File number: FAM-2010-004-002148
Court: Family Court, Auckland
Date: 10 October 2011 and 4 November 2011
Judge: Judge Fitzgerald
Key title: Care and Protection cross over (s 280): Family Group Conferences/Care and Protection (s 261)
On 2 September 2010, the Police applied for a declaration that the young person was in need of care and protection. A care and protection Family Group Conference resulted in an approved plan, and a support order under s 91 of the Act. A condition of this was that if there was a breach of the plan, fresh proceedings could be brought, either for a s 78 or a s 101 order. There was a breach, and an application was made for a s 78 interim custody order as a result.
On 9 June 2011, a Family Group Conference was convened by a Youth Justice Co-ordinator to consider both the young person’s offending and care and protection issues. At the time, the young person was in a temporary placement with CYF caregivers.
By the 10 October 2011, the young person was living with his mother. The Judge noted that it would be entirely inappropriate for him to remain with his mother, given significant problems historically with him being in her care. The Judge also noted that his concerns were increased by counsel for the young person’s report about the young person’s attitude and behaviour when she attempted, over the weekend before the hearing, to engage with him. He stated that a care and protection Family Group Conference needed to be held, and adjourned the proceedings to 7 November 2011 on the basis that a Family Group Conference would be held in the meantime (an earlier Judge had adjourned proceedings for this to occur on 10 August, but it was yet to occur).
On 4 November 2011, counsel for the Chief Executive sought an adjournment of the proceedings on 7 November because an Family Group Conference had not yet been held and was due to be held on 9 November 2011.
The Judge echoed the concerns of the lawyer for the young person that an Family Group Conference had not yet been held, despite strong concerns about the young person remaining living with his mother, which the mother and the Judge both noted at the hearing on 10 October 2011.
The Judge adjourned the judicial conference to 21 November 2011, but noted an expectation of urgent attention to now be given to these issues and an explanation for these failings at the next conference.
Result:
Judicial conference adjourned.
File number: CRI-2011-204-000189, FAM-2011-004-001534
Courts: Youth Court, Auckland, Family Court, Auckland
Date: 29 August 2011, 26 September 2011
Judge: Judge Fitzgerald
Key title: Care and Protection cross over (s 280): Family Group Conferences/Care and Protection (s 261).
On 29 August 2011, the Judge considered both Youth Court and Family Court care and protection proceedings, refusal to engage.
The young person was not present at the hearing, and neither she nor her father were engaging with a s 333 assessment ordered by the court, meaning it was put on hold. The Judge noted concern that delay and the accused’s lack of cooperation were concerning given the seriousness of the charges (an aggravated robbery and two burglaries). He issued a warrant for the young person’s arrest.
He then considered care and protection proceedings and noted an application for a declaration that the young person was in need of care and protection on the grounds of ongoing physical abuse by her father. Despite a s 78 interim custody order being made in favour of the Chief Executive, she remained with her father. He noted that this seemed to be on the basis that a social worker was putting in place a plan for the young person’s safety. A Family Group Conference had been directed but not yet held.
The Judge decided to keep proceedings under close review and allow the s 78 order to continue.
At an adjourned hearing on 12 September 2011, the Judge was given an indication that the matter was being treated urgently and that necessary checks were occurring to allow for the young person to be placed with her aunt.
On 26 September 2011, Child, Youth and Family reported that the necessary caregiver assessments would have been carried out in two or three weeks time. This was said to be on the basis of the matter being treated urgently and given priority.
The Judge stated that this delay was completely unacceptable, and not an example of a matter that has been given priority or treated with the urgency it deserves. He noted it would have been four weeks since he first raised the issue of an appropriate safe placement, and close to two months before the court would know whether an appropriate safe placement was found.
The Judge noted that his concerns should be drawn to the attention of the appropriate authorities, and that an explanation was required for the unacceptably slow approach being taken to this matter. He adjourned the Family Court proceedings to the same day as her Youth Court proceedings on 31 October 2011, with an expectation of a report on progress much sooner than that.
Result:
Proceedings adjourned to Youth Court Hearing on 31 October 2011, with report on progress to come sooner.
File number: CRI-2011-277-000021
Court: Youth Court, Tokoroa
Dates: 7 November 2011, 17 November 2011, 12 December 2011
Judge: Judge Mackenzie
Key title: Jurisdiction of the Youth Court: s 276 offer/election, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): serious sexual offending.
B indicated a desire to plead guilty to one indictably laid charge of unlawful sexual connection (digital penetration). The victim was a 6 year old and B was a visitor in her home. B removed the victim’s skirt and underwear and digitally penetrated her vagina causing pain and injury, stopping after he had been asked two or three times to stop. B then removed the victim’s underwear from her home and discarded it in the grass on the roadside. B presented with a number of high and complex needs (detailed in summary of 17 November decision).
B was identified by several report writers as having high and complex needs. These included physical health needs stemming back to his early childhood and a number of other serious behavioural issues including antisocial behaviour, impulsive eating, fire setting and some concerns about whether the seriousness of his overall behavioural issues and needs were truly recognised both by B and his family. B’s SAFE assessment noted significant risk factors that indicated he was at increased risk to repeat harmful sexual behaviour without specific therapy to address the identified issues. A psychological report recommended long-term specialised clinical psychological intervention.
7 November: Jurisdiction
The Judge considered factors relevant to the issue of jurisdiction. In favour of Youth Court jurisdiction, she noted that B’s SAFE assessment had considered him suitable for a Youth programme of 12-18 months duration, dependent on the progress made. B was 16½ years and could be dealt with in the Youth Court until he was 18 through the SAFE programme. On the other hand, she noted that orders short of a custodial sentence are available in the District Court, such as a sentence of intensive supervision with a maximum duration of up to two years.
The Judge was prepared to offer B Youth Court jurisdiction, because of the likely possible sentencing response under band 1 of R v AM. She noted that any sentence in the District Court would be less than five years imprisonment and thus nothing would be lost in terms of offering B Youth Court jurisdiction. There would still be the option of transfer to the District Court for sentence. A social worker’s report was directed, as was an inquiry to Community Probation Service to find out what might be available for B.
17 November : Youth Court Sentencing
The matter then appeared before the Court to determine whether B would be convicted and transferred to the District Court for sentence.
The Judge noted that the assessment was “finely balanced”. She weighed in B’s remorse and acceptance of responsibility, his genuine willingness, supported by his family, to address issues, his lack of previous offending and the fact that it did involve a single incident. She balanced against this the serious and opportunistic nature of the offending involving a young and vulnerable victim, and the fact that injury was caused to the victim. Finally, she weighed in B’s high and complex needs, requiring a programme of sufficient longevity to really address issues given the very real risk of re-offending if they were not addressed.
The Judge stated that there was a very real issue of a lack of ability to ensure and compel compliance with attendance at SAFE once B was 17. She ruled out supervision and supervision with activity because of their duration (and the lack of suitable supervision with activity programmes). In considering supervision with residence, she noted that it may be possible for B to undertake a SAFE programme whilst in a Youth Justice residence with the permission of the manager (though there was no guarantee of this). However, there would still be the problem of B turning 17 and completing the SAFE programme when subject to the supervision part of the order.
She observed that a longer sentence duration and greater range of sentencing options would be available in the District Court which can specifically address punitive and rehabilitative needs, including intensive supervision of up to two years and electronic sentencing options. She noted also that a transfer to the District Court could mean that B stays at home, whereas the only available Youth Court sentence would be in a youth justice residence. This concerned her, particularly as it meant B would be mixing with other high end Youth Court offenders.
The Judge noted that balancing all those factors, she had reached the view that the only sentencing option available was to convict and transfer B to the District Court for sentence.
12 December: District Court Sentencing
On sentencing B, the Judge noted that particularly pertinent sentencing factors were rehabilitation, the need to promote a sense of responsibility, the need for accountability for harm to the victim and the need to deter and denounce the offending.
She considered the aggravating factors to be: the extreme vulnerability of the victim at aged six years, the fact that the offending occurred in her home and that some physical harm was caused to her. For the first time, information was available to the Court on the emotional impact of the offending on the girl, and the Judge noted the effect it had had on the family. She found there to be no mitigating factors.
The Judge adopted a starting point of four years imprisonment, having regard to R v AM, the victim’s vulnerability, the fact that it did occur in her home, the harm both physically and emotional, balanced against the relevant brevity of the incident, the fact that it was opportunistic and that there were no accompanying threats of violence by B.
The Judge considered aggravating personal factors to be: youth, remorse and previous good character. The Judge took into account again B’s complex psychological needs (as detailed in a number of reports, including a new probation officer’s report) and strong family support.
The Judge reduced the sentence to two years – this involved a significant discount for youth and previous good character, taking into account mitigating personal factors and having regard to Pouwhare v R [2010] NZCA 268 and the decision of Judge Cooper in R v DM DC Rotorua CRI-2010-263-000083, 2 June 2011.
The Judge considered a further discount of eight months was warranted in terms of family upbringing and health circumstances (cautioning herself, however, against translating directly the approach in the R v DM case as the facts in this case were different, and noting that an automatic formulaic discount would not be appropriate).
She then gave the full 25% discount for early non-denial: Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.
The Judge then weighed up whether B should receive home detention or intensive supervision. She noted that home detention coupled with intensive supervision is not a permitted combination of sentences available under the Sentencing Act 2002, and the fact that the maximum home detention sentence would be about 18 months (whereas the SAFE programme would take 18 months to 2 years to complete). She cited two recent High Court cases, R v T HC Auckland CRI-2009-090-013287, 20 April 2011 per Duffy J and M v Police HC Wellington CRI-2011-485-000072, 21 September 2011 per Mallon J which considered the question of approaching sentencing outside of the guidelines and contrary to the presumption effectively of imprisonment. She cited these to establish that quite clearly there can be circumstances which are unusual and require an examination of other sentencing options. She regarded B’s circumstances as warranting a close consideration of intensive supervision.
She decided to sentence B to the maximum intensive supervision so that he could attend SAFE, but coupled with a community work order to reflect the need for a punitive aspect.
Decision:
24 months intensive supervision (with conditions) and 250 hours community work.
File number: CRI-2011-225-000040
Court: Youth Court, Invercargill
Date: 22 June 2011
Judge: Judge Flatley
Key titles: Orders - type: Supervision with residence - s 283(n): Early release.
While in residence, young person committed further offending, was placed in secure care, misbehaved regularly, incited other residents, exposed himself. School work has not been satisfactory.
Result:
Young person not released early.
File number: CRI 2010-219-231
Court: Youth Court, Hamilton
Date: 9 March 2011
Judge: Judge Becroft
Key titles: Orders - type: Supervision with residence - s 283(n).
Superette robbery, planned, with knives and disguises. B agreed to be dealt with under the CYPFA Amendment Act 2010, which prompted Police to change their recommendation from conviction and transfer to supervision with residence.
Court commented that, given the strong public interest factor, if B were an adult, imprisonment would have been inevitable. Also that, but for the availability of longer sentences under the 2010 Amendment Act, B would have been transferred to the District Court.
Result:
Order for supervision with residence with 6 month residence component
File number: CRI-2010-257-000038
Court: Youth Court, Manukau
Date: 24 March 2011
Judge: Judge Malosi
Key titles: Orders - type: Supervision with residence - s 283(n), Orders - type: Mentoring progamme - s 283(jb).
CP appeared for sentencing on one charge of causing grievous bodily harm with reckless disregard, for the same incident as in Police v TK YC Manukau CRI-2010-257-000037, 24 March 2011. CP was aged 14 years and one month at the time. The Court sentenced him on the basis that he punched the victim once in his back.
The Court distinguished CP from others already sentenced for this incident on the basis that he was the youngest and he was the least involved of all the young people charged.
The Court noted CP’s remorse, his supportive family, his sporting achievements, that he was a diligent student and that he had no Youth Court history.
The Court ordered a six month supervision order and indicated that it would also impose a mentoring order at another hearing in five days time, when the consent of the programme provider has been obtained.
Result:
Supervision order for six months.
File number: CRI-2010-286-000009
Court: Youth Court, Westport
Date: 31 March 2011
Judge: Judge Strettell
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Other
The Court was asked to consider whether CP should be sentenced in the Youth Court jurisdiction or convicted and transferred to the District Court for sentencing.
CP was a first offender and was remorseful.
The Court indicated that had CP been sentenced earlier, there would have been Youth Court options available under the new legislation to have held him accountable. However as it was, his age at sentencing meant that all available Youth Court options would be inadequate. The Court noted that it did not consider that this case necessitated a custodial sentence of imprisonment.
Result:
Conviction and transfer to the District Court for sentencing pursuant to s283(o).
File number: CRI-2010-269-000030,
Court: Youth Court, Taupo
Date: 27 January 2011
Judge: Judge Munro
Key titles: Orders - type: Supervision with residence - s 283(n): Early release.
Court held that the conditions in s 314(1) for early release had been met—no absconding, no offending, any non-compliance with plans was minor, and satisfactory compliance with activities and programmes.
The Social worker did not have plan for supervision ready so another hearing was ordered to impose the supervision order. The Court noted that unfortunately, the supervision order would have be to imposed by a different Judge. She urged the social worker to have the plan for supervision ready for the early release hearing in future.
Result:
Conditions for early release were met. Extra hearing for imposition of supervision order was ordered.
File number: CRI-2009-212-000270; CRI-2010-212-000186
Court: Youth Court, Dunedin
Date: 31 January 2011
Judge: Judge O’Driscoll
Key titles: Orders - type: Supervision with residence - s 283(n): Early release.
DBM was serving a six month residence order for aggravated robbery, assault with intent to facilitate flight, and burglary.
The Court had before it the Chief Executive’s re-port and a letter from DBM setting out the effects and consequences of the residence on him.
The residential case worker gave the Court an up-date which indicated some further trouble from DMB in residence but those matters had not been discussed with DMB.
The Court said that it was incumbent on residential staff to raise such matters with a young person as soon as they are aware of a particular incident. The young person must have an opportunity to comment on the matter. DMB was twice admitted to secure care while in residence but has otherwise adhered to all conditions and satisfactorily participated in programmes.
Result
Conditions for early release have been met. Early release on the two-thirds date was ordered subject to DBM’s continued compliance with the s 314(1) conditions.
File number: CRI-2011-232-000073
Court: Youth Court, Lower Hutt
Date: 28 September 2011
Judge: Judge Becroft
Key titles: Care and Protection cross over (s 280): Family Group Conferences/Care and Protection (s 261), Family Group Conferences: Plan.
15 year old, first offender. Minor charges, not usually requiring proceedings in Youth Court. Deep seated care and protection issues. Overly comprehensive Family Group Conference (FGC) plan put in place, which was not complied with. Police charged E in Youth Court to access proper services, with the effect that CYF put a previous notification on hold.
Court believed that care and protection authorities had abdicated their legal responsibilities, and left it to youth justice authorities to intervene for the sake of E's welfare.
Court would have made s 280 FGC order — but for the urgent needs of EK and the existence of a comprehensive plan — 'a pragmatic but unprincipled approach'. Care and protection authorities could not be trusted to deliver a proper intervention for E. What should have happened is that E‟s longstanding care and protection concerns should have been dealt with in a welfare plan with a shorter, more proportionate youth justice plan running alongside and only addressing the offending. A hijacking of youth justice to meet needs statutorily it is not designed to address.
Result:
Plan approved.
File number: CRI-2009-269-000083
Court: Youth Court, Taupo
Date: 27 January 2011
Judge: Judge Munro
Key titles: Orders type: Supervision with residence - s 283(n): Early release, s 314.
Early release hearing. HTB committed an assault while in residence. The assault was admitted and a FGC was held. There were also a number of problems with her compliance with her plan, and failure to complete programmes.
Result:
Grounds not met for early release.
File number: CRI 2010-255-155
Court: Youth Court, Invercargill
Date: 2 February 2011
Judge: Judge Phillips
Key titles: Orders - type: Supervision with activity - s283(m).
School building set alight by I 'for fun' while older co-offender kept lookout. Previously offered Youth Court jurisdiction.
I suffered at school from bullying. Also had considerable hearing, learning, and developmental difficulties. Showing recent improvement. Family supportive.
I has offered monetary contribution towards the damage.
Result:
Order for supervision with activity (4 months) followed by supervision (5 months).
File number: CRN 11044003873
Court: Youth Court, North Shore
Date: 28 September 2011
Judge: Judge L J Ryan
Key titles: Child offenders: Pushback provision - s 280A.
J aged 13 and a half. Charged with arson of cinema property. Charge admitted. Co-offender with KK.
Court held that, in determining the grounds for referring the information back to the informant, no other grounds in s 14(1) can be considered except for child offending ground in s 14(1)(e). Despite this, other factors impacted on assessment of whether the offending creates serious concern for the wellbeing of the child.
The two factors to the decision were:
J not a first offender. Unsettled family. J stood down from school, and not achieving academically. Parents relationship dysfunctional.
Court in no doubt that J in need of care and protection on many grounds in s 14, and may need to be removed from the care of his parents for a time. CYF advised that J could not be placed in a youth justice residence due to his young age.
Result:
Charges referred back to the informant for consideration to be given to the making of an application for a declaration under s 67.
File number: CRI-2011-255-000017
Court: Youth Court, Invercargill
Date: 30 March 2011
Judge: Judge Phillips
Key titles: Orders - type: Community Work - s 283(l), Orders - type: Supervision - s 283(k), Orders - type: Judicial monitoring - s 306A.
J admitted stealing a bike and a car. Became aggressive at police station. J on an existing Family Group Conference plan when offending occurred.
Court described personal history, drug and alcohol use, and other offending.
Result:
100 hours community work. 3 months supervision with judicial monitoring.
File number: CRI-2011-263-000072
Court: Youth Court, Rotorua
Date: 28 June 2011
Judge: Judge Cooper
Key titles: Jurisdiction of the Youth Court: Charge type.
Offences include aggravated burglary, aggravated robbery, rape, sexual violation. Home invasion while armed with a knife and wearing a mask. At the time of the offending J was subject to a supervision with activity order from the Youth Court.
Very difficult to see how an end sentence of imprisonment within the District Court‟s 5 year summary jurisdiction limit would be possible. Other factors are serious nature of the offending, and the need to protect the public.
Result:
Jurisdiction not offered.
File number: CRI-2010-290-514
Court: Youth Court, Waitakere
Date: 23 February 2011
Judge: Judge Becroft
Key titles: Bail (s 233(1)(b)), Reports: Psychological
14 year old. Multiple charges. Extensive history of child offending. Application to be bailed to address where father will be but recently released from prison. Held that risks of reoffending are too great. Section 333 psychological report ordered. Judge asked that young people remanded in custody be given priority in preparation of s 333 reports. Judge also lamented that JP has fallen through the cracks of the education system due to being excluded from intermediate school and alternative education, and not eligible for college.
Result:
Application denied.
File number: CRI-2011-292-000359
Court: Youth Court, Manukau
Date: 22 December 2011
Judge: Judge Malosi
Key titles: Mental impairment/fitness to plead, Criminal Procedure (Mentally Impaired Persons) Act 2003.
The proceedings related to a charge of receiving. The Criminal Procedure (Mentally Impaired Persons) Act 2003 ('the Act') was triggered.
The police alleged that the young person received a packet of cigarettes having been reckless as to whether or not the cigarettes were obtained by crime.
Section 9 of the Act requires the Court to be satisfied on the balance of probabilities that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission. JS accepted he was given a packet of cigarettes, but did not know they were stolen. The Police argued that for the purposes of s 9, the Court need only be satisfied that the cigarettes were stolen or obtained by crime, and that they were then given to JS. Counsel for the young person argued that the act of receiving must also include a mental element of knowledge or recklessness.
The Judge noted the lack of clear precedent from higher courts on this. She favoured the approach of counsel for the young person and that of R v Cumming HC Christchurch CRI-2001-009-835552, 17 July 2009 and held that knowledge or recklessness is a composite element of the act and must also be proved. She noted the fundamental nature of the presumption of innocence, particularly in the context of fitness to plead and where a young person is involved. She noted also the approach of French J in R v Cumming, who considered the underlying social purpose of s 9 and held that there cannot be rigid adherence to an inquiry on the actions of the accused only when mens rea is a composite element of the actus reus. In circumstances where there was objective evidence raising matters of justification she also held that the prosecution must negative that on the balance of probabilities. She added that even if wrong about importing a mental element into the act, it would still be relevant in this instance because the position JS was advancing would require negation of the evidence in order to satisfy s 9.
The Judge considered that the young person must have known that the man he received the cigarettes from was intoxicated, and intended to commit a crime. She factored in the young person’s statement that he knew the man had 'hassled' someone to get the cigarettes. She therefore was satisfied as to JS’s involvement in the receiving charge. The Judge was also satisfied on the basis of the health assessor reports that the young person was fit to stand trial.
Result:
Section 9 of the Criminal Procedure (Mentally Impaired Persons) Act satisfied. Young person fit to stand trial.
File number: CRI-2011-270-000072
Court: Youth Court, Tauranga
Date: 27 June 2011
Judge: Judge Becroft
Key titles: Bail (s 238(1)(b)): Breach of bail (non-attendance at Court)
J had not turned up to court, so sentencing is considered in her absence. Nine charges. J aged 14. Her first charges in Youth Court. History of serious child offending, and failed child offending and care and protection interventions. J's boyfriend described as the son of the leader of the Notorious Mongrel Mob chapter in O.
Court questioned whether the suggested supervision with residence sentence was the least restrictive in the circumstances. Court also questioned suggested length of 6 months in residence, which would put J in the category of 150 worst youth offenders in New Zealand.
Court asked whether supervision with activity had been considered, despite the lack of programmes available for girls. Court also warns against "welfarising‟ the Court's response when what is really required is a long term care and protection plan to run alongside any youth justice elements. Court also considered that it would be failing in its duty if it did not impose a parenting order, despite the parent's lack of support or co-operation.
Despite a care and protection plan for J‟s family as a whole, J has no separate care and protection status. The Court questioned why this should be.
Court recommended a s 261 FGC.
Result:
Warrant issued for J's arrest.
File number: CRI-2011-290-000017
Court: Youth Court, Manukau
Date: 22 December 2011
Judge: Judge Malosi
Key title: Orders - type: Supervision with residence - s 283(n), Jointly charged with adult (s 277), Remand to a penal institution
Case Summary
The young person was serving a term of supervision with residence under s 311. He was denied early release. In the meantime, he turned 17 years old and was jointly charged with grievous bodily harm and assault. A memorandum was filed pursuant to s 142 of the Criminal Justice Act 1985 that he be remanded to a penal institution.
The Judge held that the young person must finish his sentence in the residence. She noted a lacuna in the law for the type of situation where a young person is serving a term of supervision with residence, but is then charged as an adult with further alleged offending. She remarked that there was no power to either cancel or suspend his supervision order, despite her concerns that this could potentially pose a very serious risk to both other young people and staff members.
Result:
Remand at large. Young person returned to residence. District Court appearance to follow.
File number: CRN 11244000103
Court: Youth Court, North Shore
Date: 26 September 2011
Judge: Judge L J Ryan
Key titles: Child offenders: Pushback provision - s 280A.
K aged 13 and a half. Charged with arson of cinema property. Charge admitted.
Court held that, in determining the grounds for referring the information back to the informant, no other grounds in s 14(1) can be considered except for child offending ground in s 14(1)(e).
The two factors to the decision were
K is a first offender, but the seriousness of the circumstances were enough to satisfy the Court that the magnitude of the offending was sufficient to give serious concern for K's wellbeing.
Other factors: recent death of K's grandmother who was his sole caregiver, difficult relationships with other members of his family, concern for educational and behavioural issues. Court found K in need of care and protection.
Despite difficult home life, there is funding available to send K to boarding school. K has been accepted to RYOP MST programme, and is working with another counsellor as well. Funding for this counsellor is only available if K remains in the Youth Court.
Court agreed that Youth Court disposition offers more accountability in the event that there is non-compliance with the Family Group Conference (FGC) plan.
Result:
Section 281 FGC ordered and K‟s charges remain in Youth Court
File number: CRI-2011-242-000037, CRI-2011-242-000038
Court: Youth Court, Nelson
Date: 6 July 2011
Judge: Judge Zohrab
Key titles: Custody (s 238): Police (s 238(1)(e)).
Violence against friend that was sober, planned, clinical, measured and unhurried. Complete lack of empathy. Offences admitted. Both young people taken out of school and thus lost their chance at a New Zealand education. Loss of education funds by parents.
Result:
Further remand in custody for differing periods based on culpability. Differing amounts of emotional harm reparation to the victim. Eventual deportation.
File number: CRI 2011-263-000093
Court: Youth Court, Rotorua
Date: 28 June 2011
Judge: Judge Cooper
Key titles: Arrest without warrant (s 214), Admissibility of statement to police/police questioning (ss 215-222): Explanation of rights, Admissibility of statements to police/police questioning (ss 215-222): Nominated persons
L questioned and arrested by police for breaching bail conditions of curfew and non-association. Airgun, length of pipe and disguise found on L after search by police.
Court held that constable had reasonable grounds to arrest L, as he was found on the street, past curfew, with co-offender in burglary, for which he was on bail.
L interviewed at police station. L made admission during interview. Court found L had 'a pretty scant understanding of his rights'. L's nominated person was passive. Police obliged to take extra care to explain rights in simple language. Admission was the only evidence against L on charge of conspiracy to commit aggravated robbery.
Result:
Arrest lawful. Evidence of admission inadmissible. Conspiracy charge dismissed.
File number: CRI-2011-219-000113
Court: Youth Court, Hamilton
Date: 27 May 2011
Judge: Judge Cocurullo
Key titles: Custody (s 238): Police (s 238(1)(e)).
JS appeared before the Court on the same day as two other young people, all charged with separate offending. The Police opposed bail for all three, but the Court was told that there was only one bed available in the youth justice residence. The Court made a s 238(1)(d) order (custody of the Chief Executive) in respect of JS, a s 238(1)(e) order (Police custody) in respect of the second young person, AP, and granted bail to the third young person on strict conditions.
After the orders were made the residential manager advised that the available bed had been 'ring fenced' for AP (not JS) based on CYFS previous knowledge of him and his needs. Consequently JS was held over-night in Police custody on the grounds in s 242(1)(b), that suitable facilities for detention were not available to the Chief Executive.
The Court was asked to determine whether the detention in Police custody of JS under s 238(1)(d) and s 242(1)(b) was lawful.
It held that once the Court made the custody decisions CYFS had no jurisdiction to withhold the available bed from JS, despite previously having sound reasons for ring-fencing it for AP. AP was not entitled to the bed after the order for Police custody was made in respect of him, so it should have been allocated to JS.
Result:
The detention of JS in Police custody was contrary to law.
File number: CRI-2011-206-00005
Court: Youth Court, Blenheim
Date: 12 July 2011
Judge: Judge Russell
Key titles: Jurisdiction of the Youth Court: Age, Orders - deferred, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection, Orders - type: Judicial monitoring (s 306), Orders - type: Intensive Supervision (s 296G), Family Group Conferences: Plan.
MA appeared on 10 sexual offending charges perpetrated against his siblings and cousins. The Judge described the offending as the worst he has dealt with and indicated that this offending by an adult could lead to an imprisonment term of 10 to 13 years in the District Court.
MA was 17 and a quarter years old at the time of this hearing.
Two family group conferences (FGC) agreed that MA should attend the STOP programme for two years and receive a s 283(a) discharge at the end of that time if he has adhered to the programme.
The Court partly approved the FGC plan. It offered Youth Court jurisdiction to MA and agreed to the STOP programme for two years. It indicated that it could monitor MA’s progress with the programme after his 18 birthday and impose a s283(o) conviction and transfer to the District Court for sentencing if he does not comply or re-offends.
The Court declined the proposed s 283(a) discharge at the completion of the programme. Instead, it indicated that it will impose a s 283(o) conviction and transfer to the District Court for sentencing, followed by a two-year order for intensive supervision (s 54 of the Sentencing Act 2002) which will also be judicially monitored under s 80ZJ of the Sentencing Act. In this way, MA will be monitored for four years.
Result:
Youth Court jurisdiction offered and accepted. FGC plan approved as to STOP programme. Indication from Court that s283(o) will be made on completion of programme, resulting in two-year intensive supervision order and judicial monitoring.
File number: CRI 2010-204-000246
Court: Youth Court, Auckland
Date: 3 March 2011
Judge: Judge Fitzgerald
Key titles: Orders - type: Supervision with activity - s 283(m), Orders - type: Supervision with residence - s 283(n), Intensive Monitoring Group Court, Family Group Conferences: Non agreement
Other charges include reckless driving (police chase, speeds up to 175km/h) and dangerous driving causing injury. Incidents of driving were appalling with aggravating features including failing to remain at the scene of a crash, failing to give assistance, avoiding police and covering up forensic evidence. MD also had a history of behavioural and psychological problems, plus a risk of reoffending assessed as very high.
No agreement at Family Group Conference (FGC) as to sentence. No prison sentence available due to age and charges. Options included 6 month supervision with residence, or 6 month supervision with activity (allowing attendance at a drug and alcohol programme), or placement in IMG (intensive monitoring group) Court. The IMG Court would also allow attendance at programme plus fortnightly judicial monitoring visits to court. Other conditions of judicial monitoring could include community work, residential restrictions, education and job training, and mentoring.
IMG Court has been evaluated and found to bring about a significantly greater (two to three times) reduction in the risk of re-offending than any other Youth Court option.
A sentence of community work and supervision in the District Court would not put MD in touch with specialist services that are needed, and would expose M to adult offenders.
Other sentencing options still available if conditions of IMG are not complied with.
Result:
Young person sent to IMG Court.
File number: CRI-2011-290-000043; CRI-2011-204-000061.
Court: Youth Court, Waitakere
Date: 14 September 2011
Judge: Judge Taumaunu
Key titles: Orders - type: Supervision with residence - s 283(n): Early release.
M had not absconded, or committed further offences while in residence. There had been some non-compliance and misbehaviour. A window was broken, and a play fight turned into a real fight.
Court holds that moderately serious misbehaviour and non-compliance will not automatically disqualify a young person from early release. Courts still need to consider whether the young person's compliance and behaviour have been satisfactory in an overall sense. Courts should adopt the least restrictive interpretation where the liberty of the young person is at stake.
Court finds that, in context, misbehaviour was minor. All parties supported granting early release.
Result:
Early release granted.
File number: CRI-2011-241-000071
Court: Youth Court, Napier
Date: 16 December 2011
Judge: Judge Callinicos
Key titles: Reports: Cultural, s 336, Summary Offences Act 1981, Orders - type: Reparation - s 283(f), Orders - type: Come up if called upon - s 283(c).
The young person appeared for sentence and review of sentence on a number of matters including burglaries, offences under the Summary Offences Act 1981, threatening behaviour and assault and possession of a knife under the Crimes Act 1961. An earlier sentence of supervision with activity was cancelled because of breaches.
The Judge obtained a cultural report under s 336 of the Children, Young Persons and their Families Act 1989. The report noted the considerable difficulties faced by the young person , who came from a refugee family. This report, coupled with a psychological and social work report led the Judge to consider factors such as the bullying and isolation and aspects of racism experienced by the young person. It noted his motivation and his family’s recent engagement with community organisations.
The Judge commented personally to the young person about the need to learn a sense of pride in his culture and search for positive relationships. He drew on an example from his own family life in explaining this.
Decision
Reparation Order granted (to be paid by young person over time rather than family) and s 283 (c) order to come before court if called upon within 12 months after order made.
File number: CRI-2011-263-000053, CRI-2011-263-000054, CRI-2011-263-000055, CRI-2011-263-000058, CRI-2011-263-000059
Court: Youth Court, Rotorua
Date: 14 June 2011
Judge: Judge MacKenzie
Key titles: Delay (s 322).
Offences alleged to have taken place 3 months prior. Disclosure by police only apparent on day of hearing. Court declared this 'inimical to the interests of justice'. Different standards apply to Youth Court.
Result:
Information dismissed.
File number: CRI-2010-287-000056
Court: Youth Court, Whakatane
Date: 28 January 2011
Judge: Judge Harding
Key titles: Orders - type: Supervision with residence - s 283(n): Early release.
RMTN appeared for determination as to whether the Court would grant early release.
RMTN had allegedly assaulted staff while in the residence. The Court held that was not an offence as contemplated by s 314(1)(a) of the CYPFA because no charge resulted and no formal court process took place.
MTN’s compliance with programmes and activities was satisfactory but his compliance with his plan was mixed. He had become a role model and had completed his duties without fuss and to a high standard. However, he had also been admitted to secure care three times, and there were 22 incident reports about him. Overall, compliance was unsatisfactory.
Decision
Conditions for early release not met. Residence transfer approved. Post release supervision order made for four months.
File number: CRI-2010-092-000196
Court: Youth Court, Manukau
Date: 23 June 2011
Judge: Judge Malosi
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Arson.
Fourteen years old when offences committed. Six charges including school arson and burglary. Co-offenders dealt with in Family Court due to their age. $3m damage. Large amounts of students work and teachers resources destroyed. The school was without many classrooms for many weeks.
Supportive family. No bail breaches. In mainstream schooling. First time offender. Genuine remorse. Imprisonment unlikely if convicted and transferred. N too vulnerable to be sent to a youth justice residence.
Result:
Convicted and transferred to District Court for sentence.
File number: CRI-2011-290-25
Court: Youth Court, Waitakere
Date: 23 February 2011
Judge: Judge Becroft
Key titles: Reports: Psychiatric, Custody (s 238): Chief Executive (s 238(1)(d)).
Court forced to continue remand in residence due to delay in providing detailed psychological report. Court commented that it would be cheaper to fly a psychiatrist from Australia than to keep the young person in custody for a further 8 weeks.
Result:
Remand in youth justice residence continued.
File number: CRI-2011-209-000019
Court: Youth Court, Christchurch
Date: 22 July 2011
Judge: Judge Strettell
Key titles: Jurisdiction of the Youth Court: Age.
R, a special needs student, committed acts of sexual violation on 3 other students who also had diminished intellectual capacity. The offending was planned and backed up by threats. R was assessed as having conduct disorder, attention deficit and hyperactivity disorder, and mental impairment. Assessment concluded that, if not treated, R would continue to offend regularly and seriously and that the seriousness would escalate over time.
At the time of writing the decision, R was bailed to the adolescent sexual offending programme Te Poutama Arahi Rangatahi. Treatment at this programme would not be available to R if he was sentenced in the District Court, and in that scenario, he would probably end up leaving prison before being eligible to receive treatment in an adult prison setting. R's right of residence at Te Poutama expires at age 17 so thereafter he would need community treatment.
Court commented that a custodial remand would leave R in a black hole with regards to treatment. R‟s requirement for treatment is immediate. To decline Youth Court jurisdiction would be to decline treatment.
Court outlined sentencing objectives for R and proposed outcome. Youth Court jurisdiction offered. Final disposition put off until just before R's 17th birthday, to allow R to remain at Te Poutama. Thereafter, if all goes well, a 12 month supervision order to allow community treatment to continue. Any non compliance could be dealt with by conviction and transfer to District Court for sentence.
Result:
Matter adjourned. Three month progress report ordered.
File number: CRI-2010-212-000118
Court: Youth Court, Dunedin
Date: 31 January 2011
Judge: Judge O’Driscoll
Key titles: Orders - type: Supervision with residence - s 283(n): Early release.
Early release hearing. While in residence SB was placed in secure care five times, but also attended a MAC programme and graduated with distinction.
Result:
Conditions for early release were met. Supervision order for 12 months was made.
File number: CRI-2011-202-000032
Court: Youth Court, Dunedin
Date: 28 April 2011
Judge: Judge O’Driscoll
Key titles: Orders - type: Supervision with residence - s 283(n), Reports: Medical.
SB appeared for sentence on charges of burglary, unlawfully being in an enclosed yard, and two charges of unlawfully taking a motor vehicle.
The Judge said that he had dealt with SB over a long period of time and was familiar with his background, his offending and his file.
In sentencing SB to supervision with residence for three months, the Court also ordered a s 333 medical report to be prepared for the specific purpose of assessing whether SB had Foetal Alcohol Spectrum disorder. The report was to be written by two named experts in that field.
Such an assessment was indicated in part by the social worker’s note that SB was born addicted to opiates and other substances. The Judge expressed concern that without a proper assessment, SB will end up spending most of his life in prison. A confirmed diagnosis may impact on assessments of SB’s culpability.
Result:
Supervision with residence for three months, s 333 report.
File number: CRI-2011-242-000008
Court: Youth Court, Nelson
Date: 23 March 2011
Judge: Judge Russell
Key titles: Bail (s 238(1)(b), Custody (s 238): CYFS.
Application for bail. Young person charged with burglary, assault and wilful damage. Previous bail breaches have been for curfew, non-association, and location reasons. Court satisfied that there are sufficient risks of further offending and absconding. Young person in custody of CYF under s101 of CYPFA.
Result:
Remanded under 238(1)(d) into the custody of CYF.
File number: CRI-2010-270-183
Court: Youth Court, Tauranga
Date: 22 February 2011
Judge: Judge Harding
Key titles: Arrest without warrant (s 214), Evidence (not including admissibility of statement to police/police questioning)
SJ one of 3 people found in a small boat coming from Motiti Island. Police on the Island had also established that SJ was a person who they wanted to speak to in relation to burglaries and was missing from the Island. SJ arrested and his fingerprints taken, despite police knowing SJ's identity.
Court held that arrest to confirm identity was not objectively sustainable, and neither was it required for ensuring the appearance of the young person before the Court.
Discussion of s 30 of the Evidence Act 2006. Court found that the importance of the breach of the right in s 208(h) of CYPFA was significant. The evidence obtained was crucial. There were other investigatory techniques available. There was no physical danger to police, and there was no urgency in obtaining the evidence.
Result:
Arrest to determine identity unlawful. Fingerprint evidence obtained following arrest excluded.
File number: CRI-2011-272-00007
Court: Youth Court, Te Awamutu
Date: 14 June 2011
Judge: Judge Cocurullo
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Other, Orders - type: Supervision - s 283(k), Orders - type: Community Work - s 283(l), Orders - type: Disqualification from driving - s 283(i), Principles of Youth Justice (s 208).
SO appeared for sentencing on four charges, two of dangerous driving causing death, and two of dangerous driving causing injury. All charges were laid summarily.
The family group conference was well attended by victims, but did not reach agreement on how SO should account for her offending.
The court accepted that SO was remorseful and had no previous police involvement. It said that the offending, while a tragedy, was a result of youthful risk-taking, immaturity of driving, ill-judgement and limited life experience.
The question of whether SO should be convicted and transferred to the District Court for sentencing was finely balanced, but the principle of applying the least restrictive outcome adequate to the circumstances tipped the balance in favour of Youth Court orders.
The Court imposed supervision (s 283(k)) for six months with conditions; community work (s 283(l)) for 200 hours to be performed within six months; and disqualification for 24 months. No reparation was ordered due to SO’s financial situation.
Result:
Supervision order, community work order and disqualification order.
File number: CRI-2011-270-000062
Court: Youth Court, Tauranga
Date: 9 May 2011
Judge: Judge Harding
Key titles: Family Group Conferences: Convened/Held.
SPT appeared on charges of burglary and unlawfully taking a car. The offences were alleged to have occurred in 2008 and 2009. SPT’s connection to this offending was made after he gave finger-prints in respect of recent offending. He was 17 years old at the time of appearance.
The Youth Advocate requested dismissal on the grounds that the information were improperly laid because SPT was not arrested, nor has there been a family group conference in respect of the offending, as required by s 245(1).
The Court held that s 2(2) (which negates the need for a family group conference) does not apply because SPT was not over 18.
Result:
Information dismissed without prejudice.
File number: CRI-2011-091-000527, CRI-2011-291-000029
Court: Youth Court, Porirua (acting as District Court)
Date: 18 August 2011
Judge: Judge Walker
Key titles: Sentencing in the adult courts: Aggravated Robbery
T for sentence in District Court for an aggravated robbery committed while a young person, plus other burglaries and assaults committed after turning 17 years old. Second robbery of same dairy by T, which was dealt with in Youth Court. T admitted offending and was remorseful.
Starting point 4 years imprisonment. Factors considered by Court include youth, cannabis use, willingness to engage in treatment, remorse and guilty plea.
Electronic monitoring not available due to lack of suitable address.
Result:
13 and a half months imprisonment.
File number: CRI-2010-257-000037
Court: Youth Court, Manukau
Date: 24 March 2011
Judge: Judge Malosi
Key titles: Orders - type: Supervision with activity - s 283(m), Orders - type: Mentoring programme - s 283(jb), Family Group Conferences: Report from.
TK appeared for sentencing on one charge of causing grievous bodily harm with reckless disregard. At the age of 14 years and three months, and together with a group of fellow students, TK assaulted an off-duty Police Officer as they left College after a sports day. TK punched the Officer once in the shoulder area and once in the face. TK then retreated, but the others continued the assault, some continuing to attack him while he was on the ground.
The court noted the FGC’s recommendation for an activity order, TK’s remorse, his family support, that this was his first time before the Youth Court, and that while awaiting sentence he had not breached bail and had engaged in school.
Result:
Activity order for six months, mentoring order for 12 months.
File number: CRI-2011-288-000072
Court: Youth Court, Whangarei
Date: 12 October 2011
Judge: Judge Lindsay
Key title: Family Group Conferences: Timeframes/limits: intention to charge, s 247(b), s 249, s 250.
An intention to charge FGC was to be held for the charge of wounding with intent to cause grievous bodily harm. T’s youth Advocate filed an application to dismiss the information because the FGC did not comply with the time limits set out in s 247(b) of the CYPFA. The timeframe was exceeded by 10 days.
The Judge applied H v Police [1999] NZFLR 966 (HC) per Smellie J, which held that the failure to comply with mandatory time limits invalidated the conference and therefore removed the jurisdiction of the Court to consider the information. Police v V [2006] NZFLR 1057 (HC) was distinguished, because it related to a conference that was convened under s 247(d) of the CYPFA. In case the Judge was wrong to conclude that Hansen J’s approach should apply, she also justified the dismissal of the information in light of s 5 of the CYPFA, emphasising the young person’s sense of time. She noted that the failure by professionals and Government agencies to adhere to timeframes gives rise to a risk that the integrity of the FGC process is undermined.
The Judge also considered whether or not “consultation” occurred pursuant to s 250 of the CYPFA. The co-ordinator paid a home visit to the young person and his whānau before the conference, but did not indicate a date, time or place on/at which a conference could be held. This was done by letter. Neither the young person nor his mother attended the FGC. The Judge concluded that it may have been helpful to have had some discussion as to the availability of the young person and his mother or other whānau member to attend the conference.
Result:
The application was successful. Information dismissed.
File number: CRI-2010-263-000143
Court: Youth Court, Rotorua
Date: 8 February 2011
Judge: Judge MacKenzie
Key titles: Arrest without warrant (s 214).
T charged with intentionally damaging the top of the defendant dock at the Rotorua Youth Court. He was in the process of carving graffiti into the metal railing of the dock when he was arrested without warrant by a police officer present in the Court who thought T might be in possession of a box knife.
The arresting officer said that he considered the alternatives to arrest required in the CYPFA but determined that none were appropriate, and that the arrest was made to preserve exhibits and to ensure T's appearance in Court. The officer also thought that there was the prospect of further offending.
Court considered grounds for arrest of a young person in s 214 of the CYPFA, and noted that those must be proved beyond reasonable doubt (Police v H [2007] DCR 20; Pomare v Police HC Whangarei AP 8/02, 12 March 2002 per Harrison J).
Court found that the prosecution could not prove that an arrest was necessary to ensure T‟s appearance in Court, or to prevent further offences, or to prevent the destruction of evidence.
Court comments that it had no doubt that the officer was acting genuinely to protect others in the courtroom, but that that was not part of the s 214 test. The matter could have been dealt with by summons.
Result:
Arrest, and therefore information invalid. Charge dismissed.
File number: CRI-2010-204-000314
Court: Youth Court, Auckland
Date: 17 March 2011
Judge: Judge Fitzgerald
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 9 trial, Insanity.
Hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Detailed discussion of authorities relating to Court's consideration of mens rea elements in the s 9 enquiry. Court preferred approach in R v Cumming HC Christchurch, 17 July 2009 per French J. Also discussion of possible defences at the s 9 stage.
Result:
UP caused the acts that form the basis of the offences.
File number: CRI-2010-204-000314
Court: Youth Court, Auckland
Date: 9 May 2011
Judge: Judge Fitzgerald
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit, Secure care (ss 367-383A)
UP previously found unfit to stand trial.
Police favoured making UP a special patient under Mental Health Act in the interests of public safety. Court held that no grounds existed for such an order as there was insufficient evidence of mental disorder in term of the Mental Health Act.
The Court had previously made a finding of mental impairment on the basis of an intellectual disability.
Recommendation by consultant psychiatrist and health assessor that U's young age and rehabilitation needs would be best met by a secure care order to a community secure facility for 2 years.
Result:
Secure care order made for 2 years under CP(MIP) Act, with 6 month reviews. Youth Court matters at an end. UP not to return to youth justice residence.
File number: CRI-2010-204-000057
Court: Youth Court, Auckland
Date: 20 January 2011
Judge: Judge Fitzgerald
Key titles: Orders - type: Supervision with residence - s 283(n): Early release.
Early release hearing. W sentenced to 3 months supervision with residence under 2010 Amendment Act, which includes the presumption of early release after two thirds of the residence term if certain conditions are met (s 314 CYPFA).
W repeatedly and deliberately breached residence rules, but did not abscond, or commit further offences, and complied satisfactorily with residence programmes. Court held that a young person must satisfy all grounds in s 314(1), but that the Court must finally satisfy itself that there has been no breach of any of the conditions in s 314(1).
Result:
Early release not ordered. W to serve full term in residence.
File number: CRI-2010-008-008489
Court: District Court, Christchurch
Date: 7 February 2011
Judge: Judge Callaghan
Key titles: Delay (s 322)
Application for stay of proceedings based on delay pursuant to s 322. Complainant alleges assault with intent to commit sexual violation arising from an incident which occurred 5 years previously when complainant and defendants attended the same school. Complainant raised matter with police 5 years later after defendants were charged with other offences.
Court undertook a full review of authorities, including Turner (following). Held that the ultimate question is whether accused can have a fair trial, which can still be possible, even if the right against undue delay has been breached. No evidential basis that suggests defendants will not receive a fair trial, and defendants' young ages at the time of the alleged offence would be taken into account at sentencing if they were found guilty.
Result:
Application dismissed.
Note: This decision was subject to judicial review - see CT and BS v AG and DC at Christchurch HC Christchurch CIV-2011-409-000845, CIV-2011-409-000846, 26 July 2011
File number: CRI-2010-263-000083
Court: District Court, Rotorua
Date: 2 June 2011
Judge: Judge Cooper
Key titles: Sentencing in the adult courts: Sexual violation by unlawful sexual connection.
The defendant appeared for sentencing on three charges of sexual violation by unlawful sexual connection and to two charges of doing an indecent act. The offending, over a two year period, was against his two younger sisters. The defendant was aged 14 to 16 at the time of the offending and was aged 17 at the time of sentencing.
The Court regarded the circumstances of the case as falling within band 2 of R v AM (2010) 24 CRNZ 540 and fixed a starting point of 8 years imprisonment. Having regard to Pouwhare v R [2010] NZCA 268 the Court gave a 50% reduction for the defendant’s young age. It made a further reduction of 1 year and four months to reflect the defendant’s family upbringing, and a reduction of 25% for the guilty plea.
The resulting term of two years imprisonment being within the threshold for home detention, the Court then determined that home detention would meet the sentencing needs by permitting the defendant to attend a rehabilitative programme that would not be available to him in prison, due to his age.
A sentence of home detention for 10 months was imposed with conditions to undertake psychological assessment, counselling and treatment.
The Court also imposed special post-detention conditions for 12 months, that the defendant undertake and complete rehabilitative programmes, counselling, treatment and follow-up programmes, and 300 hours community work (which the probation officer can convert to basic work and living skills programmes.
Finally, the Court imposed judicial monitoring on the sentence of home detention.
Result:
10 months home detention with conditions, 12 months post-detention conditions, 300 hours community work.
File number: CRI-2010-219-000344
Court: Youth Court, Hamilton
Date: 9 March 2011
Judge: Judge Becroft
Key titles: Bail (s 238(1)(b))
Application for electronically monitored (EM) bail. 14 year old charged with attempted murder of police officer. Attack occurred at young person's home after drinking and fighting with his brothers. Held that there would be no guarantee that contact with other family members or drinking could be avoided.
H doing well in residence, but that is not a reason to continue custody. Held that there is too great a risk of reoffending.
Result:
Application denied.
File number: CRI-2011-225-000035
Court: Youth Court, Invercargill
Date: 8 June 2011
Judge: Judge Flatley
Key titles: Jurisdiction of the Youth Court: Age, Jurisdiction of the Youth Court: s 275 offer/election.
JB was seeking trial by jury in respect of Youth Court charges of sexual violation by rape and indecent assault. He was simultaneously facing similar charges in the High Court for offending that occurred after his 17th birthday.
The Court was asked to determine whether Youth Court jurisdiction would be offered in respect of the Youth Court charges.
The Court held that Youth Court jurisdiction would not be offered to JB because—
Result:
JB was committed for trial and Youth Court jurisdiction was not offered.
File number: CRI-2011-209-000118
Court: Youth Court, Christchurch
Date: 6 December 2011
Judge: Judge N Walsh
Key title: Orders - type: Discharge - s 282, Child Offenders: Jurisdiction - s 272.
M was 13 years old when she participated in the arson of a house property, with a 14 year old companion. The Judge found the offending to be clearly premeditated. After leaving the scene, M went to the house of her co-offender and told the co-offender’s mother. Extensive damage was caused to the conservatory of the house. Reparation of $4987.55 was sought for damaged items contained within the conservatory and an estimated $20,000 was sought for the rebuilding of the damaged conservatory (which was paid out by insurance).
M initially faced a charge of burglary, but there was no jurisdiction to lay this charge given age at the time of the offence. The arson charge was indictably laid, and referred to a Family Group Conference, prior to being laid in the Youth Court. M did not have the benefit of representation by a youth advocate at that conference. M’s youth advocate at the hearing submitted that in hindsight this matter could have been dealt with differently, in particular by a referral under s 14 (1)(e) of the Act given M’s age at the time of the offending. Subsequently, the Chief Executive of the Ministry of Social Development had been involved with care and protection proceedings, was in foster care (but with regular access to her mother) and was having involvement with Youth Speciality Services for counselling.
The Judge considered a s 282 discharge to be appropriate for M. Factors weighed into this conclusion included the fact that she was a child offender when the offence occurred, that she was currently attending school and making steady and positive progress, that no further reoffending had occurred in the past year and that there was evidence of good character. The Judge noted that the need to hold M accountable for serious offending must yield in favour of the Youth Court’s objective not to criminalise thereby blighting her record for ever. He weighed in s 208(e): the principle that a child or young person’s age is a mitigating factor in determining whether or not to impose sanctions and the nature of any such sanctions.
Decision:
Section 282 discharge granted.
File number: CRI-2010-216-000155
Court: Youth Court, Gisborne
Date: 2 September 2011
Judge: Judge Hikaka
Key titles: Orders - type: Supervision with residence - s 283(n), Orders - type: Mentoring programme - s 283(jb), Principles of Youth Justice (s 208)
Decision delayed for the Court to take greater consideration of factors arising from the need to address the underlying causes of young peoples' offending (s 208(fa)).
Both V and M had a 'negatively described' background and family history, including domestic violence, alcohol and drug use, and transience. Other background factors included bereavement and learning difficulties.
Both have committed other offences while awaiting finalisation of this case. A likely starting point for sentencing if young people were convicted and transferred to the District Court would be 6 to 7 years imprisonment.
Possibility of a combined 30 month sentence available including maximum terms of supervision with residence, followed by supervision, and mentoring. Court believed that the justice system needs to ensure all reasonable means are available to re-orientate the thinking of boys like M and V. Court described this sentencing as a last resort for these two young men.
Result:
Orders for supervision with residence for 6 months, Supervision for 12 months, and mentoring for as much time as each will have left under the jurisdiction of the Youth Court.
File number: CRI-2011-219-000197
Court: Youth Court, Hamilton
Date: 1 December 2011
Judge: Judge Cocurullo
Key title: Remand at large (s 238(1)(a)), Care and Protection cross over (s 280): Family Group Conferences/Care and Protection (s 261).
The child appeared before the court. She had been arrested with a warrant issued the day before. The Judge deemed that the only realistic option was to transfer her to some type of residential facility. Before the warrant was issued, she had been placed in the Chief Executive’s detained custody under s 238(1)(d). The Family Court had a custody order for her under s 101.
The Judge accepted a submission from the Chief Executive that the only option available was to remand the child at large pursuant to s 238(1)(a). He accepted that the child would not be accepted into a care and protection residence by being remanded under ss 238(1)(b) (bail) or (c) (into the custody of parents/guardians/approved persons). He also noted that there has to date been no decision by the Chief Executive allowing the placement of a child in a youth justice residence.
The Judge noted the need for this to be resolved and a clear decision to be made by the Chief Executive about whether or not children could be admitted to youth justice residences. He noted that remanding at large on such a serious charge was risky, and posed real difficulty in terms of being able to progress Youth Court matters.
The Chief Executive made a commitment to deliver the young person to a care and protection residence on the same day that the order to remand her at large was made.
Result:
Remand at large under s 238(1)(a). Transfer to care and protection residence.
File number: CRI 2010-257-000033
Court: Youth Court, Manukau (acting as District Court)
Date: 11 August 2011
Judge: Judge Malosi
Key titles: Sentencing in the adult courts: Serious assault (including GBH).
R for sentence in District Court for a group attack described by the Court as vicious, cowardly and disgraceful. R remorseful. Good attendance on trade course and achieved high standards. Voluntary work resulted in offer of employment. Active engagement with parenting and mentoring course. No problems with drugs or alcohol. First conviction, low risk of reoffending.
Result:
12 months intensive supervision. Judicial monitoring by report only.
File number: CRI-2010-016-000157
Court: Youth Court, Gisborne
Date: 27 May 2011
Judge: Judge Taumaunu
Key titles: Orders - type: Supervision with activity - s 283(m), Orders - type: Reparation - s 283(f).
RMW, aged 14 , together with two co-offenders aged 15, approached a man resting in a park at about 1am. After being offered cigarettes by the man, one of the co-offenders kicked the man in the head. All of the offenders then robbed him of his cellphone, iPod Nano, charger and cigarettes. The co-offenders continued to kick and punch his head and body. The victim suffered fractured ribs, facial fractures, and a serious head injury.
While on remand, RMW committed other offences and was remanded in custody.
Result:
Six months supervision with activity, to be followed by three months supervision, reparation against RMW’s mother for $83.33.
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