The Queen v Bruno Sanelle Polo HC Auckland S91/96, 7 June 1996

File Number: S91/96
Date: 7 June 1996
Court: High Court, Auckland
Judge: Tompkins J
Key Title: Sentencing in the adult Courts - Aggravated Robbery; Sentencing in the adult Courts - Serious assault (including GBH)

Summary:
15 year old; 16 at time of sentencing; parents request to take 16 year old back to Samoa; Judge says that request cannot be granted - prison sentence must follow serious crime; for aggravated robbery three year sentence for each charge considered appropriate but reduced to two and a half years on each charge due to early guilty plea; for wounding with intent, sentence of four years for each charge, each charge reduced by six months due to early guilty plea and statements of remorse; sentences are concurrent but each group of sentences are cumulative; total sentence is 6 years.

Decision:
Six years imprisonment.

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M v Police (1996) 15 FRNZ 167 (HC)

Case summary provided by BROOKERS

Name: M v Police
Reported: (1996) 15 FRNZ 167
File number: AP102/96
Date: 11 December 1996
Court: High Court, Rotorua
Judge: Anderson J
Key Title: Appeals to the High Court: Jurisdiction; Family Group Conferences: Convened/Held.

Summary:
Children, Young Persons, and Their Families - Youth justice - Appeal from decision of Youth Court exercising discretion not to grant s 276(1) election - Aggravated burglary and sexual violation by unlawful sexual connection - Interpretation of s 276 - Purpose of family group conference - Children, Young Persons, and Their Families Act 1989, ss 272(3), 274(2), 276(1), 283(o).

Appeal:
This was an appeal from a Youth Court decision relating to s 276(1) Children, Young Persons, and Their Families Act 1989.

M, a 14-year-old, was arrested on 4 August 1996 for alleged sexual violation by unlawful sexual connection, aggravated burglary, and being found on premises without legal excuse. The victim was a young woman who was significantly hearing-impaired and slightly visually impaired. M broke into the residence where the young woman was sleeping and threatened her with a knife. He covered the victim's face with a pillow and indecently assaulted her. After stealing some money from her purse he absconded.

On 4 October 1996 M appeared in the Youth Court and intimated a desire to plead guilty. The presiding Judge, as a matter of discretion (s 276(1) Children, Young Persons, and their Families Act 1989), declined to give M the opportunity of forgoing the right to trial by jury and electing to be dealt with in a Youth Court by a Youth Court Judge, and convicted M. The Judge noted the aggravating circumstances of the offending and other factors including public interest as the reasons for his decision. After erroneously being remitted to the District Court for sentence, M was remitted to the High Court for sentence.

M appealed the validity of the presiding Judge's exercise of discretion on the basis that he had not had the opportunity to obtain advice and information on the elective decision from a family group conference, which was general practice in such cases.

Held, dismissing the appeal:
Family group conferences are not to be convened merely for the sake of talk. Their purpose is to achieve some creative outcome, as they do in many cases. The decision to grant the election is the Judge's alone. The special features of this case, as stated by the Judge, made it entirely appropriate for him to adopt the course he did. (p 172, line 6).

Obiter:
it is apparent from the fairly restrictive scope of ss 351 and 354 that it is still an open question whether an appeal against an interlocutory order made in the Youth Court will found an appeal. The indications from the High Court and Court of Appeal are that applications by way of review on interlocutory matters are not to be encouraged. This observation is made in the context of statutory barriers to [(1996) 15 FRNZ 167, 168] appealing interlocutory decisions of a purely procedural nature without at least leave of the Court appealed from. (p 171, line 33).

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R v T [1997] 1 NZLR 341 (HC)

Case summary provided by BROOKERS

Name: R v T
Reported: [1997] 1 NZLR 341; [1996] NZFLR 961; 14 FRNZ 705
File number: T17/96
Date: 11 September 1996
Court: High Court, Rotorua
Judge: Baragwanath J
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Nominated Persons; Rights; Principles of Youth Justice (s 208)

Summary:
Children, young persons, and their families - Rights - Young person charged with attempted murder, causing grievous bodily harm with intent, and aggravated burglary - Videotaped interview by police with accused - Respondent informed of his right to have nominated person present during interview - Respondent's father not available - Numerous attempts made to contact persons from nominated persons' list - Police eventually contacted duty social worker and asked him to "sit in" on the interview with the respondent - Social worker had no private consultation with respondent - Statutory responsibilities of nominated person - Whether right of private consultation if relevant nomination is made by police officer - Whether videotaped interview admissible - Children, Young Persons, and Their Families Act 1989, ss 208(h), 215(1)(f), 221, 222(3).

Application:
This was an application to have a video interview adduced in evidence.

The respondent, T, was charged with attempted murder or, alternatively, causing grievous bodily harm, and with aggravated burglary. On 5 November 1996 a police officer spoke with T's father advising him that he wished to speak to T and asking the father if he would be T's nominated person during the police interview with the respondent. T's father declined, explaining that he had been having difficulties with his son who was regularly sniffing solvents and abusing alcohol. The father was the only parent living with T. Later that day a detective called at T's home and found him at the back of the house sniffing petrol. T appeared to be somewhat affected by the petrol sniffing. He accompanied the detective to the police station.

At the police station T was shown a list of persons who made themselves available for interviews in the absence of a "nominated person". When T approved the list, the detective attempted unsuccessfully to contact the listed persons. Eventually the detective told T that he would try to contact the duty social worker. T raised no objection. The duty social worker was contacted and agreed to "sit in" on the interview between T and the police. T did not have a private consultation with the duty social worker before the interview.

T contended that as he was not given the opportunity to consult with the nominated person the subsequent videotaped interview was inadmissible. The Crown applied to have the interview tape admitted as evidence, arguing that as the relevant nomination was made by the detective, and not T, there was no right of private consultation.

Held, declining the application:
The principle of s 208(h) Children, Young Persons, and Their Families Act 1989 recognises the vulnerability of young persons and calls for their special protection. Accordingly ss 215(1)(f) and 222(3) of the Children, Young Persons, and Their Families Act 1989 must be read as providing the same obligations for nominated persons whether they are nominated by the young person or by an enforcement officer. The respondent faced his interview without the active protection contemplated by Parliament as part of a nominated person's role. The statement was therefore inadmissible in terms of s 222. (p 712, line 32; p 713, line 34).

Police v Turipa DC Tauranga CRN3270010963, 3 February 1994 approved.

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