Summaries 1992

Contents
Police v B YC Auckland CRN 1244013591, 24 January 1992  Police v T YC Auckland CRN 2290005050, CRN 2290005061-95, 18 March 1992 
Director-General of Social Welfare v V (A Young Person) (1992) 8 FRNZ 598 Police v C and O (Young Persons) (1992) 9 FRNZ 114 (YC) 
DSW v S (20 February 1992) YC, Otahuhu, 00/92  Police v B YC Papakura CRN 2255011532, 17 September 1992
Toloa v R (28 February 1992) HC, Auckland, R. 62/92, Williams J  Department of Social Welfare - v- Bts (A Young Person) (1992) 9 FRNZ 670 (DC)
Police v T (28 February 1992) YC, Auckland, CRN 2004011728, Brown DCJ Department of Social Welfare v Y DC Otahuhu CYPF No 197/92, 22 November 1992
Police v Lo and Chow DC Otahuhu CRN 1248029243-4, 13 March 1992  1992 Appellate Court decisions

 

Police v B YC Auckland CRN 1244013591, 24 January 1992

File number: CRN 1244013591
Date: 24 January 1992
Court: Youth Court, Auckland
Judge: Gilbert DCJ
Key Title: Jurisdiction of the Youth Court - s 276 offer/election

Serious attack; Police and victim support Youth Court jurisdiction; B has an unhappy background; within spirit of the CYPFA to offer Youth Court jurisdiction; High Court would sentence B to imprisonment.

Decision:
Youth Court jurisdiction offered.

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Director-General of Social Welfare v V (A Young Person) (1992) 8 FRNZ 598

Case summary provided by BROOKERS

Name: Director-General of Social Welfare v V (A Young Person)
Reported:
(1992) 8 FRNZ 598
Date: 26 February 1992
Court: Youth
Location: Otahuhu
Judge: Harvey J
Charge: Murder
CYPFA: s 368
Key Title: Secure Care; Custody - CYFS

Summary:
Children and young persons - Secure care - Young person sentenced to life imprisonment for murder - DGSW authorised to detain young person in secure care in a residence without the necessity for fortnightly applications to the Court for renewal - Children, Young Persons, and Their Families Act 1989, ss 2, 283(n), 361, 364, 367, 368, 370, 376, 454(2); Criminal Justice Act 1985, ss 8, 142A; Penal Institutions Act 1954, s 12.

V was sentenced to life imprisonment for murder. He is presently detained in a residence under s 142A Criminal Justice Act 1985. The Director-General sought to have V retained in secure care at the residence. It is his view that s 368 Children, Young Persons, and Their Families Act 1989 ("the Act") is the only authority to place a child or young person in secure care; that the maximum amount of time that V may remain in secure care is 14 days and that a fresh application under s 368 must be made every 14 days to continue his retention in secure care. The Department of Justice however disagrees with that view. It is submitted that placement of a sentenced person within secure care does not fall within the ambit of the secure care provisions of the Act and that the Penal Institutions Act 1954, by virtue of s 142A(2) Criminal Justice Act, gives the Director-General the power to confine sentenced offenders in what amounts to secure care without the necessity of undergoing the review procedures provided in s 367 and the following sections of the Act. It is further argued that the secure care provisions under s 367 apply only to children or young people who come into a residence under s 361 and sentenced offenders do not fall into any of those categories.

Held:

  1. Since it is on the basis of s 142A Criminal Justice Act 1985 that the young person is at the residence, the provisions of the Penal Institutions Act 1954 take precedence in this matter. Section 142A being an exception to s 12 Penal Institutions Act means that a young person like V may serve his sentence in a residence but at the same time be subject to the Penal Institutions Act.
  2. If it had been the legislative intention under s 142A for the provisions of the Children, Young Persons, and Their Families Act 1989 to apply, including those provisions relating to secure care, then the Legislature would have said so.
  3. The Director-General is required to keep a young person such as V in secure care and in confinement at a residence. V should not be kept in the secure care wing by way of an application for secure care under the Children, Young Persons, and Their Families Act. Although that procedure is legislatively stipulated and appropriate for young people in the institution [(1992) 8 FRNZ 598, 599]under s 361, it is totally inappropriate for a person who is effectively a sentenced prisoner serving a sentence and who has been transferred by virtue of age from a penal institution to the residence. In future, V should be kept and retained in the secure care wing without the necessity of being brought before a Judge every fortnight for the question of his secure care to be reviewed.

Application:
This was an application for an order to place a young person convicted of murder in secure care at a residence established under the Children, Young Persons, and Their Families Act 1989.

The facts appear from the judgment.

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DSW v S (20 February 1992) YC, Otahuhu, 00/92

Name: DSW v S
Unreported
File number: Otahuhu 00/92
Date: 20 February 1992
Court: Youth Court
Location: Otahuhu
CYPFA: s 361; s 368
Key Title: Secure Care

Summary:
S sentenced on indictable offence; placed in residence pursuant to s 142A Criminal Justice Act 1985. Whether needs to be kept in secure care pursuant to provisions of CYPFA. Application of provisions of s 361 CYPFA; circumstances when secure care applications should be made. Application of provisions of Criminal Justice Act and Penal Institutions Act 1954 to children and young people in a residence.

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Toloa v R (28 February 1992) HC, Auckland, R. 62/92, Williams J

Name: Toloa v R
Unreported
File number: R. 62/92
Date: 28 February 1992
Court: High Court
Location: Auckland
Judge: Williams J
Charge: Murder
Key Title: Bail

Summary:
T (16) charged with murder; no admission made; now appealing against DC refusal to grant bail. HC granted bail as (1) T had voluntarily surrendered to Police, (2) other offenders were involved besides the appellant (3) T young with no previous convictions. Stable relatives able to supervise T.

Age limit in Crimes Amd Act (No. 2) 1991 (now repealed) which required the Court to take into account the need to protect the public in relation to violent offenders was 17. Thus the CYPFA approach was not altered by the 1991 amendment.

Decision:
Bail granted with strict conditions.

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Police v T (28 February 1992) YC, Auckland, CRN 2004011728, Brown DCJ

Name: Police v T
Unreported
File number: CRN 2004011728
Date: 28 February 1992
Court: Youth Court
Location: Auckland
Judge: Brown DCJ
CYPFA: s 238(b)
Charge: Murder
Key Title: Bail

Summary:
Application for bail. T (16) charged with murder; allegedly repeatedly kicked victim in the head on three occasions; no admission made; no previous convictions. Possible for T to reside with brother; to report daily; curfew; surrender of passport; prosecution states Police have no reason to suspect T will not report on bail if granted. Judge concerned as to views of victim's family, community concern about violence.

Decision:
Application for bail declined. T remanded to penal institution.

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Police v Lo and Chow DC Otahuhu CRN 1248029243-4, 13 March 1992

File number: CRN 1248029243-4; CRN 1248032768-9; CRN 1248028193; CRN 1248029245-6; CRN 12480238339
Date: 13 March 1992
Court: District Court, Otahuhu
Judge: Harvey DCJ
Key Title: Sentencing in the adult Courts: Arson

Notes on Sentencing:
L (17) and C (16) charged with arson; $1.3m damage to a College; valuable community resource; devastating impact on students. R v Cuckow CA213/91, 17 December 1991 discussed. Custodial sentence would be appropriate for L. Reparation of $60,000 to be paid by L and $30,000 by C; parents have agreed to shoulder this burden; this is consistent with CYPFA. L vengeful and controlling; planned incident but given L's offer of compensation, remorse; that he is in therapy (therapists indicate imprisonment may damage progress made) and a first offender, sentenced to corrective training plus rehabilitative measures. C a good student; a follower only; attempted to disengage early on; offered compensation, remorseful, in counselling, first offender.

Decision:
Sentenced on burglary charge to periodic detention for 12 months, supervision for 2 years and rehabilitative conditions. On wilful damage charge: supervision for 2 years, disqualified from driving for 2 years. On arson charge: periodic detention for 12 months.

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Police v T YC Auckland CRN 2290005050, CRN 2290005061-95, 18 March 1992

File number: CRN 2290005050; CRN 2290005061-95
Date: 18 March 1992
Court: Youth Court, Auckland
Judge: Principal Youth Court Judge Brown
Key Title: Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Other

T (16) appeared on 38 charges of burglary; alternatives including supervision with residence tried in relation to past offending; no remorse; family felt situation hopeless. Section 284 CYPFA factors considered; offences not purely indictable but magnitude of offending and lack of remorse plus need to protect community important in decision to convict and transfer to District Court for sentencing.

Decision:
Order - convict and transfer to District Court - s 283(o).

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Police v C and O (Young Persons) (1992) 9 FRNZ 114 (YC)

Case summary provided by BROOKERS

File number: CRN2204003005-06
Date: 15 May 1992
Court: Youth Court, Auckland
Judge: M J A Brown DCJ
Key Title: Family Group Conferences: Non agreement; Orders - type: Supervision with residence - s 283(n), Jurisdiction of the Youth Court: s 275 offer/election

Summary:
Children young persons, and their families - Youth justice - Family group conference recommendations - Aggravated robbery - Youth offenders given opportunity to have matter dealt in Youth Court - Recommendation of family group conference of supervision with residence objected to by police - Recommendation adopted - Clear distinction between youthful and adult offenders in sentencing matters - Children, Young Persons, and Their Families Act 1989, ss 4, 5, 208, 275, 283(n), 290.

Application:
This was an application to determine whether the Court should adopt the recommendations of the family group conference for the Court to order supervision with residence in respect of two young offenders.

The facts appear from the judgment.

The two young persons, C and O, allegedly with an adult, committed aggravated robbery of a dairy. They indicated a wish to plead guilty and were given the opportunity to have the matter dealt with in the Youth Court under s 275 Children, Young Persons, and Their Families Act 1989. Family group conferences were held. With the exception of the police officers who attended the conferences, the rest of the participants (including some of the victims) recommended that the young persons be given supervision with residence under s 283(n). The police objected on the basis of the seriousness of the crime committed, favouring instead a term of imprisonment.

Held, adopting the recommendations of the conferences:
There are severe restrictions on the imposition of supervision with residence as set out in s 290(1) of the Act. Section 290(1)(b) clearly delineates between the youthful offender and the adult, a full-time custodial sentence would be required to be imposed. Clearly, the legislators had in mind here the capacity for distinction. It is appropriate here to impose in respect of each of these young persons orders for supervision with residence in terms of the detailed plans filed.

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Police v B YC Papakura CRN 2255011532, 17 September 1992

File number: CRN 2255011532
Date: 17 September 1992
Court: Youth Court, Papakura
Judge: Harvey DCJ
Key Title: Family Group Conferences: Timeframes/Limits: Intention to Charge, Youth Court Procedure

Basis upon which proceedings instituted: (1) s 245 of the CYPFA and (2) abuse of process.

    1. Section 245; provisions mandatory; pre-existing evidence of proposed charge; FGC held regarding one charge; proposed charge a different charge; different ingredients; section relates to laying information; no consultation; information dismissed.
    2. Abuse of process: prosecution conduct must amount to an abuse of process of the Court and be oppressive or vexatious; alleged that abuse occurs if person indicates they will deny the charge and the prosecution indicates that if a denial is entered another charge will be laid; such a statement that such a course will be undertaken is unwise.

Decision:
No compliance with s 245 of the CYPFA, no jurisdiction to issue the information, Information dismissed.

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Department of Social Welfare v Bts (A Young Person) (1992) 9 FRNZ 670 (DC)

Case summary provided by BROOKERS

Name: Department of Social Welfare v Bts (A Young Person)
Reported: (1992) 9 FRNZ 670
File number: MP166/92
Date: 21 October 1992
Court: District Court
Location: Otahuhu
Judge: Harvey DCJ
CYPFA: s 5; s 6; s 368, s 371
Key Title: Secure Care

Summary:
Youth justice - Continuation of secure care - Order of secure care last resort - Nature of evidence - Each ground for placement must be proved by evidence - Whether there was real likelihood of further absconding - Whether absconding would harm young person's physical, mental, or emotional wellbeing not proven - Comments on necessity for appropriate allocation of resources to hear applications for secure care - Children, Young Persons, and Their Families Act 1989, ss 5, 6, 368, 370-372, 375-377.

This was an application for a renewal of an order for secure care in respect of 15-year-old BTS who faced charges of various offences. BTS was detained in secure care at the Weymouth Residential Centre. He had led a nomadic lifestyle and had a history of absconding from the various institutions that he had been placed in. Counsel for BTS submitted that there was no real likelihood that BTS would further abscond. He relied on the fact that BTS was going to be taken to a family group conference in Kaikohe in an unsecured vehicle by one, or possibly two, social workers.

Held, declining the application:

  1. Section 368 Children, Young Persons, and Their Families Act 1989, which provides for the grounds for placement in secure care, contains stringent requirements which focus on the interests of a child or young person. There is an overriding discretion conferred by the word "may" and this must be exercised having regard to the general principles set out in ss 5(c) and 6 of the Act. The welfare and interests of the child or young person remain a paramount factor.
  2. A young person may be placed in secure care only as a last resort. The use of the words "if, and only if" followed by the word "necessary" in s 368 provide a form of an extreme legislative emphasis that an order for secure care is considered as an "in extremis" measure.
  3. Where an application is opposed, all of the grounds must be made out under s 368(a) and in respect of each and every one of these grounds, there must be some form of supporting evidence brought whether or not that evidence would be admissible in a Court of law.
  4. There must be a degree of contemporaneity between any previous absconding and the establishment of absconding necessary to invoke the provisions of s 368(a).
  5. Although the documentary evidence showed that BTS had previously absconded and is likely to abscond again, there is, however, no evidence that[(1992) 9 FRNZ 670, 671] by absconding, his physical, mental, or emotional wellbeing are likely to be harmed. Such evidence may be given by a social worker or, where appropriate, by an expert. It is incumbent upon the department to arrange for this evidence to be made available. In the absence of any evidence admissible in a Court of law or otherwise, the application cannot be sustained.
  6. Moreover, if the department's fears of BTS further absconding were strongly held, some more secure means of transporting BTS to his family group conference would be arranged. If the department is to be consistent in seeking an application for secure care, then the nature of the security of the care must continue 24 hours a day.

Obiter:
"hearings of this nature cannot be dealt with in an offhand or casual manner. Evidence must be called and appropriate evidence must be given. I leave it to the administration to devise the appropriate systems for ensuring that hearings involving applications for secure care, where the obvious welfare of children and young persons is at issue, are properly scheduled, and that sufficient resources in terms of time, personnel, and equipment are made available".

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Department of Social Welfare v Y DC Otahuhu CYPF No 197/92, 22 November 1992

File number: CYPF No 197/92
Date: 24 November 1992
Court: District Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A), Reports - Psychological

Application for secure care; Y had previously absconded; at previous hearing Judge Harvey found no evidence to support provisions of s 368 in that little likelihood that Y's physical, mental or emotional wellbeing were likely to be harmed if he absconded. Y had spent two months in secure care; likelihood of absconding has reduced; psychologist's report showed Y likely to abscond when placed under stress and less stressed in the open unit.

Decision:
Application for secure care declined.

[Note: s 368 CYPFA repealed and substituted on 8/1/95 by 1994 No 121, s 41].

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