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Department of Social Welfare v M and K (1993) 11 FRNZ 341 (DC)

Case summary provided by BROOKERS

Name: Department of Social Welfare v M and K
Reported: (1993) 11 FRNZ 341
File number:
Date: 8 November 1993
Court: District Court
Location: Hamilton
Judge: D R Brown DCJ
Charge: Murder
CYPF no: s368
Key Title: Secure Care
Brooker’s Summary:

Youth justice - Continuation of secure care - Young persons charged with murder - Whether detention behind lock and key and under guard required - Whether secure care required when no history of absconding - Positive finding of likely harm required - Children, Young Persons, and Their Families Act 1989, s 368.

These were applications by the informant for the continuation of the secure care of M and K. M and K were due to appear in the Youth Court for the continuation of a part heard depositions hearing in relation to charges of murder. K had been involved in significant offending in the past, including aggravated robbery, and had absconded from a social welfare residence. M had been the subject of a family group conference as a result of previous offending but had not had a formal Court appearance. M had no history of absconding and the police evidence was that she played a smaller part in the alleged murder than K.

Held, making an order for the continuation of secure care for K, but declining to make an order for continued secure care of M:

(1) Section 368(a)(ii) Children, Young Persons, and Their Families Act 1989 requires a positive finding that there is likely to be physical, mental, or emotional harm to the young person if there is absconding. It cannot be said that there will always be emotional harm to any young person who absconds and possibly comes into a situation of offending.

(2) The question posed by s 368(b) is whether secure care in the form of detention behind lock and key and under guard is required to prevent the possibility of behaviour likely to cause physical harm to the young person or any other person. The Youth Court Judge is entitled to weigh whether that level of detention is warranted against the potential public risk. Whether the general risk of absconding from forms of social welfare care which do not involve truly secure care is to be tolerated in the particular case is a question of weighing history, present circumstances, and the risk of absconding.

(3) Because of K's significant history, proclivity for flight, absconding history, and the offence she was charged with, placement in continued secure care was necessary to prevent the possibility of physical harm to any other person. As M had no history of absconding, and her part in the alleged murder may have been less, there was insufficient material to satisfy the Court that custody had to be behind lock and key and under guard.

Applications

These were applications for the continuation of secure care of two young persons charged with murder.[(1993) 11 FRNZ 341, 342]