File Number: CRI-2015-279-000008
Media neutral citation: [2016] NZYC 109
Date: 24 February 2016
Court: Youth Court Hamilton
Judge: Judge Cocurullo
Key title: Care and protection crossover; Orders – type: Admonishment – s 283(b)
Facts
D appeared in respect of 14 “not denied” charges, the most serious being one charge of burglary and one charge of escaping custody. D had concurrent care and protection proceedings before the Family Court, and was subject to a s 67 declaration that he was in need of care and protection, as well as a s 101 custody order in favour of the Chief Executive (MSD).
On 15 January 2016, a youth justice FGC had recommended a 6-month supervision order pursuant to s 283(k).
At issue was the fact that the s 334 social worker report and accompanying s 335 plan contained the direction that D would be placed in a youth justice residence for the duration of the s 283(k) supervision order, in fulfilment of the s 101 ‘care and protection’ custody order. The principal reason for this was the high level of D’s needs and the inability of the care and protection residence to care for D.
The question was whether it was proper and lawful for the Judge to approve a supervision order containing a direction, in the accompanying plan, for D to be held in a youth justice residence.
Law
By s 365(4) of the Act, a youth justice residence means a residence established and maintained under section 364 for purposes that are or include remand, the provision of custody under supervision with residence orders made under section 283(n), or both.
Application
The Judge found that by s 365(4), the purpose of placement in a youth justice residence needs to be, or to include, either remand or the provision of a supervision with residence order. In the present case, neither was present. His Honour therefore found that it would be both improper and unlawful for the Chief Executive to place D in a youth justice residence using the s 101 custody order:
[41] Here in effect, what the Chief Executive is proposing to do is to ask the Court to make a Group 4 response of supervision only but in effect have an open ended sentence by way of detention in a Youth Justice residence. In my view that cannot be right. […]
Additionally, His Honour took the view that the matter was one that needed to be referred to the Family Court:
[44] […] The view I take is that if the basis for holding D (the Chief Executive asserting an unfettered discretion) is under [the] s 101 custody order in the Family Court, surely it is for the amended s 128 plan that accompanies that s 101 order (in similar fashion to the s 335 plan that accompanies a supervision order) to detail the actual placement which D will have. In that way the Court can have some oversight of what is in effect to be delivered in a care and protection sense to the young person.
The Judge then considered whether the s 283(k) order would be an appropriate sanction. His Honour concluded that as D had already been on remand at a youth justice residence for about 3 months, a s 283(b) order (admonishment) was the appropriate order.
File Number: CRI-2015-209-000324
Date: 29 January 2016
Court: Youth Court Christchurch
Judge: Judge McMeeken
Key title: Transfer between youth justice residences - s 312
S was being held in Te Puna Wai as a result of a s 311 supervision with residence order. S’s social worker wrote to the Court requesting that the Court approve a new plan for S and approve his transfer from Te Puna Wai to another youth justice residence.
Section 312 of the Act states that when the Court has made an order under s 311 the Chief Executive may, with the approval of the Court, transfer the young person from any residence to any other residence. The Act is silent as to the criteria for such a transfer. The Judge noted that the Court must look at all of S’s circumstances and must apply the objects and principles of the Act in making such a decision.
The primary reason for the request was that S was alleged to have assaulted young people at Te Puna Wai, including a young person who was scheduled to be on the MAC camp with S. S’s social worker suggested that new surroundings may assist S
The Youth Advocate opposed the transfer on the basis that S’s limited cognitive functioning made changes difficult for S, S’s family and agency-based support networks were located near Te Puna Wai and S did not wish to change residences. To make the transfer would therefore contravene objects and principles codified in ss 4 and 5 of the Act.
Additionally, s 7 of the Act provides for the duties of the Chief Executive to take “positive and prompt action” to ensure the objects of the Act are attained in a manner that is consistent with the Act’s principles; the Judge noted that this duty remained in place even though Te Puna Wai was not operating at full capacity.
The Judge gave particular weight to the negative impact a change in location would have on S’s ability to access his support networks, particularly in light of S’s cognitive difficulties. The Judge considered that a transfer would for this reason be in contravention of the s 208(f) principle that a sanction should take the least restrictive form that is appropriate in the circumstances. Additionally, a transfer would negatively impact on the Court’s ability to create a supervision plan for S.
Consequently, the Judge declined to approve the transfer.
File Number: CRI-2015-243-000009
Media neutral citation: [2016] NZYC 50
Date: 28 January 2016
Court: Youth Court Manukau
Judge: Judge Hikaka
Key title: Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003: secure status; Stay of proceedings
Facts / Issue
K, aged 17 at the time of the hearing, had been found to be involved under s 9 Criminal Procedure (Mentally Impaired Persons) Act in two charges of indecent assault against a child. K was then found unfit to stand trial on the basis of an intellectual disability. Accordingly, K was to be a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act.
The primary issue was whether his status should be that of ‘secure care recipient’ or ‘under supervision’. The secondary issue was whether a stay of proceedings should be ordered.
Concerning the first issue, both the Compulsory Care Coordinator (CCC) and the specialist in attendance at the hearing recommended secure status. The CCC had provided a 3-year plan, and the specialist a report, to this effect. The family ultimately accepted the ‘secure care’ plan, which accommodated their desire for contact with K, and for K not to be away for too long. The Judge noted that the plan met requirements under the United Nations Convention on the Rights of the Child. It involved a high level of care, which was only available under the ‘secure care’ status.
On the second issue, the Judge issued a stay of proceedings so as to resolve the charges. This was in light of:
File Number: CRI-2015-290-000104
Media neutral citation: [2015] NZYC 840
Date: 27 January 2016
Court: Youth Court Manukau
Judge: Judge Malosi
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 9 issues
H faced 17 charges. The question arose as to whether H was fit to stand trial, pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)). The s 9 CP(MIP) “involvement hearing” process was triggered.
In order to satisfy the Court that H had ‘caused the act or omission that formed the basis of the offence’ with which he was charged (s 9 CP(MIP)), counsel for the Police argued that they should be able to rely upon formal statements of witnesses. H’s Youth Advocate contended that they should be required to file affidavits from each of them. A ruling was sought on this issue, which, the Judge noted, did not appear to have been dealt with by any Court before.
Section 10 CP(MIP) provides as follows:
10 Inquiry before trial into defendant's involvement in the offence
(1) This section applies if the question whether the defendant is unfit to stand trial arises before the trial.
(2) The court must ascertain whether the court is satisfied of the matter specified in section 9.
(3) For the purposes of subsection (2), the court may consider—
(a) any formal statements that have been filed under s 85 of the Criminal Procedure Act 2011:
(b) any oral evidence that has been taken in accordance with an order made under s 92 of the Criminal Procedure Act 2011:
(c) any other evidence that is submitted by the prosecutor or defendant.
Sections 85 and 92 CPA, referred to above, are both found in Part 3, Subpart 8 of the CPA: ‘Provisions applying only to jury trial procedure’ (emphasis added). Section 10(3)(a) therefore only enables the Court to take into account formal statements given in relation to jury trials. Police submitted that it would be improper to allow the very same evidence excluded under one part of that section to then be admitted under another (i.e a formal statement made in the Youth Court context, admitted under s 10(3)(c)).
However, by Schedule One of the CYPF Act, only subparts one to four apply to the Youth Court. Accordingly, the Judge found that subsections 10(3)(a) and (b) of the CP(MIP) and corresponding sections 85 and 92 of the CPA did not apply to s 9 hearings in the Youth Court jurisdiction. Section 10(1)(c) CP(MIP), being a catch all provision, did apply. Her Honour stated as follows:
[23] ... [Section 10(1)(c)] reflects the need for the Court to be able to ‘satisfy’ itself on the balance of probabilities as to involvement, and calls for an exercise of discretion as to what evidence it will and will not take into account.
[24] Whilst the Court of Appeal has described the s 9 hearing as ‘a relaxed and inquisitorial-type hearing, that view was tempered by a reminder that that should not come at the expense of natural justice nor the ability of an accused to test any evidence which may be inherently unreliable.
[25] In order to make sense of s 10(3)(c) in the context of s 9 hearings in the Youth Court, I find it should be interpreted widely.
The Judge concluded that formal statements could be admitted as evidence in proceedings under s 9 CP(MIP) in the Youth Court for the following reasons:
[27] Ultimately, I consider that the interests of a young person on the CP(MIP) track in the Youth Court will be no better protected or advanced by affidavits as opposed to formal statements. Either way those witnesses can be summonsed to give evidence, and be subject to criminal sanctions if issues arise in relation to their reliability. In both scenarios there is the risk that witnesses might not come up to brief.
[28] It is a concern to all involved in proceedings under CP(MIP) that they often move at a glacial pace, particularly when measured in a time frame appropriate to a young person’s sense of time. That offends against s 5(f) of the CYPF Act. In my view requiring affidavits runs the very real risk of further delaying and unnecessarily complicating proceedings, not to mention the issue of added cost to the State.
Additionally, the Judge set out a list of steps that could be implemented in relation to most s 9 cases in the Youth Court, which are reproduced below.
[29] Streamlining processes in respect of s.9 hearings in the Youth Court is imperative. In most cases the following steps could be implemented:
(a) As soon as CP(MIP) is triggered each Charging Document should be specifically noted;
(b) The Police shall then have 21 days (or such other timeframe as determined by the Court having regard to the number and nature of charges) to file a s.9 Memorandum setting out:
(i) The charges they are proceeding with;
(ii) The act or omission that forms the basis of the offence;
(iii) The witnesses they intend to rely upon to prove that; an
(iv) Any matters that are likely to impact on the estimate of time and scheduling of the s.9 hearing (eg need for Interpreter, unavailability of witnesses for specified periods).
(c) The filing of the s.9 Memorandum shall be monitored in a Registrar’s List at the expiration of the aforementioned timeframe. In the absence of a request for an extension of time, if the Memorandum is not filed within the stipulated time, the matter shall be called in the Youth Court on the next available date (but no later than 7 days after the due date).
(d) Upon service of the s.9 Memorandum, the Youth Advocate shall have 14 days thereafter to advise the Prosecution and the Court which witnesses (if any) they require for cross examination, and what if any preliminary issues need to be dealt with.
(e) At the same time as the s.9 Memorandum is directed to be filed by the Police, the matter shall be allocated a call-over within 10 days of the expiration of the timetabling directions.
Three days prior to that call-over the Prosecution and Youth Advocate shall file a Joint Memorandum confirming which witnesses are to be called, whether there is any dispute in respect of same, any challenges to admissibility of evidence (particularly if that involves the young person’s statement), and the estimate of time required for the s 9 hearing.
File Number: CRI-2014-257-000043
Media neutral citation: [2015] NZYC 822
Date: 23 December 2015
Court: Youth Court Manukau
Judge: Judge Recordon
Key title: Admissibility of evidence
Z, who was 16 years old at the time of offending, denied a charge of theft and a charge of assault with a weapon. Witness A was a police officer who witnessed the alleged offending. Counsel for Z sought an order that identification evidence provided by Witness A was inadmissible evidence.
Facts
Witness A had been drinking and socialising with friends at a bar, and had noticed a group of young people across the street. Later, Witness A had felt one of that group reach over his shoulder and take a bag from the table. The witness chased after the alleged offender, who dropped the bag, ran up a driveway, and then behaved threateningly towards Witness A.
When police arrived the alleged offender ran away and was not located. Witness A searched the house at the driveway with two other police officers. Witness A did not recall whether he saw or heard Z’s name while searching the house.
Approximately 10 minutes after searching the house, Witness A told the Police officers that he recognised the alleged offender as being on Police intelligence reports. The witness accessed the reports and identified Z as the alleged offender. Witness A had never met Z in person and did not participate in any formal identification procedure.
Law
Section 45 Evidence Act
Visual identification evidence is governed by s 45 of the Evidence Act. The Judge noted that s 45 sets two different standards for admissibility of evidence depending on whether formal procedure was followed or not. In this case, formal procedure was not followed. The Judge set out the steps under s 45 as follows:
(a) Was there good reason for not following a formal procedure?
(b) If there was good reason, the evidence is admissible in the proceeding, unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(c) If there was no good reason for not following a formal procedure, the evidence is inadmissible, unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
Case law concerning identification evidence
The Judge cited discussion in the Supreme Court authority Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 concerning the inherent dangers of identification evidence, and the need for Judges to be “astute to ensure that what s 45 requires is strictly followed.” The Court particularly warned that caution should be exercised before finding recognition (of the alleged offender) to be good reason for not following procedure.
The Judge also cited case authorities concerning the extent to which “recognition” can be a good reason for not following procedure. In Harney, the In R v Edmonds & Keil [2009] NZCA 303, the Court of Appeal found that recognition evidence to be reliable as the defendants were well known to the witness. On the other hand, the Court did not consider seeing the appellant in a photograph to be reliable recognition evidence (Tararo v R [2010] NZCA 287, [2012] 1 NZLR 145).
Application
Was there good reason for not following a formal procedure?
Counsel for the Prosecution argued that there was good reason for not following procedure, this being that per s 45(4)(e), the identification evidence was made soon after the offence was reported, and in the course of the initial investigation (in reliance on Holmes v Police [2012] NZHC 2227). In response to this submission, the Judge distinguished Holmes as follows:
[47] […]The current situation is analogous to an identification by an undercover police officer, rather than an independent third party making the identification to an enforcement officer in the course of their initial investigation. It therefore follows that good reason for not following formal procedure does not exist under s 45(4)(e).
The Judge further considered whether the identification evidence could amount to recognition evidence. Citing Lord v R [2011] NZCA 117 (and earlier, R v Edmonds & Keil [2009] NZCA 303 and Tararo v R [2010] NZCA 287, [2012] 1 NZLR 145), his Honour found that it did not amount to recognition evidence, and that it would not be appropriate to extend the circumstances that amount to good reason:
[52] The Higher Courts have extensively warned against extending the circumstances that amount to good reason. Giving due respect to these warnings and the authorities on this matter it cannot follow that the identification from a photograph in a Police Intel Report can amount to recognition evidence.
Finally, as noted by counsel for the Young Person, an argument under s 45(4)(d) – that no officer could reasonably anticipate that identification would be an issue at the trial of the defendant – would fail on the basis that the Police should have identified that identification would be an issue, especially given that Z denied that offending and gave an alibi.
Did the prosecution prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification?
The Judge found that the prosecution had failed to satisfy the requisite standard, citing issues around the point at which Witness C identified Z. The connection was not made until quite some time after the witness had first observed Z. The witness searched the house with two other police officers and did not recall if Z’s name was mentioned by the other officers during the search. Accordingly, the Judge was not satisfied that there was not a possibility of contamination, bringing an element of doubt into the reliability of the evidence.
File Number: CRI-2015-092-000260
Media neutral citation: [2015] NZYC 821
Date: 23 December 2015
Court: Youth Court Manukau
Judge: Judge Recordon
Key title: Variation of order: s 297
This case concerned an application under s 297 for the Court to revoke an existing supervision order, and make in substitution another supervision order on the same terms and conditions, but which would also refer to a recently proved charge.
The Judge noted that Youth Court practice is to make a single order in response to a number of charges, whereas Sentencing Act practice is for sentences to be specific to a single charge (with sentences then being served either concurrently or cumulatively).
Section 297 gives the Court the power to revoke an order to which a young person is subject and make another order, where a new charge against that young person has been proved:
297 Powers of court in dealing with young person subject to order made under this Part
Where a court finds a charge against a young person proved, and that young person is subject to an order made by a court under this Part, the court may-
(a) subject to section 285(5), make such order under section 283 as the court thinks fit in addition to the order which the young person is subject:
(b) revoke the order to which the young person is subject and make such order under section 283 as the court thinks fit.
The Judge referred to Police v T T (DC Manukau, CRI 2008-292-000352, CRI 2007-292-000731, 2 October 2008), in which Judge Malosi described s 297 as a useful alternative to cancelling a supervision order as a result of reoffending:
Another way to approach these situations is under s 297. I encourage more use of this procedure. It is much simpler because it allows the Court to make additional orders or substitute orders under s 283 so long as a charge against a young person is proved.
The Judge also noted that the case at hand was not covered by s 296B (by which the Court can cancel and order and make any other order under s 283).
Pursuant to s 297, the Judge revoked the order that was in place and made a new supervision order which had the same terms and duration as the previous order, but which included the recently proved offence in addition to the other offences.
File Number: CRI-2015-282-000004
Media neutral citation: [2015] NZYC 815
Date: 10 December 2015
Court: Youth Court Wairoa
Judge: Judge Taumaunu
Key title: Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003: compulsory care recipient order
Facts:
A appeared on one charge of burglary and one charge of possession of cannabis. A had been found unfit to stand trial earlier in July, and a disposition hearing had been held in September. The decision had been deferred for three months in order to enable time to evaluate and assess community-based options available to A.
The Judge discussed disposition reports available to the Court.
These were:
The Judge noted that A’s youth advocate supported a further deferral of the compulsory care order for two or three months. However, A’s youth advocate did concede that there were risks associated with A remaining in the community. A was easily led and vulnerable.
The Judge considered A’s family to be “crying out for help”. His Honour also considered A to be at risk of going “right of the track” and ending up committing very serious crime. The Judge further noted that while the charges themselves were serious but not top-end, the compulsory care order was not just about making a secure order, but also about rehabilitation. His Honour was therefore ultimately satisfied that a compulsory care order was the appropriate order to make.
The Judge made a compulsory care recipient order under s 25(1)(b) of the CP(MIP) Act and made A a care recipient under the ID(CCR) Act 2003. The degree of security was to be ‘secure’, and the length of the care order was for two years.
File number: CRI-2015-212-000011
Date: 24 August 2015
Court: Youth Court, Dunedin
Judge: Principal Youth Court Judge Andrew Becroft
Key title: Orders – type: Supervision with residence: early release
Facts
R sought early release from a six-month supervision with residence sentence pursuant to s 314. At the time of the hearing, R had spent 8 months and 20 days in residential custody: the first four months and 20 days on remand, and the final four months under the supervision with residence sentence. CYFS provided a written report for the hearing, which indicated the following:
Law
Section 314 stipulates that the Court must release a young person from custody in residence before expiry of the supervision with residence order where the court is satisfied that during the period that the young person had been in custody—
Application
The first issue was whether the obligations under s 314 had been met. The second issue was whether s 314 grants a Judge the discretion to grant early release where the s 314 obligations have not all been met. The third issue was whether such a discretion could be exercised in this case.
1. Were the s 314 obligations met?
The Principal Youth Court Judge considered it clear that the obligation not to commit any further offences had not been met. While the assault charge had not yet been determined, R had admitted to the charge at trial. Concerning the second obligation, the Judge regarded possession of a cannabis joint as being unsatisfactory behaviour, and did not draw a conclusion as to whether it was “minor”. The Judge then acknowledged that the third obligation, to comply satisfactorily with programmes or activities, had clearly been met. Accordingly, only one of the three obligations had clearly been met.
2. Does s 314 allow judges the discretion to grant early release where not all obligations are met?
Counsel for the defendant argued that the law obliges a Judge to grant early release where all obligations have been met, but allows the discretion to grant early release where they have not all been met. The Principal Youth Court Judge did not accept this interpretation, considering instead that the three obligations under s 314 are cumulative and mandatory. All obligations must be met in order for early release to be granted, or there would be no criteria for determining when early release occurs:
[14] The difficulty with [counsel’s] interpretation is that it leaves open – what are the criteria by which I would grant you early release, if not the three that are set out here? In my view, what the law is really saying is if you have done all those three things, then I must grant you early release. That is the end of the story.
3. If the s 314 discretion does exist, would it be rightly exercised in this case?
In the alternative, the Judge considered whether exercising discretion under s 314 would be appropriate in this case. Counsel argued that R’s progress, lack of violence since 11 June and the fact that R had been in residence for more than eight months justified discretionary early release. The Principal Youth Court Judge did not accept this argument, considering commission of the offence of assault and the possession of cannabis counted against the exercise of that discretion.
Conclusion
R was not granted early release under s 314, and was remanded to custody for the completion of the 6-month residential order.
File Number: CRI-2015-288-000047; CRI-2015-277-000010
Date: 2 October 2015
Court: Youth Court, Whangarei
Judge: Judge de Ridder
Key title: Orders – type: Supervision with residence - s 283(n): Early release
Facts
Z appeared for a s 314 early release hearing relating to a supervision with residence order of three months and 3 weeks. The residence provided a report detailing Z’s behaviour at the residence, which stated that Z was involved in five separate incidents while in custody. These involved spitting, pushing, tagging, and attempting to break a window, and resulted in three admissions to the secure care unit. During one of these incidents, Z was “something of a leader”.
Law
As mandated by s 314, the Court must release a young person from custody in residence before expiry of the supervision with residence order where the court is satisfied that during the custodial period—
Application
Conclusion
Z was not granted early release under s 314, not having met criteria (a), (b) and (c), with criteria (a) and (b) having been of particular concern to the Judge.
File Number: CRI-2014-204-000321
Date: 12 October 2015
Court: Youth Court, Auckland
Judge: Judge Fitzgerald
Key title: Objects/Principles of the CYPFA (ss 4-5); Orders - type: Discharge - s 282
Facts
R, aged 16 years, appeared for sentencing in relation to four ‘not denied’ charges: assault with intent to rob, aggravated robbery, aggravated assault and assault, which occurred when R was aged 15 years.
R had not offended previously, and had not offended since the two incidents leading to the charges. The incidents occurred under the influence of alcohol and with peers. R did very well in carrying out the Court-approved plan, completing more hours of community service than were required and receiving positive reports. As well as completing the plan, R had spent 6 weeks in custody at an earlier stage, and 10 weeks on electronically-monitored bail. R had a history of care and protection issues, resulting in significant disadvantage.
Law
Section 282 of the CYPF Act provides that a charge filed in the Youth Court may be deemed never to have been filed, after an inquiry into the circumstances of the case.
Section 4(f) of the CYPF Act states that where children or young persons commit offences, the Act’s objects are twofold: to hold young people accountable, and encourage them to accept responsibility; and to deal with them in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways.
Application and Conclusion
The Judge inquired into the circumstances of the case (see above), and found that it was not in the public interest to create a permanent record for R:
[14] […] It was one night’s stupidity that was influenced by others and by the effect of alcohol. It is out of character in the sense that nothing like it had ever happened before and nothing like it has happened since. It does not define you and I do not think it should impede you […].
Accordingly, a s 282 discharge was granted. The Judge reached this decision in light of the UNCROC, which provides that a punitive approach is always to be outweighed by the well-being of a young person.
File Number: CRI-2015-244-000047
Date: 27 May 2015
Court: Youth Court, North Shore
Judge: Principal Youth Court Judge Becroft
Key title: Bail (s 238(1)(b)), Custody: CYFS.
Facts
J, aged 15 years, appeared on a bail application having been remanded in custody on 10 April following two serious charges: one of kidnapping a 79 year old man in his own home, and one of aggravated robbery. The alleged offending occurred during a period of two weeks in which J was missing from home. A s 333 report had been ordered but was not yet available.
J’s family were located in Auckland, but J was sent to a residence in Christchurch by CYFS for a period of seven weeks prior to attending the hearing. The FGC relating to the charges was to occur via telephone or video conference with J in the Christchurch residence.
Issues
There were two principal issues for determination:
Conclusion
The Principal youth Court Judge denied the application for bail and a further remand in custody under s 238(1)(d) was ordered.
File number: CRI-2015-241-000011; CRI-2015-241-000012.
Date: 3 September 2015
Court: Youth Court, Napier
Judge: Judge Callinicos
Key titles: Orders - type: Supervision with residence - s 283(n).
P, aged 14 years, admitted four aggravated robberies and S, aged 15 years, admitted three aggravated robberies of service stations in Hawke’s Bay. Each aggravated robbery involved P and S arming themselves with knives, covering their faces, demanding cash and cigarettes, pushing the knife against either the victim’s arm or face and threatening to kill the victim if they did not comply.
The Judge considered, inter alia, the following s 284 factors:
The Crown submitted based on R v Mako [2000] 2 NZLR 170 (CA), that the number of robberies committed and the need for deterrent warranted a conviction and transfer to the District Court for sentencing.
Noting the principles in Pouwhare v R [2010] NZCA 268, and K v R [2012] NZHC 2950, (2012) 29 FRNZ 141 particularly that it is fundamental that a young person’s sentence must be the least restrictive appropriate to the circumstances, and that when sanctioning a young person, any less restrictive outcome should be “clearly inadequate” before the matter should be transferred. The Judge noted that there was more than adequate time for full implementation of Youth Court sentences, with both young people able to respond positively to the rehabilitative initiatives.
The Judge concluded that a conviction and transfer would be manifestly excessive:
[42] … If these young people were transferred to the District Court with a high probability of imprisonment, would that option be more likely to promote an outcome where they never re-offended, or more likely to do the opposite? I suggest that the latter outcome would be highly probable. It would in my view be highly probable that transferring these young men and imprisoning them for a period of time would all but promise them a very bleak future and a bleak future for the community. Whilst supervision with residence is custodial, it has a significantly greater rehabilitative support system than imprisonment.
Result:
Order for supervision with residence for 5 months 2 weeks pursuant to s 283(n).
File number: CRI-2013-241-000034
Date: 22 January 2015
Court: Youth Court, Napier; District Court, Napier
Judge: Judge Callinicos; Judge Rea
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection, Sentencing in the adult courts; Sexual violation by unlawful sexual connection, Jurisdiction of the Youth Court: charge type, Media reporting.
Youth Court decision to conviction and transfer
M, aged 16 years and 11 months, admitted eight counts of serious sexual offences against very young and vulnerable children. The offences arose between June 2012 and February 2013, when M was aged between 14 and 15 years of age.
There was a strong focus on M’s therapeutic intervention and M had attended a specialist residential youth sexual offenders programme. It was hoped that at an appropriate time, close to M’s seventeenth birthday, the Court would then consider what, if any, Youth Court outcomes might be appropriate following M’s therapy. The issue for determination was whether to sentence M to supervision with residence, or to convict and transfer him to the District Court for sentence under s 283(o) of the CYPF Act.
Submissions
The Crown submitted that as M’s efforts at rehabilitation had been unsatisfactory, the Youth Court jurisdiction was both too limited in duration and intensity to provide an outcome that it is likely to meet all the sentencing and youth justice principles.
The Judge addressed three key components of the Youth Advocate’s submissions:
Section 284 factors
The Judge considered the eight statutory factors under s 284, in particular:
After considering the s 208 principles, the Judge acknowledged that imprisonment was a real possibility, and that therapeutic intervention might not be possible.
The Judge concluded that the situation was weighed heavily in support of conviction and transfer under s 283(o). It was noted that had M shown a more positive outcome from therapy, retention in the Youth Court would have been more likely. On the other hand, a conviction for such serious offending would have public protection advantages; the District Court would be able to consider appropriate available programmes to address M’s offending and the Sentencing Act would consider M’s youth and attempts at rehabilitation.
District Court sentencing
M was transferred to the District Court for sentencing.
The sentencing Judge noted that because of M’s age, a sentence of imprisonment could only be entered for his sexual violation charges. The remaining charges would thus be dealt with separately. Regarding the sexual violation charges, the Judge, when considering R v AM (CA27/2009) [2010] NZCA 114, [2010] NZLR 750, noted that M’s offending fell within Band Two and the appropriate starting point for M’s sentence was nine years’ imprisonment.
Aggravating and mitigating factors
There were no specific aggravating factors other than the seriousness of offending, which was addressed in the starting point. Relevant mitigating factors included:
The Judge concluded that the appropriate sentence for M was 4 years, 6 months’ imprisonment for each of his offences (to be served concurrently).
Name suppression
Final name suppression was granted for two principal reasons: M’s vulnerability due to his personal history; and, more importantly, the connection between M and his victims was sufficiently proximate that it would be inappropriate to publish his name.
Result:
Convict and transfer to the District Court for sentencing, 4 years, 6 months’ imprisonment for four charges of sexual violation, conviction and discharge for four charges of indecent assault, final name suppression granted.
File number: CRI-2014-216-000028
Date: 9 January 2015
Court: Youth Court, Gisborne; District Court, Gisborne
Judge: Judge Taumaunu
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH), Sentencing in the adult courts: Serious assault (including GBH), Sentencing - General Principles (e.g. Parity/Jurisdiction)
Youth Court decision as to conviction and transfer
K, currently aged 17 years but aged 16 years at the time of the offence, was charged with injuring to cause grievous bodily harm and causing grievous bodily harm with intent to cause grievous bodily harm. The charges were subsequently proved at a defended hearing. The issue for determination was whether the circumstances were such that K should be transferred to the District Court for sentencing under s 283(o) of the CYPF Act.
Section 284 factors
The Judge noted that there were eight statutory factors under s 284 which needed to be regarded when making s 283(o) determinations:
The Judge noted that the proposed outcome – a s 283(o) conviction and transfer – could not be imposed unless His Honour was satisfied that a less restrictive outcome – in this case supervision with residence – would be clearly inadequate. Also relevant were general CYPF Act principles, in particular s 4(f) which recognises the importance of ensuring that youth offenders are held accountable, encouraged to accept responsibility for their offending, and dealt with in ways which acknowledge their needs and allow them opportunities to develop.
The Judge predicted that should K be transferred, he would receive a full-time custodial sentence which would reflect the extremely violent nature of his offending. His Honour noted that as K was turning 18 in three months’ time, he would only serve three months of a supervision with residence order. Due to this inappropriate timeframe, supervision with residence was considered clearly inadequate. Accordingly the Judge was satisfied that the appropriate action was to apply s 283(o).
District Court sentencing
K was transferred to the District Court for sentencing.
The Judge noted that K had to be held responsible for his offending, and that a message of denunciation and deterrence needed to be sent both to K personally and to the community. Rehabilitation and reintegration also had to be observed. The least restrictive outcome appropriate in the circumstances had to be imposed.
A totality approach was adopted as the offending against each victim was committed during the same confrontation and the same group attack. Although the incident escalated into a serious and concerted street attack, it was not premeditated in the classic sense; the group was not looking for a fight. One of the victims wanted to engage in a fight, and the victims exchanged insults with K’s group; they were not innocent bystanders. The offending was at the lower end of band two of R v Taueki [2005] 3 NZLR 372 (CA) and a starting point of six years’ imprisonment was adopted.
Aggravating and mitigating factors
There were no personal aggravating factors. The Judge did however consider some important mitigating features:
In consideration of these factors, a 50% discount from the six year starting point was applied. A final sentence of three years’ imprisonment was imposed.
Result:
Conviction and transfer to the District Court for sentencing, sentence of three years’ imprisonment imposed.
File number: CRI-2015-290-000082
Date: 30 July 2015
Court: Youth Court, Waitakere
Judge: Judge Tremewan
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Sexual violation by unlawful sexual connection, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Indecent assault/indecent act, Jurisdiction of the Youth Court: Age.
J, aged 17 at the time of appearance, was charged with sexual violation by unlawful sexual connection, attempting to do an indecent act with a young person under 16 years, exhibiting objectionable material, threatening to injure, and possession of objectionable material. J also faced charges in the District Court relating to offending alleged to have occurred after he turned 17 years.
The issue was whether the time available for Youth Court intervention before J’s 18th birthday (seven months) was adequate to respond to the serious and persistent nature of the offending, and J’s significant therapeutic needs underlying the offending.
J’s advocate submitted that J’s borderline obsession with child pornography was, in part, related to his sexual identity, mental health issues and troubled family history. It was conceded that there was limited time in the Youth Court jurisdiction for intervention, that J presented with highly risky behaviour and that the current offending was serious. J had been exited from the SAFE programme and was assessed as having a high risk of re-offending.
The Crown submitted that a District Court sentence will be better able to provide both accountability and long-term therapeutic oversight. However, Crown Counsel conceded that, even if the sexual violation charge called for a term of imprisonment, J’s age, time already served in custody and the fact that the charges were transferred from the Youth Court would be reasons for the Court to consider an alternative to imprisonment.
The Judge noted that such sentences as home detention, community detention and intensive supervision, particularly with judicial monitoring, provide very real opportunities for comprehensive and long-term support and oversight which extends well beyond what would be available for J in the Youth Court.
After having regard for the factors in s 284, principles in s 285, the submissions and professionals’ reports, the Judge concluded that the situation weighed heavily in support of a conviction and transfer pursuant to s 283(o). The Judge concluded that there was limited prospect of successful rehabilitation in the short period left under any Youth Court sanction.
Result:
Conviction and transfer to the District Court for sentencing pursuant to s 283(o).
File number: CRI-2015-244-000045; CRI-2015-244-000046; CRI-2015-244-000047.
Date: 8 July 2015
Court: Youth Court, North Shore
Judge: Judge Taumaunu
Key titles: Orders - type: Supervision with residence - s 283(n), Orders - type: Reparation - s 283(f), Reports: Social Worker
J, aged 15 years 9 months, K, aged 16 years 8 months, and W, aged 16 years 11 months, admitted charges of kidnapping and aggravated robbery.
The victim was aged 79 years and was living by himself. After knocking on the front door, J, K and W forced the victim up his stairs and knocked him to the ground. The young people removed the victim’s hearing aid. The victim was tied up with rope, garden hose and belts, binding his hands and feet together while a tea towel was placed over his face. The victim’s house was ransacked and two gold watches were taken. W cut the telephone lines to prevent the victim from calling the Police. The victim feigned a heart attack and told the young people that he was dying. At this point, the young people left the house taking the victim’s two vehicles.
The Crown sought to have all three young people convicted and transferred to the District Court for sentencing, submitting that the public interest required the most serious response based on the seriousness of offending and likelihood of a full-time custodial sentence if the young people were sentenced in the District Court. In deciding whether or not to convict and transfer, the Judge considered the mandatory s 284 factors, including:
The Judge considered that there were significant factors that weighed heavily against conviction and transfer:
[40] … The first point that needs to be made very clearly is that supervision with residence is not a soft option. It is a significant custodial sentence for young people who have committed serious offences. It is the top-end Youth Court sentence and it is able to be imposed for all offences including these ones before the Court and, in fact, only murder and manslaughter cannot be dealt with by the Youth Court.
Taking into account the s 284 factors outlined above, it was considered that a residential sentence, followed by supervision, would be more likely to specifically address the underlying causes of offending of each individual:
[53] … Every effort should be made to reduce the risk of further offending on the part of each young person given their relative youth and the fact that whether they are sentenced to supervision with residence, or for that matter, imprisonment, there will be a day when they are released back into the community. This represents an important public interest consideration.
It was the Judge’s clear view that, given that supervision with residence is a significant penalty, the prospects of successfully reducing the risk of further offending are far greater in the Youth Court than the District Court. The Judge was not satisfied that such an order would be clearly inadequate in all of the circumstances.
Result:
All three young people sentenced to six months residence followed by six months supervision, pursuant to s 283(n). An reparation order for emotional harm was made for $500 for each young person.
File number: CRI-2014-212-000047
Date: 2 March 2015
Court: Youth Court, Dunedin
Judge: Judge Phillips
Key titles: Orders - type: Supervision with activity (s 283(m)), Reports: Psychological, Reports: Social Worker.
T, aged 14 years, admitted a lead charge of arson, as well as two other charges relating to damage of property.
At an earlier hearing, the Judge directed that the young person be sentenced in the Youth Court. His Honour directed two reports:
The Judge approved the social worker’s plan. Taking into account ss 4, 5 and 284 of CYPF Act, and particularly T’s young age, the Judge determined that a community-based order was the most appropriate course of action. This was despite the serious level of offending, which the Judge noted could have resulted in a custodial sentence under different circumstances.
The Judge consequently awarded a six month supervision with activity order under s 283(m) of the CYPF Act. The Judge did not reduce earlier community work or supervision orders, but noted that further consideration would be given to them in four months’ time.
Result:
Six month supervision with activity order under s 283(m).
File number: CRI-2014-291-000081
Date: 16 April 2015
Court: Youth Court, Porirua
Judge: Judge John Walker
Key titles: Orders - type: Discharge (s 282), Orders - type: Supervision with activity (s 283(m)), Family Group Conferences: Outcomes, Family Group Conferences: Plan.
S, Z and M, all aged 13 years old, were charged with intentional arson under s 267(1)(b) of the Crimes Act 1961. The three girls set fire to a rubbish bin bolted to the wall of a building at their school. The resulting fire caused approximately $2.5 million of damage. The charge was subsequently amended to allege recklessness. All three child offenders did not deny the amended charge and successfully completed a FGC plan.
The issue was whether they should each be discharged under s 282, or be subject to a formal order under s 283. The Crown sought a supervision with activity order under s 283(m) for each child. Each respective Youth Advocate sought a s 282 discharge. The Judge noted that such disparity in outcome sought would usually arise where there is a failure to agree at the FGC, or where the FGC has agreed to leave the final outcome to the Court.
The Family Group Conference
The FGC outcome presented to the Court recorded that at the FGC, Police announced that the Crown advised they would be seeking a high-end Youth Court order. The Police then withdrew from any further participation at the FGC, before private family deliberations, and before participants had formulated their decisions, recommendations and plans. This was, in the Judge’s experience, unprecedented. The remaining participants continued in the FGC and formulated decisions, recommendations and plans.
It was the unanimous decision of the remaining participants, which included representatives of the school, to provide each of the children with the opportunity to obtain a s 282 discharge upon the completion of the extensive requirements of their respective FGC plans.
The Judge emphasised that the FGC is the very basis of all decision making in the youth justice process. It was noted that in cases where the victims are present, as was the case here, the restorative value of the FGC is extremely high. Often over the course of the FGC positions and attitudes held at the beginning change once all of the circumstances are considered, the young person has had an opportunity to participate and there is increased understanding of the underlying causes of offending. It was open to the Police to continue to hold a firm view after hearing all of the contributions. In the Judge’s view, it was 'high-handed' and unsatisfactory that the Police withdrew, not least of all because the victim was left to carry the burden of advancing its interests in the absence of the prosecutor.
Discussion of recklessness and a 13 year old child
The Judge proceeded on the basis that each of the children admitted the element of recklessness: they appreciated the risk of the fire spreading to the building, but carried on regardless. However, it was his Honour’s view that widely accepted neurological science made assessment of culpability problematic in this case. It was observed that the appreciation of risk and consequences is not something that is highly developed, if at all, in the young brain. Courts are increasingly aware of this consideration in respect of young people in their late teenage years early twenties. This is particularly so when brain development may have been impaired by substance abuse. These considerations were heightened in dealing with children aged 13. His Honour noted that when neurological science is considered, the idea of holding a child accountable on the basis of appreciation of risk and carrying on regardless is troubling.
The Judge then considered the present decision in the context of wider sentencing for similar offending, particularly the case of R v Cuckow CA 312/91, 17 December 1991 where the Court of Appeal quashed the custodial sentence of a 14 year old convicted of arson, substituting it with a period of supervision.
Discussion as to disposition
The Crown submission was for an order of supervision with activity. The Judge questioned what would be achieved by such an order beyond what had already been put in place by the FGC plan, which included wide ranging interventions addressing the identified underlying causes of the behaviour and had been engaged with for over six months.
Having determined that there was no justification for a supervision with activity order, the Judge turned to the question of whether a discharge should be ordered under s 282 or s 283(a). It was noted that young people are commonly discharged under s 282 for serious offences, such as aggravated robbery, which are intentional acts. Here, the mental element was recklessness and requires a lower level of culpability. Although the consequences were substantial, it was questionable as to whether the children had the ability to appreciate the likely consequences and the loss of $2.5 million.
When considering the need to create a record to hold the children accountable, the Judge questioned whether the ability of a child, or even a young person, to see the creation of a record as holding them to account is endowing a young mind with unjustified sophistication. The real accountability in this case was in being apprehended, brought to Court, attending the FGC, standing up before the school assembly to deliver an apology, engaging in interventions, changes in living arrangements, community work undertaken, restrictive bail conditions for over six months, numerous Court appearances and the resulting stigma within the community. For 13 year olds with complex underlying issues, this was considered to be very significant accountability.
Having taken into account ss 4, 208 (particularly s 208(2)(i)) and s 284, the Judge concluded that each child should have the benefit of a clean record.
Result:
All three child offenders discharged under s 282.
File number: CRI-2015-235-000025
Court: Youth Court, Masterton
Date: 6 October 2015
Judge: Judge Tony Walsh
Key title: Arrest without warrant (s 214), s 245
Facts and issues
S voluntarily went to the police station in order to disclose the location of some stolen property. In the course of making this disclosure, S was arrested and charged with burglary.
The Judge considered two substantive issues and an additional policy issue
Issue one: Was the arrest lawful?
Section 214 of the CYPF Act provides a code for the lawful arrest of a young person. In this case, the police officer’s submission was that S was arrested to prevent further offending (s 214(a)(ii)), and to prevent the loss and destruction of evidence (s 214(a)(iii)). The Judge observed that there must be a compelling nexus between the need to arrest and the probability of further commission of offences, such as where violence is occurring and is likely to continue unless there is immediate intervention. In the present case, the police officer did not have detailed knowledge of the offence or S’s role, if any, in the offending. Accordingly, there was no such compelling nexus. With respect to the risk of loss and destruction of evidence, there was no evidence suggesting that S attempted to conceal or destroy evidence. On the contrary, S had come to the police station voluntarily, indicating she wished to disclose information relevant to the burglary. Consequently, the statutory threshold for arrest under s 214(2) was not met and the arrest was held to be unlawful.
Issue two: Does an unlawful arrest affect the validity of the charging document used to bring proceedings under s 214?
The Judge noted that there is currently some uncertainty surrounding the consequences of an unlawful arrest on the validity of the charging document used to bring proceedings. There appears to be two conflicting lines of authority on this point:
The Judge considered that the correct approach to the interpretation and application of ss 214 and 245 is to follow the approach consistent with that adopted in Pomare v Police, having regard to the following factors:
“I acknowledge that s 245 provides, on its face, for a procedure “unless the young person has been arrested” but take the view that that must be interpreted as “lawfully arrested”. To find otherwise would permit the police to arrest on every occasion and, lawful or not, to circumvent the requirements of s 245. That cannot have been Parliament’s intention.”
Issue three: If charges are found to be invalid on the basis of an unlawful arrest, are police still able to pursue proceedings under s 245?
Although such an application had not been made in this case, the Judge considered that if a charge is dismissed at a hearing because of non-compliance with s 214, it would amount to an abuse of process to permit the charge to be re-laid under the s 245 Intention to Charge FGC procedure.
It was further noted that, where it appears that an arrest is unlawful for non-compliance with s 214, if police intend to pursue prosecution, the alternative procedure under s 245 must be invoked before a hearing is conducted to test the lawfulness of the arrest.
Conclusion
The arrest of S was unlawful. Accordingly, the charging document laid by the police was invalid and was dismissed. In obiter dicta, the Judge noted that subsequently invoking the s 245 procedure would amount to an abuse of process.
File number: CRI-2015-220-000039
Date: 16 July 2015
Court: Youth Court Hastings
Judge: Judge MacKintosh
Key titles: Orders - type: Supervision with residence - s 283(n), Orders - type: Supervision with activity - s 283(m).
Q, aged 15 years, was charged with burglary and arson. Q and his associate C broke into school grounds and set fire to a classroom, and later that night set fire to the pirate ship at Splash Planet in Hastings. The estimated cumulative cost of damage caused from both arsons was around $700,000.
In earlier proceedings (P v CM [2015] NZYC 436), C had been sentenced to 3 months supervision with residence for his part in the offending. However, with respect to Q, a comprehensive and workable supervision with activity package tailored to Q’s needs was presented to the Court. It was noted that Q was already undergoing residential treatment for drug and alcohol dependency.
The Judge noted that supervision with activity is a high-end sentence; the second highest available in the Youth Court. A distinction was made between C and Q, based on Q’s younger age, C’s dominant role in the offending and Q’s willingness to take responsibility. After weighing up all the relevant factors, it was determined that the robust supervision with activity order for six months satisfied the public interest in terms of the sentencing outcome.
Result:
Order for supervision with activity for 6 months pursuant to s 283(m).
File Number: CRI-2014-209-000222
Date: 8 September 2015
Court: Youth Court Christchurch
Judge: Judge McMeeken
Key title: Orders - type: Discharge - s 282; Sentencing – General Principles (e.g. Parity/Jurisdiction)
Facts
L appeared on an admitted charge of sexual violation in relation to L’s 4 year old sister. L, who was aged 14 years at the time, acknowledged and regretted the offending when challenged by police and family. L attended an Intention to Charge FGC and was referred to a 10-month STOP programme, which he successfully completed with the support of his mother. It was the view of the STOP programme that L presented a low risk of reoffending. L received a good report from his psychologist, who was of the opinion that a formal record would be detrimental to L and would hinder his progress. He also had good reports from his social worker, school, and youth advocate. L showed remorse and wrote apologies to those affected, including the victim.
Law
Section 282 stipulates that the Court has the power to discharge a charge after an inquiry into the circumstances of the case. The charge is then deemed never to have been filed.
Application and conclusion
The Judge stated that L’s offending was serious, but noted that s 282 discharges have previously been given in respect of serious offending. The Judge considered that L deserved a s 282 discharge in this case, notwithstanding the seriousness of offending. This was because of the following factors:
The Judge also considered the appropriateness of a s 282 discharge to be reinforced when read in light of the United Nations Convention on the Rights of the Child (UNCROC), which New Zealand has ratified, and which speaks of the need for reintegration and for consideration of the young person’s age and interests.
Result:
Discharge granted pursuant to s 282.
File number: CRI-2013-229-000028
Date: 18 February 2015
Court: Youth Court. Kaitaia
Judge: Judge de Ridder
Key titles: Orders - type: Discharge - s 282.
J, aged 15 years at the time of the offending, admitted one charge of indecent assault.
The key issue was how J’s continued attendance on the SAFE programme could be ensured, having regard to the fact that J was in full time employment and making very good progress.
The Judge referred to the principles contained in ss 4, 5, 208, and 284 of the Act, which he noted were mandatory considerations.
The Judge noted that: J had not reoffended since first appearing in Court; had significant support from his whānau; and had been on a court monitored programme for eight months, with his attendance on the SAFE programme being the primary focus. The Judge noted that J’s attendance on the SAFE programme was consistent with the principles set out in s 208(f)(a) of the Act.
The Judge considered that the time J had been before the Court and the Court monitored plan he had been on, held him accountable for his offending. A SAFE report had assessed J’s risk of further offending as low to moderate, and it was the Judge’s opinion that ongoing support from both Ngāpuhi Iwi Social Services and Te Oranga, was likely to ensure that his risk remained low.
Although the Judge considered it preferable that J continued with the SAFE programme, the only way he could have ensured that would be to have made an order under s 283. The Judge considered that such an order would have jeopardised J’s employment, which, in His Honour’s view, would put at risk the significant progress that J had made up until that date.
Overall, the Judge was satisfied that the underlying causes of the offending had been addressed, J and his whānau had taken the matter seriously, and significant progress had been made. For those reasons the Judge was satisfied that it was appropriate that J was discharged pursuant to s 282.
Result:
Discharged under s 282.
File number: CRI-2014-204-000386
Date: 30 July 2015
Court: Youth Court Auckland
Judge: Principal Youth Court Judge Andrew Becroft
Key titles: Family Group Conferences: Timeframes/limits: Intention to Charge, s 247.
J, aged 16, applied to have 23 charges of sexual offending against his 10 year old sister declared as nullities, with the result that the Youth Court has no jurisdiction to hear them. J had no prior offending history and was already undertaking comprehensive therapeutic intervention, strongly supported by his parents.
J argued that the intention to charge FGC was convened 22 days after the required consultation and Police notification; one day outside the statutory timeframe for convening such an FGC. J also argued that the resulting FGC was unlawful, due to the Police Youth Aid Officer holding a predetermined view at the FGC that J should ultimately be charged.
Some of the direct, and indirect, issues raised by the application and addressed by the Principal Youth Court Judge were:
First Ground for the Application: was the FGC unlawful as it was not convened within the 21 day statutory timeframe?
Counsel for the Applicant and the Crown had competing views as to when consultation between the Police Youth Aid Officer and Youth Justice Coordinator began and was concluded in this case (pursuant to s 245(1)(b)), and as to when the Youth Justice Coordinator was notified that the police desired that J be charged, thereby triggering the 21 day period for convening the FGC. On this issue, the Judge made the following observations:
Second Ground for the Application: does a Youth Aid Officer’s “closed mind” at an intention to charge FGC invalidate the FGC and subsequent charges?
On the evidence, it was accepted by both counsel, and the Senior Constable himself, that during the FGC, the Senior Constable’s mind was closed to any alternative form of resolution other than laying charges against J. The Senior Constable had considered the matter very carefully in advance and at the FGC, he was of the clear and unshakeable view that in the public interest charges should be laid against J so that he could be held accountable and that any intervention could be properly supervised by the Court. When deciding whether it is lawful for the police to have a “closed mind” at an intention to charge FGC, the Judge made the following observations:
His Honour made a number of concluding observations about a number of practice issues that arose in this case:
Result:
Application dismissed. The charging documents laid against J are not nullities and the Youth Court process is to continue.
File number: CRI-2011-092-000346
Date: 29 January 2015
Court: Youth Court
Judge: Judge Malosi
Key titles: Delay (s 322), Objects/Principles of the CYPFA (ss 4 and 5), Principles of Youth Justice (s 208).
G, aged 17 years 2 months, was charged with wounding with intent to cause grievous bodily harm. G was charged in October 2013 when he was 15 years ten months old. G’s Advocate sought that the charge be dismissed under s 322 of the CYPF Act due to unduly and unnecessarily protracted delay.
Before dealing with the issue of delay, Judge Malosi noted that the following objects and principles of the Act were relevant:
Discussion of delay
The Judge noted the two-step process for determining whether delay was unnecessarily or unduly protracted:
1. The Court must determine whether ‘undue’ or ‘unnecessary’ delay has occurred during the period from the date of commission of the alleged offence to the intended date of hearing the charge.
2. If the Court is satisfied that the time between the date of commission of the alleged offence and the hearing has been unduly or unnecessarily protracted, then the Court must exercise its discretion as to whether or not to dismiss the charge.
The Judge noted that what amounts to delay in a particular case is circumstantial. In this case there were four main periods of delay:
The Judge considered the fourth period of delay, namely the overall delay in these circumstances. Assuming that G’s case could, at earliest, be heard in May 2015, the Judge fixed the overall time delay at 18 months. Her Honour noted that the young person would likely be prejudiced because of difficulty in recalling the circumstances of offending and lost opportunities to rely on the sentencing options in the Youth Court. The Judge however balanced this prejudice against the interests of the complainant and the public. It was determined that the delays were all explicable and partially due to G’s transient and reoffending behaviour, rather than Police fault.
The Judge concluded that the delay caused, while regrettable, was not unnecessarily or unduly protracted in G’s circumstances. In any event, the Judge considered that the discretion to dismiss the charge was unlikely to be exercised due to the charge’s serious nature and the desirability of conducting a trial.
Result:
Section 322 application to dismiss proceedings for delay dismissed.
Date: 22 June 2015
Court: Youth Court, Auckland
Judge: Judge Fitzgerald
Key titles: Delay (s 322).
E, aged 18 years at the time of the hearing, was charged with aggravated robbery that took place on 15 June 2012. It was alleged that he was one of three males who, armed with knives, threatened a dairy owner and his family before locking them in the bathroom and stealing cash and cigarettes. Two knives were left at the scene. E applied to have the charges dismissed under s 322 for delay.
The Judge found there to be two significant periods of delay:
The test when determining an application under s 322 is found in Attorney-General of New Zealand v The Youth Court at Manukau [2007] NZFLR 103, where Winkelmann J identified the two part process for establishing delay.
The discretion is only triggered if there is an undue or unnecessary protraction of the relevant period of time. In Police v T [2006] (external link)DCR 599 (HC)(external link), Wild J said the following in relation to the issue of undue delay:
“…no sensible distinction can be drawn between the words “unduly protracted” in s 322 and the words “undue delay” in s 25(b) [Bill of Rights Act 1990]…Not only are the words similar, but the parliamentary intent in enacting them is similar, if not identical.
Both Winkelmann J and Wild J considered it appropriate to adopt the test for undue delay, set out by Sopinka J in the Supreme Court of Canada decision in R v Morin (1992) 71 CCC (3d) 1, 13, which was adopted as the appropriate test to apply here by the Court of Appeal in Martin v Tauranga District Court [1995] 2 NZLR 419. The test requires taking into account the following factors:
When exercising the discretion under s 322, the Court should also take into account ss 4(f) and 5(f). In this case, the Judge also noted the rights of young people under the United Nations Minimum Rules for the Administration of Justice (the Beijing Rules) and the United Nations Convention on the Rights of the Child.
The Judge did not find that the first delay to be undue or unnecessary. Although it was a significant period of time, the only evidence connecting E to the offending was the DNA sample from the knife and the one later obtained from E.
However, the Judge found the second delay, from 6 June 2014 to the laying of the charge in March 2015, to be unnecessary and undue. Most of the delay was caused by the police having lost their file and not taking adequate steps to either find it, or create a new one, and ensure that matters were attended to in an appropriately prompt way. The end result of that means there was well over three years delay altogether by the time the case comes on for hearing.
It was noted that, when the unnecessary delay caused by Police inaction was added to the delays that had already occurred, the time was unduly and unnecessarily protracted. The failure to give the matter some priority due to the seriousness of the alleged offending and E’s age, or to offer a satisfactory explanation, was of concern. A delay of nine months, from identifying a suspect through to charge, was clearly longer than would reasonably be expected in a case of this nature. This resulted in an obvious prejudice to E who had then turned 18 years old and was no longer entitled to the advantage of being dealt with by the Youth Court.
The Judge concluded that, if the matter were to proceed, E would almost certainly be transferred to the District Court for sentencing due to his age and would lose the opportunity to be dealt with under the youth appropriate therapeutic and restorative provisions of the CYPF Act. This consideration was deemed to be more than neutral. The charge was dismissed accordingly.
Result:
Charge dismissed pursuant to s 322.
File number: CRI-2015-231-000006
Date: 30 June 2015
Court: Youth Court, Levin
Judge: Judge Lynch
Key titles: Orders - type: Supervision with residence - s 283(n).
D, aged 16 years 11 months, appeared for sentence for six charges of burglary. D was also appearing for re-sentence of two sentences of supervision imposed on charges of theft, assault, threatening to injure, burglary, threatening to kill, assaulting a Police officer, possession of cannabis and possession of utensils. The principal issue at sentencing was whether to convict and transfer D to the District Court for sentencing.
The Crown submitted that Youth Court orders were insufficient to hold D accountable and to meet the public interest, given that he had been subject to previous Youth Court orders, including supervision with residence, and still continued to re-offend. It was further submitted that the possible six months residence followed by six months supervision in D’s case would be insufficient to address the underlying causes of offending and meet the public interest.
D’s advocate submitted that, if D was sentenced in the District Court, he would receive substantial discounts for early please, age and time spent in residence on remand. Although the starting point would be imprisonment, home detention for a period not significantly longer than the Youth Court sentence would be the likely outcome. It was further submitted that there was still a number of programmes and responses that were available to D, including supervision with residence
D’s residence report was positive and observed that he had made significant improvements in residence, including gaining his forklift operator’s certificate, learner’s licence, gaining his NCEA Level 1 numeracy and literacy credits which are the educational prerequisites for entering the armed forces. He also came third in the speech competition. The lay advocate report and social worker’s report recommended supervision with residence and highlighted the need for a very tightly constructed transition plan to ensure D’s chances at success.
The Judge noted that before transferring D to the District Court for sentencing, the Court must be satisfied that supervision with residence is clearly inadequate:
… Sentencing is about holding a young person to account and encouraging them to take responsibility for their behaviour, but it must also promote an opportunity for the young person to develop in responsible, beneficial and socially acceptable ways. Sentencing in the Youth Court can achieve and promote those purposes in a way that sentencing in the District Court cannot.
Particular regard was given to the ss 208(d), (e) and (f) principles. The Judge concluded that, while the offending was serious and persistent, it was not the case that the Youth Court had nothing more to offer D. It was the Judge’s view that transferring D and sentencing him to home detention and community work would merely commence a long history in the District Court.
Result:
Order for supervision with residence for 6 months pursuant to s 283(n).
File number: CRI-2014-088-003416; CRI-2015-288-000001
Date: 17 August 2015
Court: Youth Court, Kaikohe
Judge: Judge Paul
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit, Reports: Psychological.
B appeared for disposition on a number of burglary charges in the Youth Court and District Court. It was determined at an earlier hearing that B was unfit to stand trial due to his intellectual disability. The issue was whether to make an order under s 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act), or to discharge B under s 25 of that Act.
The Judge was guided by the specialist assessors’ report, which recommended immediate release for the following reasons:
Based on the report’s recommendations and given that B had not reoffended for the past seven months, the Judge considered that the Court could take confidence that appropriate community supports were in place which will continue to ensure that B navigates a pro-social life. Accordingly, an order was made pursuant to s 25(1)(d) for B’s immediate release.
Result:
Order for immediate release pursuant to s 25(1)(d) of the CP(MIP) Act.
File number: CRI-2014-254-000078
Date: 10 August 2015
Court: Youth Court, Palmerston North
Judge: Principal Youth Court Judge Andrew Becroft
Key titles: Care and Protection cross over (s 280): Family Group Conferences/Care and Protection (s 261).
B appeared on a number of minor charges, including trespass and shoplifting. B was brought to Court having breached her bail by absconding from her caregiver.
The Judge considered that the real issues facing B related to her ongoing care and protection needs. B had absconded from all of the home arrangements and was unable to return to her mother due to a s 101 order. B also needed ongoing medication to control her conduct disorder.
It was accepted that this was a matter where care and protection was already in place. However, it was the Judge’s view that the matter be fully accepted by care and protection under s 280 as B’s offending was the result of care and protection issues. Pursuant to s 280, a referral was made to a care and protection coordinator under s 19(1)(b).
Result:
Section 280 referral to care and protection coordinator under s 19(1)(b).
File number: CRI-2014-292-000422
Date: 15 January 2015
Court: Youth Court, Manukau
Judge: Judge Malosi
Key titles: Admissibility of statement to police/police questioning (ss 215-222): Nominated persons, Criminal Procedure (Mentally Impaired Persons) Act 2003: s 9 issues
H, aged 14 years, faced 12 charges and was awaiting a hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The Crown sought to rely upon a videotaped statement made by H. Counsel for H claimed the statement was inadmissible under s 221 of the Children, Young Persons and their Families Act 1989 (the CYPF Act).
The Judge considered s 221(external link), which outlines that written statements given by a child or young person are inadmissible unless: the enforcement officer has explained certain matters to the child or young person in a manner and in language appropriate to their age or understanding; the child or young person is given a chance to consult with a barrister or solicitor (if they have expressed a wish to do so) prior to making the statement; and the child or young person makes the statement in the presence of a barrister or solicitor or a nominated person. The Judge also noted s 224 which allows slight deviations from the imposed obligations provided that reasonable compliance has been achieved.
H’s advocate also relied on s 208(h) of the CYPF Act, which entitles a young person to ‘special protection’ during any investigation into alleged offending by them. This is consistent with several of New Zealand’s international obligations. In R v Z [2008] 3 NZLR 342 (CA) it was held that s 208(h):
The Judge also considered s 222 of the CYPF Act relating to ‘nominated persons’. The nominated person is to consult with the young person during or before the making of the young person’s statement. Their duty is to ensure the young person understands the matters that are being explained to them by police. A nominated person must fully understand and explain the predicament faced by the young person (rather than simply being present during the interview).
Had the Police followed the correct procedure when H made his statement?
While noting that the constable conducting H’s interview had treated H with courtesy, the Judge criticised other aspects of the interview, notably:
The Judge expressed concern about the nominated person’s participation (who was appointed by the Police as H’s relatives were absent), notably:
Ultimately the Judge was not satisfied that sufficient care had been given to H’s circumstances. In this instance the Police did have access to neuropsychological assessments which disclosed H’s mental difficulties and should have conducted his interview and written statement accordingly. The constable had admitted during cross-examination that had he been aware of these assessments (which were certainly available to Police) he would have done things differently. While the Judge was satisfied that the constable and nominated person’s failings were not in bad faith, her Honour ultimately concluded that the statement was inadmissible.
Result:
H’s written statement to the Police deemed inadmissible and excluded as evidence.
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