Summaries 1991

Contents
Cooper v The Registrar, Youth Court (5 February 1991) YC, Wellington, Carruthers, DCJ Police v JME (29 September 1991) YC, Oamaru, CRN 1245003903, Young DCJ 
Police v M (22 February 1991) YC, Auckland, CRN 0204001035-36, Gilbert DCJ  Police v T YC Auckland CRN 1204003778-80, 2 September 1991 
Police v Tai (1991) 8 FRNZ 613 Police v M YC Auckland CRN 1204003795-97, 2 September 1991 
Police v Young Person (1991) 8 FRNZ 609 (DC) Police v Carter DC Auckland CRN 1248023241-4, 6 September 1991 
Police v M YC Lower Hutt CRN 0032010783, 18 April 1991 Police v T YC Auckland CRN 1204003984, 30 September 1991 
Police v James (1991) 8 FRNZ 628  Police v P and T (Young Persons) (1991) 8 FRNZ 642
Police v L (1991) 8 FRNZ 123  Police v G YC Hamilton, CRN 1219013324, 15 October 1991
Police v I (24 June 1991) YC, Otahuhu, Harvey DCJ  Police v McR YC North Shore CRN 1044007273-75, 10 October 1991
Police v M YC Auckland CRN 1206003230-31, 22 July 1991  R v Corston DC Wanganui T9/91, 11 November 1991 
Police v Charlie (A Young Person) (1991) 9 FRNZ 652 (DC) Police v S YC Auckland CRN 1204004108, 8 November 1991
Police v B YC Otahuhu, 5 August 1991  Police v P (18 December 1991) YC, Henderson, CRN 1290017161 & ors, Brown DCJ
Police v I (5 August 1991) YC, Auckland, CRN 0204001270, Brown DCJ Police v Williams DC Otahuhu CRN 2900011207-1255, 2 December 1991
Police v KC YC Auckland CRN 1004015593-94, 30 August 1991   
Police v V YC Auckland, 30 August 1991   1991 Appellate Court decisions

Cooper v The Registrar, Youth Court (5 February 1991) YC, Wellington, Carruthers, DCJ


Court: Youth Court, Wellington
Date: 5 February 1991
Judge: Carruthers DCJ
CYPFA: s 325(3)
Key titles: Youth Advocate's Costs

Summary:
Review of decision of YC Registrar. (1) Whether time travelling to and from Court is an allowable expense; (2) whether GST is exclusive of a Youth Advocate's fee; (3) rate at which Youth Advocates are paid by the Court - this issue dismissed due to insufficient evidence and information. Held: (1) s325(3) CYPFA, consideration of "what is fair and reasonable"; McHaffie v McHaffie (1984) 3 NZFLR 361; claim allowed. (2) Accounts for civil and criminal legal aid do not deduct GST from the account and GST is exclusive to the amount allowed; claim allowed.

Decision:
Youth Advocate's application upheld.

Back to contents


Police v M (22 February 1991) YC, Auckland, CRN 0204001035-36, Gilbert DCJ


File number: CRN 0204001035-36
Date: 22 February 1991
Court: Youth Court
Location: Auckland
Judge: Gilbert DCJ
CYPFA: s 208(c), s 208(d), s 276
Key title: Jurisdiction of the Youth Court - Age; Jurisdiction of Youth Court - s 276 offer/election; Principles

Summary:
M (14) committed serious offence against elderly woman; 16 year old on this charge could be sent to High Court and receive a term of imprisonment; medical evidence given on the marked differences between a 14 and 16 year old; transfer to High Court with limited sentencing possibilities would be likely to encourage re-offending. Section 208 considered as to strengthening families and fostering their ability to deal with their YP's offending, also public safety; M had strong support from whanau and iwi; currently living in a community which will supervise M.

Decision:
YC jurisdiction offered.

Back to contents


Police v Tai (1991) 8 FRNZ 613

Case summary provided by BROOKERS

Name: Police v Tai [A Young Person]
Reported: (1991) 8 FRNZ 613
File number: CRN1290005211-14
Date: 27 March 1991
Court: Youth Court
Location: Henderson
Judge: F W M McElrea DCJ
Charge: Rape, Aggravated Burglary
CYPF no: s 276
Key titles: Jurisdiction of the Youth Court - s 276 offer/election; Indication of desire to plead guilty; Victims

Summary:
Children young persons, and their families - Youth justice - Rape - Aggravated burglary - Jurisdiction - Factors to be taken into account - Interpretation of s 276 - Young person need not plead guilty but only indicate a desire to do so - Offences too serious to allow young person to be dealt with in Youth Court - Imprisonment inevitable - Young person to be sent to High Court which has more sentencing options - Children, Young Persons, and Their Families Act 1989, ss 274(2), 276, 284, 326, 327; Children and Young Persons Act 1974, s 34(2)(c); Criminal Justice Act 1985, s 142A; Summary Proceedings Act 1957, s 153A; Victims of Offences Act 1987, s 8.

Tai was charged with four offences committed while he was 16: two of aggravated burglary and two of rape of the same victim. He has now just turned 17. Through his youth advocate, he indicated a desire to plead guilty to all four charges and asked to be dealt with in the Youth Court under s 276 Children, Young Persons, and Their Families Act 1989. The family group conference concluded that imprisonment was inevitable but has no agreement on the term and on whether Tai should be sent to the District Court or the High Court.

Held, sending the young offender to the High Court:

  1. Under s 276 of the Act, where a young person indicates a desire (as Tai did) to plead guilty to an offence, he should not be asked to enter a plea until he knows the way in which the Court is going to exercise its discretion under s 276. That is because the Court may or may not give him that opportunity of forgoing the right to trial by jury and being dealt with in the Youth Court. If the Court does not give him that opportunity, the provisions of s 153A Summary Proceedings Act 1957 come into operation and the young person must then decide whether he wishes to enter a guilty plea or face a jury.
  2. In order to make the decision that is required under s 276, the Judge has to treat it almost as though it is a sentencing exercise.
  3. Having regard to the provisions of s 284 and the principles under ss 5 and 208 of the Act, the (non-imprisonable) measures available to the Youth Court are clearly inappropriate in view of the enormity of the offences and the effect on the victims. The likely penalty to be imposed upon Tai in respect of the offences charged is a term of imprisonment of 2 to 4 years. It is appropriate for the matter to be transferred to the High Court as that Court has a wider range and can give a term of imprisonment of either less or more than 3 years. The High Court Judge hearing the case is not to conclude that the Youth Court, by sending Tai to the High Court, is saying that if Tai is convicted, he must be given more than 3 years. It is rather a[(1991) 8 FRNZ 613, 614]case of keeping appropriate options open, given that this Court has concluded that imprisonment is necessary.

Cases referred to:
Police v Homo 2/7/90, Judge Simpson, YC Otahuhu CRN004810867
Police v M [1990] DCR 544
Police v Matangi 21/6/90, Judge Brown, DC Tokoroa CRN9277003813
Police v Murphy 22/2/91, Judge Gilbert, YC Auckland CRN0204001035-36
R v Dale 7/9/89, Holland J, HC Christchurch S51/89
R v Hotene (1988) 3 CRNZ 414 (CA)
R v Puru [1984] 1 NZLR 248 (CA)
R v TAP 14/9/90, Gault J, HC Auckland S89/90
R v Walsh (1979) 1 Cr App R(S) 153
R v Wilson (1989) 5 CRNZ 165 (CA)

Hearing:
This matter dealt with the question of whether the young person concerned should be given the opportunity under s 276 Children, Young Persons, and Their Families Act 1989 to plead guilty and to be dealt with in the Youth Court.

The facts appear from the judgment.

Back to contents


Police v Young Person (1991) 8 FRNZ 609 (DC)

Case summary provided by BROOKERS

Name: Police v Young Person
Reported:
(1991) 8 FRNZ 609
Date:
25 March 1991
Court:
District Court
Location:
Wellington
Judge: Unwin DCJ
CYPFA: s 438
Key title: Media Reporting

Summary:
Children and young persons - Press reporting - Report of Youth Court proceedings - Young person transferred to District Court for sentencing - "Proceedings under this Act" in terms of s 438(1) only refer to proceedings in the Youth Court - Whether case may be published is a matter for judicial discretion and not the law - Reasons for decision - Children, Young Persons, and Their Families Act, ss 274(2)(b), 283(o), 285(6), 290, 435(3), 438; Criminal Justice Act 1985, ss 138, 140, 142.

Held, disagreeing with counsel's submission:

  1. Under s 438(1) of the Act, "proceedings under this Act" refers to proceedings in the Youth Court. Once the proceedings are removed to another Court, then the provisions of the Criminal Justice Act 1985 will apply.
  2. When a young person is sent to the District Court or the High Court for sentencing or trial, then subject to any rulings of the Judge, the Court shall be open to the public, and anything that is said or done in the Court may be published or reported upon. The opportunity to be anonymous will be a matter for judicial discretion and not law.


Cases referred to:
The King v Sussex Justices, ex p McCarthy [1924] 1 KB 256

Hearing:
This was a preliminary hearing concerning the right of the press to report proceedings which originate in a Youth Court.
The facts appear from the judgment.

Back to contents


Police v M YC Lower Hutt CRN 0032010783, 18 April 1991


File number:
CRN 0032010783
Date:
18 April 1991
Court: Youth Court, Lower Hutt
Judge: Robertson DCJ
Key titles: Jointly charged with adult (s 277); Principles of Youth Justice (s 208); Sentencing - General Principles (e.g. Parity/Jurisdiction)

Summary:
M (16) robbed a dairy with 18 year-old co-offender; knife used; M known to dairy owners; co-offender sentenced in the High Court to 3 years imprisonment. Need for (1) parity in sentencing; and (2) balancing of public interest considerations against need to rehabilitate young person (Rihari v The Police HC Rotorua 14/90, 11 May 1990 per Fisher J).
As against co-offender's three year sentence, M is only just 16 - a major difference in terms of maturity; co-offender had a considerable previous history of offending; M effectively a first offender; co-offender the only one to use physical violence although M did have the knife. Thus, important distinguishing factors and rehabilitation important. Considering public interest and parity issues this is a case where sentencing should take place in the Youth Court. Huge whanau support for M; plan for supervision by Kohanga Reo presented.


Decision:
Order - supervision with activity (s283(m)) with a particular Kohanga Reo for 3 months on condition that M undertake the plan presented. Order- under supervision of same Kohanga Reo for a further 3 months after the end of the supervision with activity order (s283(k)).

Back to contents


Police v James (1991) 8 FRNZ 628

Case summary provided by BROOKERS

Name: Police v James (A Young Person)
Reported: (1991) 8 FRNZ 628
File number: CRN 1248012425/91
Date: 24 June 1991
Court: Youth Court
Location: Otahuhu
Judge: Harvey DCJ
Charge: Unlawful Taking of a Motor Vehicle; Wounding Owner of a Motor Vehicle
CYPF no: s 276
Key Title: Jurisdiction of the Youth Court - s 276 offer/election

Summary:
Children, young persons, and their families - Youth justice - Jurisdiction - Exercise of discretion to allow case to remain in Youth Court - Factors to be considered - Public interest to be taken in account - Balancing of public interest factors - Children, Young Persons, and Their Families Act, ss 4(f), 5, 208, 276, 283, 284; Children and Young Persons Act 1974, s 35(2); Criminal Justice Act 1985, ss 5, 6.

James, 15, was charged indictably with the intent to commit a crime, namely, the unlawful taking of a motor vehicle, and in the course of it, wounding the owner of the motor vehicle. He has no previous offences. James has had the advantages of a good upbringing, a caring family, and a good education which is continuing. He indicated that he wished to plead guilty to the charge and asked to be dealt with in the Youth Court under s 276 Children, Young Persons, and Their Families Act 1989. The family group conference recommended that the matter remain in the Youth Court, and that recommendation is not opposed by the police.

Held, young person to be dealt with in the Youth Court:

1) In exercising the discretion under s 276, the following factors must be taken into account:

  1. The nature of the offence;
  2. The seriousness of the offending and the part played by the young person in the offending;
  3. The effect of the discretion on sentencing options available in relation to the young person;
  4. The principle that a young offender should be held accountable and accept responsibility for his behaviour;
  5. The interests of the young person in being dealt with under the rehabilitative provisions of the Act;
  6. The forum which is likely to be able to hear the case soonest;
  7. The young person's age in relation to the period for which rehabilitative measures under the Act will remain available;
  8. The personal history, social circumstances, and personal characteristics of the young person (s 284(b));
  9. The attitude of the young person towards the offence (s 284(c));
  10. The response by the family, the measures that they have taken, and the recommendations of the family group conference (s 284(d), (e), and (h));
  11. The effect on the victim and the need for reparation (s 284(f));
  12. Any previous offences (s 284(g));
  13. The public interest.[(1991) 8 FRNZ 628, 629]

2) In determining how the public interest is best to be served, the long-term consequences for the offender must be considered where appropriate, as well as the more immediate consequences, and the interests of the victim must be taken into account.
3)Taking into account all the above factors, the machinery that exists in the Children, Young Persons, and Their Families Act 1989 can be more effectively used than the rather limited resources available in the Criminal Justice Act 1985 which could have a potentially more destructive effect upon this young person in the long term than is justified, either in the interests of punishment or of society.

Cases referred to:
Koteka v Police 14/5/91, Barker J, HC Auckland AP95/91
Police v M [1990] DCR 544
Police v Richard and R and S 12/6/90, Judge Lee, YC Upper Hutt CRN9278003995; CRN278003996; CRN278004028
Police v Tai (a young person) (1991) 8 FRNZ 613
R v Dale 7/9/89, Holland J, HC Christchurch S51/89
R v M [1986] 2 NZLR 172
R v Police (1990) 6 FRNZ 538
R v Pora 14/9/90, Gault J, HC Auckland S98/90

Hearing:
This matter deals with the question of whether the young person concerned should be given the opportunity under s 276 Children, Young Persons, and Their Families Act 1989 to plead guilty and to be dealt with in the Youth Court.
The facts appear from the judgment

Back to contents


Police v L (1991) 8 FRNZ 123

Case summary provided by BROOKERS

Name: Police v L
Reported: (1991) 8 FRNZ 123
File number: YJ1283005063
Date: 21 June 1991
Court: Youth
Location: Wanganui
Judge: B D Inglis QC
CYPF no: s 245, s 246, s 247, s 248
Key Title: Family Group Conferences - Timeframes/Limits

Summary:
Children and young persons - Family group conference - Convened in respect of two offences, but did not deal with young offender's third offence - Third offence characteristic of young person's pattern of offending - No need to reconvene family group conference - Youth justice coordinator not obliged to wait for Court's directions but may convene conference if offence not serious - Decisions on future of young persons not to be unduly delayed - Children, Young Persons, and Their Families Act 1989, ss 5(f), 6, 13, 208(h), 245, 246, 247, 248.

Informations were laid against the young person in respect of two offences which he committed on 13 May 1991. On 15 June 1991, a family group conference was convened and a suitable course of action was agreed upon. Unknown to that family group conference, the young person had committed a further offence on 5 June 1991 as a party in a minor respect. The third offence was characteristic of the young person's pattern of offending. The question arose as to whether a youth justice coordinator was obliged to convene a further family group conference to consider that later offence. The second question was whether a youth justice coordinator should convene a family group conference immediately on becoming aware that police action will be or has been taken against a young person, or whether the youth justice coordinator is obliged to wait until positively directed by the Court to convene a family group conference.

Held,

    1. in cases where the later offending is consistent with the general pattern of the young person's offending, there is nothing in ss 245, 246, 247, or 248 Children, Young Persons, and Their Families Act 1989 to require the youth justice coordinator to convene a further family group conference in such circumstances or to wait for the Court's directions in regard to that later offending. The position may be different in a case where the nature of the further offending suggests that the young person may have turned to new avenues of criminal activity, or where the new offence is of an altogether more serious character, or where the circumstances of the offence suggest contempt for the family's efforts. In such circumstances, the youth justice coordinator, or the Court, might well feel that the family group conference ought to be reconvened.
    2. On the second question, for the youth justice coordinator to have to wait until directed by the Court to convene a family group conference would promote unacceptable delay (see s 5(f) of the Act). It is unacceptable that any young person should have to wait for any undue length of time for a decision on his or her future. A youth justice coordinator is in a very good position to assess when a family group conference ought to be convened and should not in any way feel impeded in doing so by any over-technical or [(1991) 8 FRNZ 123, 124]narrow reading of the relevant provisions of the Act. In serious cases, however, the youth justice coordinator should approach the Court for directions.
    3. The true intent of ss 245 and 246 of the Act when read together is to empower the youth justice coordinator to get on with the job as quickly as possible so that by the time the young offender comes before the Youth Court either the family group conference has been held or arrangements for it are well under way.

Obiter, the Act is an over-refined procedural and legal nightmare, but its principles and intent are perfectly clear. The Court should be slow to look for technical obstacles, but instead should encourage those concerned with its administration to ensure that young offenders : who may be at a turning-point in their lives : are dealt with quickly, fairly, with the support and assistance of their families, and within the protection of the law.

Reasons for decision:
These reasons were given in relation to the Youth Court's refusal to order a second family group conference in respect of a later offence by the youth offender.

Back to contents


Police v I (24 June 1991) YC, Otahuhu, Harvey DCJ

Name: Police v I
Date: 24 June 1991
Court: Youth Court
Location: Otahuhu
Judge: Harvey DCJ
CYPFA: s 275
Charge: Armed with Offensive Weapon; Robbery
Key Title: Jurisdiction of the Youth Court - s 275 offer/election

Summary:
I (16) charged with being armed with an offensive weapon and robbery. Whether YC jurisdiction should be offered pursuant to s275 CYPFA. I took cigarettes from the victim's car after I's associate held a knife to the victim's face. Relevant factors from Police v R and R & S (Unreported, 12/6/90, YC, Upper Hutt, Judge M Lee, CRN 9278003995/6,4028) listed and applied; also public interest must be considered where the s275 or s276 CYPFA discretion is exercised: Rihari v Police and anor (Unreported, 11/5/90, HC Rotorua Registry, T14/90); balancing of public interest factors. Judge needs to "look ahead" to sentencing in making the decision: Police v Tai (1991) 8 FRNZ 613. Held: as case not most serious of its kind; I not a key player; I did not instigate the incident or carry a weapon; if charge proven, CYPFA machinery more effective than Criminal Justice Act.

Decision:
YC jurisdiction offered and accepted.

Back to contents


Police v M YC Auckland CRN 1206003230-31, 22 July 1991

File number: CRN1206003230-31; CRN 0290012246
Date: 22 July 1991
Court: Youth Court, Auckland
Judge: Brown DCJ
Key Title: Jurisdiction of the Youth Court: s 275 offer/election; Victim; Family Group Conferences: Non agreement

Summary:
M charged with sexual violation; M allegedly committed offence while babysitting; matter denied; prima facie case found. FGC held, family recommended YC jurisdiction, complainant and police argued matter should go to HC. Section 208(g) concerning the principle that due regard should be given to victims of offending considered. High Court more stressful for complainant but the "catharsis of a trial" may assist in the healing process. M had a long list of previous convictions, further offending since alleged offence.

Result:
Jurisdiction of Youth Court not offered; matter committed to the High Court for trial.

Back to contents


Police v Charlie (A Young Person) (1991) 9 FRNZ 652 (DC)

Case summary provided by BROOKERS

Name: Police v Charlie (A Young Person)
Reported: (1991) 8 FRNZ 652
File number: CRN1204003505-07 & ors
Date: 16 August 1991
Court: District Court
Location: Auckland
Judge: McElrea DCJ
CYPFA: s 283(l)
Key Title: Family Group Conference - Plan; Orders - Community Work

Summary:
Youth justice - Family group conference recommendations - Recommendation that young person do community work supervised by social worker who charges $10 an hour unacceptable - Not for individuals or organisations to make a profit out of the misfortunes of young people - Children, Young Persons, and Their Families Act 1989, s 283.

Charlie, nearly 16, appears on a large number of (unspecified) charges. The family group conference recommended that Charlie be given 200 hours of community work and that his community work order be supervised by a named person who charges $10 an hour for his services. The Department of Social Welfare objected to the $2,000 bill and proposed that the Court reduce it to 75 hours community work as their payment ceiling for such services is $750.

Held,

  1. It could be a matter of great potential embarrassment for the Department of Social Welfare and to the Court if it were to approve the department's proposal. The department's proposal that the community work hours recommended by the family group conference be reduced because the department has proposed somebody who charges $10 an hour for their supervisory services is unacceptable. The department needs to look very carefully at the principle of appointing people who might be making a profit out of supervision when there are community organisations who supply the same service for no charge whatsoever. The Children, Young Persons, and Their Families Act 1989 is not to be used by private individuals or organisations to make a profit out of young people's misfortune.
  2. It is not encumbent upon the family to find appropriate supervisors. That is the job of the Department of Social Welfare which must have a list of appropriate and suitable placements for community work.
  3. A family group conference is to be reconvened to reconsider the matter.

Hearing:
Reasons given for further adjourning a matter under the Children, Young Persons, and Their Families Act 1989.

The facts appear from the judgment.

Back to contents


Police v B YC Otahuhu, 5 August 1991

File number: unknown
Date: 5 August 1991
Court: Youth Court, Otahuhu
Judge: Judge Harvey
Key Title: Jurisdiction of the Youth Court - Age; Admissibility of statements to police/police questioning (ss 215-222): Reasonable compliance

Summary:
Ruling as to admissibility of evidence on grounds of failure to comply with s 215 of the CYPFA. Whether provisions of s 215 et seq apply to a 17 year old who is in the Youth Court by virtue of s 2(2) of the CYPFA; whether provisions of s2(2) apply to s215; whether s215 should apply to persons over 17 on the basis of fairness.

B (16 at time of offending but now 17) admitted committing multiple burglaries to two Police officers; Police say admissions given voluntarily but B argued they were not and that he had been threatened with arrest and refusal of bail if he did not co-operate; Police evidence preferred. Breach of Rule 4 and Rule 7 of Judges' Rules; voluntariness and unfairness also argued.

Held:
Section 2(2) does not extend all the youth justice procedures to a suspect over the age of 17 who was under 17 at the time of the offences; s 2(2) enables the Youth Court to have jurisdiction in these circumstances but it does not go so far as to apply the provisions of s 215 et seq to this group of offenders; cf. s 215(1)(a)-(f). B was only a few days over 17 but CYPFA allows no 'grey area' as to the age where Youth Court jurisdiction applies and similarly there is no grey area as to the application of s 215. That a person was a few days over 17 could be taken into account in the overall appraisal of the issue of fairness if admissibility challenged.

Decision:
Evidence admissible.

Back to contents


Police v I (5 August 1991) YC, Auckland, CRN 0204001270, Brown DCJ

Name: Police v I
Unreported
File number: CRN 0204001270
Date: 5 August 1991
Court: Youth Court
Location: Auckland
Judge: Brown DCJ
Charge: Assault on a female
CYPFA: s 260
Key Title: Family Group Conference - plan

Summary:
FGC held; victim present; plan implemented with approval from all parties including the victim. Placed under supervision of a youth worker; reparation; apology; 200 hours community work. All completed to a high standard.

Decision:
Order - Come up if called upon: s 283(c).

Back to contents


Police v KC YC Auckland CRN 1004015593-94, 30 August 1991

File number: CRN 1004015593-94; CRN 1204003392-97; CRN 1224005193-97; CRN 1248023241-44
Date: 30 August 1991
Court: Youth Court, Auckland
Judge: Brown DCJ
Key Title: Orders - enforcement of, breach and review of (ss 296A-296F): Supervision, Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Arson

Summary:
Application for cancellation of Supervision with residence order. KC had absconded and re-offended since the order was made and had failed to comply with the FGC plan. Section 316(2)(b) CYPFA provides a power to substitute any other order that the Court could have made at the time the original order was made; the Court had already exercised its s 276 discretion so, although some matters were laid purely indictably, that option was not now available to the Court. Non-custodial order would be inadequate as serious offending and absconding thus remanded for one week in Police custody for sentence and probation report.

Decision:
Order made cancelling the Supervision with residence order, s 283(o) order made in substitution - all matters to be transferred to the District Court.

Back to contents


Police v V YC Auckland, 30 August 1991

Date: 30 August 1991
Court: Youth Court, Auckland
Key Title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Other offences, Victims, Custody (s 238): Police (s 238(1)(e))

Summary:
V (15) had long history of offending, many Family Group Conferences, reports and placements. Unusual to transfer 15 year old to District Court but transfer effected after s 284 factors considered. Relevant here was:

  1. persistent offending,
  2. unrepentant and manipulative attitude,
  3. ineffectual family response;

also principles in s 208(g) regarding victim's interests considered - particularly relevant where lengthy period of offending involved. Non-custodial alternatives inadequate.

Decision:
Transfer to District Court. Remanded pursuant to s 238(1)(e).

Back to contents


Police v JME (29 September 1991) YC, Oamaru, CRN 1245003903, Young DCJ

Name: Police v JME
Unreported
File number:
CRN 1245003903
Date: 29 September 1991
Court: Youth Court
Location: Oamaru
Judge: Young DCJ
Charge: Breaking and Entering
CYPF Act: s 221
Key Title: Admissibility of statements; Jurisdiction of Youth Court – Age

Summary:
JME (16 at time of alleged offence) interviewed regarding offence of breaking and entering; police officer cautioned JME but CYPFA not complied with as JME was 17 at time of interview and officer believed compliance not necessary. JME argued the statement should not be admissible. Section 2(2) CYPFA provides that "where proceedings under this Act are contemplated" the relevant age is that reached at the date of the offence. For JME it was argued that proceedings were "contemplated" at the time of the interview and thus the protections contained in sections 221 to 229 inclusive and section 232 were applicable. The Police argued that the purpose of the legislation was not to protect those who had already turned 17 at the time of their interview.

Where an accused is a YP at the time of the offence but the information is laid after his or her 17th birthday, then the proceedings are to be conducted in accordance with the CYPFA (Police v W, High Court, Auckland Registry, AP185/89, Gault J). In Police v W, Gault J approached the "awkward relationship" between s2(1) and s2(2) CYPFA by approaching the provisions of the Act sequentially. Using this approach, Young J analysed the relevant sections and determined that the age of a child or young person for the purpose of anything occurring within the CYPFA should be calculated using the section 2(2) formula. That formula only becomes relevant when proceedings are contemplated or taken and following the decision in Police v W, Young J found that proceedings had been taken in this case and thus the relevant age should be that at the date of the offence. Thus, in considering the challenge to the admissibility of the statement, JME's age for the purpose of these proceedings, should be calculated in accordance with the formula in section 2(2). Accordingly, JME was a young person on the day the statement was taken because his age at the date of the commission of the offence for the purpose of these proceedings was 16 years.

Decision:
Statement inadmissible.

Back to contents


Police v T YC Auckland CRN 1204003778-80, 2 September 1991

File number: CRN 1204003778-80
Date: 2 September 1991
Court: Youth Court, Auckland
Judge: McElrea DCJ
Key Title: Orders - type: Discharge - s 282; Orders - type: Discharge - s 283(a); Orders - type: Community Work - s 283(l); Orders - type: Reparation - s 283(f)

Summary:
T (now 16) and co-offender "M" ["M" dealt with in Police v M YC Auckland CRN 1204003795-97, 2 September 1991 also under s 282 and s 283(a) on this database] stole jackets; knife and firearm used. No offending history; matters proved by admission. FGC held but no recommendation given as to preference for formal orders or diversion. Argument made that s 282 appropriate as s 283 would give T a record that would bar him from travelling to his native Vietnam.

No evidence that s 283 order would be a bar to travel and even if it was, s 282 should not be used to withhold relevant information from emigration or immigration authorities. Court processes not to be used to deceive or hide relevant matters. (Line of authority from Police v Roberts [1991] 1 NZLR 205; (1990) 7 CRNZ 197 followed, concerning the withholding of relevant information regarding relevant offences from potential employers).

Section 282 not appropriate as serious matter where knife and gun involved.

Decision:
Formal orders made pursuant to s 283 for 200 hours community work and $292.50 reparation. Apology letter recommended.

Back to contents


Police v M YC Auckland CRN 1204003795-97, 2 September 1991

File number: CRN 1204003795-97
Date: 2 September 1991
Court: Youth Court, Auckland
Judge: Judge McElrea
Key Title: Orders - type: Discharge - s 282; Orders - type: Discharge - s 283(a), Orders - type: Reparation - s 283(f), Orders - type: Community Work - s 283(l).

Summary:
M (almost 17); no previous offending and co-offender 'T' ['T' dealt with in Police v T YC Auckland CRN 1204003778-80, 2 September 1991 also under s 282 and s 283(a) on this database] stole jackets; knife and firearm used. Pair agreed to use firearm if barred in their attempt to steal the jackets. Against transfer to District Court was the fact that M had no previous record and was contrite; a worthwhile FGC had been held. Argument made that formal orders would prevent M from emigrating to South Africa with his mother.

Having considered Roberts v Police [1991] 1 NZLR 205; (1990) 7 CRNZ 197 where Wiley J upheld the principle that the Courts must not be in a situation where they are hiding relevant offences from potential employers, the Judge considered that the Courts must ask themselves whether it is right to adopt a particular course, such as making an order under s 282, for such a purpose as 'hiding' M's wrongdoing in order to assist in his emigration. Formal orders made despite M's contrition and previous good record as Judge not prepared to use Court's powers to hide an offence.

Whether a discharge without conviction is appropriate under Criminal Justice Act 1985, s 19 depends on whether a conviction would be out of all proportion to the seriousness of the offence. The Judge approached s 282 in a similar way and decided that a formal order under s 283 would not be 'out of all proportion' to the serious offending in this case.

Decision:
Formal order made under s 283. Reparation of $292.50, community work of 200 hours.

Back to contents


Police v Carter DC Auckland CRN 1248023241-4, 6 September 1991

File number: CRN1248023241-4; CRN 1224005193-7
Date: 6 September 1991
Court: District Court, Auckland
Judge: Judge McElrea
Key Title: Sentencing in the adult courts - Arson.

Summary:
C (16) faced serious charges including three of arson (one arson caused $113,000 of damage to a school); charges proved by admission in Youth Court; s 283(o) order made in Youth Court; C had spent time in custody pursuant to s 311 but absconded and re-offended on a number of occasions.

Counsel for defendant argued for corrective training but in view of absconding and re-offending, term of imprisonment imposed. Prison rare for 16 year old but alternatives tried without success; necessary for C to be accountable.

On one set of charges including the three arson charges, C sentenced to 12 months prison less four months for time already served under s 311. On further set of charges including taking motor vehicles, receiving and stealing, C sentenced to 2 months. On third group of charges including escaping from custody and unlawful taking of motor vehicle, C sentenced to 6 weeks. Thus, a total of 10 months and 6 weeks imprisonment. Sentence of less than one year given to bring case within provisions of the Criminal Justice Act, s 77A allowing special conditions on release; conditions imposed included counselling - recommendation for counselling for arson problem.

Decision:
10 months and 6 weeks imprisonment with special conditions on release.

Back to contents


Police v T YC Auckland CRN 1204003984, 30 September 1991

File number: CRN 1204003984
Date: 30 September 1991
Court: Youth Court, Auckland
Judge: Brown DCJ
Key Title: Jurisdiction of the Youth Court - s 276 offer/election

Summary:
T charged with two others, one an adult, with aggravated robbery; T indicated desire to plead guilty; whether YC jurisdiction should be offered pursuant to s276 CYPFA or whether matter should be transferred to adult Court. Kent v SS 383, US (1966) criteria to be considered (not exhaustive); protection of public a difficult factor; consider amenability to rehabilitation; FGC process allows these criteria to be considered particularly if victim involved. Counsel and prosecution to address Judge on these matters.

Decision:
Matter adjourned.

Back to contents


Police v P and T (Young Persons) (1991) 8 FRNZ 642

Case summary provided by BROOKERS

Name: Police v P and T (Young Persons)
Reported: (1991) 8 FRNZ 642
File number: CRN1204003983
Date: 4 October 1991
Court: Youth
Location: Auckland
Judge: F W M McElrea
Charge: Aggravated Robbery
CYPF no: s 276
Key Title: Jurisdiction of the Youth Court - s 276 offer/election; Family Group Conference - Non agreement; Prosecution; Victims

Summary:
Children, young persons, and their families - Youth justice - Aggravated robbery - Jurisdiction - Prosecutor need not agree with youth aid officer involved in an agreement made in family group conference - Victim's view to be taken into account even if did not attend conference - Role of conference when considering appropriate jurisdiction - Recommendation of outcome can be useful to Court when deciding orders - Children, Young Persons, and Their Families Act 1989, ss 273, 276, 283, 284; Crimes Act 1961, s 321; District Courts Act 1947, ss 28F, 28G, Schedule 1A; Summary Proceedings Act 1957, ss 7, 153A, 168; Victims of Offences Act 1987.

P, 16, and T, 15, together with a 20-year-old man, were charged with purely indictable offences involving the aggravated robbery of a liquor store. P and T asked to be given the opportunity under s 276 Children, Young Persons, and Their Families Act 1989 to plead guilty and to be dealt with in the Youth Court. A family group conference in the case of T recommended that he be dealt with in this Court by way of orders for supervision with residence. In respect of P, there was no agreement in the conference on a course of action. The youth aid officer in that conference wished the matter to be transferred to the District Court for sentence under s 283(o) of the Act. The victim refused to attend either of the conferences but he expressed the view, in the victim impact report, that P and T should be dealt with to the full extent of the law. Three issues had arisen:

  1. Whether it was appropriate for the police through its prosecutor in Court to oppose a recommendation of the family group conference when that recommendation had been formed with the agreement of the youth aid officer at the conference.
  2. Whether the Court could take into account the views of a victim who does not attend a conference.
  3. The prosecutor argued that it was not open to the family group conference in the matter of T to put before the Court a recommendation for supervision with residence when the only thing they were invited to consider was the appropriate jurisdiction.
  4. NB. The case gives a useful clarification of the impact of the new criminal (jury trial) jurisdiction of the District Court (effective 1 October 1991) on purely indictable offences in relation to Youth Court jurisdiction.

Held,

  1. there is a danger that if the Court were to say that the prosecutor cannot disagree with the youth aid officer, then youth aid officers might be given riding instructions by prosecutors as to what they can accept and what they cannot accept at a family group conference: that would be a retrograde step and would be contrary to the spirit of the Act. Youth aid officers have [(1991) 8 FRNZ 642, 643]to be free to deal with the matter as they see fit based on what happened at the conference. Provided it does not happen regularly, there is nothing wrong with a prosecutor, for good reason, expressing a different view to the youth aid officer. The prosecutor's view is to be taken into account but the Court must give heavy weight to the recommendations of the conference although it is free to depart from them where appropriate.
  2. The Victims of Offences Act 1987, which applies to all Courts, requires the Court to take into account the views of victims. The victim's views are taken into account here but could have been more helpfully expressed at the family group conferences.
  3. A tentative recommendation from the family as to what they think a suitable outcome would be is something that can assist the Court. It can then be weighed up in a serious manner and the Court can then decide whether it is a feasible outcome or not in the light of all other matters.
  4. Both P and T will be given the opportunity under s 276 to forgo their rights to trial by jury and plead guilty and be dealt with in the Youth Court.

Cases referred to:
Kent v US 383 US (1966)
Police v M [1990] DCR 544
Police v Tai (a young person) (1991) 8 FRNZ 613

Hearing:
This matter deals with the question of whether the young persons concerned should be given the opportunity under s 276 Children, Young Persons, and Their Families Act 1989 to plead guilty and to be dealt with in the Youth Court.

The facts appear from the judgment.

Back to contents


Police v G YC Hamilton, CRN 1219013324, 15 October 1991

File number: CRN 1219013324
Date: 15 October 1991
Court: Youth Court, Hamilton
Judge: Thorburn DCJ
Key Title: Jurisdiction of the Youth Court: s 275 offer/election; Family Group Conferences: Non agreement

G was indictably charged with injuring with intent to injure with 3 other persons, all adults. G was nearly 17 at the time of the offence; one adult offender already sentenced to imprisonment; no FGC agreement on whether YC jurisdiction should be offered pursuant to s 275 CYPFA. Although s 275(2) implies that, if the YP accepts the opportunity given to elect to have the matter dealt with in the YC, that should take place, the discretion remains with the Judge.

Held:
G an active participant; age; s 5 Criminal Justice Act applies; and if tried and convicted in the adult jurisdiction some prejudice could arise to G; serious offending; expediency and desirability for witness including the victim of one hearing; sentencing options community would expect.

Decision:
G committed to DC for trial.

Back to contents


Police v McR YC North Shore CRN 1044007273-75, 10 October 1991

File number: CRN 1044007273-75; CRN 1044007277 & 78; CRN 1244008578-91; CRN 1244008632
Date: 10 October 1991
Court: Youth Court, North Shore
Judge: Gilbert DCJ
Key Title: Orders - type: Discharge - s 282; Orders - type: Discharge - s 283(a)

Summary:
McR involved in serious crimes with co-offender; FGC devised plan; McR completed plan. Police seek s 283(a) CYPFA discharge arguing that "Court record" necessary; amendments to Act being considered on this matter. FGC plan carried out, Judge confident McR will not re-offend; McR going to work in Japan; s 282 may mean no Court record for McR but Judge doubtful of this.

Decision:
Orders - Discharge - s 282.

Back to contents


R v Corston DC Wanganui T9/91, 11 November 1991

File number: T9/91
Date: 11 November 1991
Court: District Court, Wanganui
Judge: Judge Laing
Key Title: Rights; Evidence (not including admissibility of statements to police/police questioning)

Summary:
Theft of money from incorporated society; 3 young persons (YPs) admitted taking money; all 3 dealt with by diversion; YPs to give evidence in relation to trial of adult relative accused of involvement. Whether YPs need a warning in respect of self-incrimination; Crown argues that a warning is discretionary and there must be a reasonable ground on the part of the witnesses for the witnesses to apprehend danger before they can refuse to answer questions. YPs had received a CYPFA, s210 warning; question raised as to whether a YP who has been so warned could plead autrefois convict; view of the Court that such a plea would not be available. A number of complicating factors including that as the YPs are not adults their status must be examined with greater caution and leaning towards their interests; uncertainties as to procedures previously followed. Court notes that while the prosecution may indicate it would not initiate criminal proceedings, a private prosecution is possible.

Decision:
Formal warning against self-incrimination to be given to each YP unless further factors are put before the court.

Back to contents


Police v S YC Auckland CRN 1204004108, 8 November 1991

File number: CRN 1204004108
Date: 8 November 1991
Court: Youth Court, Auckland
Judge: Brown DCJ
Key Title: Jurisdiction of the Youth Court: s 276 offer/election

Summary:
S (16) charged with aggravated robbery laid indictably; premeditated attack; female associate posed as a prostitute to direct victims to a pre-arranged rendez-vous; guilty plea; family support; family and Police support matter being retained in the Youth Court; philosophies of CYPFA, s 5 and s 208.

Decision:
Youth Court jurisdiction offered.

Back to contents


Police v P (18 December 1991) YC, Henderson, CRN 1290017161 & ors, Brown DCJ

Unreported
File number:
CRN1290017161; 1290017454; 1290017511; 1290017514; 1290017530; 1290017540; 1290017543-44; 1290017548; 1290017551; 1290017554-55; 1290017557-58; 1290017561-62; 1290017564; 1290017567; 1290017571; 1290017573; 1290017576-77; 1290017580-81; 1290017584-85; 1290017587; 1290017589
Date: 18 December 1991
Court: Youth Court
Location: Henderson
Judge: Brown DCJ
CYPFA: s 251
Charge: Burglary
Key Title: Family Group Conference – Attendance

Summary:
P (15) faced multiple burglary charges; ten charges admitted at FGC; other charges denied; Police not present at FGC; victim's views not obtained. Held: FGC not properly co-ordinated; need for views of Police and victims to be obtained before decision can be made on FGC recommendations.

Decision:
Matter remanded for Dept of Social Welfare to ascertain the views of those not at the FGC; P to remain in custody of Director-General of Social Welfare in secure care.

Back to contents


Police v Williams DC Otahuhu CRN 2900011207-1255, 2 December 1991

File number: CRN 2900011207-1255
Date: 2 December 1991
Court: District Court, Otahuhu
Judge: Harvey DCJ
Key Title: Sentencing in the adult Courts - other

Summary:
Defendant faced 42 charges of burglary. Criminal Justice Act 1985, s 6: no custodial sentence unless special circumstances found; special circumstances found here - large scale offending, repetitive, burglaries often at night, many previous convictions. Whether to impose a custodial sentence; reparation not possible as no report provided to Judge; authorities suggest custodial sentence. Judge took into account that defendant has obtained employment; defendant's age, other sentences imposed, and fact that the defendant is already serving a sentence of periodic detention; considers community protection. R v Minto [1982] 1 NZLR 606: periodic detention is a very real alternative to a sentence of imprisonment.

Decision:
Periodic detention in respect of each charge for 9 months, final warning.

Back to contents