Summaries 1996

Contents
Police v TDA [1996] DCR 367, [1996] NZFLR 409
Police v W [1996] NZFLR 902 (DC)
Sage v Registrar of Youth Court Auckland [1996] NZFLR 477 (YC)
Police v WF and MR [1996] NZFLR 644 (YC)
Police v BCS [1996] DCR 985 (DC)
Police v S [1996] NZFLR 906 (DC)
Police v Tupe DC Kaikohe CRN 6227004887, 19 December 1996
Appellate Court decisions

Police v TDA [1996] DCR 367, [1996] NZFLR 409

Name: Police v TDA
Reported: [1996] DCR 367, [1996] NZFLR 409
File number: CR 5027007163/4/6-9
Date: 13 March 1996
Court: Youth Court, Kaikohe
Judge: Harvey DCJ
Key Title: Youth Court Procedure; Jurisdiction of the Youth Court: s 276 offer/election

Young person faced five charges of sexual violation by rape and one charge of sexual violation by digital penetration; purely indictable offences; initially offences were denied; later TDA indicated he wished to plead guilty. Issue: when s 276 offer not made, upon what statutory authority, following an indication of a plea of guilty, may a YC Judge commit a young person to the HC for sentence. Further, does s 153A Summary Proceedings Act 1957 apply and if not, by what other authority may the committal be made other than through a depositions hearing. Discussion of CYPFA s 274, s 321(1); Summary Proceedings Act s 153A, s 209. Defendant argued that s 153A did not apply and, even where a guilty plea is indicated, a preliminary or 'depositions' hearing should take place. Held: provisions of s 153A SPA are available, not due to s 321 CYPFA, but through s 274 CYPFA; s 274 incorporates all of Part V Summary Proceedings Act; this includes those sections relating to matters that arise before a preliminary hearing; the wording of s 153A makes it clear that it may apply during the course of a hearing as well as before it. Legislation should be interpreted so as to make it work and to achieve its goal; policy arguments - need to avoid delays.

Decision:
Matter can be dealt with in the Youth Court on the basis of s 153A should the Youth Court Judge decline to offer the court's jurisdiction.

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Police v W [1996] NZFLR 902 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v W
Reported: [1996] NZFLR 902
File number: CRN 6090007669-70, CRN 5290028717, CRN 5090028719, CRN 5090028721
Date: 22 March 1996
Court: District Court, Henderson
Judge: McElrea DCJ
Key Title: Jointly Charged with Adult; Adult co-offenders; Jurisdiction of the Youth Court - s 275 offer/election

Summary:
Children and young persons - Kidnapping charge - Two adults jointly charged with young person - Forum for defended hearing - Whether young person should be dealt with in Youth Court - Whether the proceedings should be dealt with in the Youth Court or elsewhere - Children, Young Persons, and Their Families Act 1989, ss 275, 277.

The defendants, a woman aged 43 years and her two sons aged 20 and 16 years, together set about detaining the complainant, a young man of 14 years, in order to ensure that his girlfriend, the woman's daughter, returned home. The complainant and the daughter had previously run away. The complainant was severely beaten by the defendants. At a preliminary hearing evidence was given and a case conceded in respect of each defendant. The questions before the Court were firstly, whether the young person ought to be given the opportunity to be dealt with by a Youth Court Judge in the Youth Court by way of a defended hearing on the kidnapping charge. And secondly, whether the proceedings should be heard in a Youth Court or elsewhere because of the two adults jointly charged with the young person.

Held (declining jurisdiction and directing that matters proceed to the High Court)

  1. The seriousness of the particular offending and the part played by the young person were in favour of the matter being dealt with by Judge and jury.
  2. If the charge against the young person were to be dealt with in the Youth Court, the consequence would be that there would have to be separate trials or all three would be dealt with in the Youth Court. The Court did not consider it desirable to have three separate trials.
  3. It was also not desirable to have all three dealt with in the Youth Court as two of the three persons were adults, the young person himself was almost of District Court jurisdiction, the nature and seriousness of the charges made it appropriate for trial by Judge and jury, and there was opportunity to impose more appropriate sentences in the High Court.

Application
This was an application to have a young person dealt with in the Youth Court and to have the two adults jointly charged also dealt with in the Youth Court.

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Sage v Registrar of Youth Court Auckland [1996] NZFLR 477 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Sage v Registrar of Youth Court Auckland
Reported: [1996] NZFLR 477
Date: 3 April 1996
Court: Youth Court
Location: Auckland
Judge: McElrea DCJ
CYPF no: s 325(1)
Key Title: Youth Advocate's Costs

Summary:
Costs - Youth advocate's accounts - Hourly rate of $110 approved - Whether rate to be inclusive or exclusive of GST - Whether remuneration of $110 inclusive of GST was fair and reasonable - Children, Young Persons, and Their Families Act 1989, s 325(1).

The applicant, an experienced youth advocate, applied for review of the decision of the Registrar directing that payment of her account be at the rate of $110 per hour inclusive of GST. It was noted that although the practice of the Auckland Youth Court was to pay at a rate of $110 per hour inclusive of GST, the Wellington Court paid at a rate of $110 per hour plus GST.

Held (directing that the applicant be paid $110 per hour plus GST):
The real question was whether a figure of $110 per hour inclusive of GST was fair and reasonable. Given the experience of the advocate and given the higher rates of remuneration applicable to counsel for the child, counsel to assist the Family Court or counsel appointed under the Protection of Personal and Property Rights Act 1988, a figure of $110 per hour inclusive of GST was not fair and reasonable. Further it was desirable that there be uniformity throughout the country.

Case referred to in judgment:
Patchett v Leathem (1949) 65 TLR 69

Application:
This was an application for review of a Registrar's decision directing that payment of a youth advocate's account be at a rate of $110 per hour inclusive, as opposed to exclusive, of GST.

Application for review of decision of Registrar as to amount of a youth advocate's bill of costs.

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Police v WF and MR [1996] NZFLR 644 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v WF and MR
Reported:[1996] NZFLR 644
File number: CRN 620400332427
Date: 23 May 1996
Court: Youth Court, Auckland
Judge: McElrea DCJ
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Nominated persons, Arrest without warrant (s 214)

Summary:
Evidence - Admissibility of videotaped interviews of young persons - Young persons detained for questioning without arrest - No general power to detain - Evidence obtained unlawfully - Role of nominated person - Obligation of police to explain role of nominated person - Children, Young Persons, and Their Families Act 1989, ss 215, 221, 222, 229, 231, 234, 235.

Application:
This was an application for a ruling as to the admissibility of evidence of two young persons obtained by video.

The two young persons had been taken to the police station for questioning in relation to attempted unlawful interference with a motor vehicle. They were not placed under arrest but were told by the police that they 'would not be going anywhere' after one had said she wanted to go home. The mother of one of the young persons was asked to come down to the station but was not told anything about the child's rights or about her role as a nominated person.

Charges followed. The young persons challenged the admissibility of their statements obtained by way of video.

Held (ruling that the evidence was inadmissible):

    1. The evidence was obtained in breach of the rights of the young persons under the Children, Young Persons, and Their Families Act 1989. It was also obtained in breach of the rule that the police have no authority to hold persons for questioning against their will. There had been no statutory basis for the police to advise them that they were not going anywhere. Unless s 235 applied and the police believed, or had reasonable grounds for believing, that the young people were unlikely to appear before the Court or might commit further offences or might interfere with evidence, the young persons were free to return home.
    2. If a young person said he or she wanted to leave, that amounted to withdrawing of consent, at which point the police were obliged to allow the young person to leave unless they were going to make an arrest.
    3. The police had a statutory obligation to ensure that the nominated person was informed of the matters specified in paragraphs (c) to (f) of s 215(1) of the Act, which included the right to withdraw consent to making a statement.

Page 645; [1996] NZFLR 644. Further, the police should ensure that the nominated person is aware of his or her role under the statute and is thereby enabled to perform that role.

Case referred to in judgment:
R v Goodwin (No 1) [1993] 2 NZLR 153

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Police v BCS [1996] DCR 985 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v BCS
Reported:[1996] DCR 985
File number: CRN 6243003239,3403
Date: 17 July 1996
Court: District Court, New Plymouth
Judge: Harding DCJ
Key Title: Jurisdiction of the Youth Court - Age; Appeal to the High Court/Court of Appeal: Jurisdiction, Election of jury trial.

Summary:
Youth Court - Practice and procedure - Statutes - Interpretation - Ruling on power of Youth Court to commit a young person aged 14 years six months at the time of offending to the High Court or District Court for sentence, the young person having forgone his right to trial by jury - Whether there was jurisdiction for the Youth Court to send the young person to the High Court for sentence - Whether there was jurisdiction for the Youth Court to send the young person to the District Court for sentence - Children and Young Persons Act 1974, s 34 - Children, Young Persons, and Their Families Act 1989, ss 2(2), 274, 275, 283(o)

Ruling:
This was a ruling on whether, after a young person was given the opportunity of forgoing his right to trial by jury and elected to be dealt with in the Youth Court pursuant to s 275 of the Children, Young Persons, and Their Families Act 1989, he could be committed to the High Court or District Court for sentence.

BCS, at the time of offending, was aged 14 years and six months. He was charged with sexual violation and indecent assault, the former being purely indictable. The preliminary hearing took place in the Youth Court before a District Court Judge, who found that there was sufficient evidence to put BCS on trial for sexual violation. BCS was given the opportunity of forgoing his rights to trial by jury, and did so. He pleaded guilty to both charges. After a family group conference, it was agreed that the appropriate jurisdiction for sentencing was the High Court.

The question was whether the Youth Court had power to commit BCS to the High Court for sentence, or alternatively to the District Court for sentence, because he had forgone his right to trial by jury and because of his age at the time of offending.

Held (ruling that the defendant should be dealt with in the Youth Court):

  1. Where a young person aged 14 years six months at the time of committing sexual violation and indecent assault offences (the former being a purely indictable offence) pleaded guilty after depositions to the offences; and, pursuant to s 275 of the Children, Young Persons, and Their Families Act 1989, the young person having been given the opportunity of forgoing his rights to trial by jury, which the young person accepted; there was no jurisdiction for the Youth Court to send the young person to the High Court for sentence. R v M (an accused) [1986] 2 NZLR 172, (1986) 1 CRNZ 694 (CA), considered and followed. S v New Plymouth District Court (1992) 8 CRNZ 241, considered.
  2. There was similarly no jurisdiction to send the young person to the District Court for sentence, because his age at the date of the offences, pursuant to s 283(o) of the Children, Young Persons, and Their Families Act 1989, 'shall be that person's age for the purpose of . . . The proceedings taken' (s 2(2) of the Children, Young Persons, and Their Families Act). The young person was under 15 years of age at the time of the offences, 15 years being the age at which a young person could be sent to the District Court.

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Police v S [1996] NZFLR 906 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v S
Reported: [1996] NZFLR 906
File number: CRN 6243003239,3403
Date: 12 July 1996
Court: District Court, New Plymouth
Judge: Harding DCJ
Key Title: Jurisdiction of the Youth Court - s 275 offer/election

Summary:
Children and young persons - Charges of sexual violation and indecent assault - Matter heard in Youth Court through choice - Appropriate jurisdiction for sentencing - Whether Youth Court had jurisdiction to remand to High Court for sentencing - Children, Young Persons, and Their Families Act 1989, ss 274, 275, 283(o) Children and Young Persons Act 1974, ss 34, 36; Summary Proceedings Act 1957, ss 44, 185(B), Part V.

Application:
This was an application to determine the appropriate jurisdiction for sentencing a young offender.

The defendant was 14 years and 6 months at the time he committed the offences. In January 1996 he was charged with sexual violation and indecent assault. Because the sexual violation charge was a purely indictable one, s 274 of the Children, Young Persons, and Their Families Act 1989 applied and the preliminary hearing took place according to Part V of the Summary Proceedings Act 1957, except that it took place in a Youth Court. The Court was of the opinion that there was sufficient evidence to put the defendant on trial and this brought s 275 into play. The defendant was given the opportunity of forgoing his rights to trial by jury and electing to have the matter heard in the Youth Court; he elected to have the matter heard in the Youth Court. The defendant entered guilty pleas in respect of both charges. The matter was remanded for a family group conference and decision as to the jurisdiction for sentencing. All those at the family group conference agreed that the appropriate jurisdiction for sentencing was the High Court. The case returned to the Youth Court following a query as to its jurisdiction to remand to the High Court for sentencing.

Held (declining jurisdiction to remand to the High Court):

  1. For the reasons set out in R v M [1986] 2 NZLR 172 there was no jurisdiction for the Court to send the defendant to the High Court for sentencing.
  2. Similarly there was no jurisdiction to send the defendant to the District Court for sentencing, as the defendant was 14 years old when he committed the offence.

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Police v Tupe DC Kaikohe CRN 6227004887, 19 December 1996

File number: CRN 6227004887
Date: 19 December 1996
Court: District Court, Kaikohe
Judge: Judge Cooper
Key Title: Sentencing in the adult courts: Sexual violation by rape

Summary:
Notes on Sentencing; Tupe found guilty of sexual violation by rape after a defended hearing in YC; Tupe (then 14) raped his 13 yr old second cousin and verbally abused her after the incident. Tupe (now 16.5 yrs) a good sportsman; dependent on cannabis; intending to return to school; supportive family; letter of apology written to victim. Probation report recommends community programme including drug and alcohol and anger management counselling and 200 hrs community work, as an alternative to a custodial sentence.

Aggravating features: complainant only 13.5 yrs; took advantage of relationship with second cousin; Mitigating factors: no violence beyond the act itself; youth of offender; no criminal history; remorseful (although no plea of guilty and abusive towards victim after the event). Criminal Justice Act 1985, s 5; Crimes Act 1961, s 128B(2); cases dealing with sentencing youth offenders canvassed: R v C CA332/95, 28 September 1995; R v Cuckow CA312/91, 17 December 1991; R v Powell CA273/96, 24 October 1996; R v Hodge CA471/94, 28 November 1994. R v Carmichael CA521/94, 23 March 1995 applied - there pre-emption given to restorative aspects of sentencing as it was noted that unless a rehabilitative approach was taken there was the potential for the defendant to spiral into further serious offending.

Decision:
Taking into account the above factors a sentence of two years imprisonment suspended for two years, pursuant to s 21A Criminal Justice Act, was imposed plus 12 months on proposed community programme.

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