File number: CRN 12244000162-165
Court: Youth Court, North Shore 
Date: 15 October 2012
Judge: Judge Fitzgerald 
Key title: Criminal Investigations (Bodily Samples) Act 1995, Juvenile Suspect Compulsion Order, Mental Impairment/Fitness to Plead

The Police applied to the Court for a juvenile suspect compulsion order under s 18 of the Criminal Investigations (Bodily Samples) Act 1995 (“the Act”). B opposed this. B faced two charges of sexual violation, which allegedly occurred on the victim’s bed. Semen stains were found on the sheet and duvet after a forensic examination. However, there was also evidence that B had stayed in the same bed three or four times prior to the offending and the sheets had not been changed.

The opposition to the application was solely on the basis that the requirements of s 23(e) and (f) of the Act were not met. S 23(e) requires there to be “reasonable grounds to believe that analysis of a bodily sample taken from the respondent would tend to confirm or disprove the respondent’s involvement in the commission of the offence” and s 23(f) requires that “in all the circumstances, it is reasonable to make the order.”

The Judge noted (at [33]) that the words “tend to” are less than absolute, and convey the meaning of having a disposition to advance or attain some quality or state: (R v Dadzie HC Auckland CRI-2003-404-385, 10 February 2004 in Gaskin v McRoberts (1999) 16 CRNZ 371 (HC) and that the threshold for meeting this standard was fairly low (see R v Robinson HC Auckland CRI-2004-004-10413, 13 July 2006).

The Judge concluded that if the semen stains matched B’s DNA profile, they would “tend to confirm” his involvement in the offending (though certainly would not be conclusive of it, and he added that there may be alternative explanations, such as the explanation offered about him sleeping in the bed prior to this occasion). The Judge noted the importance of having all admissible evidence available to the Court, and added that “what the sample tends to do is something the Court must determine as part of the overall assessment of the evidence”(at [36]). The Judge added that the evidence could also be relied upon to exclude B from the alleged offending, if it were found to come from someone other than him, and that the alternative explanation for its presence may be sufficient to create a reasonable doubt as to B’s involvement in the alleged offending. In all the circumstances, the Judge also found it reasonable to make the order.

Result:
Application granted and B required to give a bodily sample.

File number: CRI-2012-204-000155
Court: Youth Court, Auckland 
Date: 9 November 2012
Judge: Judge Fitzgerald
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 14 mentally impaired/unfit to stand trial.

B faced two charges of sexual violation and one charge of causing grievous bodily harm to the victim on 17 January 2012 with intent to facilitate the commission of crime, namely sexual violation. B had previously been found responsible for the acts constituting the offences.

In this hearing, four health assessors agreed, and the Judge was satisfied, that B had a mental impairment, and that he had an intellectual disability in terms of s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act.

The Judge cited the recent Court of Appeal judgment of Solicitor General v Dougherty [2012] NZCA 405, which noted that the assessment of fitness to stand trial may involve not only assessing the nature of the impairment, how it manifests itself and the complexity and nature of the charges being faced, but also that the number of charges (and the stress that may result) may also be relevant. The judgment noted that the expanded list of factors identified in P v Police provides useful guidance to health assessors as to the types of decision that arise in a trial process, and that it may often be helpful for the nature of the charges and the apparent trial issues to be identified early on, so that the health professional’s assessment can be more case specific in terms of the task that will be required of the accused.

Despite B’s mental impairment, the four health assessors considered B fit to plead. The issue upon which there was some difference in the evidence of the health assessors was whether B could communicate adequately with his counsel for the purpose of conducting a defence.

Two assessors felt B was fit to stand trial after both their assessments. One initially found him unfit to stand trial, but this changed in a further report, in which he found that B had foundational competence (meaning he had the minimum conditions for participating in his own defence). He noted, however, that B would require assistance in making specific decisions likely to be encountered as the trial unfolded. After the September hearing, two assessors commented that B did appear able to follow what was happening in Court.

Although accepting the evidence of the other health assessors about B’s improvement, the fourth assessor remained concerned about B’s very low functioning in a number of areas to do with communication and comprehension and therefore his ability to be able to follow the course of a trial. She noted that his limited IQ, his slow processing, memory and language abilities would make it really difficult for him to follow the trial process.

However, the Judge noted that it was not expected that this situation would arise. If it did, three of the health assessors, were comfortable that B could be adequately assisted so that those problems could be adequately managed. That would include taking regular breaks, receiving help and advice as the trial unfolded from his lawyer, having an interpreter and perhaps a communication assistant. His mental state would have to be closely monitored to gauge how he was coping with the stress of the trial process plus his understanding of what was happening. The fourth assessor accepted that those supports and strategies might help but still emphasised that B would have extreme difficulty following the course of the trial and giving instructions.

The Judge briefly traversed the nine factors contained in P v Police [2007] 2 NZLR 528; (2006) 23 CRNZ 804 (HC). He concluded that he was satisfied on the balance of probabilities that B was fit to plead and stand trial, and that the evidence was quite clear that he had at least adequate understanding of the charges, the pleas available and the consequences of entering pleas.

Decision:
B found fit to stand trial.

File number: CRI-2012-209-000146
Court: Youth Court, Christchurch
Date: 17 July 2012
Judge: Judge Strettell
Key titles: Family Group Conferences: Timeframes/Limits: Court ordered.

On 5 June, B appeared in Court on charges of intentional damage and assault of his mother. A FGC was directed on 15 May . A FGC following that direction should have been held on the 29 or at the latest, 30 May. On 1 June, the Co-ordinator sought an extension of time for the convening of the Family Group Conference to enable the attendance “of all entitled family members to the Conference”. That was not filed by the Co-ordinator until 4 June and no notice was given to the youth advocate of the application.

The Judge found that the non-compliance would not be of such seriousness to warrant the interference of the Court. He noted that there was clearly an expectation of the Co-ordinator that the application for adjournment for special reasons would be consented to without any further consideration of the matter. He also noted that the opportunity to participate in a Family Group Conference may have value for the whole of the family (especially given that the offending related to the family), and enable the disposition of the matter to include a wrap-around community and family focussed result to the benefit both of B and his family.

The Judge then looked to the consequences of the non-compliance, noting s 249(6), which provides that the FGC should be held within specified time limits “unless there are special reasons why a longer period is required.” He emphasised that the Act does not require approval of the special reasons by the Court but by implication that notice of the delay occasioned by s 249(6) should be given to all persons who are entitled to attend the conference (s 253(1)) a reasonable time before the conference (s 253(3). He found that there was an obligation upon Co-ordinators to comply with the spirit of the Act and to notify persons as soon as practicable. Whilst the failure to comply is not in itself a reason for dismissal (s 253(4)), he added that the approach taken by the Court in Police v V [2006] NZFLR 1057 and WH v New Zealand Police HC Whangarei CRI-2009-488-48, 24 March 2010 does result in the Court taking it into account in the balancing exercise. The Court must consider in each such case whether or not in the balance of the interests between the young person and the community, the explanations for the delay are acceptable.

Decision
FGC not dismissed: the Judge noted no basis for intervention at this stage of this case.

File number: CRI-2012-281-000003
Court: Youth Court, Waipukurau
Date: 6 July 2012
Judge: Judge Callinicos.
Key titles: Orders - type: Supervision with activity - s 283(m), Orders - type: Disqualification from driving  - s 283(i).

CC (14 years old) appeared for sentencing on a charge under s 36AA of the Land Transport Act of operating a motor vehicle recklessly causing death (to CC’s best friend).

The Judge noted that that there are very few identifiable decisions applying the sentencing principles under the Children, Young Persons and their Families Act to reckless driving causing death situations.

In considering sentencing factors, the Judge noted a high level of individual culpability from CC (who was driving in a dangerous swerving motion despite passengers telling him to stop, and who, along with the victim, had changed the rear wheels on the car). He noted in terms of personal characteristics that CC came from a stable living environment with close-knit friends and family. He factored in the request of the victim’s parents for CC to be given a residential sentence away from home, but in a community setting (rather than a residence) if possible. He noted remorse from CC, and the responsibility that the family had accepted for the offending. He also took into account that CC’s name had already been published in the media and the effect this must have had. He emphasised that the High Court has indicated that one cannot ignore the reality that young people have not fully matured in terms of their ability to foresee the consequences of risky behaviour (having been referred to X v Police (2005) 22 CRNZ 58 ((external link)HC)(external link)).

Finally, he took into account the 'culture of driving'. He noted that this goes 'well beyond merely apportioning responsibility to people described as 'boy racers'' and more as 'a culture of community, including responsible adults, being aware that young men are driving vehicles when they are not only under age, or without a licence, but they are doing so irresponsibly and in illegal ways.' CC was reported on the morning of the incident as having been seen driving a V8 Utility around. The Judge emphasised that he did not know whether adults consciously knew that he was driving in this way, but if they did, that they would need to reflect on their contribution to the death. If they did not know, issues arise as to the level to which young people were being supervised in terms of access to vehicles. He noted however that the defendant’s parents had acted responsibly at all times (including raising their concerns about CC’s driving with the Police) and the victim’s parents had too, including doing 'everything they humanly could' to prevent what happened.

The Judge sentenced the young person to supervision with activity at a residential programme. He noted that, though aspects of this would not apply to CC given his otherwise good character, there would be positive aspects in terms of improving maturity and dealing with grief. He rejected the suggestion of recommending that CC do community work, but instead suggested that perhaps in time CC could consider a community initiative to educate other young people about this in the future. He also disqualified CC from driving a motor vehicle for a period of 3 years.

Result: 
Supervision with activity (s 283(m) and disqualification from driving (3 years).

File number: CRI-2012-278-000002, CRI-2012-278-000003
Court: Youth Court, Upper Hutt
Date: 9 July 2012
Judge: Judge O’Dwyer 
Key titles: Arrest without warrant (s 214), Custody (s 238): Police (s 238(1)(e)).

Case Summary  
T and C were charged in relation to an incident. Both were initially charged with aggravated robbery, but C’s charge was amended to assault with intent to injure. The decision concerned the lawfulness of the young people’s arrest pursuant to s 214 of the Children, Young Persons and their Families Act.

Facts
The victims alleged that they were victims of an assault, and one of their wallets was stolen. The victims identified the alleged offender F (claiming she knew her from school) and gave a general description of the appearance and clothing of the other three girls. The officer who interviewed the complainants matched the description to T, and another girl (but not to C). Four police officers identified a group of five girls, one of whom was F. F said she had been there when it happened but did not know the other girls who had taken part in the robbery. The constables took photographs of the five girls. Two mothers had come out: one objected to the taking of photographs, and another asked the police officer not to arrest her daughter. They then arrested C and T for robbery (later amended to aggravated robbery) and took them to the police station, accompanied by their mothers. At the police station, T gave a video recorded interview denying involvement in the incident, and C made no statement. Both were denied bail, and kept in police cells from Saturday evening to the following Monday morning, searched and had their clothing removed (including underwear) and were given pyjamas to wear. C is the young mother of a baby who was being breast fed at the time.

The police officers claimed that the reasons for arrest were to prevent further offending (given that the girls were together and they believed they wanted to walk off away from the police), to prevent the loss or destruction of evidence (the wallet) and to prevent interference with witnesses as the complainants lived close by and they felt intimidation was likely. One of the officers gave evidence that neither of the girls attempted to walk away, and neither of the young people had been involved in any prior offending. She confirmed that they did not ask the girls to go home to break up the group (or for the two mothers present to take them home separately). They confirmed that prior to arrest they did not conduct a search of the area, ask the girls any questions about the wallet, or invite them to consent for a search.

Law
The Judge considered the grounds in s 214, but noted the additional requirement that, even if the grounds were satisfied on the evidence, the arresting officer must be satisfied on reasonable grounds that proceeding by way of summons against the young person would not achieve those purposes. She noted the high threshold in s 214 and the need for “the gateway” through which young people must pass before coming to the Youth Court to be vigilantly guarded, citing the decisions Police v LM YC Wellington CRI-2009-285-000023, 21 April 2009 at [23]-[24] and EM v Police [2008] DCR 399. The Judge weighed up the factors (conceding also that the police officers had limited and confusing information, and were themselves probationary officers each with only a few months experience). However, she held that the police did not have reasonable grounds to arrest the young people, nor to detain them in custody pursuant to s 236 of the Act. She noted that the consequences of this were serious.

Result
Information dismissed.

File number: CRI-2012-263-000108
Court: Youth Court, Rotorua 
Date: 2 October 2012
Judge: Judge MacKenzie 
Key titles: Orders – type: Supervision with residence – s283(n), Delay (s 322)

H (15) was due to be sentenced on charges of aggravated robbery and possession of a baseball bat. There was also an application to dismiss a number of burglary informations before the Court pursuant to s 322 for delay.

H and a co-offender (15) entered a service station. His co-offender (who the Judge acknowledged was “the ringleader”) pointed a BB gun pistol at the store attendant and threatened to shoot if money was not handed over. H threw a bag over the counter to be filled with cash, and after it was filled with $540, took it and ran. H’s co-defendant received a sentence of six months supervision with residence and reparation of $270. Neither H nor the co-defendant had Youth Court history.

The Judge noted a “spate of aggravated robberies” by young people in the area recently, and the need to stop it. She took into account the seriousness of the offending (but also H’s lesser role in the offending), H’s personal circumstances (including drug and alcohol (and potentially mental health) issues), genuine remorse and H’s family’s perspective. The main issue was whether the Judge should depart from the six months imposed on the co-offender. The Judge decided, given H’s age and lesser role in the offending, that the sentence should be four months supervision with residence.

In considering whether to dismiss the burglary informations, the Judge considered Police v RB and Others YC Rotorua CRI-2011-263-000053, 14 June 2011, Attorney-General v Youth Court at Manukau [2007] NZFLR 103 and ss 5(f), 208 and 322. Disclosure in this case was directed to occur by 27 September 2012, but this had not happened due to a communication breakdown. The charges relating to alleged offending ranged between approximately 8 August and 19 August 2012. Based on that, the delay would be between six to seven weeks. The Judge determined that it could not be fairly said that proceedings had been unduly protracted or delayed. However, she noted that if it was not sorted out, it would be “getting into that territory”.

Decision:
H sentenced to four months supervision with residence, burglary informations not dismissed

File number: CRI-2012-276-000020
Court: Youth Court, Timaru 
Date: 5  November 2012
Judge: Judge Maze
Key titles: Orders – type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection. Jurisdiction of the Youth Court: Charge type

J (17, 16 at time of offence) did not deny one charge of sexual violation by unlawful sexual connection, and one of dishonestly interfering with motor vehicles. J had a previous Youth Court history resulting in s 282 discharges.

The police opposed Youth Court jurisdiction, noting that the offence was very serious, that J had a history of alcohol and drug abuse which the police stated he had not taken steps to address, that he initially denied the offending and admitted only after strong DNA evidence, that he twice breached bail conditions (and apologised, though his family had not). The police argument was that a starting point of six and half to seven years’ imprisonment would have been appropriate, and the police wanted to deny any discount for extraordinary remorse as it was said J had not shown enough, and his family had shown none. It was also argued that as J would have to be discharged from the Youth Court at age 18, there would not be enough time for the STOP Programme to be completed, and so any likely available penalty within the Youth Court would be frustrated.

J’s youth advocate submitted that in light of relevant cases in other Courts, the approach adopted should be for J to continue within the Youth Court jurisdiction for completion of the STOP Programme, and then ultimately be transferred for intensive supervision under the District Court, with judicial monitoring. She submitted that there was no violence beyond the offence itself, and no premeditation. The offending was brief and, therefore this was at the lower end of the scale of the band of offending. The Judge was reminded that other Youth Court options would be available, and both counsel referred the Judge to Police v MA YC Blenheim CRI-2011-206-000005, 12 July 2011. The youth advocate submitted that J had already had to face the complainant and her family, and that he did apologise and take responsibility, and indicated a determination to seek help. It was submitted that the prospects of rehabilitation are higher in the Youth Court, that age is not a basis for transfer in itself , and that J’s personal circumstances were extremely disadvantaged (but yet there were signs of promise). The youth advocate stated that J’s attitude to the offending had not been fairly represented by the police and that he had shown himself to obtain and hold down full-time employment. She stated that initially he was governed by his fear of the consequences, but he made a full confession, and there were signs that guilt had weighed heavily upon him. He had offered reparation. She also noted that that his family did express apologies and concerns for the complainant (but that he could not be held responsible for his own families’ actions).

An expert report writer concluded that J was at low risk of reoffending and recommended the STOP programme.

Decision:
Youth Court jurisdiction offered for the purposes of determining this matter up to the age of 18, with the possibility of what is (in effect) a split sentencing exercise as foreshadowed by the Police v MA decision (ie an ultimate transfer to the District Court for intensive supervision).

NB: This case indicates the difficulty that can arise, particularly (but not only) in cases of sexual offending, where long term treatment rather than custody in the first instance is needed for a young person in the Youth Court. Youth Court jurisdiction is offered and the timeframes, particularly when a young person is close to 18, are usually too short. As this case illustrates, where longer term treatment is needed beyond what the Youth Court can offer, a solution may be not to impose a Youth Court order but to allow the young person to complete voluntarily a long-term treatment programme with the option of imposing a s 283(o) in the event that a treatment programme is not or cannot be completed.

File number: CRN 11209000883
Court: Youth Court, Christchurch
Date: 25 May 2012
Judge: Judge Callaghan
Key title: Child offenders: Jurisdiction - s 272, Child offenders: Pushback provision - s 280A.

Case Summary
J  was 13 years and 9 months old when he allegedly assaulted the complainant with intent to rob, while armed with a knife. The Police commenced proceedings under s 272(1)(b). The Court in this case considered whether to recommend under s 280A that the case be referred back to the Police to consider applying for a declaration under s 67 in the Family Court.

The Judge agreed with the approach Police v JC YC North Shore CRN 11044003837, 28 September 2011, and Police v KK YC North Shore CRN 11244000103, 26 September 2011. Those cases held that the Court should consider whether there was sufficient evidence that the child was in need of care and protection on the basis of s 14(1)(e), and be satisfied that the public interest was better served by a Declaration proceeding as opposed to continuation of Youth Court proceedings.

The test Judge Callaghan applied was:

1. Does the nature and magnitude of the offence of being armed with an offensive weapon (knife) and assaulting the complainant with intent to rob him indicate that there are serious concerns for J’s wellbeing; and, if the answer is 'yes', 
2.  Would the public interest be better served by a declaration application that J is in need of care and protection rather than the Youth Court proceedings remaining on foot?

The Care and Protection Concerns
A s 333 report attributed J’s difficulties to parental breakdown, abuse and neglect. He had been in up to 27 different placements, had anger and grief issues and had suffered major depression. He was the subject of s 110 and s 101 guardianship and custody orders. A permanent placement had yet to be found. The Judge considered him 'dislocated from any social infrastructure, fending for himself to a large extent in the world, without any income or stable support.'

Public Interest
The Judge referred to previous charges which demonstrated a propensity to act in a violent way, including possessing offensive weapons, and an Education Youth Court report which mentioned violent incidents in his schooling history.   The Judge considered counsel for J’s submission that this historical information could not be considered, but held that it must be as it was of some weight to assessing J’s care and protection needs and the public interest. He also noted that it did not need to be the subject of formal evidence, given that a s 280(a) hearing is not a formal adversarial hearing. He drew guidance from s 195 which provides that in Family Court care and protection proceedings, the Court can consider evidence, whether legally admissible or not. He noted that this provision could be tied to s 280A applications so as to remove any doubt. However, he acknowledged the confidentiality and privilege relating to Family Group Conference discussions, and treated the Education Youth Court report as allegations only.

The Judge also addressed other factors such as the seriousness of the offending, alternative outcomes available in the Youth and Family Courts, J’s age and prospects of rehabilitation, the lack of evidence of drug and alcohol addictions, and youth justice principles.

Conclusion
The Judge held that the Police should explore a declaration outcome. Factors that influenced his decision included J’s obvious care and protection history, its clear connection to this offending (and other offending, as recognised by the police), the fact that the offence charge was at the top end of those available to the Police to bring against him, and the fact that the Family Court could keep oversight of him for longer than the Youth Court.

Result: 
Matter referred back to Police pursuant to s 280A(2).

File number: CRI-2011-206-000077
Court: Youth Court, Blenheim 
Date: 26 June 2012
Judge: Judge Zohrab
Key title: Family Group Conferences: Timeframe/limits: Court ordered.

J entered denials to the cannabis and unlawfully getting into a motor vehicle charges, and indicated a desire to plead guilty to the assault with intent to rob charge.  
 
The Family Group Conference (FGC) (pursuant to s247 (d)) was delayed after the co-ordinator filed a notice for special reason for delay.  At the FGC, the venue hired by Child Youth and Family had a time restraint of one and a half hours, and the offer of three other venues was declined by the Youth Advocate and family, as the young person became unwell.  Counsel for J also noted that educational assessment material was not available at the FGC, and expressed concerns about the delay as J was nearly 17. 

The Judge applied the test in Police v V [2006] NZFLR 1057 (HC), and held that the non-compliance with time limits was not sufficiently serious to justify dismissal of the informations.  Factors considered included: 

• The extent of the delay (not great),
• J’s position,
• J's age,
• The lack of information given to the whānau,
• The consequences J had already faced, and
• The need to balance the victim’s interests. 

The Judge noted that proper thought was not given to the venue and time required for the FGC but that other venues were available, and J’s unwellness was a contributing factor. He did not place great weight on the lack of educational information, commenting that J was well known to the system and it is not unusual for FGCs to be further adjourned to get more information if a sentence such as supervision with activity is possible.  

The Judge considered whether a new conference could be held pursuant to s 281(b), but held that this did not sit easily with Hansen J’s statement in Police v V, at [24], that a second or third conference is not an option where there has been non-compliance with time limits. However, he agreed to the request of the FGC Co-ordinator to reconvene the initial conference under s 270. 

Result:
Application to dismiss refused. Initial FGC reconvened.

File number: CRI-2012-242-000065
Court: Youth Court, Hamilton
Date: 12 September 2012
Judge: Judge Cocurullo
Key titles: Other issues – housing

The young person appeared in the Youth Court facing charges for dishonesty and assault. It is not clear as to what stage of the proceedings this hearing occurred at.

This issue in this case, as raised by the youth advocate, was that there was complete uncertainty around the environment where J could live.

J’s mother abandoned J and her children in their Housing New Zealand home. J’s aunt and uncle stepped in to assist. J was in the custody of the Chief Executive pursuant to s 101. The ultimate issue was that without JR’s mother in residence the others were likely to need to leave, and the aunt and uncle were unable at the time to be approved by Child, Youth and Family as the s 101 caregiver for J.

The Judge emphasised that a stable address and residence is pivotal to delivering proper support and rehabilitation in a Youth Court. The Judge invited Housing New Zealand representatives to attend Court, noting that it was not mandatory. No representatives were able to be present. The Judge noted that it would have been of significant assistance to hear from Housing New Zealand and to seek their assistance in addressing these issues.

The Judge therefore concluded that he could not do more than set out the plight and indicate his concerns. He noted a need for government agencies to be able to collaborate and work effectively together. The Judge directed that the minute be provided to relevant agencies.

Decision:
Young person further remanded with bail to continue. 

File number: CRI-2012-276-000024
Court: Youth Court, Timaru
Date: 7 December 2012
Judge: Judge Maze
Key titles: Arrest without warrant (s 214), Summary Offences Act 1981

L was charged with disorderly behaviour and resisting.

L was part of a large crowd of 100- 200 young people seen by the police, largely intoxicated, following the break up of a large gathering. Evidence suggested that L was intoxicated and bumping into people. Later that night, L was seen again with 4-10 other young people. The officer in the case claimed that he saw from the wing mirror of his car that L was standing with his chest puffed out and his fists clenched. L’s cousin who was walking with him claimed that that would not be possible as L was too intoxicated to be capable of such deliberate action, and the group was walking L along. The Judge accepted that may well have resulted in a mistaken identification of L. The officers then saw L again in one of two groups. The Sergeant approached L and claimed that he had clenched fists down at his sides and his chest puffed out. Another constable used essentially the same words to describe L’s stance. L’s friends gave evidence that they were holding him back at the time of the sergeant’s appearance.

The constable then observed “interplay between L’s and the sergeant’s hands.” He saw the sergeant strike L to the face once. He saw no foot movement by the sergeant but L went to the ground. The constable and the sergeant then arrested L. The sergeant’s evidence in chief noted that L was allegedly behaving in a way to incite violence from the group of young people in the group around him towards the police. For that the sergeant stopped and arrested L. L resisted arrest and the sergeant feared being struck so he punched L and swept his legs from under him forcing him to the ground.

With regard to the charge of disorderly behaviour, the Judge noted inconsistencies in police evidence, and found that the only witness to describe L as making any gesture or movement which was plainly out of control and breaching the peace at the intersection was the sergeant – the evidence of the two constables present and defence witnesses did not support that. She also found that, in addition, even if she were wrong and it was L, there was still the additional problem that even the sergeant was unable to be consistent and give any meaningful description of alleged aggression. She added that it was clear from R v Ali’imatafitafi [2007] NZCA 329 that intervention by the police is not generally sufficient for the offence to be complete.

With regard to the charge of resisting, the Judge found that L’s actions (which were raising his arms so that his forearms were close to his chest and his palms facing outwards), were defensive and L was entitled to ask why he was being arrested, as he did. The sergeant’s evidence was that he applied handcuffs contemporaneously with the words, “You’re under arrest” (which he said was for disorderly behaviour). The Judge noted the need to consider s 39 of the Crimes Act before using any force (including handcuffs). She also noted that it seemed likely that s 214 of the Children, Young Persons and their Families Act would not be satisfied.

Decision:
L acquitted on both charges.

File number: CRI-2012-254-000011
Court: Youth Court, Palmerston North  
Date: 10 September 2012
Judge: Judge Ross
Key title: Orders - type: Supervision with residence - s 283(n): Early release (s 314), judicial monitoring (s 308A).

The young person appeared for an early release hearing.

The Judge analysed the report before him, issued pursuant to s 314(2) of the Act, summarising R’s performance in residence.

The Judge noted, as observed on previous occasions in the Youth Court, that the threshold for early release from a sentence of detention is a relatively low threshold in the statutory terms, and so it appears to have been interpreted.

The Judge noted that the report was not an “altogether glowing” one. There were, in particular, issues with R’s motivation and enthusiasm. However, the Judge noted that R did complete tasks (albeit to a relatively minimal standard). He also noted some positive endorsements of R, including progress educationally in most areas. He noted that references to R “tagging” had to be treated as allegations only, given that R’s views had not been heard. He noted a view from the residence, as contained in the report, that R believes he does not need to make further changes as he no longer commits crime. He noted that this would be measured during the sentence of supervision.

The Judge ordered six months of supervision, as provided for in the FGC.

The Judge felt that this was also an appropriate case for judicial monitoring, and considered this possible under both heads of s 308A. In determining the length of the monitoring, the Judge factored in the FGC’s recommendation of monitoring every two to four weeks. The Judge allowed for all conditions to be monitored.

Decision:
Release at 2/3 date, to be followed by six months supervision, with judicial monitoring.

File number: CRI-2012-215-000005
Court: Youth Court, Palmerston North
Date: 4 December 2012
Judge: Judge Lynch
Key titles: Orders – type: Conviction and transfer to the District Court for sentencing - s283(o): Other.

A (17 years and 6 months old) had six burglary and one unlawfully taking charge laid in the Youth Court following his 17th birthday. He also had a burglary and two receiving charges in the District Court. He was subject to six months of supervision beginning in July 2012.

Offending by A in January 2012 was the first offending that had come to the attention of the Police. Between January and May A was alleged to have committed further burglaries, left home and could not be located and did not comply with his alternative action. Despite an initially well attended FGC in May, A and his family did not attend a reconvened FGC in July. There were delays in the process (due to the need for a DNA match). The Judge noted that since turning 17 and appearing in the District Court, A had re-offended, failed to appear in Court once, breached bail eight times, breached a supervision order, according to the Police still continued to roam the streets and had made no effort to engage in any form of education and employment or training.

The Judge cited Police v CP YC Manukau CRI-2010-257-38, 24 March 2011 to emphasise that a lack of durable sentencing options in the Youth Court could be relevant to the decision. He noted that A would soon be 18 and no longer able to access services. He also cited Police v JSS YC Hamilton CRI-2011-273-000004 to emphasise the relevance of inability/unwillingness to comply with initiatives by a young person nearing an age which meant the Court was almost out of time to impose Youth Court orders. In A’s case, he noted that delays appeared to have been caused at least in part by his own unwillingness to comply with initiatives.

The Judge noted that while he would have preferred to have seen a number of the charges laid earlier, this was not a situation where A had suffered delay which was totally out of his control. It did not meet the threshold for dismissal under s 322.

The Judge considered that A’s Youth Court offending was plainly serious, and that the appropriate outcome to meet the purposes of sentencing and particularly to encourage rehabilitation and support would be a sentence of supervision with activity. In the Judge’s opinion, the best outcome would be a community work order, but he was satisfied A had stepped beyond that. The Judge was satisfied that the requirements in s 285(6) were met. Section 285(6) provides that the Youth Court may convict and transfer to the District Court despite s 289 (the duty to impose the least restrictive outcome) if, but for s 5(b), the Court would have made a community work order or other listed orders (which includes supervision with activity) and the Court considers that it would not be appropriate to make an order under the paragraphs (a) to (k) of s 283 as an alternative to such an order.

Decision:
Convict and transfer to the District Court (noting to A that the Court would first be looking to a rehabilitative sentence).

File number: CRI-2012-232-000039-96
Court: Youth Court, Lower Hutt 
Date: 19 December 2012
Judge: Judge O’Dwyer
Key titles: Jurisdiction of the Youth Court: s 275 Offer/Election

T (14) was jointly charged with an adult for aggravated burglary, which he denied. The adult’s case could only be heard in the District or High Court.

T and his co-defendant allegedly gained entry into the home of a partially sighted 82 year old man, living alone, and rushed at him demanding to know where his wallet was. They allegedly commenced an attack involving pushing, threatening and striking with a broomstick, and the theft of $400 and left. The victim had since died.

The Judge noted that T’s age was a strong factor in favour of Youth Court jurisdiction, and the likely earlier date for trial in the Youth Court. The Judge factored in the young person’s Youth Court history (including a recent breach of a supervision order), the risk of unfair process if there were to be two trials (for T and the co-defendant), and the fact that two potential witnesses would have to give evidence twice if there were two trials.

The Judge determined that the alleged offending was on the more serious end of the scale, and that notwithstanding T’s age, the importance of ensuring a fair trial process outweighs other factors considered. She noted that the question of delay would be dealt with in the District Court, and that she was confident that the trial would be prioritised.

Decision:
Youth Court jurisdiction declined. Young person committed to High Court for trial.

File number: CRN 12283000021
Court: Youth Court, Whanganui 
Date: 3 October 2012
CYPFA: s 282, s 283(f)

Key titles: Orders- type: Discharge – s 282, Orders – type: Reparation – s 283(f)

T completed a FGC plan for admitted charges of burglary of a domestic dwelling. The Police wished for T to be discharged under s 282(3) on the basis that the Judge impose a reparation order against his parents.

The Judge had no problem discharging T under s 282, but a problem arose as to reparation. As a result of T’s burglary, the victim was out of pocket $1,232.90. The victim was aware of the financial circumstances of T’s family and was willing for the reparation to be paid over a period of time. The victim was himself a recipient of the invalid’s benefit with no further income, and was not able to afford insurance for the items. The Judge noted the need to remedy this loss, citing ss 208(g), s 284(e) and (f) and MRW v Police HC Auckland CRI-2010-404-000058, 11 May 2010. He also noted the relevance of accountability (s 4(f)).

As T was under 16, the reparation order would be against his parents. The Judge noted, citing Police v Z [2008] 2 NZLR 437 that parental fault was not a requirement for a reparation order against parents, though this could be taken into account. However, he also noted from that decision that the legislation places substantial significance on the importance of the family group and the need to ensure its continuing strength and stability.

The Judge factored in the hardship that reparation would cause the family of the accused. A letter presented to the Police revealed that the family received $265.98 per week, and had other repayments owing. The Judge upon further inquiries found that in fact the income of the family would be around $358 a week. The Judge considered that within this budget there would be an ability to make a contribution to reparation.

Decision:
Order under s 282(3) that the full amount be paid by T’s father at the rate of $10 per week.

File number: CRI-2012-292-000081, CRI-2012-292-000233
Court: Youth Court, Manukau
Date: 26 July 2012
Judge: Judge Malosi
Key titles: Child offenders: Pushback provision - s 280A. Family Group Conference: Timeframes/limits: Court-ordered.

Case Summary:
D faced a charge of aggravated robbery (committed when he was 13 years 6 months old) and two charges of escaping and burglary (committed after he turned 14).

The Family Group Conference (FGC) decided that the charge should remain in the Youth Court because of a concern that there might be difficulties in managing his case in the Family Court. However, the Judge was unclear as to whether or not the actual grounds under s 280A had been considered at the FGC. Counsel in Court accepted that D’s needs would be better met through the longer interventions possible in the Family Court.

The Judge noted at this point that she was hindered from making a decision as to whether or not s 280A should be used because she had no information as to how his co-offenders were being dealt with, there were evidential issues (and she noted that if there was insufficient evidence and the charge not proved, there would be nothing to push D back to the Family Court, which concerned her as on the remaining charges (even combined with care and protection issues) he would probably not meet the threshold in s 14(1)(e)).

The Judge noted that it is clear that Police must make the application for a s 14(1)(e) declaration to the Family Court, but the issue was whether or not it was the intention of Child, Youth and Family to apply for a declaration on the other grounds. She stated that in situations where a child appears in the Youth Court on push back charges, then turns 14 and also accumulates Youth Court charges, it should be the norm rather than the exception, if the Youth Court charges are not denied, to direct a 261 FGC so that in addition to considering s 280A, Child, Youth and Family could then also turn their minds to whether or not they are going to seek a declaration on the other care and protection grounds.

Finally, the Judge noted that as s 280A(3) states that as soon as the declaration application first comes before a Family Court Judge, the information is deemed to be discharged under s 282, which put the Crown on notice to ensure that D would have an appropriate placement with suitable supports in place.

Result:
Judge adjourned trial to August of same year.

File number: CRI-2012-292-000081
Court: Youth Court, Manukau
Date: 20 November 2012
Judge: Judge Malosi
Key titles: Child Offenders: Pushback provision - s 280A

D committed an aggravated robbery when he was 13 years 6 months old (the Judge found this offending proved at a defended hearing one year later). The robbery involved D and two others pushing the victim off his bike. One rode off with it but not before D hit him about the head several times with a metal pipe. The victim required stitches to his head and sustained a fractured finger. Since that charge, D had not denied two further offences (escaping and burglary) and had further involvement with the Police.

The Judge explained delays on this file (a Police attempt at an intention to charge Family Group Conference, which had failed due to lack of engagement, a fitness to plead issue and difficulties for report writers to engage with D). D had also breached bail six times. However, the Judge acknowledged that D had nonetheless been on remand for 19 weeks.

The Judge noted the recommendation in the social worker’s report of six months’ supervision and 12 months’ mentoring. She placed significant weight on the difficulty professionals had engaging with D and the struggles his family had to put in place appropriate boundaries for him.

Judge Malosi also factored in Child, Youth and Family’s submission that if the matter were to be pushed back it would likely be dealt with by way of a s 140 extended care agreement, or informal plan. The Judge accepted that this may be appropriate in terms of relativity with other cases in this area, but in this case it would not be appropriate given the very close support and monitoring that D needed.

Although she found care and protection issues, she noted that they were not such that they could not be addressed in the Youth Court jurisdiction, and not such that the public interest would be served better by referring the aggravated robbery to the Informant with a view to making an application for declaration. She also factored in that D had other Youth Court matters, and that it would therefore be better to manage all charges in the Youth Court jurisdiction.

Decision:
No s 280A pushback, order of six months supervision and twelve months mentoring.

File number: CRI-2011-212-000193
Court: District Court, Dunedin
Date: 2 July 2012
Judge: Principal Youth Court Judge Becroft
Key title: Sentencing in the adult courts: Serious assault (including GBH).

Case Summary
G appeared facing sentence for causing grievous bodily harm with intent to cause grievous bodily harm. He was convicted and transferred from the Youth Court to the District Court under s 283(o).

The victim was G’s former girlfriend. The attack included asphyxiation, punching, kicking and stomping on her head, kneeing in the face, pushing her against walls, smacking her head into the bathroom cabinet, smashing her head with a soap dispenser, biting her nose, eye gouging, and stabbing her with the sharp end of a comb in the face and chest. G did not initially call an ambulance (but did later). The victim suffered superficial wounds, concussion, recurring headaches, significant damage to her nose, bursting of blood vessels, and significant bruising. She met the criteria for post traumatic stress disorder and had struggled with depression.

The Judge noted that the maximum sentence available to the Court for a transfer from the Youth Court was five years imprisonment, but that a significantly higher starting point could be taken. In sentencing, the Judge noted the many aggravating features including extreme violence, attacks to the head, use of a weapon, the victim’s vulnerability and serious injuries (though there seemed to be no permanent serious disabilities). The starting point was set at eight years.

There was no uplift. The Judge did not factor in the young person’s Youth Court history. He noted this would be part of behavioural history, but G was the subject of s 282 discharges only. When considering discounts, the Judge noted a difficult upbringing (though no evidence of violence, abuse or neglect). He noted, having considered several specialist reports, that he could not say whether G should be treated as someone who knew well what he was intending to do or whether it emerged from deep seated issues which he could not control. He noted that he was deemed at high risk of reoffending, but that there must also be hope for the rehabilitation of a young person. Factoring in youth and early guilty plea (for which he received the maximum discount), he reduced the sentence to four and a half years’ imprisonment.

The Judge also granted a protection order, and did not grant name suppression.

Result: 
Sentence of four and a half years’ imprisonment.

File number: CRI-2012-290-000093, CRI-2012-290-000094
Court: Youth Court, Waitakere 
Date: 10 September 2012
Judge: Judge Tremewan
Key titles: Jurisdiction of the Youth Court: S 276 Offer/Election

Case Summary:
K and C appeared in the Youth Court together, facing charges of wounding with intent to cause grievous bodily harm and kidnapping. K also faced an additional charge of injuring with intent to cause grievous bodily harm. They were parties to the offending alongside two other adults (one of whom was the principal offender). At the time of the offence, both were 16, but at the time of the hearing C was 17.

The principal offender pretended to be her partner and texted one of the victims (KM) to ask her and a friend (SM, the second victim) to meet and have sex. She informed K and C that she planned for her partner to pick up the victims and drive them to her, and that she would then assault the victims. She showed K and C a large kitchen knife in her handbag which she claimed to have in case circumstances became “really bad”. K and C were hiding, with the principal offender, at the location when the two victims arrived. The principal offender launched prolonged attacks on the victims. At one point, K and C (along with the principal offender’s partner) stood against the door to the vehicle where KM was sitting and pushed the doors back to prevent KM from exiting. K herself also kicked and punched KM about the head and in the abdomen multiple times. The principal offender then stabbed KM and stole some goods from her. KM received a significant stab wound which grazed her liver, a black eye and a chipped tooth. Both K and C took turns to film the attack on K’s phone.

In her consideration of whether to offer Youth Court jurisdiction, the Judge weighed in the factors contained in Police v S and M (1993) 11 FRNZ 322 (YC). She noted that both K and C were first time offenders and that the principal offender was sentenced to six years imprisonment (for more serious offending and more charges). She noted that the offending was serious, and that K and C were involved in a degree of planning and premeditation. She added that although K and C may have been fearful of the principal offender and did not appreciate the full extent of what she would do, they still played serious roles in their own right in the offending and did not try to disassociate themselves. She noted that their involvement contributed to making the matters more frightening for the victims. The Judge raised the public interest in seeing a serious approach taken to such offending (and the stringent bail conditions to which K and C had been subject, but had not breached). She also factored in the victims’ views and the need for deterrence.

However, she also noted the need to focus on rehabilitation and reintegration as well as accountability, and cited cases such as Churchward v R [2011] NZCA 531, which consider the neurological differences between young people and adults and the capacity that young people have for rehabilitation. She considered the wider range of options for dealing with young people in the Youth Court (following the 2010 reforms to the Children, Young Persons and their Families Act- including the ability for split sentencing and for Judges to make early release decisions). She noted K and C’s acceptance of responsibility, and some remorse, empathy and awareness of consequences, as well as strong family support for K and C.

The Judge also noted that if Youth Court jurisdiction were offered, imprisonment could still be imposed through a conviction and transfer to the District Court. However, this would be limited to a sentence of five years or less (following Roberts v Police HC Hamilton AP145/98, 19 January 1999 per Hammond J). The Judge considered this an indication to consider first endeavouring to deal with the young people in the Youth Court.

Decision:
Youth Court Jurisdiction Offered.