New Zealand Police v KM [2019] NZYC 436

Published 16 October 2019

Sentencing — aggravated robbery — burglary — theft — unlawfully getting into a motor vehicle — unlawfully taking a motor vehicle — possession of tools — supervision order — Oranga Tamariki Act 1989, ss 283 & 284 — United Nations Convention of the Rights of Children — United Nations Convention of the Rights of Persons with Disabilities — Beijing Rules — Riyadh Guidelines. The young person, KM, appeared for sentence on a raft of charges including theft, aggravated robbery, burglary, and unlawfully taking and unlawfully getting into motor vehicles. He had already spent 22 months in custody: four months under a supervision with residence order and 18 months on remand due to re-offending and the complex nature of the proceedings. The Judge had regard to the sentencing principles in the Oranga Tamariki Act. Legislative changes that came into force on 1 July elevated the importance of the United Nations Conventions on the Rights of the Child and Rights of Persons with Disabilities. The four primary considerations in all youth justice matters are: wellbeing and best interests of the young person (also the first and paramount consideration); the public interest, which includes public safety; interests of any victim; and accountability of the young person for their behaviour. KM had been diagnosed with Foetal Alcohol Spectrum Disorder (FASD) and a doctor reported he met the criteria for a mild intellectual disability. The Judge noted KM needed more support, including disability support services to enable him to transition successfully into adulthood. However, the Ministry of Health had rejected the doctor's diagnosis as they do not accept FASD as a disability, which excluded KM from services that he needed. The Judge acknowledged the hard work done by social workers and others to source FASD-informed programmes and arrangements for KM. A long-term plan had also been developed for his care. International law and guidelines stipulate that youth custodial sentences should be avoided if possible. The Judge also had regard to the long time KM had already spent in custody. Considering the longest custodial sentence KM could have received in the Youth Court was 12 months' supervision with residence, 22 months in custody had gone a long way to convince the Judge that KM had been held accountable for his actions. It was decided the most appropriate outcome was to impose a supervision order subject to judicial review. A progress report was scheduled for four weeks from the sentencing hearing and a review of care and protection plan in six months. Judgment Date: 9 September 2019. * * * Note: names have been changed to comply with legal requirements. * * *