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Police v H (a young person) [2004] DCR 97

Case summary provided by LexisNexis NZ

Name: Police v H
Reported: [2004] DCR 97
File number: CRN Nos 2257008263, 64
Court: Youth Court
Location: Auckland
Date: 22 January, 5 February 2003
Judge: Thorburn DCJ
Charge: Sexual Violation
CYPFA: s5; s208; s275; s276
Key title: Jurisdiction of the Youth Court – s275 offer/election; Jurisdiction of the Youth Court – s276 offer/election

LexisNexis Summary:

The young person, H, was charged with sexual violation first by oral connection and secondly by anal penetration in relation to one alleged incident that allegedly took place in a school dormitory toilet. At the time of the alleged offending, H was 14 years old. As the charges were purely indictable, a depositions hearing was held in December 2002 in accordance with s 274(2) of the Children Young Persons and Their Families Act 1989 ("the Act"). Most of the evidence was by way of hand-up and a case was conceded. Therefore, the Court had to decide whether to give H the opportunity of forgoing his right to trial by jury so that the case could be heard as a defended hearing in the Youth Court before a Youth Court Judge. H did not indicate any desire to plead guilty to the charges.

Held (exercising discretion accordingly)

(1) As H did not indicate any desire to plead guilty to the charges, s 275 of the Children, Young Persons, and Their Families Act ("the Act") applied and the discretion was confined to the issue of the appropriate forum for trial or hearing as distinct from outcome or sentence. The discretion required under s 275 of the Act was distinguishable from that required under s 276 of the Act. When the Court exercised the discretion under s 275, more weight was put on the importance of implied principles and the expressed protective provisions of the Act. This was particularly important where the young person denied the offence. The election should be offered to young persons unless there was some good reason not to offer it.

(2) All powers exercised under the Act were to be guided by the principles in s 5 of the Act. All powers exercised under the Youth Justice provisions of the Act were to be additionally guided by the principles in s 208 of the Act. The young person was offered the opportunity of forgoing his right to trial by jury for the following reasons:

Page 98 [2004] DCR 97

(a) The youthfulness of the young person and his alleged victim;

(b) A Youth Court hearing would occur significantly earlier than a trial;

(c) A Youth Court hearing would ensure compliance with the special provisions in the Act for separating Youth Justice proceedings from mainstream adult Court business;

(d) The young person and his family preferred a Youth Court hearing;

(e) There were no issues of convenience or expedience as can sometimes arise where a young person was jointly charged with an adult resulting in severance giving rise to two hearings in separate jurisdictions;

(f) The Youth Court environment was more likely to preserve and/or maintain the relational needs of the young person throughout the trial than the more clinical, impersonal and alienating atmosphere of a trial Court;

(g) If the offences were proven, the young person was of an age whereby the full unrestricted range of Youth Court outcomes were available. This factor was given less weight in coming to the decision.

Cases referred to in judgment: Police v D (Youth Court, Levin CRN 5254003780 13 May 1995, Judge Inglis QC); Police v E (Youth Court, Manukau CRN 0257007441/2 21 December 2000, Judge Simpson); Police v Edge [1993] 2 NZLR 7; (1992) 9 FRNZ 659; Police v James (a young person) (1991) 8 FRNZ 628; Police v M [1990] DCR 544; Police v M [1999] NZFLR 588; Police v Manuel (1998) 16 CRNZ 62; Police v Rangihika [2000] DCR 866; Police v Richard (Youth Court, Upper Hutt CRN 9278003995/6, 12 June 1990, Judge Lee); Police v S [1996] NZFLR 906; Police v S & M (1993) 11 FRNZ 322; Police v Tai (a young person) (1991) 8 FRNZ 613; Police v W (Youth Court, Papakura CRN 0220114524/5, 8 December 2000, Judge Boshier); R v A [1994] 2 NZLR 129 (CA); R v C (Court of Appeal, CA105/02, 23 May 2002); R v Mako [2000] 2 NZLR 170 (CA); R v Titoko (Court of Appeal, CA144/96 11 September 1996); RE v Police [1995] NZFLR 433; S v District Court at New Plymouth (1992) 9 FRNZ 57.

Informations The young person, H, was charged with sexual violation first by oral connection and secondly by anal penetration. This was the hearing to decide whether H should be given the opportunity to forgo his right to trial by jury and have the information heard and determined in the Youth Court,

[2004] DCR 97 page 99, pursuant to s 275 of the Children, Young Persons and Their Families Act 1989.