Youth Court Decisions How to Use Full list of key titles CYPFA section Date

Police v CAP (16 October 2006, YC, Lower Hutt, CRN-062320073, Walsh DCJ)

Name: Police v CAP
Unreported
File number: CRN-062320073
Court: Youth Court
Location: Lower Hutt
Date: 16 October 2006
Judge: Walsh DCJ
Charge: Escaping from custody
CYPFA: s238(1)(d); s362; s361(g); s385
Key title: Custody - chief executive

Summary: CAP charged with escaping from custody under s120(1)(c) CA; offence denied. Whether CAP had been “detained” under s238(1)(d) CYPFA. CAP, a “P” addict with serious offending history, remanded under s238(1)(d); signed contract with CYFS agreeing to stay at caregiver’s house and only leave with caregiver, grandmother, uncle or aunt. As caregiver worked, contract changed to state that CAP only to stay at caregiver’s house between 7pm and 7am. CAP entirely unsupervised during the day. Several days into the placement CAP did not return home. After several hours the caregiver rang the Police. CAP was located when Police were called to an incident in the early hours of the following morning.

Youth advocate considered meaning of “detained” in s238(1)(d); Police v T (23 November 2005, YC, Hamilton, CRI-2005-219000046, McAloon YCJ); Police v P (20 July 2004, YC, Hamilton, CRN 4219124285, McLean YCJ). High threshold to be met before s238(1)(d) order made; s239; although restrictions required for s238(1)(d) not spelt out, YA argued custody should have some controls at all times that equate to “detaining”; s362; s385. Police submit no requirement for 24-hour controls on young person; detention may be effected by the placement of partial controls such as this 12-hour curfew; s361(g).

Section 120(1)(c) limited by s385(3) which states:

(3) A child or young person to whom this section applies, unless that child or young person was being detained pursuant to section 238(1)(d) or (e) of this Act or section 142A of the Criminal Justice Act 1985, does not, by reason only of an act or omission referred to in subsection (1) of this section, commit an offence against section 120 of the Crimes Act 1961. (emphasis added)

Thus, if CAP was detained in the custody of the chief executive and is found to have “escaped” from that custody, liability under s120 may follow. Whether CAP “detained”: dictionary definition, scheme of the CYPFA and content of s239 considered. Section 238(1)(d) imposed where young person likely to abscond, commit further offences or to prevent the loss or destruction of evidence; implicit in remand that young person must be detained in such a way that prevents these things happening. In Police v T Judge McAloon stated that “detention” and “custody” should be considered together and not split; approach upheld.

“Detained in custody of” CYFS must include an element of confinement and monitoring. Section 238 scheme includes a graduated basis for releasing a young person who appears before the Youth Court from s238(1)(a) to (d). Section 238(1)(d) is the more restrictive provision for the release of a young person from the Youth Court, given the criteria under s239(1). CAP delivered into custody of person approved by social worker; sufficient for s238(1)(c) but not for s238(1)(d); s208(d). This was a “hybrid detention arrangement” between s238(1)(c) and (d) but this has no legal basis. Sufficient confinement may exist where young person granted temporary leave for 1-2 hours but not where completely left to their own devices during day time hours.

Decision: CAP not effectively detained in custody as per s238(1)(d). Following meaning of “detention in custody” in Police v T, CAP needed to be in a controlled or supervised placement in custody at all times. This did not occur; Judge satisfied he did not “escape” under s 120(1)(c); charge dismissed.