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Police v CAP [2007] DCR 219

Name: Police v CAP
Reported [2007] DCR 219
File number: CRN-062320073
Court: Youth Court
Location: Lower Hutt
Date: 25 October 2006
Judge: Judge A P Walsh
Charge: s120(1)(c) Crimes Act 1961
CYPFA: s238(1)(d)
Key title: Custody, Chief Executive
Case Summary:
An order had been made under s 238(1)(d) of the Children, Young Persons, and Their Families Act 1989 that the young person CAP (aged 16 years, 11 months) be detained in the custody of the Chief Executive of Child, Youth and Family Services (CYFS). CAP was placed with a CYFS caregiver who, because she worked during the day, was unable to supervise CAP from 7.00 am to 7.00 pm each day and in fact required that he vacate the house during that period. CAP went missing from the home for more than a day and a night, when he was found by the police and arrested. He was charged with breaching s 120(1)(c) of the Crimes Act 1961 in that, while being in lawful custody, he escaped from that custody. The issue for the Court was whether, given that he was required to be away from the house during the day and could not be supervised, he had been detained in the custody of CYFS.

CAP had advised the Court he had a serious drug addiction and was using the drug “P”. He sought help to gain entry to a residential drug and alcohol facility. He had a history of offending and his risk of committing further offences was extremely high.

CAP was placed in the care of a CYFS caregiver. He discussed with CAP an agreement entitled “Agreement and Conditions for CAP/M”. Clause 4 of that agreement read

4. I will not leave (caregiver’s address), unless I am with my caregiver [TM] or grandmother [MS], uncle and aunt [P and TS].

In cross–examination the social worker was aware of addiction issues for CAP as he had been assigned to him in November 2005. He acknowledged cl 4 of the agreement did not address the reality of the placement at TM’s home.

Counsel for CAP argued that detention could not be effected by the placement of partial controls such as the imposition of the 12–hour curfew. Such a proposition failed to take into account the legislative reasons CAP had been remanded under s 238(1)(d). He was denied bail to prevent further offending. It was not to reduce the chance or minimise the risk or any other such notion. In those circumstances it was illogical to suggest a young person, accepted as being one of the most high–risk young people in the youth justice system, who had told the Youth Court he could not control his P addiction, would be prevented from offending by night–time curfew alone. If an arrangement like this had been considered safe CAP would have been admitted to bail or placed under an agreement pursuant to s 238(1)(c). The whole purpose of the remand under s 238(1)(d) was because he needed to be detained and the order under s 238(1)(d) was the most powerful and restrictive order available to the Court.

The Court agreed, holding that it is implicit in a remand under s 238(1)(d) the young person is confined or detained in such a way as to prevent any of the matters specified in s 239(1)(a) – (c) occurring.

The judge held that where a young person has been “detained in the custody of” CYFS, there must be an element of confinement which must be monitored or controlled at all times by the person so appointed under s 362. Section 238(1)(d) clearly is the most restrictive provision pertaining to the release of a young person from the Youth Court given the criteria under s 239(1) which must be satisfied. As noted in Police v T (Youth Court, Hamilton CRI 2005-219000046, 23 November 2005, Judge A E McAloon), there is a clear difference between s 238(1)(c) and (d). The Court also noted that, while CAP entered into a contract with CYFS, it was unaware of any legal basis for such a contract in terms of the CYPF Act.

The judge commented that the Court which made the original order was entitled to expect CAP would be confined on a fulltime basis and not partially confined as happened in this case. This could be termed a “hybrid detention arrangement” somewhere between ss 238(1)(c) and 238(1)(d), and such an arrangement has no legal basis.