CEO of MSD v CB [2013] NZYC 7

File number: CRI-2012-292-000081
Court: Youth Court, Wairoa
Date: 25 January 2013
Judge: Judge Taumaunu 
Key titles: Orders - enforcement of, breach and review of (ss 296A-296F): supervision.

An application was filed under s 296B(1) and (2) for a declaration that C had failed to comply with the conditions of a supervision order, and an order cancelling the supervision order was sought under s 296B(3)(a). There was also an application to suspend the supervision order.

C had committed further offending after reaching 17 and was in custody pending sentence on District Court matters. The issue was whether the supervision order could simply be cancelled, with no further FGC ordered (as under s 296E).

The Judge noted that s 296B(3) enables the Court to make a declaration that the young person has without reasonable excuse failed to comply satisfactorily with a term. He then traversed the alternatives pursuant to s 296B(3) (and specifically the ability to cancel the order and, in substitution for that order make any other order under s 283). He also noted the restriction in s296B(5) to impose the least restrictive outcome that is adequate in the circumstances (pursuant to s 289(2)).

The Judge then focussed on the restriction in s 281(2), if cancelling a supervision order under s 296B, to not substitute any other order in place of that order unless a FGC has first been convened to consider the matter. He noted that this would therefore mean that a FGC would need to be held if another order were to be made in this case. However, he also noted that the provisions of 296B(3)(b) allow the Court to make an order under s 296E 'as if an application had been made under that section in relation to that order'. Section 296E allows for a supervision order to be cancelled.

The Judge therefore noted that if the Court were to treat the application before it as if it were made under s 296E – which the Judge saw as available to argue – a simple cancellation of the order could be made. If another order were to be substituted, a FGC would need to be held, but this was not at issue in the case.

The Judge noted that ss 296E and 297 were not mentioned in the social worker’s application, and that it may have been helpful for these sections to be thought through more carefully.

He concluded that, although remaining arguable, the application under s 296B was capable of being treated as if an application had been made under s 296E. He therefore relied on s 296E to simply cancel the supervision order.

Result: 
Supervision order cancelled. No FGC convened.

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 JT v Police v MSD [2013] NZYC 786

File number: CRI-2013-292-000165
Court: Youth Court, Manakau
Date:  14 November 2013
Judge: Judge Lovell-Smith
Key title: Family Group Conferences: Convened/Held, Family Group Conferences: Timeframes/limits: Intention to Charge, failure to comply with statutory requirements, s 247(b), s 250, consultation

This was an application to dismiss a charge of aggravated robbery for failure to comply with the statutory requirements for the convening of an FGC pursuant to s 247(b). The applicant submitted that the Youth Justice Coordinator failed to adequately and reasonably consult with the young person’s family, whānau or family group under s 250. In the applicant’s submission the issue was whether one telephone call between the Youth Justice Coordinator and the applicant’s mother was adequate consultation for the purpose of the legislation.

The Coordinator had sent a written invitation to the FGC followed by a phone call. Neither the applicant nor his family attended the FGC. The Constable advised at the FGC that police had no option but to lay charges in the Court based on the fact that the young person had indictable matters in the Youth Court and had presently been jointly charged with aggravated robbery. The co-offender’s proceedings had been adjourned in Court pending the outcome of the applicant’s FGC. The Constable was of the view that it was unfair for the co-offender, and victims who would be involved in both proceedings, to continue to delay the matter. The applicant’s parents were in Hastings fruit-picking at the time when the telephone call requesting an urgent FGC was made. The applicant’s mother indicated that she wished to meet with the Coordinator first to organise a time and date but that this wouldn’t be possible until they returned from fruit picking in a few weeks.

The Judge did not accept the evidence of the applicant’s mother and did not find her to be a credible witness. It was noted that she was familiar with the FGC process as she and the family had been involved in other FGCs, one with the same Coordinator. The claim that she needed a face to face meeting in order to arrange a date for the FGC was not accepted, given that the family had temporarily moved to Hastings, were unwilling to return for the FGC and the only means of contact was by cell phone. The Judge accepted that communications over the phone were not ideal, but in this case were necessary.

The statutory requirement in respect of s 250 is not that consultation be adequate, or even occur at all, but that the Coordinator make “reasonable efforts” to consult. The reasonableness of the efforts must take into account the statutory timeframe which is not flexible beyond the 21 days specified. The written notification and telephone call were deemed reasonable. In any event, the family had returned before the FGC so could have attended.

Result:
Application dismissed on the basis that the consultation and the process of convening the FGC were adequate.

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Police and MSD v AS YC Dunedin CRI-2013-212-000073, 23 September 2013

File number: CRI-2013-212-000073
Court: Youth Court, Dunedin
Date: 23 September 2013
Judge: Judge Flatley  
Key titles: Custody: CYFS (s 238(1)(d)), Care and Protection crossover (s 280): Family Group Conferences/Care and Protection (s 261), Guardian.

A appeared in relation to two charges of threatening behaviour and two charges of assault.

A had been in a residence awaiting a s 333 report, which was available to the Court. The report identified that issues were largely care and protection related. Current care and protection proceedings were in place. The Chief Executive held orders including a custody and additional guardianship order. The report also identified that care and protection issues would have contributed mainly to A’s longstanding difficulties including behavioural issues, social skills deficits, impaired judgement and learning problems. The report discussed features of ADHD and autism spectrum disorder.

The Police indicated that if the appropriate supports were put in place for A, and progress was made, they would ultimately consider withdrawing the charges, and there was strong support from all professionals involved for A to be dealt with in the care and protection context.

A’s report recommended that he be transitioned from the youth justice residence to a care and protection facility, particularly in the same area, with an individualised behaviour modification plan. It was proposed that he eventually return to his recent longer term caregivers. It was identified that A’s behavioural management plan was being implemented well in the youth justice residence. There was no support in Court for a return to the youth justice residence.

Advice from the Ministry was that the plan to place A in a care and protection facility would not be able to be funded because of other young people with greater needs. Returning to the youth justice residence was not an option.

Several options were considered, including placement in a facility where a wrap-around care and protection package could be created in the community. There were some concerns given that A had previously absconded from this facility. The Judge also noted that intensive therapeutic intervention would also be required before A could be returned to his caregivers.

The Judge determined that an appropriate option would be to accept an oral application by lawyer for child (who was also A’s youth advocate) pursuant to s 31 Care of Children Act 2004 to place A under the guardianship of the Family Court pursuant to s 33 of that Act. A would be placed in the facility, with conditions attached, and a requirement that should he abscond, he reside at a Ministry of Social Development care and protection facility. The Judge noted that whilst there might be some questions raised as to whether it is wise for lawyer for child to make such an application, it is available and entirely appropriate for lawyer for child to do so in accordance with s 31(2) Care of Children Act, and that such an application might be made on a without notice basis. He noted that as there was no opposition from parties there did not appear to be any real issue, and in any event that an oral application would available as established in Searle v Beatson & Dunlop [1987] 1 NZLR 493 (CA). He did record, however, that such an application was a rare beast and its use should be limited.

Result:
Pursuant to s 33(1)(a) and 33(1)(c), A placed under the guardianship of the Family Court until further order of the Court on terms and conditions including residence at the facility (or a MSD care and protection facility upon absconding). A six monthly file report was to come before a Judge every six months.

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Police v AR and SP [2013] NZYC 412

File number: CRI-2013-292-000188
Court: Youth Court, Tauranga
Date: 15 July 2013
Judge: Judge Harding
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH), Family Group Conferences: Non-agreement, Orders - type: Supervision with residence - s 283(n).

A and S appeared for sentencing in connection with a series of indictably laid charges. S  faced charges of wounding with reckless disregard for safety and aggravated robbery. A faced charges of assault, aggravated robbery, wounding with intent to cause grievous bodily harm and wilfully attempting to pervert the course of justice in connection to a witness to the violence and robbery charges.

Both A and S indicated a desire to plead guilty on the most serious charges and attend a FGC as to jurisdiction and outcome. No agreement was reached at either conference and social work reports were consequently directed.

In the case of A, who was aged 16 and a half, it was determined that his age, wide range of complex issues, the gravity and nature of A’s offending, and limited whānau support meant that the Youth Court jurisdiction could not adequately respond to the totality and degree of A’s offending. After giving consideration to s 289, the Judge was satisfied that a s 283(o) convict and transfer was the least restrictive outcome appropriate in the circumstances.

In the case of S, who was 14 years old, it was material that S had no prior offending, had good compliance with bail and had extensive whānau support. Citing Churchward v R  [2011] NZCA 531 it was considered that adolescents, particularly at the age of 14, have difficulty regulating impulses and behaviour. It was argued that conviction and transfer would likely result in negative consequences and that unless a less restrictive outcome would be clearly inadequate, a total of 18 months of closely monitored Youth Court involvement and supervision is possible and appropriate.

The Judge distinguished S’s position from A’s in relation to age, degree of support from whānau and professional opinion for the potential for significant progress with intervention. Despite the serious nature of S’s offending, a convict and transfer was not deemed to be necessary. The Judge indicated that S would benefit from the Youth Court should jurisdiction be offered, with a clear indication that if there were any difficulties, a review of the sentence would be possible.

Result:
A was convicted and transferred to the District Court for sentencing pursuant to s 283(o). S received an order for supervision with residence with a prescribed and monitored supervision plan.

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Police v AN [2013] NZYC 540

File number: CRI-2013-288-000069
Court: Youth Court, Tauranga
Date: 3 September 2013
Judge: Judge Rollo 
Key titles: Custody: CYFS (s 238(1)(d)); Custody: Police (s 238(1)(e))

A (16) was taken into police custody after the bail address at his mother’s residence was withdrawn (following a heated argument with his girlfriend after which his mother perceived him to be an adverse influence for younger children of hers).

A currently faced active charges of aggravated robbery and shoplifting, and the Judge was informed that there were several further active charges in the Whangārei Youth Court. He was told that A was placed in residence earlier this year and did well for a period of time, but then absconded and was on the run. Most charges emerged from this period of time.

The Judge was informed in Court that there was no present placement available for A under s 238(1)(c). A’s youth advocate submitted that it was incumbent on Child, Youth and Family to provide a custodial situation such as under s 238(1)(c) and if there was not a placement available in an approved home then recourse, notwithstanding the expense, to options such as placement in a motel with a security officer may need to be explored.

The Judge considered the requirements under s 239 for detention in custody pursuant to s 238(1)(d). He noted A’s propensity to abscond when it related to his girlfriend. He noted, given the outstanding offences, that the likelihood of further offending seemed a real and significant risk.

The Judge concluded that there was jurisdiction to deal with the matter under s 238(1)(d) with a remand in custody, but that there was some force in the sentiments expressed by A’s advocate that a desirable situation for any young person, except in the most extreme cases, is that they be placed within the community in an appropriate way which safeguards the community interests such as outlined in s 239(1)(a), (b) and (c) but also enables the person not to be in a custodial situation. However, this was not an available option at this stage.

Result:
Remand under s 238(1)(d) until Friday morning of the week at first instance so that matters could be reviewed at that time. The Judge directed that all appropriate enquiries be made to find an alternative placement for A that might be in the community.

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Police v BC [2013] NZYC 160

File number: CRI-2012-206-000063
Court: Youth Court 
Location: Blenheim
Date: 9 April 2013
Judge: Judge Russell
Key titles: Criminal Procedure (Mentally Impaired Persons Act), Mental Impairment/Fitness to Plead, Reports: Psychological. 

B faced a charge of indecent assault under s 132(3) Crimes Act. A s 9 hearing was held and the Judge found, on the balance of probabilities, that B was responsible for the acts alleged. The Judge then commissioned two expert reports pursuant to s 38. The issue was whether B was fit to stand trial pursuant to s 14 Criminal Procedure (Mentally Impaired Persons) Act

Psychologists’ Reports
One report writer concluded B was fit to stand trial. The writer noted that B had been assessed as having an intellectual disability in the moderate range, but that he had been successfully employed in full-time work for the last year, had no mental health issues of concern, no use of alcohol or drugs and a good relationship with close family and some older siblings. The writer noted that B was able to tell clearly what was alleged to have happened, and gave details of elements of the court process that he understood. Although an intellectual disability would often render unfit to stand trial, the writer determined B would be fit but would need to be supported in the process, and that his slower processing skills would mean that he would need more time to understand and respond to information presented to him.

The second report writer found B unfit to stand trial. The writer noted that B was able to provide a reasonably coherent and detailed account of the day of the alleged offence, and that there was no evidence at the time that he was suffering from any abnormal thought or perceptual processes. It was noted he appeared to have a very limited understanding of sexual behaviour and activity, however, was able to recognise what was morally wrong behaviour. The writer concluded that B had a very limited understanding of the Court processes and proceeding. She feared that he may become overwhelmed during the proceedings due to the volume and nature of the information provided, and was likely to disengage or sit silently, deferring to others. He would most likely, in her opinion, acquiesce decision-making responsibilities to his mother and lawyer. He would need support and guidance as the Court proceedings progressed, in order to give ongoing instructions to his lawyer, and would require information to be presented in a simple, structured, and sequential manner, with frequent checks of his level of comprehension. She considered without the considerable assistance that B received and because of B’s slow processing speed, poor abstract reasoning ability and communication problems, that he would struggle to follow the Court process or adequately communicate with counsel.

When cross-examined, both report writers acknowledged a mental impairment, and accepted they were just on either side of “the line” as to whether B was able to instruct counsel and conduct a defence.

The Judge also found it interesting that the psychologist who found B unfit to stand trial used an American assessment tool known as CAST*MR, which involves a young person completing a multi-choice questionnaire rather than answering open-ended questions. The Judge concluded that this tool could be used providing a degree of caution was applied: specifically having regard to the different population dynamics and judicial system of the United States.

Judge’s Findings
The Judge concluded that B had a mental impairment.

In making a s 14 determination of his fitness to stand trial, the Judge determined the key issue to be issue to be whether B had the ability to adequately understand the nature and purpose, or possible consequences, of the proceedings, or if he was unable to communicate adequately with counsel for the purposes of conducting a defence. In coming to a decision, the Judge cited S v Police HC Palmerston North CRI-2005-454-47, 8 December 2005 and P v Police [2007] 2 NZLR 528 (HC) .

The Judge concluded that though B had the ability to understand the charge that he faced, and plead to that charge, and had a basic ability to understand proceedings, this would require support and explanation from his counsel and his mother, and he would have difficult understanding the effect of the prosecution evidence, deciding on defences to be relied on and, particularly, in giving instructions to counsel and making his version of the facts known. The Judge had regard to the fact that B and witnesses would likely have to give evidence, and his mother may need to be a witness so would not be able to support him. He found there to be a real risk that under cross examination B would not have the cognitive ability or capacity to answer questions covering the three separate incidents he would need to respond to, and a risk that he would either simply agree to the questions being asked of him without understanding them, or not answer the questions at all.

Result
Finding on the balance of probabilities that B was mentally impaired and unfit to stand trial under s 14(3) of the Act.

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Police v CH [2013] NZYC 684

File number: CRI 2012 209-000152
Court: Youth Court, Waitakere
Date: 18 June 2013
Judge: Judge Becroft
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o), Orders - type: Supervision with residence - s 283(n)

C faced 53 unresolved charges of property and motor vehicle related offences in the Youth Court. This number represented the sum total of C’s offending, who had been sentenced at least 3 times previously, although an order had never run its course before new offending caused the previous order to be suspended, cancelled and overtaken by a new order.

The issue for the Judge was whether C was to be convicted and transferred to the District Court for sentencing, or whether an order of residence followed by supervision should be ordered by the Youth Court. In order to convict and transfer to the District Court, the Judge acknowledged that an order for residence with supervision would have to be clearly inadequate with the only viable option being conviction and transfer.

The Judge noted that C had two previous supervision with residence sentences, although as soon as C was released, she went on to breach supervision. C had been given every possible chance, every possible programme, every possible assistance and had “blown the lot”.

The point was made that if C were to be dealt with in the District Court, the maximum sentence would be of supervision for two years or some form of community detention, but no actual form of imprisonment. The specialised team in Corrections that deal with young people would not have the same level of experience and knowledge about C’s history. This meant that an order of supervision with residence could not be called “clearly inadequate”.

The Judge regarded the case as finely balanced, and therefore was required to follow the law and retain C in the Youth Court. It was clearly expressed that if C were to come before the Court again, there would be no choice but to convict and transfer to the District Court.

Result:
No conviction and transfer to District Court. Order made in the Youth Court for 4 months residence with supervision.

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Police v CK [2013] NZYC 349

File number: CRI-2013-241-000018
Court: Youth Court, Napier
Date: 27 June 2013
Judge: Judge Callinicos
Key titles: Orders type: Supervision with residence - s 283(n): early release, s 314, aggravated robbery, burglary

C was sentenced to three months supervision with residence. C attended the hearing by phone, and gave a personal statement indicating his sincere wish to return to the community, and his wish to change and not re-offend.

The Judge considered the requirements of s 314 and a summary that was provided to him of the case Police v M PC YC Waitakere CRI‑2011‑290-000043, 14 September 2011 per Judge Taumaunu, in which the Judge considered two incidents during the young person’s residency which had been described by the residence as being “of a moderately serious nature and not minor.” It was stated that the Judge in that case said it would be consistent with the least restrictive principle in s 208 of the Act to interpret s 314(1)(b) in a way that recognised that moderately serious misbehaviour and non-compliance will not automatically disqualify a young person from early release. The Judge noted he was not entirely in agreement with this in that it risked converting the word “minor” to mean “moderately serious”. However, he did agree with the need to always adopt a least restrictive approach.

The Judge noted that there appeared to have been 27 documented incidents in relation to C, but only two minor incidents in the previous three weeks. In the first five weeks there had been 16 incidents, including non-compliance and verbal threats to staff and young people. The Judge did not accept a submission that these could be considered minor, and noted that his verbal abuse was designed in a way to intimidate and that on four occasions he was described as physically lashing out, twice at staff. It was also said that he had to be restrained at times and there was an allegation that he “head butted” a staff member. There were also allegations that he had threatened to kill himself.

However, later on in the residence, C began to change in a very positive way. A change in behaviour and attitude was noted. His case leader reported that given the contrast in behaviour it was difficult to determine whether C had successfully met the conditions of his supervision order. However, there were some allegations from staff that in the lead up to this hearing, C’s behaviour was again escalating, with verbal abuse of staff, threatening language to other young people and refusing to walk to secure care, and that he again was verbally abusive and threatened to harm when informed that he was a risk to take to Court and would instead appear by phone.

The Judge noted that he was uncertain as to the circumstances in which C had been advised that he would not be present. The Judge had supported a request from counsel that C not be present on the grounds that it came from C. In an addendum to the judgment, he recorded that C’s lawyer had been approached by a social worker with concerns about C, but C had not given instructions that he not attend Court. The Judge noted that had he been aware that C would have preferred to be in Court, he would have allowed this.

The Judge accepted that C’s behaviour over the last few days was likely to result from anxiety over the matters, but noted that if there were behaviours of this level, it would be extremely unwise to move to any form of supervision and immediate release.

Result:
Early release not granted. Ministry to file a plan for a follow up supervision order at next hearing.

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Police v CM [2013] NZYC 390

File number: CRI-2012-204-000238
Court: Youth Court, Auckland
Date: 1 August 2013
Judge: Judge Fitzgerald 
Key titles: Orders - type: Supervision with residence - s 238(n): Early release, s 314

C appeared for consideration of early release from residence.

In making the decision pursuant to s 314, the Judge was informed that there were six occasions when C was admitted to secure care, but there was little detail on these so seriousness was hard to assess. He noted the need to resolve the uncertainty in her favour. He noted a seventh serious incident which included threatening staff members and kicking them during restraint,which counsel submitted was affected by anxiety about this hearing.

The Judge applied Police v MPC YC Waitakere CRI‑2011‑290-000043, 14 September 2011 per Judge Taumaunu which interpreted s 314 to not immediately disqualify young people from release where there had been moderately serious misbehaviour and non-compliance, though the Court would still need to consider whether the behaviour and compliance were satisfactory in an overall sense.

The Judge found that overall, behaviour and compliance were satisfactory. The report described C as a capable student (whose teacher described her as having undergone remarkable transformation over the past seven weeks), an enthusiastic and goal directed response to alcohol and drug counselling and overall settled behaviour.

The Judge also factored in that no one in the Court opposed early release, and the fact that releasing C now would allow her access to a specialist programme that would be very positive for her.

Result:
Early release allowed. 12 months supervision with judicial monitoring. A mentoring order made in April was to come into effect at the end of the supervision order, to apply from that time until C’s 18th birthday.

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Police v DH [2013] NZYC 559

File number: CRI-2013-292-000229
Court: Youth Court, Manakau
Date: 12 September 2013
Judge: Judge Hikaka
Key title: Care and Protection crossover (s 280): Family Group Conferences/Care and Protection (s 261), Child offenders: Pushback provision - s 280A

D, 13 years old at the time of offending, was jointly charged with an adult for aggravated robbery. The issue for the Judge was whether the Court should exercise its discretion under s 280A and refer D as a child offender back to the informant to consider whether a declaration under s 14(1)(e) should be applied for, or for the matter to be dealt with in some other way.

D’s background was deemed to be of relevance. His family had been known to the Chief Executive, with respect to care and protection issues, since before D was born and D’s siblings had also been the under custody of the Chief Executive. D’s s 178 report detailed a history of family violence, drug and alcohol abuse by D’s parents, domestic violence and environmental depravation leading to the need for the children to be placed with extended family.

Prior to the offending, D was declared to be a child in need of care and protection and subsequent custody and guardianship orders were made in favour of the Chief Executive under s 101. The previous FGC plan addressed the implementation of the s 101 order. Reference was made to Youth Court proceedings and D’s custody under s 238(1)(d) of the Youth Justice provisions of the Act.

With regard to the offending, during the course of the aggravated robbery, D had kicked the victim several times in the face. The level of violence was acknowledged to be serious and gratuitous.

When discussing  the interface between care and protection and youth justice, the Judge cited two cases that dealt with matters under s 280A: P v J G YC Christchurch CRN 11209000883, 25 May 2012 per Judge Callaghan and R v R T YC Hamilton CRI-2011-219-000197, 7 March 2012 per Judge Cocurullo . Both cases involved violence by child offenders and led to referrals back to the informant, as on both occasions, the Judges were satisfied that first the young people were in need of care and protection pursuant to s 14(1)(e) and second, the public interest would be better served by a declaration under that ground.

When considering how the public interest would best be served, either by Family Court or Youth Court proceedings, the Judge noted that there was already a s 101 order in place and that it was likely that the informant would seek a declaration under s 14(1)(e). This was deemed to be of concern given the seriousness of the offending.

Another aspect for consideration was the range of orders available to the Family Court under s 83, namely discharge, parents coming before the Court within two years, counselling, restraining orders, services orders, support, custody and guardianship orders. Additional orders could be made if a declaration was made under s 14(1)(e), including admonishment, reparation for emotional harm, delivery of property, property forfeiture and reparation.

The orders available in the Youth Court were deemed to be far more far reaching and robust in the case of offending this serious. It was determined that both the Family and Youth Court should be involved in the planning for D’s future, but that Youth Court processes should continue in order for a focused, robust, clearly monitored and strictly enforceable plan to be given effect.

Result:
Referral to the informant denied. Youth Court processes to continue.

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Police v DT [2013] NZYC 301

File number: CRN 12255000093
Court: Youth Court, Papakura
Date: 12 June 2013
Judge: Judge Fitzgerald 
Key titles: Delay (s 322), Criminal Procedure (Mentally Impaired Persons) Act 2003

D (16, 15 at time of offending) was charged with indecent assault. The Criminal Procedure (Mentally Impaired Persons) Act 2003 process was triggered and two reports obtained from health assessors.

The date of the alleged offending was 14 June 2012. On 24 May 2013, counsel to assist indicated that an application would be made under s 322. This judgment occurred on 12 June 2013. At this stage s 9 and s 14 hearings still needed to occur. A detailed chronology of events is included in the case.

The youth advocate submitted that delay resulted from tardy and piecemeal disclosure in breach of the Criminal Disclosure Act and directions from the Court (spanning the period 5 July 2012 to 22 May 2013), the attempt by the police to revisit their decision to consent to oral evidence orders (spanning the period 14 December 2012 and 22 February 2013), the police decision to oppose oral evidence orders (from 22 February to 8 March 2013) and the Court failing to appoint counsel to assist the Court in a speedy fashion which was exacerbated by the police failure to disclose copies of the video interviews to counsel to assist in a timely fashion (11 March to 24 May 2013). The Police accepted fault and mistake on their part (though not deliberate).

The Judge noted that D had been subject to bail conditions for almost a year including curfews of either 7 pm to 7 am or 24 hours a day. As a result of alleged curfew breaches D had been remanded in custody and spent a total of 88 days in custody since the alleged offending. Parties conceded that it was unlikely there would be a final disposition before the end of the year which would amount to a delay of at least 18 months.

The Judge considered relevant provisions of the CYPFA, UNCROC and considered case law determining the meanings of unnecessary delay He considered the interpretations in case law of the phrase “unnecessarily or unduly protracted”. He noted that relevant factors when determining undue delay: Martin v Tauranga District Court [1995] 2 NZLR 419, included the length of the delay, waiver of time periods and reasons for the delay and that unnecessary delay meant no more than trivial delay that could have reasonably been avoided, usually caused by default or neglect: Attorney-General v Youth Court at Manukau HC Auckland CIV-2006-404-2202, 18 August 2006 per Winkelmann J. He factored in that the existence of specific prejudice to the young person caused by the delay would be a factor weighing in favour of dismissal but not a pre-condition. He added that the seriousness of the offence is a factor to be taken into account in the exercise of the discretion although the weight attached to that factor will depend on the particular circumstances of the case.

The Judge concluded that the major cause of the delays had been the failure by the police to provide full disclosure in a timely fashion, exacerbated by the stance the police took opposing the oral evidence order. The Judge found the delays unnecessary and undue. He added that there had been no waiver of time periods, that the case was not a particularly complex case of its type, that behaviour by D did not add to the delays and that prejudice had been caused to D. He found that there would be prejudice if proceedings continued, especially given D’s low intellectual functioning and limited ability to participate meaningfully in Court. He noted the need for careful thought given the alleged offending was serious. However to take at least 18 months before that stage could be reached, with no certainty that it would be, was an unacceptable situation.

Result:
Discharge under s 322.

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Police v GW [2013] NZYC 411

File number: CRI-2012-292-000317
Court: Youth Court, Tauranga
Date: 15 June 2013
Judge: Judge Harding 
Key titles: Family Group Conferences: Timeframes/Limits: Court Ordered, s 247, s 249

G appeared in the Youth Court on two separate groups of charges, the first being charges of aggravated robbery and escaping from custody. The Judge made a declaration of failure to comply with a supervision order made in conjunction with this offending, and sentenced the young person to four months supervision with residence on these two charges.

The second set of matters (and those at issue in the case) included breaches of bail, interfering with a car and assault. The Judge directed a FGC on 17 May, which did not occur until 19 June. However, as G was in custody, the FGC should have taken place within seven days. The Judge considered whether these charges should therefore be dismissed.

In making his decision, he noted that there had already been judicial comment on 28 March expressing concern about the unacceptable delay in actioning aspects of the supervision order (on the first set of matters) and that as a result G undoubtedly did not receive the rehabilitative interventions he was entitled to under the order which had earlier been made. He considered why there are strict legal timeframes for young people in custody (to minimise the time in custody for young people and to ensure that matters are dealt with in a timeframe which is consistent with young people’s understanding of time and delay). He drew on Police v V (2006) 25 FRNZ 852, which noted that whether or not a dismissal is justified will be a matter of fact and degree, and that the consequences of non-compliance must be examined.

The Judge concluded in the present case that delays with the first set of matters and with this FGC resulted in G spending some three weeks longer than might otherwise have been the case in custody. Given that he had already sentenced G to supervision with residence that day on the first set of matters, and the fact that the second set of matters were at the lower end of offending, retention of the charges would unlikely make any material difference to the outcome in an overall sense at all. He factored in that there was no adverse public interest (other than of course to the victims of the acknowledged offending) and that it was important for those statutorily charged with organising conferences to do so in time.

Result:
Charges in second set of matters dismissed.

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Police v HF [2013] NZYC 402

File number: CRI-2013-263-000068
Court: Youth Court, Rotorua
Date:  16 July 2013
Judge: Judge Munro
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit.

H appeared on two counts of burglary. In previous proceedings it had been found that H suffered from an intellectual disability. At that stage a compulsory care order was not made due to H’s age, the requirement that the least restrictive outcome be adopted and assurance that H’s needs could be managed in the community. H offended again within a month of the previous charges being discharged.

An assessment and a care rehabilitation plan pursuant to Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) confirmed that the criteria were met for intellectual disability in terms of s 7 of the IDCCR and the recommendation was made that a compulsory care order be made in terms of s 25(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act).

When making the order for compulsory care under s 26(2), the Judge imposed 24 hour supervision rather than an order for H’s placement in secure care. The order was made for 12 months with a review in 6 months.

The Judge took into account the requirement to impose the least restrictive intervention in the circumstances and the fact that he had been is custody at Te Maioha Youth Justice Residence for four months already. It was noted that a Youth Justice facility is not the place for someone suffering from a significant intellectual disability.

Result:
12 months supervision as a care recipient under the IDCCR, with a 6 month review in the Family Court.

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Police v HK [2013] NZYC 305

File number: CRI-2013-241-000007
Date: 14 June 2013
Court: Youth Court, Napier
Judge: Judge Callinicos 
Key titles: Orders - type: Supervision with residence - s 283(n), Orders - type: Reparation - s 283(f).

H (recently 16) appeared on nine charges including burglary of a dwelling, robbery of two baseball caps, theft of security lights, unlawful taking of a motor vehicle (with an associated assault) and an earlier Summary Offences Act assault (on his girlfriend). When on bail for these offences, he was also charged with a threat to kill (on his girlfriend), male assaults female and resisting a police officer. H had significant prior involvement in the youth justice area.

At the FGC, H denied all but two charges. However, he later admitted all nine offences.

Six months supervision was recommended by the social worker. The Judge noted his concern that there was no provider of supervision with activity in the area where H lives. He noted that recommendations for supervision for H were more a reflection of a lack of a suitable programme, and that the recommendation was an effective minimisation of sentencing options because of lack of resource.

In considering s 289, the Judge noted that at first instance a sentence appeared inadequate given the range, frequency and degree of offences, many of which occurred in the early hours of the morning, and the fact that the offending had little regard for anyone else. He factored in that H was regularly affected by alcohol or drugs, ignored bail conditions upon him, assaulted his young and vulnerable girlfriend quite seriously and would fight with this parents when trying to curb his behaviours.

The Judge factored in H’s personal history of exposure to parental abuse of alcohol and drugs, poor supervision, extreme neglect of parental responsibilities and exposure of children in a household to family violence. He had several placements and had had self-harm issues.

The Judge took into account remorse (it was described in the report that there was some but it appeared to be generated more around the consequences for H) and the lack of response from his immediate whānau. He factored in the views of victims (most of whom wanted reparation) and previous Youth Court history (including a sentence of supervision with residence followed by a supervision order with which he did not comply, and a further sentence of supervision.

The Judge noted that the causes of H’s offending undeniably derived from his “appalling childhood” and noted that at periods in his life when he had been placed with his uncle and aunt, he had conducted himself well, but immediately deteriorated upon his return to immediate whānau. He noted that this was a significant indicator that, in the right environment, H could respond. H’s uncle and aunt were present in Court to outline the structures and guidelines within their home and their ability to give H guidance. He noted further factors contributing to offending included very limited education (not of H’s own making), major issues with drug and alcohol (though the Judge noted that H and his aunt and uncle stated that he had detoxified while in residence and reported he was off drugs). He noted that H appeared at present to be in good health. The Judge factored in that H had not offended since moving to live with his aunt and uncle a month ago. H also told the Judge that since moving to his aunt and uncle’s he was working on a farm, had goals including education and wanted to stay with his aunt and uncle.

Result:
Six month supervision with residence, with conditions including continuing work under his uncle, conditions of non-association and not to enter areas, participation in drug and alcohol and counselling programmes. A reparation order was also made (to be paid also in the future as H gained an income).

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Police v IP [2015] NZYC 848

File number: CRI-2013-016-002121
Court: Youth Court, Gisborne
Date: 3 December 2013
Judge: Judge Taumaunu
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003, Evidence Act 2006, New Zealand Bill of Rights Act 1990

I, who had previously been found to be unfit to stand trial by reason of intellectual disability, was charged with indecent assault. The issue was whether his written admission was admissible for the purposes of a s 9 Criminal Procedure (Mentally Impaired Persons) Act 2003 hearing, where the Court is required to determine whether, on the balance of probabilities, it is satisfied that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

I’s counsel argued that in respect of the admission, there had been a breach of s 23(1)(b) New Zealand Bill of Rights Act 1990 – the right to consult and instruct a lawyer without delay and to be informed of that right, as well as breaches of the right to be informed of the reason for arrest and the right to silence. It was obvious that I, given his intellectual disability, would have had difficulty comprehending and understanding these rights as explained by the police officer. I’s counsel submitted that as a result of the breach of these fundamental rights, I’s admission should be excluded under s 30 Evidence Act 2006.

Alternatively, I’s counsel submitted that I’s admission should be excluded as an unreliable statement under s 28 of the Evidence Act 2006 because of I’s difficulty in comprehending questions, and his inability to answer questions without confirming answers expected of him, or his giving answers he thought the questioner wanted to hear.

The Judge did not go into whether there had been a breach of fundamental rights or whether the statement was unreliable as the position as to evidence in a s 9 hearing in the current case appeared clear. The Judge considered that in the current case, where I had already been through two s 9 hearings for indecent assault charges and faced another serious charge of assault to commit sexual violation, the admission was admissible in the s 9 hearing. The fact that this type of hearing had been referred to as a “relaxed and inquisitorial” type hearing, and the purpose of the s 9 hearing supported the admission of any evidence that is helpful to determine whether the defendant caused the act or omission forming the basis of the offence, whether or not it would be otherwise admissible in criminal proceedings.

The Judge referred to McKay v R [2009] NZCA 378, R v T (1993) CRNZ 507 and Police v A YC Manukau CRI-2007-292-753, 6 August 2008 in support of this conclusion as to the nature of the s 9 hearing, and the type of evidence that is admissible in such a hearing.

It was noted that in clear cases, a Judge will have the discretion to exclude evidence in a s 9 hearing where it appears to be inherently unreliable, or where for some other reason the Judge finds it inappropriate to attach any weight to that evidence. The Judge made an obiter statement that, in this case, if there had been no other charges before the Court and no history of any offending, this ruling as to admissibility may have been different.

Result:
I’s written admission was admissible for the purpose of the s 9 hearing.

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Police v KK [2013] NZYC 190

File number: CRI-2013-224-000004
Court: Youth Court, Hamilton
Date: 1 May 2013
Judge: Judge Cocurullo 
Key titles: Care and protection crossover (s 280): Family Group Conferences/Care and Protection (s 261), Family Group Conferences: Plan, Rangatahi Court process/procedure, Lay Advocate.

K appeared in Court, having been in residence for the two weeks prior. The Judge was concerned that K was in residence solely because of the care and protection concern that there was no placement for him. Despite the seriousness of the offending, his sense was that it did not reach a level to look at supervision with activity or beyond.

K’s conference had recommended a return home but this had not been possible. The Judge noted a dysfunctional relationship between K and his parents, difficulties at home and cyclical bail breaches from K when there. The Judge acknowledged hard working social workers in the area (including the Court social worker) who put much time in to finding alternative whānau placements – but nonetheless a placement had not been possible in this case. He noted the wider concerning issue of young people who do not reach a threshold of orders but are unable to be placed with whānau. He added that 'the gap is obvious and that is what commitment and/or resource the Chief Executive has to ensure the care and protection issue of their placement.'

The Judge noted previous child offender proceedings in the Family Court, discharged some years ago. He commented that if a sustained placement back home were not to work, responsibly the parents would need to consider a s 140 extended care agreement for K to be in the community but placed somewhere else. The Judge noted that he hoped K would be able to stay at home, but if not would prefer him to be safe in the community and community safe around him, in residence.

The Judge made a s 280 referral to a care and protection Family Group Conference. However, he also agreed to adopt the plan from the youth justice Family Group Conference, noting a desire to 'give the parents a chance to make this right', with supported bail and close monitoring at the Rangatahi Court. A lay advocate was appointed.

Result:
Case adjourned.

Police v KM [2013] NZYC 220

File number: CRI-2011-209-000354
Court: Youth Court, Christchurch
Date: 8 May 2013
Judge: Judge Garland
Key titles: Custody: CYFS (s 238(1)(d)), Custody: Police (s 238(1)(e))

K appeared before the Court facing multiple charges of trespass, unlawfully taking a motor vehicle, possession of instruments for conversion, failing to stop, driving in a dangerous manner, burglary, theft and being found unlawfully in an enclosed yard. He had previously appeared in the Youth Court jurisdiction on a considerable number of charges, with a large number of mainly dishonesty offences arising whilst on bail. K had been remanded into custody after breaching bail in his parents’ care.

He was discharged from a residential rehabilitation programme for his behaviour. This was a condition of his bail but he had failed to contact the Court in relation to bail conditions.

The police stated that K was in constant threat of absconding and that he rarely adhered to Court-imposed conditions. Counsel who appeared for K noted that his parents’ address was available for the purposes of bail. The Judge was satisfied that if bailed, K would be likely to abscond.

The Judge noted that there was no bed available to make any order under s 238(1)(d), so he did not remand him in the custody of the Chief Executive. This was because K was due to appear in the Youth Drug Court the next day, and the one bed available in New Zealand was in the North Island, which would not be practicable given the appearance. K was therefore remanded in police cell custody under s 283(1)(e), to be reviewed on appearance the next day.

Result:
Remand in police cell custody under s 238(1)(3), to be reviewed on appearance the next day.

Police v LS YC Invercargill CRI-2013-225-000036, 4 May 2013

File number: CRI-2013-225-000036
Court: Youth Court, Invercargill
Date: 4 May 2013
Judge: Judge Phillips
Key titles: Custody: CYFS (s 239(1)(d)); Custody: Police (s 238(1)(e))

L was remanded at his father’s address for serious matters relating to dishonesty and damage to vehicles under s 238(1)(d). On 4 May (a Saturday morning), L allegedly stole a motor vehicle, and faced further charges of reckless driving, failing to stop, resisting a police officer and excess breath alcohol (“extremely high” for L’s age). The Judge also suspected the drug K2 to have been involved.

The Police opposed the grant of any form of community-based remand and the Judge agreed. He considered the likelihood of absconding and re-offending to be extremely high. He noted that “it appears to me you are a young man who has got and fallen over in this K2 ‘epidemic’ that has struck our city. You are, as a result of your ingesting that substance, acting in a manner that is causing alarm to a lot of people.”

CYF was not in a position on a Saturday morning to note whether a bed was available in a residence, but noted that they would hopefully be in a position to advise that on Monday. He therefore considered there to be no option but to remand L in police custody under s 238(1)(e) until Monday morning at 10am, at which point he would expect CYF to have available a report as to the likelihood of a bed being available in a facility so that a Judge could then remand under s 238(1)(d).

Result:
Remand under s 238(1)(e) until Monday morning.

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Police v LV YC Nelson CRI-2013-242-000079, 16 October 2013

File number: CRI-2013-242-000079
Court: Youth Court, Nelson
Date: 16 October 2013
Judge: Judge Becroft
Key titles: Education  

L (14) appeared for monitoring of his FGC plan. There were concerns with his progress, specifically regarding associations with other young people who were offending and with consuming synthetic cannabis.

The Judge in this minute drew attention to education issues for L. He noted that everybody in Court was concerned about them, including L’s family, CYF and the Police. L was excluded from school earlier in the year, with his behaviour described as “appalling”. For two and a half months since exclusion. L had been at home doing nothing. His school had not referred his case to the Ministry of Education, and it appeared that other schools were unwilling to enrol him. 

The Judge noted the need for some form of educational intervention for L immediately. He noted that it simply could not be good enough that his education was stalled for this time. He noted that L was one of approximately five young men who had appeared in Court that day with education issues to be addressed. 

Result:
Need for urgent educational intervention noted. Referred back to Court for further monitoring of Plan. (NB: this decision was delivered without the input of the Ministry of Education).

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Police v LV and LM YC Masterton CRI-2012-235-000023, 13 February 2013

Medium Neutral Citation: unreported
File number: CRI-2012-235-000023, CRI-2012-235-000024
Court: Youth Court, Masterton 
Date: 13 February 2013
Judge: Judge A Walsh 
Key titles: Criminal Procedure (Mentally Impaired Persons Act), Summary Proceedings Act 1957, Youth Court Procedure.

L and L each denied two offences of arson under s 267(1)(b) Crimes Act 1961. One of them also did not deny three burglary charges. All offending allegedly occurred in July 2012. As the arson charges were purely indictable, the committal procedure in the Youth Court (Purely Indictable Offences or Where Jury Trial Elected), as set out in the Practice Note (effective on and from 29 June 2009), applied. The committal procedure was not complied with. The Police applied under s 168(2) Summary Proceedings Act 1957, with the leave of the Court, for an extension of time to file written statements later than the date required by s 168(1). Counsel for L and L opposed the application.

The case was delayed from July to late September for disclosure and then ongoing negotiations between counsel and Police. On 20 September, it was announced that the charges were denied, and there was a further remand to October, when Youth Court jurisdiction was offered and accepted. The defended hearing in November 2012 could not proceed because of NCEA exams. Proceedings were remanded to November and then December to determine a fixture. On 5 December, the Police applied under s 168(2) to extend time to file written statements. On 13 December, the Court noted an issue had arisen about the committal procedures adopted in the proceedings, and a hearing was set down for 30 January, with a direction that written submissions be filed. On 30 January, the Police requested further time to 7 February to file submissions and that request was granted. Proceedings were then remanded to 13 February for a decision to be delivered regarding the application by the Police under s 168(2) of the Summary Proceedings Act 1957.

With regard to the breach of the Practice Note, the Judge noted that the jurisdictional hearing in October was premature, because the Police had not filed written statements, as required under s 168(1) Summary Proceedings Act 1957. The jurisdictional hearing should have occurred as soon as possible, after the 15th day after the Police were required to file formal written statements under paragraph [7] of the Practice Note. This oversight was overlooked by all parties.

Counsel for L and L argued that the delay resulting from non-compliance with the procedural requirements of s 168 was the fault of the Police, and there was no excuse for that delay. In their application under s 168(2) the Police advised there was a misunderstanding with the process. As there was a mixture of summarily laid charges and indictably laid charges, the file was never returned to the officer in charge for formal written statements to be filed under s 168(1).

Counsel also criticised the Police for not disclosing lists of witnesses or supplying any signed formal written statements. The Police acknowledged that the requests of counsel had not been answered, and disclosure of witnesses, as directed by the Court on 28 November 2012, had not occurred. The Police advised attempts were made to file formal written statements in Court but the statements could not be filed until a decision had been made under s 168(2).

The Judge considered that in determining whether to grant an extension under s 168, the appropriate test was whether it was in the interests of justice to grant an extension, applying New Zealand Police v Kunicich [2010] DCR 235 per Judge de Ridder. The Judge took into account the initial oversight of the Police (though noting that this was not a case of deliberate ignorance of responsibilities or gross negligence), the fact that non-compliance with the Practice Note was overlooked by all parties, the fact that there had been delay but not a significant one (it appeared that a defended hearing could not have occurred in 2012 regardless, given the procedural background), the seriousness of the offending and the fact that any further delays could be avoided by strict compliance with the Practice Note.

Result:
Leave granted to the Police pursuant to s 168(2) Summary Proceedings Act 1957.

Police v MH [2013] NZYC 332

File number: CRI-2013-224-000006
Court: Youth Court, Huntly
Date: 21 June 2013
Judge: Judge Cocurullo 
Key titles: Arrest without warrant (s 214) 

M(15) was charged with entering a building without authority and with intent to commit a crime in that building (a burglary allegation). M denied the charge (accepting, however, the actus reus for the offence).

On 5 June 2013, the relevant Constable viewed surveillance images of two suspects cashing large amounts of coins suspected as having been stolen. He recognised M and ascertained that he was currently on active charges for burglary, wilful damage, reckless driving, failing to stop and driving without a licence (over a two month period between January and March 2013).

The Constable went to M’s school and spoke to M. No challenge was made to the rights given or the process of selecting a nominated person (M’s caregiver). M’s caregiver notified Police that she did not want M released into her care and left the station without him. The Constable subsequently contacted Child, Youth and Family who said they had no placement for him.

The Constable concluded that there was a high risk of reoffending. In M’s statement he admitted being present at a theft ex-car on 2 June and named a co-offender. He refused to tell the police where the outstanding property from the burglary and the theft ex-car was. The Constable ascertained that M had been an offender in 16 burglaries dating back to 2007 (aged 9). He was identified as having been involved in 11 burglaries between March and September 2012.

The Constable arrested M and advised him of his rights. CYF recommended that M either be held in police custody or be bailed. A special sitting was arranged before the Court and M bailed to another town.

The Judge rejected an argument from the Police that there were grounds under s 214(1)(a)(i) to arrest M to ensure his appearance before the Court. He noted that whilst not asserted as such, care needs to be taken by the police in this situation to ensure that a care and protection issue of lack of residence does not transpose to initiating Youth Court procedures. He also noted that a lack of placement did not necessarily equate to a clear risk that a young person would not appear before the Court. M had no history of absconding other than one failing to stop for red and blue lights. Unaccompanied minor procedure should have been available to the Constable. However, the Judge noted some sympathy for the Constable, and that the Chief Executive needed to take M if he was not going to be arrested and placed before the Court.

The Judge found that there would be grounds to arrest under s 214(a)(ii) (i.e. that the arrest was necessary to prevent M from committing further offences). The Judge noted that the officer identified M, made investigations to identify his history of serious property offending including an active charge and took care that his interview progressed according to law. At the conclusion of the interview M was satisfied that there was good cause to suspect that M had committed this burglary and in the Judge’s view it was right to conclude that there was a likelihood on reasonable grounds that M might commit further offences. Given that this was victim orientated offending, the summons process would have had significant delay and would have until an appearance at Court following consultation and family group conference, as is required under s 245, left an alleged victim exposed.

Result:
Arrest lawful under s 214.

Police v MK [2014] NZYC 466

Police v MP [2013] NZYC 393

File number: CRI 2013-287-000017
Court: Youth Court, Opotiki
Date:  11 July 2013
Judge: Judge Rollo
Key title: Sentencing, Robbery, Burglary, Kidnapping, Unlawful taking of a motor vehicle.

M, aged 15, was charged with the unlawful detention of an elderly woman in her home during the course of a robbery and burglary, and then the next day a further burglary and unlawful taking of a motor vehicle. There was a threat to kill the elderly lady during the course of the incident.

The Judge noted that if M was an adult facing charges of kidnapping, threatening to kill, burglary and robbery in an elderly woman’s home, the starting point for sentencing in the District Court would have been a sentence of imprisonment of around five and a half to six years. There then would be a discount for a guilty plea and for personal circumstances.

The Judge took into account that M, as a young person not an adult, lacked the brain maturity to be able to weigh up the rights and wrongs of situations. On the basis of youth, a substantial discount  would then bring the matter down to around two and half to three years, which would translate into a sentence of home detention together with community work and an extended period of post-detention conditions.

When considering whether a Youth Court order or a sentence in the adult jurisdiction would be more appropriate, the Judge concluded that there would be benefits from supervision with residence that would outweigh the disadvantages of home detention.

It was noted that in residence, M was subject to a strict regime of supervision and regimented activities that would not necessarily be present with an order of home detention. In this sense, this was a far stricter regime and could provide more beneficial outcomes that would be desirable in such a case.

Result:
An order was subsequently made for six months residence followed by six months supervision.

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Police v TM [2013] NZYC 642

File number: CRI-2013-242-000017
Court: Youth Court, Nelson
Date: 16 October 2013
Judge: Judge Becroft
Key titles: Education 

T (15) was before the Youth Court for disposition.

The Judge noted that T was excluded from school for fighting as a year 9 student and placed with an alternative education provider for what was planned to be a short period of time, however he had been there for approximately the last year and a half. During that time, he offended in the way of property charges, but eventually successfully stabilised and completed his FGC Plan. There had been regular meetings between T’s social worker and the Ministry of Education and a correspondence course provided. T now wished to return to mainstream education.

The Judge considered T’s history. He had a profound hearing problem and endured five or six years of education without it being identified. At his last hearing, the Judge had called for an education assessment but was informed that this could only be obtained through a FGC Co-ordinator at a FGC and as the conference had already been held, there was no way of obtaining it.

The Judge noted that at 15 T was entitled to a proper education, preferably by mainstream, especially given that he was no longer offending. He noted that there was no real plan to return him to mainstream education and noted that correspondence school surely could not be the long-term default option. He noted the need for assistance for T in mainstream education. He also took into account T’s parents’ views that he had essentially been “pushed aside” by the Ministry of Education.

Finally, he emphasised that this case exemplified the need for education officers in the Youth Court, given that there was a need for an education assessment and it could not be obtained. He clarified however that there was no one from the Ministry of Education present in Court and therefore there may be information of which he was not aware (and therefore only had one side of the story).

Result:
Need for urgent action with regard to educational issues noted. Section 282 discharge and reparation order made.

Police v TM and TF [2013] NZYC 348

File number: CRI-2012-292-006843
Court: Youth Court, Manukau
Date: 5 August 2013
Judge: Judge Lovell-Smith
Key titles: Orders: type – Conviction and transfer to the District Court for sentencing - s283(o): Aggravated robbery.

TF (16, 15 at time of offending) and TM (15, 14 at time of offending) appeared for disposition on two charges each of aggravated robbery pursuant, and on charges of burglary (five charges for TF, one for TM).

The first aggravated robbery involved entering the home of an 80 year old male, pushing him into his chair, holding his head, covering his mouth and taking money from his wallet. The second included entering a dairy with disguises, holding one victim in a headlock with a knife to her throat and punching the other in the head, and taking money from the till. The burglary involved the same victim of the first aggravated robbery and a wallet, cash and cards, a watch and wine were stolen. TF also did not deny charges of burglary of three further houses.

The Judge factored in that both aggravated robberies were premeditated, gratuitous and violent attacks by a group of people acting together in consort. She noted that the first aggravated burglary involved a home invasion early in the morning, both involved elderly men and the second a female. She noted that both victims lost significant sums of money, that the first victim was suffering nervousness, sleeplessness, loss of confidence in his driving ability and continuing neck pain and that one of the second victims reported being dizzy and in severe pain during the incident, suffering an eye injury that required medication, and broken glasses which needed to be fixed.

For TF, the Judge factored in his desire to plead guilty to all matters at an early stage and move through the family group conferences as quickly as possible. She noted spontaneous remorse, the supportive response and measures taken by the family and the FGC’s recommendations. She factored in the lack of further offending, the very restrictive bail conditions (including a 24 hour curfew) which TF endured for four months, and a social worker’s report listing potential triggers for offending such as pressure, drug use and parental separation. She commented that TF could be seen as a follower rather than an initiator, that he did not participate in any violence and that there would be 19 months to impose the maximum orders available in the Youth Court.

In relation to TM, the Judge noted his denial of entering the property during the burglary, that he was not considered the main offender during the aggravated robbery (influenced by the adult offender who was present) and that he was not involved in the original plan for the second aggravated robbery. She recorded the potential influence of anti-social peers and use of drugs and alcohol. TM also expressed remorse and complied with stringent bail conditions after spending one week in custody. He remained living with his own family with their support and the Judge found him not to have complex needs to be rehabilitated. There would be 31 months available to impose the maximum orders available in the Youth Court.

Considering victims, the Judge noted that there was a good attendance of victims at TF’s FGC and most expressed their feelings frankly to him, he listened attentively to what they had to say and made apologies which were accepted. He noted a wish to make reparation in the future upon finding employment.

The Judge noted that neither had previous criminal history but the informant noted that they were involved in a 'practice run' burglary. She noted the public interest in protecting the public from serious violent offending like this.

Result:
TM and TF convicted and transferred to the District Court pursuant to s 283(o) of the Child, Young Persons and Their Families Act 1989 in respect of the two aggravated robberies.

Police v ZW [2013] NZYC 580

File number: CRI 2013-209-000225
Court: Youth Court, Christchurch
Date:  23 September 2013
Judge: Judge Strettell
Key title: Arrest without warrant (s 214)

Z was charged with one count of intentionally damaging a motor vehicle. The issue for the Court was whether there was proper compliance with s 214, which deals with the arrest of a child or young person without a warrant, insofar that the arrest was reasonable in the circumstances. Z was found close to the scene of a damaged vehicle by a neighbour. The Police were called and a Constable and dog were able to back-track from the scene to the property where Z was, which was a CYFS family home. Three other Police officers arrived, who were armed, and spoke to Z despite taking no specific action. Subsequently a Senior Constable arrived, introduced herself to Z, took his details, and after discovering that he fitted the description given by the informant, arrested him.

As this was a category 2 offence, the legal position is set out in s 214 and states that a young person shall not be arrested unless the police officer is satisfied on reasonable grounds of one of two scenarios: one, that it is necessary to arrest the young person to ensure their appearance, prevent them from committing further offences, or prevent loss or destruction of evidence; or two, that there is reasonable cause to believe that the young person has committed an offence and arrest is required to prevent them from interfering with witnesses, and that proceeding by way of a summons would not achieve that purpose. By the time the Senior Constable had exercised the power of arrest, Z had been spoken to by three constables who had taken no particular action. There was no evidence that Z had a weapon and indeed, Z had voluntarily suggested that he could be searched.

In cases such as these, there is a clear legal onus for the police to prove the conditions under s 214 and part of the exercise is for the police officer to determine whether the suspected offender could be dealt with in another way short of arrest without warrant, including investigation leading to a FGC, which is the preferable course of action. Upon an objective consideration of what was reasonable in the circumstances it was determined that there was no indication of non cooperation other than declining to make a statement, which was clearly Z’s right. Furthermore, Z was at home and there was no evidence to suggest that he would leave again.

Result:
Charge dismissed.

R v AR [2013] NZYC 652

File number: CRI 2013-216-000042
Court: Youth Court, Gisborne
Date:  17 October 2013
Judge: Judge Eivers
Key title: Jurisdiction, Sexual violation, pre-Criminal Procedure Act 2011

A was charged with two counts of sexual violation. Both informations were pre-Criminal Procedure Act 2011 and therefore subject to a determination of jurisdiction. At the time of offending A was aged 15 years, although at the time of appearance he was 17. The victim, his younger brother, was 10 years old.

Having regard to the principles set out in sections 4 and 208 of the Act and various case law, factors considered by the Judge included:

• the nature of the offence,
• the seriousness of the offending,
• the sentencing options available,
• the principles of the Act,

and in particular

• that A should be held accountable and accept responsibility,
• the interests of A being dealt with under the rehabilitative provisions of the Act,
• A’s age and
• the public interest.

The Judge noted that in the pre-Criminal Procedure Act law it was well established that the opportunity ought to be offered to the young person to have a hearing the Youth Court unless there was a good reason not to offer it. The new Act has a different approach in that, apart from the matters of murder or manslaughter, all youth matters are to be heard in the Youth Court.

One of the key features in this case was the issue of sentence and whether or not A, if convicted, would be likely to receive a sentence in excess of five years imprisonment,  which was the maximum sentence available if conviction and transfer to the District Court were ordered. Although the Judge saw this case as finely balanced, it was ultimately decided that the matter should remain in the Youth Court because A was young at the time of the offence, it was not certain that A would receive a sentence of five years if convicted, A had no previous convictions and the matter could be dealt with in the Youth Court in a reasonable timeframe.

Result:
Youth Court jurisdiction offered.

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R v DH [2013] NZYC 214

File number: CRI-2012-235-000030
Court: Youth Court, Masterton
Date: 8 May 2013
Judge: Judge A Walsh  
Key titles: Orders: type - Conviction and transfer to the District Court for sentencing - s283(o): Indecent assault/indecent act, Reports: Social Worker

NB: this case occurred prior to the introduction of the Criminal Procedure Act, and also considered the issue of whether the Youth Court offer jurisdiction, which will no longer be an issue for charges filed on 1 July 2013 or after.

D admitted charges of kidnapping and indecent assault (arising from one incident).

D’s offending included following the victim, grabbing her and placing a hand over her mouth and neck, inappropriately touching the victim and asking her to take off her pants. The victim was eventually able to escape. D retained her phone. D acknowledged some elements of the offending (forcing her to go with him) but said that he did it to see what was in her bag, and denied grabbing her mouth and neck. He claimed he touched her to 'look for something' and let her go when she gave him her phone.

A s 333 report considered D’s estimated risk of engaging in further harmful sexual behaviour to be high and a number of risk factors were confirmed in the social worker’s report. These included a chaotic home life, drugs and alcohol (and access to these through family and friends), and issues with education as a result of substances.

The Judge noted that D would need intensive support and there would only be 10 months available in the Youth Court to provide it. It appeared to him that the District Court would design an intensive supervision sentence to ensure D got the necessary help, with the possibility of also ordering community work.

He noted the seriousness of the offence and the trauma reported by the victim.

Result:
Convict and transfer (s 283(o)), pre-sentence report ordered.

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R v DJ [2013] NZYC 781

File number: CRI-2013-224-000004
Court: Youth Court, Napier
Date: 16 May 2013
Judge: Judge Callinicos  
Key titles: Orders: type - Conviction and transfer to the District Court for sentencing - s283(o): Sexual violation by unlawful sexual connection, Family Group Conferences: Non-agreement.

NB: this case occurred prior to the introduction of the Criminal Procedure Act, so the maximum sentence period in the District Court would have been 5 years for the young person (which no longer applies). This was taken into account by the Judge.

D (16) admitted two counts of sexual violation. The FGC was unable to agree on a sentencing outcome. The social worker recommended that D be convicted and transferred under s 283(o). The Crown and youth advocate supported the recommendation.

In considering youth justice principles, the Judge noted valid concerns as to the safety of the public if D were kept in the community and that the offending was 'a serious and terrifying sexual attack upon a young person in a public place in the early hours of the morning'. He noted that D adamantly denied the attack and then claimed a blank spot of recall, and no remorse was expressed (D took an apology letter to the FGC though allegedly could not read it). No offer of reparation was made. He factored in the fragile state of the victim.

The Judge noted that D appeared to have a stable and supportive family upbringing, but that he had a range of psychological issues that his family attributed to bullying over many years. He noted a clear need for some psychological assistance, but that D’s denial of involvement in offending had made it difficult for the psychologist to isolate measures that would specifically address the causes of D’s offending. He expressed some concern about the family’s apparent lack of recognition of what had been done (based on a letter from D’s mother). He added that despite this the evidence was strong that the incident occurred.

The Judge added that the lack of recognition would be relevant to the likely success of any therapy, which is normally only successful when the person, perhaps supported by the family, accepts what they have done and does their utmost to support addressing those dynamics.

In considering the requirement to address underlying causes of offending, there was agreement (including from the social worker) that it was difficult to identify underlying causes to D’s offending, given his stable background, pro-social peers and attendance at education. He noted the only negative aspect was drugs, including K2, which he had apparently been using on the night of the offending, and a description of him as being 'socially immature'.

The Judge concluded that it would be difficult to see that many of the measures available in the Youth Court could address what are quite unknown causes of offending. He noted that the offences and circumstances of offending were serious and that his age made it very difficult for any meaningful input to arise in terms of addressing his offending under the available measures.

He noted the range of sentencing options in the District Court including options such as intensive supervision, which would be available for a much longer period of than would be available to him in the Youth Court.

Result:
D convicted and transferred under s 283(o). Pre-sentence report ordered.

R v DT [2013] NZYC 666

File number: CRI-2013-225-000087
Court: Youth Court, Invercargill
Date:  24 October 2013
Judge: Judge Noel Walsh
Key title: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): serious sexual offending, Orders - type: Supervision with residence - s 283(n).

D, aged 17 years and 2 months, admitted to four charges of sexual violation by unlawful sexual connection and indecent assault.

Judge Walsh noted, citing s 289 of the CYPF Act, that the restrictiveness of outcomes must be assessed in accordance with the hierarchy in s 283 and that outcome must not be imposed unless it is satisfied that a less restrictive outcome would, in the circumstances and having regard to the principles in s 208 and the factors in s 284 be clearly inadequate (emphasis added by Judge).

The case of R v CT YC Waitakere CRI-2011-090-00429, 16 August 2011 was referred to discussing the test in s 289 about transferring matters to the District Court. In this case, Judge Taumaunu stated that:

"The legal test requires the Court to be satisfied that a less restrictive outcome is clearly inadequate. The addition of the word “clearly” creates a high threshold and requires the Court to be clear that a less restrictive sentence would be adequate before making an order to convict and transfer. Where there is lack of clarity about the adequacy of a less restrictive sentence, in other words, if it is not clear whether the less restrictive sentence would be inadequate the Youth Court appears to be required by law to impose the less restrictive outcome".

D’s social worker recommended that he be convicted and transferred to the District Court for the following reasons:

1. D had been on remand on serious sexual matters for over a year and had struggled to adhere to any riles, whether at Te Puna Wai residence of the Richmond Fellowship home. C had been placed in secure care on 11 separate occasions for non-compliance or violent and aggressive behaviour.
2. D posed a high risk of absconding and consequently placement at the Richmond Fellowship was terminated because of this risk.
3. He displayed little or no victim empathy or remorse for his actions, and motivation and attempts to undertake STOP therapy had been poor.
4. It was determined that D posed a major risk to the community both for the lack of buy-in to therapy and for the high risk of reoffending. All community options that could offer an appropriate level of security had been exhausted. In short, all the rehabilitative efforts of the Youth Court had been exhausted.

 After having regard to the profound short and long-term effects on the victims as a result of the offending and after considering all matters, including the need to protect the wider public from potential future offending, it was determined by a narrow margin that a convict and transfer, which could potentially result in a sentence of imprisonment, would adequately meet the principles and objectives of the Act.

The Judge noted the frustrations of those who had tried to engage with D, who was unwilling to ‘buy-in’, but the Judge ultimately wanted to try again. This is because the potential to be ‘locked up and fed without any treatment’ before coming back into the community and reoffending was significant. The Judge noted that D’s family had “a tragic history of inter-generational abuse and I am not prepared to give up on you at this stage”.

Result:
A convict and transfer was refused and D was sentenced to supervision with residence, pursuant to s 311, for a period of 6 months followed by 6 months supervision. The supervision plan was to include STOP therapy and rehabilitative programmes.

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R v JR and KT [2013] NZYC 355

File number: CRI-2013-292-000300
Court: Youth Court, Manakau
Date:  16 December 2013
Judge: Judge Simpson
Key title: Delay (s 322)

J and K each faced one charge of aggravated robbery. An application was made pursuant to s 322 for an order dismissing the informations on the grounds that the time elapsed between the date of the alleged offending and the likely date of hearing had been unnecessarily or unduly protracted.

In J’s case there had been a delay of more than two and a half months between the date of offending and the date when J was interviewed and a further delay of four months and 11 days between the police interview and J’s first appearance in Court.

In K’s case there had been a similar period of delay before an initial police interview, and a delay of four months and 21 days after that interview until her appearance in Court.

The Judge considered BGTD by his Guardian Ad Litem LBMD v Youth Court at Rotorua & Anor HC Rotorua M119/99  Rotorua M110-99, 15 March 2000, in which Robertson J commented that s 322 requires a two step inquiry. First, the Judge must determine whether the time between the date of the commission of the alleged offence and hearing has been unnecessarily or unduly protracted. And second, if it has, the Judge has a discretion as to whether to not to dismiss the complaint.

It was decided that there had not been unavoidable delays in this case. This is because the initial interviews with the complainants and eye-witnesses failed to identify a suspect. Information obtained by Facebook by the complainant’s mother was investigated by the Police and subsequent discussions with the principal of J and K’s school did not lead to an arrest. Search warrants were issued and information gained from occupants of the searched properties allowed further avenues of enquiry which led eventually to the interviews with J and K.

These factors fell into the requirements for proper investigation, rather than delays requiring intervention by the Court.

Result:
Application dismissed.

R v LM [2013] NZYC 286

File number: CRI-2012-235-000024
Court: Youth Court, Masterton
Date: 5 June 2013
Judge: Judge A Walsh 
Key titles: Orders: type – Supervision with activity - s 283(m).

L appeared for sentence on a charge of arson and two charges of burglary. The arson charge was initially denied.

It was alleged that L and two others broke into a property, a fire was lit on which L admitted putting wood, and severe damage was incurred to a building comprising two flats which were under construction. The owner of the property suffered extensive financial loss of about $160,000.00. He was uninsured.

In sentencing L, the Judge was assisted by a s 334 report. That report noted that L and co-offenders had consumed alcohol before lighting the fire. The Judge noted some concern about L’s association with negative peers who were known to the police and who had been in the justice system.

L’s personal history indicated that he had little contact with his father but a good relationship with his mother and grandmother. His primary caregiver was his grandfather, who appeared to have adopted a strict regime in the care of L. There was no history of involvement with Child, Youth and Family for L or his family, nor was there any previous involvement with the youth justice system.

One of the victims of the burglaries recorded that he received an apology from L but did not feel it was genuine. The owner of the flats damaged in the arson reported considerable loss.

It was recorded that L regretted his actions and had indicated a willingness to do community work with the victims and to make recompense to the owner of the flats. L’s family acknowledged what happened and accepted the need for accountability. It was also noted that his family did feel that L had been left to carry responsibility for the actions of his co-offenders given that the other alleged offenders had the charge of arson dismissed.

It was noted that L was doing well at school and was very capable and intelligent, and was working part time.

The Judge overall determined that more would be achieved by keeping L in the community rather than sentencing him to a term of supervision with residence – though he did note that this would clearly mark the seriousness of the criminality involved in the offence of arson.

Result:

The Judge imposed supervision with activity for a period of six months, with consideration to impose more supervision towards the end of this sentence, and 150 hours of community work. In calculating reparation, he weighed in L’s limited financial means and the fact that his mother was already paying reparation for the burglary charges, and determined that L should pay $1,500.00 reparation over 12 months. The matter was to come back before the Judge near the end of the period of supervision with activity, for the purpose of reviewing matters and determining at that point whether a further term of supervision is to be imposed.

R v LM [2013] NZYC 685

File number: CRI-2013-224-000001
Court: Youth Court, Huntly
Date:  25 October 2013
Judge: Judge Cocurullo
Key title: Sentencing, Indecent act upon a child, Informal plan

L accepted responsibility for an indecent act upon a child under the age of 12 years old. The Crown sought an order of supervision under s 283(k). L’s advocate proposed the adoption of an informal plan in lieu of a supervision order, and if necessary, increase the informal plan’s duration from three months to six months.

The Judge considered that if an informal plan was put in place, at the conclusion of that plan it would still be at issue with relevant factors to consider under s 284 as to whether the Court would dispose of the matter entirely by a s 283 order or a s 282 order. If an informal plan was put in place, some of that would come down to how well L did on that plan.

When considering whether to adopt the proposed informal plan, the Judge considered:

1. L had done exceptionally well since being before the Court. There had been no bail breaches and L had embraced his therapy. The informal plan helpfully picked up where L would live, his apology, his education and most importantly his ongoing therapy.
2. The Youth Court provides an opportunity at law for Courts to be innovative in dealing with young people. Part of that is to reflect upon the principles and objectives of the Act, but also because society is the better for it when young people who seriously offend are fully rehabilitated such that they turn away from offending further.
3. If the informal plan was adopted, a decision would be reserved on whether at the end of that plan a formal Youth Court record would be made under s 283 or a s 282 sanction. L’s progress under the informal plan would determine the outcome of this.  

Result:
Informal plan adopted subject to frequent monitoring by the Court. 

R v MC [2013] NZYC 398

File number: CRI-2013-209-000144
Court: Youth Court, Christchurch
Date: 16 July 2013
Judge: Judge McMeeken
Key titles: Orders: type – Supervision with residence - s 283(n).

M (15) appeared for sentence on a charge of aggravated robbery. There were also 19 earlier charges (burglary, robbery,  taking and getting into a car and some others amounting to around $10,000 damages or losses) for which a sentence of  supervision with activity was imposed but now suspended.

At the time the sentence for the initial charges was imposed, it was clear that M had dependencies on drugs and alcohol and he was accepted into Drug Court and for a time into a rehabilitative programme. He also spent a long time on remand in a youth justice residence. While under supervision with activity, M went missing for a time and after returning committed the aggravated robbery, which the Judge considered “really serious offending”. It included wearing a balaclava, waving a screwdriver at a female staff member, and stealing K2 and cigarettes. The victim was severely traumatised.

In considering the circumstances of the offending, the Judge noted the seriousness of the offending, but also that it had the hallmarks of a clumsy drug-affected youth seeking to satisfy a drug habit – e.g. it was poorly prepared, without a lookout, co-offenders or an apparent means of escape. It occurred in broad daylight and M did not try to hide it from family and others.

In considering M’s personal circumstances, the Judge noted that M had been “gravely scarred” by his upbringing. The Judge had read his Family Court file, which included a removal from his family through a place of safety warrant at the age of six, a deeply troubling family life and close to 40 placements. She noted that this explained some of M’s behaviour but did not justify it.

She noted that M’s ability to empathise or to understand how much other people were hurt was shaped by his own experiences. She received a letter expressing that he was sorry at the hearing and a letter to the victim.

The Judge took into account the lack of involvement of M’s family in the proceedings and the victim’s views. In considering previous offending, she noted that he had never had a supervision with residence order, but also factored in his uncompleted supervision with activity order and his months spent on remand at the residence.

In determining underlying causes of offending, the Judge noted the immediate cause of addiction, coupled with his disrupted, neglectful early childhood and the incredibly dysfunctional relationship he had with family.

The Judge stressed the importance of finding the least restrictive outcome, as provided for in s 289 and K v R [2012] NZHC 2950, (2012) 29 FRNZ 141 per Justice Kós.

The Judge spoke personally to M of the value of the people in Court to support him and the need to accept the need to get help for his addictions.

Result
Sentence of six months supervision with residence (with some additional conditions). Cancellation of the supervision with activity order, discharge under s 283(a), taking into account the length of time spent on remand in residence for those matters.

R v MT [2013] NZYC 16

File number: CRI-2013-290-000004, CRI-2011-204-000451
Court: Youth Court, Waitakere
Date: 22 January 2013
Judge: Judge Taumaunu 
Key titles: Orders - enforcement of, breach and review of (ss 296A-296F): Supervision, Orders: type - Discharge - s 283(a)

There was an application for a declaration that M failed without reasonable excuse to comply satisfactorily with the requirements of his supervision order (due to further offending after reaching the age of 17). It had been partially dealt with at the time of this hearing. M’s original sentence was 6 months supervision with residence and mentoring and drug and alcohol orders on charges including unlawful conversion of a motor vehicle, theft, drink driving, assault and injuring with intent to cause grievous bodily harm. Early release was granted and a supervision order (a split sentence order) made for six months, commencing from 27 July 2012, with the conditions specified in the order. A declaration of failure to comply with requirements of the supervision order was subsequently made, as was an interim order suspending the supervision order and directing an FGC (which reached no agreement). On 18 December 2012 a social worker’s report and plan was directed which recommended a transfer to the District Court for sentence.

It was established in Court that the original application for a declaration of non-compliance was made under the provisions of s 296B(1). The Judge accepted the point made by the Crown that when the provisions of s 296B(3)(a) are considered alongside the provisions of s 296E(1)(a), there is a requirement for the Court to both cancel the order and make an order in substitution under s 283, if the powers under s 296B(3)(a) are in fact being exercised. That is because the other provision, s 296E(1)(a), allows the Court in those circumstances to simply cancel the order, and there is no other provision in that subsection for the substitution of any order under s 283.

Given that a substitution order would need to be made, the Crown submitted that the only practical order available under s 283 was a s 283(a) discharge, which would be inadequate to accurately convey on the record the seriousness of the offending involved for the original offence. The Judge (who himself made the original order) noted that the injury charge was an extremely serious assault and one of the more serious assaults that the Youth Court deals with. However, the Judge noted that M had been held adequately responsible and accountable for this offending through the supervision with residence sentence.

The Judge noted that the further offending by M while under supervision was quite serious. However, he held the view that rather than simply convicting and transferring M to the District Court, M could be held accountable and responsible adequately by an uplift of the District Court sentence to reflect the offending while on sentence in the Youth Court.

Result:
Section 283(o) transfer not made. Supervision order cancelled and in substitution a s 283(3)(a) discharge recorded. M to have an uplift on sentence in the District Court.

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