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In the Matter of the CYPFA, MB and an Application under s309

Name: In the Matter of the CYPFA, MB and an Application under s309
Unreported
File number:
Date: 12 August 2003
Court: Youth Court
Location: Wellington
Judge: Becroft DCJ, Principal Youth Court Judge (2001 – present)
CYPFA: s309, s310
Charge: Theft of a Motor Vehicle; Theft from a Motor Vehicle
Key Title: Review of orders; Youth Court Procedure

Summary: Order for supervision with activity followed by supervision imposed on MB; CYFs later applied under s309 CYPFA for a declaration that MB failed to comply with a condition set out in the supervision order; application filed before order expired; application adjourned twice. Whether, now that the order has expired, the Court has jurisdiction, if the declaration is made, to cancel the order and impose another order in its place. Section 309 and 310 CYPFA discussed; s309 envisages a two-step process: (1) an application to the Youth Court for a declaration that a young person has failed, without reasonable excuse, to comply with one of the two named orders; (2) If declaration made, Court may then cancel the order and in substitution make such other order under s283 as the Court thinks fit, or make any order the Court is empowered to make under s310. Step (2) is discretionary, not mandatory. Held: Court has no jurisdiction to cancel an order that has expired; preferred meaning of "cancel": "to call off or discontinue something already arranged or in progress"; this definition is in line with parallel but differently phrased provisions in the adult jurisdiction and consistent with other provisions of the CYPFA.

Obiter: Against the argument that a s309 application filed towards the end of a supervision order would never thus lead to an order for cancellation and re-sentence, Judge Becroft observed that a parallel application under s310(3)(b) for suspension of the order, pending final determination of the application, is possible. Here, adequacy of application and lawfulness of supervision order questioned; correct Youth Court procedure as to section 309 outlined in detail.

Decision: Declaration that MB failed without reasonable excuse to comply with a condition of his supervision order; however, no jurisdiction to cancel the supervision order and impose another order in its place.