Summaries 2010

Contents
CEO of CYFS and MSD v GTT YC Dunedin CRI-2010-212-000053, 24 November 2010 Police v KGPK YC Napier CRN 0924100262, 3 March 2010
EW v Police YC Manukau CRI-2010-229-000007, 20 December 2010 Police v KR YC Invercargill, CRI-2009-252-000163, 27 May 2010
HIC and Others v Police YC Pukekohe CRI-2010-257-000030, 20 August 2010 Police v KWH YC Manukau CRI-2010-255-000051, 11 November 2010
MSD v HB YC Taupo CRI-2010-269-000034, 5 November 2010 Police v LMM YC Whangarei CRI-2009-288-000137, 18 February 2010
MSD v MNT-M YC Palmerston North CRI-2010-254-000155, 6 October 2010 Police v LSA YC Upper Hutt CRI-2010-278-000027, 15 November 2010
MSD v TK YC Rotorua CRI-2010-216-000101, 15 November 2010 Police and MSD v KLP YC Rotorua CRI-2010-263-000174, 22 October 2010
Police v AR YC Manukau CRI-2008-292-000544, 18 March 2010 Police v M and A YC Invercargill CRN 09225000582, 22 March 2010 
Police v BP YC Manukau CRI-2010-292-000263, 11 November 2010 Police v MNTM YC Wellington CRI-2010-285-000046, 12 October 2010
Police v BP YC Manukau CRI-2010-292-000199, CRI-2010-292-000263, 21 December 2010 Police v MT YC Waitakere CRI-2010-290-000316, 21 December 2010
Police v CB YC Manukau CRI-2010-292-000037, 6 May 2010 Police v RT YC Auckland CRI-2009-204-000398, 15 March 2010
Police v CGN YC Manukau CRI-2010-257-000082, 16 December 2010 Police v RT YC Auckland CRI-2009-204-000398, 12 April 2010
Police v CP and Others YC Pukekohe CRN 10257000040, 17 September 2010 Police v SE and Others YC Rotorua CRI-2008-263-000204, 23 February 2010
Police v DAH YC Nelson CRI-2010-242-000031, 7 July 2010 Police v TH and Others YC Masterton CRI-2010-235-000006, 20 May 2010
Police v DES YC Dunedin CRI-2010-045-000249, 5 May 2010 Police v TM YC Taupo CRI-2010-263-000026, 7 April 2010
Police v DLC and Others YC Dunedin CRI 2010-012-49, CRI 2010-012-1217, CRI 2010-012-1205, 11 May 2010 Police v TS YC Manukau CRI-2009-292-000593, 20 September 2010
Police v ERW YC Nelson CRI-2009-242-000087, CRI-2010-042-002899, 27 October 2010 Police v WA YC Rotorua CRI-2010-263-000178, 21 December 2010

Police v HKW YC Christchurch CRI-2010-209-000400, 7 December 2010 R v RJTB DC Invercargill CRI-2009-206-000072, 11 March 2010
Police v HRR YC Nelson CRI-2010-242-000085, 3 December 2010 R v BMS DC Whangarei CRI-2010-288-000001, 29 September 2010
Police v JC YC Manukau CRI-2010-292-000272, 2 November 2010 R v RL YC Manukau CRI-2009-292-000584, 12 August 2010
Police v JF and Others YC Manukau CRI-2009-292-000341, CRI-2009-204-000320, 12 March 2010 R v Tatana DC Wellington CRI-2009-031-000755, 4 May 2010
Police v JJD DC Waitakere CRI-2009-204-000566, 7 December 2010 R v TP YC Manukau CRI-2009-255-000084, 1 April 2010
Police v JR YC Lower Hutt CRI-2010-232-000053, 13 October 2010 SL v Police YC Manukau CRN 09292000861, 11 February 2010
2010 Appellate Court Decisions  

CEO of CYFS and MSD v GTT YC Dunedin CRI-2010-212-000053, 24 November 2010

Filed under: CEO of CYFS and MSD v GTT
File number: CRI-2010-212-000053
Court: Youth Court, Dunedin
Date: 24 November 2010
Judge: Judge O’Driscoll
Key titles: Orders - enforcement of, breach and review of (ss 296A-296F): General Principles, Orders - enforcement of, breach and review of (ss 296A-296F): Supervision.

The question before the Court was whether a breach application in respect of a Youth Court order made before the Children, Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010 came into force, should be dealt with under the new legislation or the repealed legislation.

GT was subject to a custody order in favour of the Chief Executive for three months, followed by a supervision order in favour of the Chief Executive for six months. It is alleged that GT breached the supervision order prior to 1 October 2010.

The Chief Executive filed an application on 3 November 2010 for a declaration that the young person has failed to comply with a condition of the supervision order.

GT’s lawyer opposed the application on the basis that it should have been made under s 296B of the new legislation, instead of under s 309 of the old legislation.

The Court discussed the transition provisions in s 496A of the new legislation, together with sections 17-19 of the Interpretation Act 1999 in respect of repeals.

The Court held that the relevant enforcement powers for orders made before 1 October 2010 was the powers in the repealed s 309.

Result:
The application was brought under the correct section.

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EW v Police YC Manukau CRI-2010-229-000007, 20 December 2010

Filed under: EW v Police
File number:
CRI 2010-229-000007
Court: Youth Court, Manukau
Date: 20 December 2010
Judge: Judge Malosi
Key titles: Delay (s 322)

Application for delay. EW charged with various sexual offences dating back to when he was 14 and 15 years old. Aged 17 years, 10 months at the time of hearing. EW also recently committed for trial in DC for rape. Other evidence of sexual offences also.

Legal approach outlined in well known cases (BGDT v Youth Court at Rotorua and Police HC Rotorua M119/99, 15 March 2000; AG v Youth Court at Manukau per Winkelman J; Martin v District Court at Tauranga [1995] 2 NZLR 419). Seriousness of offending recognised as a relevant factor.

Court estimated that time from last alleged offending to probable hearing in Youth Court would be approximately 3 years. Court found that the delay involved was significant, but could not have been reasonably avoided by Police, or that they could have been blamed for causing it.

Accepted that EW has suffered prejudice due to YC sentencing options not being available because of is age, but no prejudice in terms of mounting a defence. In fact, the delay is likely to be beneficial for EW, given the young ages of the complainants.

Held that delays were not unnecessary or undue, but would not have exercised discretion to dismiss charges anyway. Offending too serious, both accused and complainants deserve their day in court, and „considerable public interest in charges proceeding.

Result:
Application for delay dismissed.

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HIC and Others v Police YC Pukekohe CRI-2010-257-000030, 20 August 2010

Filed under: HIC and Others v Police
File number: CRI-2010-257-000030, CRI-2010-257-000031, CRI-2010-257-000037, CRI-2010-256-000038
Court: Youth Court, Pukekohe
Date: 20 August 2010
Judge: Judge Malosi
Key titles: Evidence (not including admissibility of statements to police/police questioning), Youth Court procedure.

Applications for oral evidence orders for some of a number of young people charged with wounding with intent to cause grievous bodily harm. All parties accept that there is sufficient evidence to commit for trial, but oral evidence is required in the interests of justice (s 180(1) of the Summary Proceedings Amendment Act (No2) 2008 (SPA)).

Court held that there is no guarantee that oral testimony at this stage would clarify the evidence.

Court held that the principle in s 208(h) of the CYPFA (young people due special protection during investigation) does not apply to trial and pre-trial processes. Defendants are also not formally within the jurisdiction of the Youth Court.

Granting applications will also delay proceedings for other defendants as well as the complainant.

Granting oral evidence orders to young people to better prepare them and their case for trial, or to clarify evidence would run directly contrary to the purpose and principles underlying the amendments to the SPA.

Result:
Applications dismissed.

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MSD v HB YC Taupo CRI-2010-269-000034, 5 November 2010

Filed under: MSD v HB
File number:
CRI-2010-269-000034
Court: Youth Court, Taupo
Date: 5 November 2010
Judge: Judge Munro
Key titles: Secure care (ss 367-383A).

Application for secure care. H opposed the application on the basis that the grounds in s 368 were not made out – particularly that it was not necessary for her to be detained in secure care to prevent her from behaving in a manner likely to cause physical harm to herself or to any other person.

H was in the youth justice residence on a supervision with residence order. She had been put into secure care on three prior occasions. The latest period in secure care arose from an incident where H allegedly threw a punch at a staff member and was verbally abusive. The Court heard different accounts of this event from H and the staff members.

The Court held that the grounds in s 368 were not made out because:

  • the majority of H’s previous violent offending occurred while under the influence of alcohol which was not a factor in the residence;
  • while her verbal abuse and threats in the residence was difficult to manage, it was not of itself relevant to her risk of causing physical harm;
  • while H behaved badly in the latest incident she had felt pushed to some extent and that behaviour may not have occurred if staff had chosen to respond differently.

The Judge expressed strong disappointment that despite ordering that a condition of the supervision with residence order was that H engage in an alcohol and drug education programme and an anger management programme while in residence, no such programme had been provided in the month since the order was made.

Result:
Approval not granted for continued detention in secure care. 

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MSD v MNT-M YC Palmerston North CRI-2010-254-000155, 6 October 2010

Filed under: MSD v MNT-M
File number: CRI-2010-254-000155
Court: Youth Court, Palmerston North
Date: 6 October 2010
Judge: Judge Fraser
Key titles: Secure care (ss 367-383A), Reports: Psychological.

Application for secure care. M was on remand under s 238(1)(d) in a youth justice residence after being charged with aggravated robbery, threatening to kill or to do grievous bodily harm and wilful damage. M had a history of displaying serious violence in a residential setting, including recently at the current residence. A significant and substantial plan for integration in the open unit had been prepared and followed through when the latest incident was alleged to have occurred.

M has had intensive programming on conflict resolution, anger management and controlling impulsive behaviours. He continued to exhibit low tolerance, inability to cope with frustration and a real risk to others.

  • Psychological reports described M as:
  • at a significant risk of offending;
  • showing signs of Foetal Alcohol Effects;
  • having psychological attachment issues,
  • a history of depression and suicidal ideation; and
  • having been self-harming.

He had been diagnosed as having post-traumatic stress disorder with a conduct disorder manifest by a disorder of ideation and mood.

The Court held that M cannot be currently cared for in the open unit. The complexity of his disorder required a staff to young person ration of at least one-to-one and sometimes one-to-two. In the open unit the ratio is one-to-four.

The Court held that the condition in s 368(1)(b) was met in that a secure care order was necessary to prevent M behaving in a manner likely to cause physical harm to himself or any other person.

Result:
Approval granted authorising continued detention in secure care.

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MSD v TK YC Rotorua CRI-2010-216-000101, 15 November 2010

Filed under: MSD v TK
File number: CRI-2010-216-000101
Court: Youth Court, Rotorua
Date: 15 November 2010
Judge: Judge Munro
Key titles: Secure care (ss 367-383A)

Application for continued detention in secure care (s 371). T became abusive and physically aggressive towards youth justice residence staff after being asked to hand over a journal he had been writing in. After being initially taken to the residence's secure unit, T kicked his door and smashed windows in his room. T had one previous period in secure care for physically assaulting another young person.

Grounds under s 368 considered. T at risk of causing further physical harm.

Result:
Secure care extended for further 14 days.

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Police v AR YC Manukau CRI-2008-292-000544, 18 March 2010

Filed under: Police v AR
File number: CRI-2008-292-000544
Court: Youth Court, Manukau
Date: 18 March 2010
Judge: Judge Malosi
Key title: Delay (s 322).

Application to dismiss for delay. Date of alleged offending 10 December 2008, when young person was aged 14 years 9 months. Substantive hearing set for 24—26 March 2010.

Cases cited: BGTD v Youth Court at Rotorua and Police HC Rotorua M119/99, 15 March 2000 per Robertson J; AG v Youth Court at Manukau [2007] NZFLR 103; Martin v District Court at Tauranga [1995] 2 NZLR 419.

Delay of over 12 months in Police deciding to seek, and then obtaining specialist medical report. Court commented that Police should have made the decision to fund a private report and that the delay in obtaining the report was unnecessarily protracted and caused the young person actual prejudice. There was also presumptive prejudice caused by a 6 month delay between the Court’s direction for a hearing and the actual hearing. There was a real risk that time had diminished ARs recall and accuracy. AR had not contributed to the delays in any way.

Result:
Charge dismissed.

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Police v BP YC Manukau CRI-2010-292-000263, 11 November 2010

Filed under: Police v BP
File number: CRI-2010-292-000263
Court: Youth Court, Manukau
Date: 11 November 2010
Judge: Judge Malosi
Key titles: Orders - type: Supervision with residence - s 283(n), Orders - type: Supervision - s 283(k), Orders - type: mentoring programme - s 283(jb), Orders - type: Parenting education programme - s 283(ja), Orders - split.

BP faced sentencing on four charges the most serious of which was assault with intent to rob. BP, together with some associates went into a liquor store, swung a metal pipe which broke some glass, and left without taking anything.

The Court ordered supervision with residence for three months under the new amended legislation. Early release would be considered by the Court when a period of two-thirds of that period has elapsed.

The Court decided not to split the sentence. It imposed a period of supervision for nine months, with conditions including that the social worker can determine where BP should live if the relationship with his mother breaks down.

The Court also made a parenting order in respect of BP’s parents for 12 weeks, and a mentoring order for BP for nine months.

The Court ordered the supervision and mentoring orders to begin on the date at which two-thirds of the residence orders had elapsed, but would revisit that order if it does not order early release.

Result:
Residence for three months, followed by supervision for 9 months and mentoring for 9 months. Parenting education orders were also made in respect of BP’s parents.

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Police v BP YC Manukau CRI-2010-292-000199, CRI-2010-292-000263, 21 December 2010

Filed under: Police v BP
File number: CRI-2010-292-000199, CRI-2010-292-000263
Court: Youth Court, Manukau,
Date: 21 December 2010
Judge: Judge Malosi
Key titles: Orders - type: Supervision with residence - s 283(n): Early release, Orders - type: Mentoring programme - s 283(jb)

Since October 2010 a residence order under s 311 includes a presumption of early release after two-thirds of the residence term if the conditions in s 314(1) of the CYPFA are met.

In this case BP was serving a three month residence order (to be followed by nine months supervision, nine months mentoring, and a parenting programme for his parents) for assault with intent to rob, escaping, unlawfully taking and unlawfully being in an enclosed yard.

The Court was satisfied that the conditions in s 314(1) had all been met and made an order for re-lease on the two-thirds date, conditional upon continued compliance with the conditions in s 314(1).

Result:
Early release order was made, conditional upon continued compliance with s 314(1). Post-release supervision and mentoring orders had already been made.

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Police v CB YC Manukau CRI-2010-292-000037, 6 May 2010

Filed under: Police v CB
File number: CRI-2010-292-000037
Court: Youth Court, Manukau
Date: 6 May 2010
Judge: Judge Malosi
Key titles: Orders - type: Disqualification from driving - s 283(i), Orders - type: Community Work - s 283(l).

C was driving outside the terms of his learners licence, on a state highway, with his father in the car behind. C's car hit the car immediately in front (after it stopped to turn right) and pushed it into the path of an oncoming motorbike. The rider of the motorbike suffered serious injuries, and the baby travelling in the car in front died as a result of the accident.

'Absolute mayhem' caused to bike rider and his family. Family of dead baby was traumatised.

C was an intelligent, gifted, high achieving young man, despite periods of serious domestic violence and other abuse. C deeply regretful.

No reparation order made, but time given for reparation report and, alternatively, for C's whanau to find money for a donation/koha. Social Worker plan approved.

Result:
200 hours community service. 12 months disqualification (deferred).

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Police v CGN YC Manukau CRI-2010-257-000082, 16 December 2010

Filed under: Police v CGN
File number: CRI-2010-257-000082
Court: Youth Court, Manukau
Date: 16 December 2010
Judge: Judge Malosi
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH), Orders - type: Supervision with activity - s 283(m).

Charge of wounding with intent to cause grievous bodily harm, arising from a fight between C, his brother and father, and the victim. Victim received cut, bruises and eventually lost his left eye after what the Court described as a “frenzied attack”. C‟s father started the fight and urged C to get involved by punching the victim until he fell down.

  • Factors in sentencing included:
  • Involvement of father,
  • Indication of desire to plead guilty at early stage,
  • Availability of longer orders following 2010 Amendment Act,
  • Seriousness of offending,
  • First time in Youth Court,
  • Remorse,
  • General respectfulness and willingness to engage with professionals, and
  • No breaches of bail.

Result:
Maximum term of supervision with activity (6 months activity plus 6 months supervision).

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Police v CP and Others YC Pukekohe CRN 10257000040, 17 September 2010

Filed under: Police v CP and Others
File number: CRN 10257000040-41,CRN 1025000043-48
Court: Youth Court, Pukekohe
Date: 17 September 2010
Judge: Judge Malosi
Key titles: Jurisdiction of the Youth Court: s 275 offer/election.

Decision of the Court whether to offer Youth Court jurisdiction.

Eight young people were charged, together with five others, with wounding with intent to cause grievous bodily harm.

The young people were alleged to have viciously attacked an off-duty police officer who tried to defuse an attack on a young girl who had been carrying a red bag in a blue part of town. The police officer’s injuries included a fractured skull, sprained ankle, dislocated knee, a collapsed lung, broken teeth and multiple fractures to facial bones.

These eight young people had no Youth Court history. Four of the eight were 14 at the date of the alleged offending.

The Court suggested that if the case was ultimately proved as the Crown alleged, and the young people were to find themselves in the adult Court for sentencing, they were likely to face a starting point of five to ten years imprisonment.

The Judge considered the objects and principles of the CYPFA and listed the other factors relevant when exercising the s 275 discretion.

She considered the considerable length of time that would be required for a jury trial in the District Court should jurisdiction be declined and all 13 accused elect trial by jury. She discussed the ability in that context for the young people to participate in their hearing in a meaningful way, and compared that to a hearing in the Youth Court. She also considered the prospect, if jurisdiction were offered, of the complainant and 20 young witnesses giving evidence twice, and that the longer sentences available after 1 October 2010 would be possible for all but the eldest of the young people.

The Judge agreed with the view of Judge Thorburn in Police v H [2004] DCR 97 that more weight was put on the implied principles and protective factors of the Act when exercising the discretion under s 275, and that the jurisdiction election should be offered unless there was some good reason not to offer it.

Result:
Youth Court jurisdiction was offered.

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Police v DAH YC Nelson CRI-2010-242-000031, 7 July 2010

Filed under: Police v DAH
File number: CRI-2010-242-000031
Court: Youth Court, Nelson
Date: 7 July 2010
Judge: Judge Zohrab
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Other.

DAH had been in custody for 14 months when he appeared for sentence. The threatening charges arose from comments made at a mental health unit. The Judge noted that while such threats, would not normally be taken seriously, DAH’s history had made people very concerned that he might carry out the threats.

DAH was 17 years and one month at the time of sentencing. (Note that DAH was sentenced prior to the CYPF (Youth Courts Jurisdiction and Orders) Amendment Act 2010 so any Youth Court orders would expire when DAH turned 17 and a half).

DAH had no previous Youth Court history, but the Court expressed significant concerns for public safety.

In ordering a conviction and transfer to the District Court for sentencing, the Court considered:

  • The nature of the offending; and
  • That DAH had demonstrated an ability to carry out his threats; and
  • The timeframe available for Youth Court orders is manifestly inappropriate for any as-sessment and treatment; and
  • Due to the special circumstances of the offending, a non-custodial order would be clearly inadequate.

Result:
Conviction and transfer to the District Court for sentencing.

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Police v DES YC Dunedin CRI-2010-045-000249, 5 May 2010

Filed under: Police v DES
File number: CRI-2010-045-000249
Court: Youth Court, Dunedin
Date: 5 May 2010
Judge: Judge O’Driscoll
Key titles: Media reporting (s 438), Access to reports (s 191)

D charged with murder in Oamaru. Victim’s family concerned that s 438 prevented newspaper publication of an obituary for the victim. D does not oppose the publication of the victim’s name.

Court held that obituary is not a report of proceedings under s 438, but any obituary should not be a report of the proceedings, and should not include any identifying details, such as the name of the young person accused or the name of their school.

The Court also commented that an obituary should not be prejudicial or say anything that might hinder a fair trial.

It was the Judge’s view that discussion of the proceedings or the names of the young person or the victim on social networking websites is ‘publication’ and may breach s 438.

Result:

No reason not to publish obituary for the victim.

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Police v DLC and Others YC Dunedin CRI 2010-012-49, CRI 2010-012-1217, CRI 2010-012-1205, 11 May 2010

Filed under: Police v DLC and Others
File number: CRI-2010-012-000049, CRI-2010-012-001217, CRI-2010-012-001205
Court: Youth Court, Dunedin
Date: 11 May 2010
Judge: Judge O'Driscoll
Key title: Jurisdiction of the Youth Court: s 275 offer/election, Jointly charged with adult (s 277)

DLC (16.5 yrs) charged with 2 adult co-accused with aggravated burglary. Court intended to commit D for trial. Issue as to whether Youth Court jurisdiction should be offered, given that adult co-accused charged with purely indictable offences cannot be dealt with in the Youth Court, other than for committal purposes: R v Hudson [2007] NZCA 363.

Court considered that to offer D Youth Court jurisdiction would mean complainants and other prosecution witnesses needing to give evidence twice.

Other reasons for declining to offer jurisdiction included: seriousness of charge, D would have ‘timed out’ of the Youth Court by the start of the trial, a sentence of imprisonment would have been highly likely in the DC despite his age, desirability of one tribunal being able to assess all evidence against all accused.

Result:

Youth Court jurisdiction not offered.

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Police v ERW YC Nelson CRI-2009-242-000087, CRI-2010-042-002899, 27 October 2010

Filed under: Police v ERW
File number: CRI-2009-242-000087, CRI-2010-042-002899
Court: Youth Court, Nelson
Date: 27 October 2010
Judge: Judge Russell
Key titles: Orders - type: Supervision with residence - s 283(n), Orders - type: Reparation - s 283(f), Orders - type: Come up if called upon - s 283(c). Media reporting (s 438)

The young person appeared for sentence on charges of using a document for pecuniary advantage, unlawfully taking a motor vehicle (2), making a false statement, burglary (2), theft, and doing an act which endangered the lives of others.

Those charges were previously dealt with by the Youth Court and were the subject of a community work order. While serving that sentence the young person offended further. That further offending resulted in charges in the District Court.

The Youth Court cancelled the community work order. This decision makes a substitute Youth Court order on the original offending and imposes a District Court sentence on the subsequent offending.

The young person agreed to a Youth Court order of supervision with residence for six months.

The District Court charges were dealt with by an order to come up for sentence if called upon in 12 months, and a reparation order in the sums of $7275.89 and $2069.51. The Court also ordered name suppression on these charges.

Result:

In the Youth court, a supervision with residence order (s 283 (n), s311) for six months, with supervision conditions to be set at the date after two-thirds of the order has elapsed.

In the District Court an order to come up for sentence if called upon in 12 months, and a reparation order in the sums of $7275.89 and $2069.51.

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Police v HKW YC Christchurch CRI-2010-209-000400, 7 December 2010

Filed under: Police v HKW
File number: CRI-2010-209-000400
Court: Youth Court, Christchurch
Date: 7 December 2010
Judge: Judge McMeeken
Key titles: Orders - type: Supervision with activity - s 283(m), Orders - type: Reparation - s 283(f).

H was drunk, disguised and carrying a metal crowbar. Threatened liquor store shop assistant. Co-offenders robbed store. Court found robbery planned. Victim traumatised.

No previous proven Youth Court history. Family supportive. Polite and respectful in court.

Result:

Supervision with activity for 4 months plus reparation.

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Police v HRR YC Nelson CRI-2010-242-000085, 3 December 2010

Filed under: Police v HRR
File number: CRI 2010-242-000085
Court: Youth Court, Nelson
Date: 8 December 2010
Judge: Judge Russell
Key titles: Orders - type: Supervision with residence - s 283(n).

Drunken aggravated robbery of recently arrived Chilean tourist. H and 2 others confronted the man, hit him and stole a small pack containing laptop, passport, bank card and money.

Youth Court history of violence and aggravated robbery.

Result:

Supervision with residence (6 months).

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Police v JC YC Manukau CRI-2010-292-000272, 2 November 2010

Filed under: Police v JC
File number: CRI-2010-292-000272
Court: Youth Court, Manukau
Date: 2 November 2010
Judge: Judge Malosi
Key titles: Orders - type: Supervision with activity - s 283(m), Orders - enforcement of, breach and review of (ss 296A-296F)

JC faced sentencing on charges of common assault and injuring with intent to injure which were committed nine days after he was sentenced in the Youth Court to supervision for six months on other charges.

Despite the lack of application by CYF for breach of the supervision order, the Court opted to finalise matters immediately.

The Court accepted the recommendation of the social worker for the maximum term of supervision with activity order. The maximum term was appropriate due to the reoffending occurring so soon after the supervision order was made.

The supervision with activity order was to be spent on the Youth Residential Programme at Odyssey House. The Court accepted that Odyssey House was an organisation approved under s 396 of the CYPF Act, and that Odyssey House had consented to the order.

Despite the breach of the original order, the Court did not consider that it was necessary to impose judicial monitoring because JC would be carefully monitored at Odyssey House.

The Court left open the question of whether it was necessary to impose a supervision order at the end of the activity order.

Result:

The existing supervision order is revoked. JC was sentenced on the two new charges and resentenced on the nine other charges to supervision with activity for six months.

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Police v JF and Others YC Manukau CRI-2009-292-000341, CRI-2009-204-000320, 12 March 2010

Filed under: Police v JF and Others
File number: CRI-2009-292-000341, CRI-2009-204-000320
Court: Youth Court, Manukau
Date: 12 March 2010
Judge: Judge Malosi
Key title: Delay (s 322)

Applications to dismiss for delay. Charges of burglary, intentional damage, arson. Some charges 11 months old, others 9 months old. Defended hearings would have created further delays. Court found that the young people had not contributed to the delays, and Police were tardy in their investigations. Court found presumptive and actual prejudice to the young people due to delay. Court also noted that young people successfully completed FGC plans and received s282 discharges for other offending while waiting for these charges to be investigated.

Result:

Applications granted, informations dismissed.

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Police v JJD DC Waitakere CRI-2009-204-000566, 7 December 2010

Filed under: Police v JJD
File number: CRI-2009-204-000566
Court: District Court, Waitakere
Date: 7 December 2010
Judge: Judge Tremewan
Key titles: Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery, Orders - type: Supervision with residence - s 283(n). Family Group Conferences: Non agreement.

Nine offences in total, including wilful damage, burglary, aggravated robbery, and dangerous driving. Family Group Conference unable to agree on sentencing.

J agreed to be dealt with under the 2010 Amendment Act. Court commented that otherwise, it would have ordered conviction and transfer to the District Court (DC) for sentencing.

Sentencing factors included:
• Time spent and good behaviour in residence on remand,
• Offending persistent and escalating,
• Aggravated robbery committed while on bail for earlier aggravated robbery,
• Good attitude when sober,
• Family shocked but supportive,
• Difficult upbringing with absent and violent father,
• "Care and protection‟ history.

Court recognised the need to address underlying causes of offending (s 208(fa) of CYPFA), but stressed the need for a supervision plan different from previous ones. Supervision order to be made closer to time of release from residence.

Legal principles and DC alternatives discussed.

Result:

Supervision with residence (6 months).

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Police v JR YC Lower Hutt CRI-2010-232-000053, 13 October 2010

Filed under: Police v JR
File number: CRI-2010-232-000053
Court: Youth Court, Lower Hutt
Date: 13 October 2010
Judge: Judge Walker
Key titles: Bail (s 238(1)(b)): Breach of bail (non-attendance at Court), Orders - type: Supervision with residence - s 283(n).

JR was charged with arson after setting fire to a disused classroom block. He had been offered Youth Court jurisdiction and had accepted it. The Court found that there were not the aggravating features as there sometimes was, of arson committed as act of revenge, or insurance fraud, or to cover evidence of offending. However, while on bail JR had got involved in an organised fight to which he had taken a machete, although it had not been used.

The offending occurred before the Children, Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010, but JR had consented to being dealt with under that Act. The Judge indicated the Youth Court’s sentencing options available before the Amendment Act may have been considered inadequate, so conviction and transfer to the District Court for sentencing may have been considered if JR were not dealt with under the Amendment Act.

The Judge considered a starting point of six months is appropriate due to the rehabilitative needs of the young person.

He reduced that by one month to account for the two months spent on remand at a youth justice residence. He remanded JR to a later date to consider early release and the supervision part of the sentence. He determined that a reparation order was not possible because JR did not have the means to pay and his mother did to contribute to the offending so she should not suffer a consequence.

Result:

Supervision with residence for five months. Remanded to 26 January 2011 to consider early release and the supervision part of the order.

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Police v KGPK YC Napier CRN 0924100262, 3 March 2010

Filed under: Police v KGPK
File number: CRN 0924100262
Court: Youth Court, Napier
Date: 3 March 2010
Judge: Judge von Dadelszen
Key title: Reports: Psychiatric

Court proposed to commit K for trial, subject to s 275 CYPFA jurisdictional finding. Counsel for young person raised issues of fitness to stand trial. Section 333 report ordered. Crown view was that fitness should be determined at trial.

Court held that fitness issues should be dealt with first, due to the right of the young person to be offered the opportunity under s 275 (which trumps the of the complainant to be treated sympathetically by not being required to give evidence twice), and that if K were found unfit, then there would be little point in having an argument regarding s 275.

Result:

Date to be set for fitness hearing. Further s 333 report ordered.

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Police v KR YC Invercargill, CRI-2009-252-000163, 27 May 2010

Filed under: Police v KR
File number: CRI-2009-252-000163
Court: Youth Court, Invercargill
Date: 27 May 2010
Judge: Judge Phillips
Key titles: Orders - type: Discharge - s 282, Family Group Conferences: Convened/Held

KR faced sentencing on three matters. In respect of the first charge he had barged into a room uninvited, yelled abuse and punched the victim several times. In respect of the second and third charges he had, together with an associate, punched and kicked two different victims in separate incidents outside a Night ‘n Day store.

Two family group conferences had been held. Each established plans and interventions to address the offending, and had recommended that the Youth Court determine the final disposition. Initially KR had not engaged in the required community work and education parts of the plan. However, after appearing again in the Youth Court, he had completed all aspects of the plans apart from reparation, and had availed himself of everything that was offered to him.

The Court considered the seriousness of the offending, but considered that KR should be rewarded for what he had done.

Result:

A s 282 discharge was granted on all three charges. The Judge commented that KR was being given a major chance.

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Police v KWH YC Manukau CRI-2010-255-000051, 11 November 2010

Filed under: Police v KWH
File number: CRI-2010-255-000051
Court: Youth Court, Manukau
Date: 11 November 2010
Judge: Judge Malosi
Key titles: Orders - type: Supervision with activity - s 283(m), Orders - deferred.

KH used a knife to injure a man that he thought was responsible for taking a box of crayfish from him. KH was 16 years and four months at the time of the offending.

The Court discussed KH’s personal circumstances including:
• that he was the eldest of five children;
• that his father was not around;
• that there was a neighbourhood programme operating where he lives; and
• that he was attending alternative education.

The Court accepted that he was sorry. The Court held that the maximum term of supervision with activity was appropriate because the offending was so serious.

Result:

Six months supervision with activity. The supervision order was deferred for four months.

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Police v LMM YC Whangarei CRI-2009-288-000137, 18 February 2010

Filed under: Police v LMM
File number: CRI-2009-288-137
Court: Youth Court, Whangarei
Date: 18 February 2010
Judge: Judge Becroft
Key title: Family Group Conferences: Timelimits/limits: Intention to Charge

Defended hearing of one charge of car conversion. The victim was L’s mother. Delay of 51 days between convening of intention-to-charge FGC and the FGC being held (therefore 31 days over the statutory time limit).

Court held that it was bound by the decision of Smellie J in H v Police [1999] NZFLR 966 which considered the issue of out of time intention-to-charge FGC rather than Hansen J in Police v VL HC Auckland CRI-2006-404-000095, 1 August 2006, and held that the statutory timeframes were mandatory. Failure to comply with these timeframes rendered the information outside the jurisdiction of the Court.

The Court described the time delay in this case as significant and unexplained and commented that FGCs are vital and a lynch pin of the system.

Result:

Charge dismissed.

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Police v LSA YC Upper Hutt CRI-2010-278-000027, 15 November 2010

Filed under: Police v LSA
File number: CRI-2010-278-000027
Court: Youth Court, Upper Hutt
Date: 15 November 2010
Judge: Judge Mill
Key titles: Delay (s 322)

Application for delay. L (14 years, 2 months) identified on CCTV footage after breaking into a mall and stealing drinks. L's file not received by Youth Aid officer for 6 weeks. Family Group Conference (FGC) convened 2 months later. L charged with burglary.

Police say L did not turn up for an appointment during first period of delay. During that period, L was in Youth Court regularly on other charges, and even attended a FGC, which had a plan approved.

Court found that the delay between commission of offence and hearing was unnecessarily protracted, and L has suffered from some perceived prejudice. However, public interest exists in seeing L prosecuted, so discretion to dismiss not exercised.

Result:

Information not dismissed.

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Police and MSD v KLP YC Rotorua CRI-2010-263-000174, 22 October 2010

Filed under: Police and MSD v KLP
File number: CRI-2010-263-000174
Court: Youth Court, Rotorua
Date: 22 October 2010
Judge: Judge MacKenzie
Key titles: Secure care (ss 367-383A).

Application for secure care. The Court described K as a vulnerable young person with clearly-identified high complex needs. He had a significant number of health issues impacting on all aspects of his life, including autism, intellectual delay, severe conduct disorder, a cardiac problem, and a possible obstructive sleep apnoea.

Section 368(1)(b) required a predictive assessment, requiring the Court to assess the future risk based on past behaviour.

The Court held that the requirements of s 368(1)(b) are overwhelmingly met. In coming to this conclusion the Court considered:
• the nature of the charges faced by K;
• the s 333 psychiatric report;
• K’s recent behaviour in the youth justice residence and another residence;
• K’s vulnerability due to his significant health issues; and
• K’s intellectual functions which caused a lack of ability for emotional regulation.

The Judge commended the careful way in which CYF was managing K’s situation, but expressed reservation about the appropriateness of K’s detention in secure care in a youth justice residence due to his high complex health needs. She asked that urgent consideration be given to an appropriate alternative placement.

Result:

Approval granted authorising continued detention in secure care for a period of seven days.

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Police v M and A YC Invercargill CRN 09225000582, 22 March 2010

Filed under: Police v M and A
File number: CRN 09225000582
Court: Youth Court, Invercargill
Date: 22 March 2010
Judge: Judge Callaghan
Key titles: Jurisdiction of the Youth Court: Charge type

Young people charged with aggravated burglary and wounding with intent to cause grievous bodily harm. Three adult co-accused to face trial in the High Court. Both indicated a desire to plead guilty.

Victim subject to deliberate beating with a claw hammer and an axe, suffered numerous cuts and underwent surgery.

Victim also suffered from genetic disorder which meant he functioned at 11-12 years of age. Victim had recently decided to live independently.

M (15) handed himself into Police and admitted his part in the incident. He displayed remorse and had a supportive family and was a first offender.

A (15) initially denied involvement, but later admitted punching the victim. A was part of the Conservation Corps and was the only one to graduate from his year in 2008. His family background included gang associations and violence, although his mother is supportive. A had Youth Court history but had completed plans without any difficulties. He was remorseful.

The Court was content to rely on summary of considerations [principles of sentencing] in Police v JT YC Christchurch CRI-2009-209-000500, 22 September 2009. Court also recognised that sentencing of co-offenders should be done together, however the connection between the young persons and their adult co-accused was less important because the young persons had indicated a desire to plead guilty, while the adults were continuing to defend their involvement.

The Court recognised that this issue required a balancing exercise taking into account the young persons’ personal situations.

The Court assessed the seriousness of the offending at the top of band 3 from R v Taueki [2005] 3 NZLR 372 (CA) with starting points between 9 and 11 years imprisonment if the young people were treated as adults at sentencing. This case was “so serious that it would be wrong to retain it in the Youth Court”. Judge considered imprisonment or home detention was “obvious” and therefore could not “see what specific advantages there are in a matter staying in this Court with a view to transfer out for sentence”.

Result:

Youth Court jurisdiction not offered.

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Police v MNTM YC Wellington CRI-2010-285-000046, 12 October 2010

Filed under: Police v MNTM
File number: CRI-2010-285-000046
Court: Youth Court, Wellington
Date: 12 October 2010
Judge: Judge Mill
Key titles: Orders - type Conviction and transfer to the District Court for sentencing - s 283(o): Aggravated robbery, Secure care (ss 367-383A).

M (17 at the time of sentencing) admitted to planning, robbing and hitting a bus driver using a metal bar. M had a significant youth justice and care and protection history, as well as a recent compulsory treatment order and multiple conduct disorder and psychotic diagnoses. M had been disruptive while in secure residential care and the subject of many secure care applications. He remained at a high risk of reoffending. Social worker recommended District Court sentence despite M agreeing to be dealt with under 1 Oct 2010 Amendment Act. Protection of the public also a factor, as M invariably slipped back into violent behaviour, even after a period of positive intervention.

Result:

Convicted and transferred to the District Court for sentence.

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Police v MT YC Waitakere CRI-2010-290-000316, 21 December 2010

Filed under: Police v MT
File number: CRI-2010-290-000316
Court: Youth Court, Waitakere
Date: 21 December 2010
Judge: Judge Tremewan
Key titles: Jurisdiction of the Youth Court: s 275 offer/election, Jurisdiction of the Youth Court: Charge type.

Various methamphetamine charges (jointly with a 25 year old adult). MT had just turned 16 at the time of the offending. Charges denied, but consented to being dealt with under 2010 Amendment Act.

Court referred to Police v PB YC Manukau CRI-2008-292-000119, 4 July 2008 per Judge Malosi re similar circumstances and factors to be considered.

Factors considered: MT had no criminal history, unlike co-accused, only police officers as witnesses, a single trial for both defendants is desirable but MT has other summary charges which would need to be heard in the Youth Court (YC) so there is an argument for a YC hearing for all charges, no victim impacts, a defended hearing in the YC could be held sooner than in the District Court (DC), still enough time to complete orders in the YC, the limit of 5 years imprisonment would be ample penalty if YC jurisdiction granted but later convicted and transferred to the DC, public interest in speedy disposal and seriousness of offending.

Result:

Youth Court jurisdiction offered.

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Police v RT YC Auckland CRI-2009-204-000398, 15 March 2010

Filed under: Police v RT
File number: CRI-2009-204-000398
Court: Youth Court, Auckland
Date: 15 March 2010
Judge: Judge Fitzgerald
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit

Decision following earlier ruling that RT was mentally impaired (CPMIP Act 2003) and had an intellectual disability (IDCCR Act 2003). Earlier decision also found RT unfit to stand trial and subject to needs assessment order under s23 CPMIP Act.

RT referred to specialist assessor, who determined that RT was not intellectually disabled in reliance on s 37 of the IDCCR Act, so needs assessment was not carried out. On this basis the Compulsory Care Co-ordinator recommended RT be released under s 25(1)(d) of the CPMIP Act. Despite this, Judge Fitzgerald expressed concern that RT presented “a very significant public safety concern because of his penchant for lighting fires”.

Ministry of Health defended decision to send RT to the specialist assessor to determine intellectual disability, claiming it was Ministerial best practice, and in accord with the statutory scheme. The Court disagreed and held that it was not in accord with the statutory scheme: Trow v Police HC Auckland, 10 September 1994 per Nicholson J. The Court also held that case falls under Part 3 of the IDCCR Act ,which assumes that there has already been a finding of intellectual disability, which requires only a needs assessment, not a revisiting of the question of intellectual disability.

The Court also commented on lack of secure mental health facility available for young person.

Result:

Previous decision that RT mentally impaired and unfit to stand trial stands. Part 3 IDCCR Act assessment ordered (again). RT’s detention in a “closely monitored community placement” continued.

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Police v RT YC Auckland CRI-2009-204-000398, 12 April 2010

Filed under: Police v RT
File number: CRI-2009-204-000398
Court: Youth Court, Auckland
Date: 12 April 2010
Judge: Judge Fitzgerald
Key title: Criminal Procedure (Mentally Impaired Persons) Act 2003: Disposition if unfit

Reasons for decision following earlier decision of 15 March 2010 (summarised above). Needs assessment completed, but Ministry of Health and RIDCA maintain no basis for compulsory care order, despite Court’s finding that RT had an intellectual disability. Ministry rely on report of specialist assessor, which contradicted Court’s finding.

All parties agree that release under s 25(1)(d) of CPMIP Act was the only option. Court again commented on the lack of secure facilities for intellectually disabled young people, and the impression that the Ministry and RIDCA had ignored the Court’s previous findings. The Court also commented that, given this attitude, there was nothing available in the Youth Court to address RT’s needs, and it would be left to the Family Court to address his issues through care and protection proceedings.

Result:

Release under s 25(1)(d) and proceedings stayed.

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Police v SE and Others YC Rotorua CRI-2008-263-000204, 23 February 2010

Filed under: Police v SE and Others
File number: CRI-2008-263-000204
Court: Youth Court, Rotorua
Date: 23 February 2010
Judge: Judge MacKenzie
Key title: Delay (s 322), Adjournment

Application to dismiss for delay. Four young people charged with entering a ship with intent to commit a crime. Alleged offending occurred 7 December 2009. Set down for hearing on 23 Feb 2010. Police unable to proceed. Complainant unavailable, two police officers on annual leave, one officer on sick leave.

Held prejudice caused to young people, who were on restrictive bail conditions. Held that hearing had been unnecessarily protracted.

Result:

Informations dismissed. Application for adjournment also refused.

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Police v TH and Others YC Masterton CRI-2010-235-000006, 20 May 2010

Filed under: Police v TH and Others
File number: CRI-2010-235-000006, CRI-2010-235-000007, CRI-2010-235-000008
Court: Youth Court, Masterton
Date: 20 May 2010
Judge: Judge A P Walsh
Key titles: Arrest without warrant (s 214)

Three defendants charged with burglary of a hot water cylinder. Police called and given description of 2 boys in school uniform. Constable later spoke to 3 boys near the property and observed 2 of them had wet shoes, despite the weather being fine and the ground dry. Decision made to arrest boys, take them to police station in a patrol car, and seize the shoes. Constable said he arrested boys to preserve evidence and that he did take s 214(1)(b) of the CYPFA (no arrest where young person could be proceeded against by summons) into account.

Boys admitted the burglary, were given their shoes back and sent back to school. All boys believed they were only placed under arrest once in the patrol car.

Court found no ground to arrest boys to prevent further offending, but there were grounds to arrest to prevent loss or destruction of evidence (s 214(1)(a)(iii)) in relation to the wet shoes. Constable's decision making cannot be criticised. Arrest complied with s 214 of the CYPFA.

Result:

Charges not dismissed.

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Police v TM YC Taupo CRI-2010-263-000026, 7 April 2010

Filed under: Police v TM
File number: CRI-2010-263-000026
Court: Youth Court, Taupo
Date: 7 April 2010
Judge: Judge Munro
Key titles: Orders - type: Supervision with residence - s 283(n).

Previous supervision with residence sentence. Application for declaration of non-compliance with supervision component. Further charges arising while waiting for defended declaration hearing. Non agreement at Family Group Conference (FGC) with family proposing MAC camp as part of new supervision with residence sentence, while police recommend conviction and transfer to District Court for sentence (s 283(o)).

Court commented that conviction and transfer would have been only option if MAC camp had not been available. TM reasonably intelligent with some prospects for the future. MAC programme designed to address issues of discipline, clear direction, structure, focus, responsibility and pride. Probably the last opportunity to make changes and to get assistance before being to the adult court.

Result:

Supervision with residence.

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Police v TS YC Manukau CRI-2009-292-000593, 20 September 2010

Filed under: Police v TS
File number: CRI-2009-292-000593
Court: Youth Court, Manukau
Date: 20 September 2010
Judge: Judge Hikaka
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: mentally impaired/unfit to stand trial.

Decision as to fitness to stand trial under s14 Criminal Procedure (Mentally Impaired Persons) Act 2003.

The Court had previously found that on the balance of probabilities, T had caused the act that formed the basis of the offence with which he was charged, namely aggravated robbery.

Initially, two health assessors disagreed as to whether T was mentally impaired and therefore unfit to stand trial. They agreed, however on the following points:

  • T had grown up in a deprived situation witnessing domestic violence and had showed behaviour problems and language delay from a young age;
  • he has an alcohol abuse and cannabis abuse disorder;
  • he does not fit the criteria for intellectual disability in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003;
  • he has significant difficulty communicated in both English and his first language Cook Island Maori; and
  • he does not currently reach the diagnostic criteria for conduct disorder, nor for mental retardation.

A third health assessor found that T showed sufficient competency through the help of an interpreter to be likely to be found fit to stand trial. She noted that T had a degree of cognitive impairment impacting on his expressive and receptive language but not amounting to a deficit within the intellectual disability range. “T was good with concepts, apprehension and comprehension, but slack on vocabulary”.

The Court noted that the lack of an intellectual disability does not necessarily mean that T is not mentally impaired. It held that T has cognitive deficits but is fit to stand trial because with proper explanations in a manner and language that can be understood by him, he will be able to conduct a defence, instruct counsel, plead, adequately understand the nature or purpose or possible consequences of the proceedings, and communicate adequately with counsel for the purposes of conducting a defence.

Result:

T was fit to stand trial.

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Police v WA YC Rotorua CRI-2010-263-000178, 21 December 2010

Filed under: Police v WA
File number: CRI-2010-263-000178
Court: Youth Court, Rotorua
Date: 21 December 2010
Judge: Judge Munro
Key title: Orders - type: Supervision with residence - s 283(n)

Appearance following breach of supervision order. WA warned on original charges that any breach would result in a custodial sentence. FGC following breach recommended 4 month supervision with residence order.

If 4 month residence ordered including attendance at MAC camp, early release provisions would see WA returned to court part way through camp.

Result:

Order for supervision with residence with 6 month residence component to allow for attendance at MAC camp.

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R v RJTB DC Invercargill CRI-2009-206-000072, 11 March 2010

Filed under: R v RJTB
File number: CRI-2009-206-000072
Court: District Court, Invercargill
Date: 11 March 2010
Judge: Judge Phillips
Key titles: Sentencing in the adult courts: Aggravated robbery, Sentencing in the adult courts: Serious assault (including GBH)

R (14 years old at the time of the offending) charged with 2 charges of aggravated robbery and one charge of wounding with intent. Court initially declined to offer R Youth Court jurisdiction. Guilty pleas. Victims were intellectually or mentally impaired. R had a difficult family history and a disrupted education, however had done well while on remand.

Aggravating factors:
• violence,
• multiple attackers,
• victims’ vulnerability, and
• victims’ injuries.

Mitigating factors:
• age,
• admitting of responsibility,
• no prior convictions.

The Court arrived at a starting point of 4 years 3 months, which was equal to R’s two adult co-offenders. Discounts for guilty plea and age brought the sentence down to 19 months imprisonment.

The Court commented that “...right above your head for the next period of months is a ‘sword’. You breach the boundaries of home detention and it comes down and you go to prison.”

Result:

Eight months home detention

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R v BMS DC Whangarei CRI-2010-288-000001, 29 September 2010

Filed under: R v BMS
File number: CRI-2010-288-000001
Court: District Court, Whangarei
Date: 29 September 2010
Judge: Judge Druce
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 14 mentally impaired/unfit to stand trial.

Decision as to fitness to stand trial under s14 Criminal Procedure (Mentally Impaired Persons) Act 2003.

B was aged 15 years and 10 months when she was charged with the murder of her sister. The cause of death was a stab wound to a lung. B made a statement to Police that she had stabbed her sister with a knife and added “I did not mean to stab her, she had been hitting me and calling me names..”.

Two health assessors agreed that B had mild mental retardation with significantly impaired adaptive function; that she came within the criteria for “intellectual disability” under s 7 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; that she was unfit to stand trial in terms of s4 Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act); that she suffered from Foetal Alcohol Spectrum Disorder; and that she suffered from childhood exposure to domestic violence, especially to her “concept of relationships, how feelings can be communicated, and her overall brain structure and function”.

The Crown conceded that B suffered from mild mental retardation but argued that she was nonetheless fit to stand trial.

The Court discussed the meaning of “adequately” in relation to communication and understanding in the definition of “unfit to stand trial” in s 4(1) of the CPMIP Act. It held that the degree of rationality required with respect to the relevant capacities has to be sufficient for the various tasks involved, but it need be only barely sufficient.

The Court discussed the nature and degree of B’s mental impairment including evidence that B’s mental impairment arises from both intellectual disability and from neurological damage caused by her antenatal foetal exposure to alcohol; B’s demonstrated irritability and tendency to be quick to anger; her extreme level of emotional liability that is likely to stem from her underlying brain damage magnified by her being raised in a stressful and sometimes dangerous home environment; and her impaired language and comprehension capacities.

The Court also discussed B’s fitness to plead. A structured guide, the Juvenile Adjudicative Competency Interview was used to assess fitness to plead. That interview provided evidence including that B knew that she faced a charge of murder and that it was serious, but she was unable to compare its seriousness with other offences; B had little, if any understanding of the function of the various roles in a trial process; B could not comprehend the distinction between being found guilty or not guilty and between entering a plea of guilty or not guilty; B had some understanding of the consequences of going to jail, but no comprehension whatsoever of the rational processes involved in admitting responsibility for the offence; B would not be able to follow evidence given in Court or be able to contradict or point out errors to her counsel.

The Court held that B does not have even a bare minimum of an adequate capacity to plead, to understand the nature or purpose of the proceedings, or to communicate with counsel for the purposes of conducting a defence. There is however, evidence that she has a simple and arguably adequate understanding of the possible consequences of the proceedings, but that is excluded from the finding that she is unfit to stand trial.

Result:

The Court held that B suffered from a mental impairment and was unfit to stand trial. It issued a direction that enquiries be made to determine the most suitable method of dealing with B, including a needs assessment under Part 3 IDCCR Act 2003.

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R v RL YC Manukau CRI-2009-292-000584, 12 August 2010

Filed under: R v RL
File number: CRI-2009-292-000584
Court: Youth Court, Manukau
Date: 12 August 2010
Judge: Judge Malosi
Key titles: Criminal Procedure (Mentally Impaired Persons) Act 2003: s 14 mentally impaired/unfit to stand trial.

Decision as to fitness to stand trial under s14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

The Court had previously found that on the balance of probabilities, R had caused the act that formed the basis of the offence with which he was charged, namely doing an indecent act on a child under the age of 12 years.

Two health assessors agreed that R was mentally impaired due to an intellectual disability and was unfit to stand trial. He has a full scale IQ of between 62 and 75.

The Court noted that although 'mental impairment' was not defined in the Criminal Procedure (Mentally Impaired Persons) Act 2003 or the Intellectual Disability (Compulsory Care & Rehabilitation) Act 2003, more often than not an intellectual disability in the legal sense equates to a finding of mental impairment, but doesn’t automatically mean that the individual will be unfit to stand trial.

The Court found that R was intellectually disabled, and on the balance of probabilities he met the legal definition for intellectual disability. At a superficial level R was able to discern the difference between right and wrong, had some understanding of concepts like guilty and not guilty, and of the Youth Court processes, but he was suggestible and unlikely to challenge authority or to question any advice given to him by his Youth Advocate.

The Court noted the seriousness of the charge faced by R.

The Court held that, on the balance of probabilities, R could not conduct a defence, nor could he properly and fairly instruct his Counsel to do so, or adequately understand the possible consequences or outcome of making a plea.

Result:

R was unfit to stand trial.

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R v Tatana DC Wellington CRI-2009-031-000755, 4 May 2010

Filed under: R v Tatana
File number: CRI-2009-031-000755
Court: District Court, Wellington
Date: 4 May 2010
Judge: Judge Behrens QC
Key titles: Delay (s 322).

Alleged assault by T and others. Information laid against T (16 at the time of the alleged offending) more than 2 years after alleged offending, due to loss of police files and police only becoming aware of T‟s involvement during interview with co-accused. Information laid indictably in District Court. T turned 18 eight months before being charged.

Court held that s 322 of the CYPFA (delay) applied due to s 2(2)(d) of the CYPFA, but ceased to apply once defendant was committed for trial.

Court held that, in general, prosecutorial delay not sufficient to dismiss for delay, and also no prejudice to defendant in this case.

Result:

Application to dismiss for delay dismissed.

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R v TP YC Manukau CRI-2009-255-000084, 1 April 2010

Filed under: R v TP
File number: CRI-2009-255-000084
Court: Youth Court, Manukau
Date: 1 April 2010
Judge: Judge Malosi
Key titles: Jurisdiction of the Youth Court: s 276 offer/election.

T 14 years 8 months at the time of offending. Indicated a desire to plead guilty. Offending against his cousin. Uncle allowed T to smoke cannabis and drink alcohol during period of offending.

Offending very serious. No mental health issues. T’s first time before the Youth Court. T would need long term intervention (e.g. in 18 month SAFE programme). Difficult to deliver SAFE programme in prison. No obvious family support.

Held that non-jury-warranted District Court judge can sentence young person denied Youth Court jurisdiction to imprisonment up to a maximum of 5 years. Longest available combination of sentences available to Youth Court (at that time) was 9 months. A care and protection declaration would not provide criminogenic solutions. Prison sentence a high possibility if not offered Youth Court jurisdiction, but a community sentence was not ruled out.

Ultimately, offending too serious, and risk factors too great. District Court had greater range of sentences available. Crown indicates they will not seek more than 5 years imprisonment so Youth Court judge can sentence in District Court.

Cases applied: Police v D (per Judge Inglis); Police v S and M (1993) 11 FRNZ 322; Police v James (1991) 8 FRNZ 628.

Result:

Youth Court jurisdiction not offered.

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SL v Police YC Manukau CRN 09292000861, 11 February 2010

Filed under: SL v Police
File number: CRN 09292000861
Court: Youth Court, Manukau
Date: 11 February 2010
Judge: Judge Lovell-Smith
Key title: Delay (s 322)

17 year old charged with sexual violation by unlawful seual connection. Complainant interviewed on 1 August 2008. SL finally arrested 1 September 2009. Police admit unnecessary delays due to lack of resources caused by a significant number of high profile investigations. AG v Youth Court at Manukau cited.

Held that there was a public interest in having young people held accountable for serious offending and also ensuring that their rehabilitative needs are met.

Result:

Application dismissed.

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