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New Zealand Police v XA [2019] NZYC 271

Published 16 October 2019

Sentencing — aggravated robbery — wilful damage — graffiti — assault — disorderly behaviour — obstructing police — escaping custody — care and protection — placement issues — inappropriate detention sought by Oranga Tamariki — Oranga Tamariki 1989, ss 78, 101, 110 & 282 — United Nations Convention on the Rights of the Child — Beijing Rules. The young person, XA, faced one charge each of aggravated robbery, wilful damage, graffiti, assault, disorderly behaviour, obstructing police and three of escaping custody. He had been held in custody in a residential youth justice facility for over four months, a consequence more than sufficient to hold him accountable for his actions. XA had also written a sincere apology to the victim. The young person's Youth Court proceedings were ready to be finalised, with his whanau, youth advocate and the police youth aid all supporting resolution by way of a s 282 discharge. This meant there would be no record that XA had come to the Youth Court in relation to those charges. The issue the Court was facing was XA's care after he was released from the youth justice residence. A psychological report revealed that XA's rehabilitative needs were significant and complex. He would need an emotionally stable caregiver, structure, stability, positive role models and nurturing of his te reo and te ao Maori. An order had been made in the Family Court that XA was in need of care and protection. The Family Court Judge expressed concern at the time that Oranga Tamariki was inappropriately relying on the youth justice residence to care for XA. Oranga Tamariki did not want the Judge to resolve XA's Youth Court proceedings, but keep them going solely for the purpose of detaining XA so they could keep looking for a suitable place for XA to stay, a task they had failed to complete despite being aware of the time-line of proceedings. Oranga Tamariki suggested XA be detained for another month or else, as they advised the Judge prior to the hearing, they would have to place XA in a motel with a tracker. The Judge referred to youth justice principles, in particular that a young person must not face criminal proceedings solely for the purpose of providing services to address welfare related issues. It would be wholly unacceptable to continue Youth Court proceedings solely for the purpose of addressing unmet care and protection concerns. If Oranga Tamariki's suggestions were followed, the Judge would be applying New Zealand law incorrectly as well as breaching international obligations. The s 282 discharge was granted and fortunately an appropriate community placement for XA had been found. A formal review of the plan for XA was to occur early. Finally, the Judge directed a copy of this judgment was to be given to the Regional Managers of Youth Justice and Care and Protection at Oranga Tamariki, the Commissioner for Children's office and copies placed on both XA's Youth Court and Family Court files. Judgment Date: 10 June 2019. * * * Note: names have been changed to comply with legal requirements. * * *

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