high risk of reoffending are not, in themselves, good reasons for not offering Youth Court jurisdiction. Opposed jurisdictional cases such as these should be judged on a careful consideration of the circumstances of the young person and the offending. Important that dual Youth and Family Court issues are provided for, and proceedings synchronised, with a judge warranted in both courts dealing with the case. Specialist youth agencies and service providers are more associated with the Youth Court, as opposed to Corrections, who do not have a background in youth issues.
Public interest concerns: Victims needs and issues can be adequately dealt with in the FGC process. The Youth Court is a court of record, and orders in the Youth Court have the same standing as convictions in the District Court. There is a public interest in rehabilitation, and the chances of successful rehabilitation are greater in the Youth Court. The Youth Court is able to hold offenders to account and to deter young people from reoffending just as well as the adult courts.
Decision
Youth Court jurisdiction offered. FGC admissions confirmed in Court.
File number: CRI-2008-219-000024
Court: Youth Court, Gisborne
Date: 13 November 2008
Judge: Judge Taumaunu
Key title: Orders - type: Supervision with activity - s 283(m), Orders - type: Reparation - s 283(f).
Summary
Robbery of a dairy with a weapon. J (16 at the time of sentence) and co-offender had been drinking home brew. Co-offender sentenced to supervision, community work plus reparation. J had a previous appearance in Youth Court. Would face 4 - 6 years imprisonment using tariff indications in R v Mako [2000] 2 NZLR 170 (CA) if an adult in same situation. Sufficiently good prospects for rehabilitation.
Decision
Supervision with activity (Life Skills for Life in Rotorua) plus supervision and reparation.
File number: CRI-2008-088-000107, CRI-2008-088-000108
Court: Youth Court, Whangarei
Date: 7 November 2008
Judge: Judge de Ridder
Key title: Arrest without warrant (s 214), Family Group Conferences: Held/Convened, Family Group Conferences: Timeframes/Limits: Intention to charge
Summary
Application to dismiss on grounds of 1) unlawful arrest; 2) non-compliance with s 245; or 3) non-compliance with s 246.
Alleged that ITW and EP together with two others approached several road workers, while brandishing knives. Police spoke with ITW and EP a short time later and arrested them for assault with a weapon. Intention-to-charge family group conferences were held in respect of charges of being a party to assault with a weapon and possession of an offensive weapon. Charges were later amended to threatening to injure knowing conduct likely to intimidate.
Discussion of s 214(1) of the CYPF Act 1989; police not able to establish that arrests were necessary; court has a discretion to dismiss any informations laid as a consequence of an arrest that does not satisfy s 214.
Discussion of the alternative argument that the mandatory provisions of s 245 have not been followed because a Family Group Conference was held in respect of the previous (more serious) charges, rather than the current ones. Held that s 245 has not been complied with because there has been no Family Group Conference in respect of the current charges.
Discussion on whether an arrested young person must be brought to court before a Family Group Conference so that the arrest procedure can be vetted. Held that there is nothing in s 246 to prevent the police holding an intention to charge family group conference where a young person has been arrested and released with the intention of charging them later.
Decision
Informations are dismissed on the grounds of unlawful arrest.
File number: CRI-2008-083-000113
Court: Youth Court, Wanganui
Date: 4 December 2008
Judge: Judge Callinicos
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated Robbery
Summary
Sentencing notes. IE and DK, (together with two others - one of whom stayed in the car), entered a dairy occupied by the shopkeeper and her four year old daughter. DK utilized a double-barrelled sawn-off shotgun, clicking it into place, suggesting that it was then armed. They entered quickly and IE leapt the counter targeting the tobacco. The victims were terrified. IE struck the shopkeeper more than once, and used profane language and verbal violence. The robbery was organised, well-structured and lasted about 15 seconds. They stole packets of tobacco to the value of $470.
IE and DK both expressed a desire to plead guilty and were offered Youth Court jurisdiction.
At the time of the offence, IE had two existing charges of burglary, and DK had numerous other charges of intentional damage, assault, resisting arrest, burglary and aggravated robbery.
The Court must now consider sentencing options, specifically whether any of the sentencing options, short of s 283(o) would be appropriate.
Both IE and DK have had dysfunctional and troubled upbringings, both have a very limited education, and have moved into alcohol or drug dependence. Both accept that they must pay a penalty for this offence, but neither has identified their co-offenders.
IE has two existing charges of burglary. DK had an extensive history of offending over the previous year.
Given the seriousness of the offending, the only sentencing options are s 283(n) supervision with residence, or s 283(o) conviction and transfer to the District Court for sentencing.
Aggravated robbery is a purely indictable offence, and the circumstances in this case are such that, if either IE or DK were adults, a sentence of imprisonment would be required. Both IE and DK have shown indifferent compliance with previous Youth Court orders or plans. Any sanction of the Youth Court is unlikely to achieve the level of rehabilitation required.
Decision
In respect of the aggravated robbery, IE and DK are convicted and transferred to the District Court for sentence. In respect of IE’s burglaries, he is admonished under s 283(b). In respect of DK’s other charges, he is admonished in respect of the intentional damage, assault and resisting arrest charges. In respect of DK’s further charges of burglary and aggravated robbery, he is also convicted and transferred to the District Court for sentencing. Both are remanded in custody with orders to be separated from adult prisoners.
File number: CRI-2008-279-000016
Court: Youth Court, Waihi
Date: 25 November 2008
Judge: Judge JP Geoghegan
Key title: Delay (s 322)
Summary
Application for a stay of proceedings based on delay. DRK , then aged 16 and a half and in breach of the conditions of his restricted drivers licence, drove from Waihi to Paeroa with three passengers in the car. Upon completing an overtaking manoeuvre, he collided with a motorcyclist who died at the scene. The information was laid five months and 25 days later. The issue of delay was first raised seven days after that.
The relevant test is whether the time between the offence and the application to stay was longer than that which would be reasonably expected in a case of that nature. The Court considered the relevant factors to be those adopted in The Attorney-General of New Zealand v The Youth Court at Manukau HC Auckland CIV-2006-404-002202, 18 August 2008 per Winkelmann J. The Court must also consider the seriousness of the offence and the public interest in seeing the offence dealt with by the justice system.
The delay in this case, was within the time limits prescribed by six days, and was partly caused by the complex nature of the case. DRK has not been unduly prejudiced because he has not been in custody or on onerous bail conditions. Also, the delay has not adversely affected his ability to collect evidence. There is a strong public interest in seeing this case dealt with because it was a serious accident involving the death of the motorcyclist.
Decision
The delay in this case does not warrant a stay.
File number: CRI 2007-292-000558, CRI 2008-292-000259
Court: District Court, Manukau
Date: 7 November 2008
Judge: Judge Malosi
Key title: Sentencing in the adult courts; Aggravated robbery, Sentencing in the adult courts: Application of Youth Justice principles.
Summary
R, together with 2 others, snatched a bag from a shop, stole its contents and disposed of the bag. R also faces other charges of threatening behaviour, theft of property over $1,000, and escaping custody.
R has had a care and protection history with CYF since he was 5 or 6 years old. The Court discussed youth justice principles, particularly the requirement to impose the least restrictive outcome appropriate. The starting point should be two and a half years imprisonment. Mitigating factors (early admission of guilt, personal history and current circumstances) took the Court to an end point of one and a half years. That allows for consideration of a community-based sentence. Community work is warranted because it sends a strong message and has a punitive element.
Decision
18 months intensive supervision with special conditions; 4 months community detention; 250 hours community work; judicial monitoring.
File number: CRI-2008-292-000352, CRI-2007-292-000731
Court: District Court, Manukau
Date: 13 November 2008
Judge: Judge Malosi
Key title: Sentencing in the adult courts: Serious assault (including GBH), Orders - type: Supervision - s 283(k), Orders - type: Community Work - s 283(l), Orders - type: Reparation - s 283(f).
Summary
T and his older brother entered a video store armed with a knife and a roman candle firework, demanded money and threatened to stab the shop assistant. T and his brother left when the shop assistant said she was calling the Police. Three days later T, together with the brother and an associate, entered a superette armed with knives and a hammer. All three left when storeowner hit the alarm. Six months later, T and two brothers burgled a property twice, stealing property worth about $1,700.
The Court took a starting point of 3 years. One year was taken off this for mitigating personal features (including the fact that this was a first offence, and T had the support of his parents). The end point therefore is two years. That opens the door to a community based sentence.
Cases considered
P v NZ Police HC Wellington CRI-2007-485-000048, 23 August 2007 per Mallon J
R v Mako [2000] 2 NZLR 170
Decision
18 month Intensive Supervision with special conditions; 6 months community detention (Friday, Saturday and Sunday nights, with electronic monitoring); 250 hours community work; reparation totalling $134 to victims.
File number: CRI-2008-287-000102
Court: Youth Court, Whakatane
Date: 14 November 2008
Judge: Judge Rollo
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH), Family Group Conferences: Non-agreement
Summary
Assault with a weapon. Previous conviction. Application to convict and transfer to the District Court.
JT (2 days short of his 17th birthday at the time of the offence) was at a party when a dispute arose about music. Police say JT lunged at a pregnant girl with a wine knife. No agreement on conviction and transfer at FGC. JT sentenced to imprisonment for the manslaughter of his brother 18 months previously: R v JT HC Rotorua CRI-2006-287-000083, 13 June 2007 per Harrison J. Police rely on s 290(1)(b) of the CYPFA. Court agrees, given previous conviction. Age also a factor, and Youth Court penalties not an adequate response.
Decision
Application to convict and transfer to the DC for sentence granted.
File number: CRI-2008-269-000072
Court: Youth Court, Taupo
Date: 10 December 2008
Judge: Judge Munro
Key title: Orders - type: Supervision with residence - s 283(n).
Summary:
H 14.5 years old. Charges were injuring with intent to injure, assault with a weapon (hammer), burglary. First time in Youth Court, but had long history of offending from age 9. H 'highest violent offender, youth or adult, in the [name of town deleted] community'.
Family Group Conference agreed to supervision with residence. Family involvement with crime meant alternative whanau placement would exacerbate problems. H's mother unable to control him.
Decision:
Supervision with residence, followed by supervision.
File number: CRI-2008-292-000370
Court: Youth Court, Manukau
Date: 11 December 2008
Judge: Judge Malosi
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 14 mental impairment/unfit to stand trial.
Summary:
GC had an IQ of 40, which was within the lower limits of the moderate range of retardation. Moderate intellectual disability. Impairments across all areas of cognitive function, indicating congenital dysfunction. Long care and protection history. Court found an intellectual disability for the purpose of s 14(1) of the CP(MIP) Act.
GC had poor understanding of charges, Court processes, or roles of players in those processes. Can only understand the meaning of simple words and sentences. No higher thought processes and cannot judge or reason verbally. Found GC unable to conduct a defence or instruct a lawyer, unable to plead or adequately understand the nature or purpose or consequences of proceedings.
Decision:
Unfit to stand trial.
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