New Zealand Police v EL [2020] NZYC 45

Published 19 March 2020

Early release from supervision with residence — misbehavior — non-compliance — duties of chief executive to recognise and provide practical commitment to the Treaty of Waitangi — Te Tiriti o Waitangi — active protection — amendments to legislation — additional conditions for support, care and control — Oranga Tamariki Act 1989, ss 4, 4A, 5, 7AA, 283, 305, 306, 314, 334 & 335 — Tū Mai te Rangi: Report on the Crown and Disproportionate Reoffending rates: Wai 2540 — The Napier Hospital and Health Services Report: Wai 692. In October 2019 the young person was sentenced to supervision with residence for five months and three weeks. This hearing was to determine whether he was eligible for early release from residence and to be placed under a supervision order instead. Before making a decision the Court needs a report from a social worker under ss 334 and 335 of the Oranga Tamariki Act (the Act) and a report from the relevant Youth Justice residence. The Court must also consider the requirements of s 314 of the Act, being that the young person has not absconded or committed further offences, the young person behaved and complied with any obligations, and complied with any condition of the order to undertake any specific programme or activity. The young person had not absconded or committed any more offences, and had satisfactorily complied with the conditions of his order. However, the Crown raised concerns as to his behaviour during his time in the Youth Justice residence. Issues were also raised with the proposed address the young person was to move to. The Judge reviewed the behavioural concerns referenced by the Crown and found them to be minor. One of the events involved the young person pretending to be Spiderman. The criteria under s 314 of the Act were therefore satisfied. In regards to concerns around the proposed residence, the Judge stated that the chief executive of Oranga Tamariki has a positive duty to comply with the principles of the Treaty of Waitangi and amendments to the Act enacted in July 2019 provide that there is a duty of active protection. It is up to Oranga Tamariki and relevant agencies to ensure the young person is safe. They were required to expend the resources necessary to provide him with a safe living environment that would help nurture him to become a positive member of the community. The Judge noted that may cost money but that a good Treaty partner should have seen that coming when enacting the new legislation. Concerns with the young person's residence were not a consideration that the Judge could use to reject his early release from residence when all other legislative requirements had been met. The order for early release was made and a six month supervision order was made. Additional conditions for support, care and control, as set out in the social worker's report, were also imposed. Judgment Date: 30 January 2020. * * * Note: names have been changed to comply with legal requirements. * * *