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

Case summary provided by BROOKERS

Name: M v Police
Reported: 15 FRNZ 167
File number: AP102/96
Date: 11 December 1996
Court: High Court
Location: Rotorua
Judge: Anderson J
Charge: Sexual Violation by Unlawful Sexual Connection; Aggravated Burglary; Being Found on Premises without Legal Excuse
CYPFA: s272; s274; s276; s351; s354
Key Title: Appeals to the High Court – Jurisdiction; Family Group Conferences – Convened/Held; Purely Indictable Procedure

BROOKERS 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).

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)

Statutes and regulations referred to

Children, Young Persons, and Their Families Act 1989, ss 272(3), 274-276, 283(o)
Judicature Amendment Act 1972
Summary Proceedings Act 1957, s 153A

Appeal

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