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Gordon v Police (1990) 6 FRNZ 523 (HC)

Case summary provided by BROOKERS

Name: Gordon v Police
Reported: (1990) 6 FRNZ 523
File number: AP87/90
Date: 5 June 1990
Court: High Court
Location: Wellington
Judge: Eichelbaum CJ
Charge:
CYPF no: s283(o); s281; s290; s340
Key Title: Sentencing in the adults Courts - application of Youth Court principles; Orders - Conviction and transfer to the District Court for sentence – s283(o); Family Group Conference - Convene
Brooker’s Summary:

Youth justice - Sentencing - Appeal against s 283(o) orders - Record of reasons for orders unavailable - Uncertainty as to whether Judge handled case in accordance with procedures under the Act - Rights of young person to be upheld - Children, Young Persons, and Their Families Act 1989, ss 13, 281(2), 283(o), 290, 340.

The appellant appeared before the Youth Court on two occasions on a total of nine informations. On the first occasion, following a family group conference, the Youth Court made orders under ss 298 and 307 Children, Young Persons, and Their Families Act 1989 ("community work" and "supervision with activity"). These orders were not complied with. The Department of Social Welfare then applied for a review of those orders, and proposed that the appellant be convicted and remanded to the District Court for sentence under s 283(o). The Youth Court Judge so ordered. On the second occasion, convictions were entered and the Judge also made orders under s 283(o). The appellant appealed against these s 283(o) orders on the following grounds: (i) that the Youth Court Judge failed to take into account alternative sentencing options; (ii) that in particular, the Judge failed to act in accordance with the direction contained in s 290(2) of the Act, that no order under s 283(o) shall be made unless the Court has considered all other alternatives available and is satisfied that none was appropriate in the circumstances of the case; (iii) that the Judge failed to direct the convening of a family group conference, contrary to s 281 of the Act; and (iv) that the Judge failed to give reasons.

Held, allowing the appeal:

In relation to grounds (i) and (ii), in the absence of a record of reasons, it is unclear whether the Judge took all alternatives into account; as to (iii), no direction was given for the convening of a further family group conference, contrary to s 281(2) Children, Young Persons, and Their Families Act 1989; and as to (iv), while it is unclear whether the Judge gave reasons, none were furnished to the appellant, contrary to s 340(1)(b) of the Act. Although the conclusion that the Youth Court Judge reached may have seemed irresistible in the circumstances of the case, the fact remains that in separate respects, down by the Act, or it is not possible to be certain that this was so. One must be conscious of the principle contained in s 13 of the Act, ie that the rights of young persons must be upheld.

Cases referred to

Connell v Auckland CC [1977] 1 NZLR 630
R v Awatere [1982] 1 NZLR 644 (CA)
R v MacPherson [1982] 1 NZLR 650 (CA)[(1990) 6 FRNZ 523, 524]

Appeal

These were appeals from orders made by the Youth Court under s 283(o) Children, Young Persons, and Their Families Act 1989.

The facts appear from the judgment.