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Police v D [2002] DCR 897 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v D
Reported: [2002] DCR 897
File number: CRN2204003529-36
Date: 23 August 2002
Court: Youth Court
Location: Auckland
Judge: Thorburn DCJ
Charge: Aggravated Robbery
CYPFA: s4; s5; s208; s276; s284
Key Title: Objects; Principles; Jurisdiction of the Youth Court - s276 offer/election

LEXISNEXIS Summary:

Children and young persons - Young offender - Jurisdiction - Discretion to offer Youth Court jurisdiction after indication of desire to plead - Whether or not offender should be offered Youth Court jurisdiction - Factors to be considered - Evidence supporting trial for an indictable offence - Crimes Act 1961, ss 235(1)(b), (c) - Children, Young Persons, and Their Families Act 1989, ss 4, 5(b), (c), 14(1)(e), 101, 208, 272, 274, 276(1), 284(1)(d), (g) - Summary Proceedings Act 1957, ss 153A, 168.

Between 14 and 20 May 2002 it was alleged that on eight separate occasions Aholotu Inoke Daniel, (D) aged 14 years, committed aggravated robbery. The offending involved accosting people in vehicles, on bicycles, and at bus stops or targeting and following pedestrians or persuading vehicles to pull over. In all cases violence was either threatened or used, sometimes with a weapon brandished or used also. Property losses totalled $6000 and D admitted all charges at the conference.

Being purely indictable the charges proceeded to depositions in the Youth Court in August and the evidence was sufficient to put him on trial. As Daniel indicated a desire to plead before a committal on the evidence was made; the Court recorded the indication and referred the matter to a family group conference in August 2002 for consideration of whether or not, in light of that indication, Youth Court jurisdiction should be offered. At that conference it was decided that the Court, following submissions from all entitled parties, should decide the issue of jurisdiction.

D had consistently been involved in offending since the age of nine committing thefts and burglaries regularly, behaving threateningly, presenting a firearm, cruelty to animals, dangerous driving and more. His offending had continually become more serious over time. He had significantly behind his peers and his intellectual ability is in the deficient range perhaps placing him in a mental disability category. His behavioural problems at school were well documented and his family situation did not instil any confidence in possible future improvement.

Held (declining jurisdiction)

(1) Sections 4 and 5 of the Children, Young Persons, and Their Families Act 1989 clearly established primary emphasis upon the belief that a young person’s best interests and most healthy development will be found in the environment of a safe and functioning family. In respect of young offenders the Act emphasised supporting and strengthening a young person’s family environment by addressing society’s need to impose sanctions which took the form most likely to maintain the child within his or her family and took the least restrictive form appropriate in the circumstances.

(2) A balancing exercise was required in order to pay heed to the philosophy of the Act which can be described as emphasising the preservation of appropriate and safe development of a young person in a wholesome well-adjusted family environment, in preference to a purely punitive and punishing alternative.

P v M [1990] DCR 544 and P v S (1993) 11 FRNZ 322, discussed.

(3) Clearly for this young person the offending was of such serious nature as to outrage right thinking people in the community; requiring the law to give the strongest denunciatory message. However, in view of the offender’s age the Court must be mindful and deeply reflect upon principles of rehabilitation before falling into a purely retributive or denunciatory approach.

(4) In order to make a decision under s 279 of the Act the Judge should treat the matter almost as though it was a sentencing exercise and apply the factors listed in s 284.

P v Tai (1991) 8 FRNZ 613, applied.

(5) In this case there were major concerns that the young person had already demonstrated an entrenched trait of disobedience that had burgeoned into serious criminal offending and where his family structure was ineffective against those traits. There were major public interest community protection issues with regard to this young person. In this case, bearing in mind the balancing exercise which must be undertaken, the weight in the sense of public protection was heavily countermanding the emphasis upon non-punitive outcomes.

(6) As the Act stands the longest intervention that can be imposed would be supervision with residence which would take up to no longer than nine months. This young person’s need for behaviour modification were extreme and would barely be touched in such a period. The youth will therefore not be offered Youth Court jurisdiction in respect to the purely indictable charges which he had indicated a desire to plead guilty to.

P v TLA [2000] DCR 240, discussed.

Cases referred to in judgment

P v M [1990] DCR 544
P v S (1993) 11 FRNZ 322
P v Richard & R v S (Youth Court, Upper Hutt, 12 June 1990, Judge Lee)
P v S & M (1993) 11 FRNZ 322
P v Tai (1991) 8 FRNZ 613
P v TLA [2000] DCR 240

Proceeding

This was a proceeding whereby the Court had to exercise its discretion under s 276 to offer Youth Court jurisdiction after indication of desire to plead.