New Zealand Police v BM [2016] NZYC 162

Published 26 October 2016

Children, Young Persons, and Their Families Act 1989, ss 14, 67 and 280A — The United Nations Convention on the Rights of the Child — The Beijing Rules — The Riyadh Guidelines — sexual offending. The 13 year old young person did not deny two charges of sexual violation by unlawful sexual connection for offending over a five month period against a seven year old child. In earlier proceedings the Judge referred the matter back to Police to make an application to the Family Court for a s 67 declaration under the Act, that the young person was in need of care or protection by virtue of s 14(1)(e). This would mean the child would be dealt with in the Family Court rather than proceedings continuing in the Youth Court. This decision set out the Judge’s reasoning for “the pushback”, and counsel’s submissions for and against it. The Judge said that both Courts were equally capable of holding the young person accountable for the offending given the Family Court’s powers under s 83 of the Act over child offenders. However, the Youth Court does not provide an order for children or young people facing serious sexual offending, in that there is no order that runs for the time it usually takes a child or young person to complete a programme at SAFE (or some similar programme). The Police opposed the matter being transferred to the Family Court largely because the victim’s family wanted the young person to receive a notation at the end of the process; although they conceded that if the young person remained in the Youth Court he may be discharged under s 282 without a notation. They submitted that the nature and seriousness of the offending was such that it was in the public interest for a criminal justice focused approach to be taken to hold the young person accountable. Counsel for the young person submitted that it was always in the public interest for measures aimed at rehabilitation and reintegration to be implemented so as to reduce the risk of reoffending. It was submitted that remaining in the Youth Court and associating with other offenders could have a negative impact on the young person, disrupting his schooling and introducing the risks associated with involving a child in the criminal justice system at a young age. The Judge looked to international instruments and found that both The Beijing Rules and The Riyadh Guidelines placed a primary importance on the wellbeing of the child offender. Labelling theory suggests the use of labels such as “deviant” or “delinquent” often contributes to undesirable actions, and this supported the avoidance of early criminalisation where appropriate. The Judge stated that when s 280A was viewed in light of international principles it can be seen to provide the option of taking a welfare focused approach rather than continuing with a criminal justice focussed approach. Judgment Date: 31 March 2016. * * * Note: names have been changed to comply with legal requirements. * * *

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