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

Case summary provided by BROOKERS

Name: Director-General of Social Welfare v V (A Young Person)
Reported: (1992) 8 FRNZ 598
File number:
Date: 26 February 1992
Court: Youth
Location: Otahuhu
Judge: Harvey J
Charge: Murder
CYPFA: s368
Key Title: Secure Care; Custody - CYFS
Brooker’s Summary:

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

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

Held,

(1) since it is on the basis of s 142A Criminal Justice Act 1985 that the young person is at the residence, the provisions of the Penal Institutions Act 1954 take precedence in this matter. Section 142A being an exception to s 12 Penal Institutions Act means that a young person like V may serve his sentence in a residence but at the same time be subject to the Penal Institutions Act.

(2) If it had been the legislative intention under s 142A for the provisions of the Children, Young Persons, and Their Families Act 1989 to apply, including those provisions relating to secure care, then the Legislature would have said so.

(3) The Director-General is required to keep a young person such as V in secure care and in confinement at a residence. V should not be kept in the secure care wing by way of an application for secure care under the Children, Young Persons, and Their Families Act. Although that procedure is legislatively stipulated and appropriate for young people in the institution [(1992) 8 FRNZ 598, 599]under s 361, it is totally inappropriate for a person who is effectively a sentenced prisoner serving a sentence and who has been transferred by virtue of age from a penal institution to the residence. In future, V should be kept and retained in the secure care wing without the necessity of being brought before a Judge every fortnight for the question of his secure care to be reviewed.

Application

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

The facts appear from the judgment.