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

MK TO v New Zealand Police [30 May 2007, HC, Palmerston North, CRI –2007-454-02, Mallon J

Name: MK TO v POLICE
Reported: [2007] DCR 770
File number: CRI-2007-454-02
Court: High Court
Location: Palmerston North
Date: 30 May 2007
Judge: Mallon J
Charge: Burglary
CYPFA: s283(f)
Key title: Reparation Orders

Decision: Reparation orders can only be made against the parents of an offender pursuant to s283(f) of the CYPFA where the parents are at fault.

ISSUE

The overriding considerations in the exercise of a discretion under s283(f) of the CYPFA are whether it is appropriate to make a reparation order in respect of the offending and reasonable to order that it may be made against a parent?

CASE SUMMARY

Successful appeal by the appellants against an order for reparation for $10,000. The appellants are the parents of a young person, J. The order was made pursuant to s283(f) of the Children Young Persons and their Families Act 1989, CYPFA. Where the young person is under 16 years, that order may be made against the parent or guardian of the young person.

FACTS:

J had a significant history of offending and difficulties beginning from his early school days. Significant steps were made to deal with J’s difficulties. J was placed in Warkworth, from which he absconded and then offended, which led to his first remand and sentence to a Youth Justice Center in 2004. The Judge had described J, when in offending mode as “cunning, manipulative and devious”.
The Youth Court Judge described the appellants’ role in relation to J as ‘long-suffering’ and as having ‘a continuing desire throughout to have J at home … providing moral and practical support …and had remained a family group to which J was strongly attached.’
On 8 August 2005 J was on bail, conditional on him residing at his parents house, a 24 hour curfew, and a condition that he present at the door if called on by police. The YC Judge also stated that a further condition of bail was that J’s parents supervise the curfew. That latter condition was not recorded on the notice of bail.

On 11 August the curfew was relaxed to a 10pm to 7am curfew. Following further offending it went back to 24 hour on 16 September 2005, unless accompanied by parents or approved persons.
Between 14 October and 10 November 2005, when subject to a 24 hour curfew, J committed burglaries, thefts and car conversions in various towns, including Levin. The offending in Levin was the subject of the reparation order. J burgled a farmhouse with another on 25 October 2005. The burglary took place at 5pm and involved approximately $80000 worth of property, including firearms, cash and alcohol.

J was sentenced to up to 3 months residence and 6 months to follow. A reparation order was sought by the owners of the Levin property against J. The Judge declined to grant the order against J, as he could not meet such an order.

The basis for the reparation order against the appellants was that J had been absent from his home on 25 October 2005 and the appellants had failed to advise Youth Aid or the Police. The Judge concluded the appellants should have been more proactive. The Judge took into account the amount of loss, and considered the most that could be ordered against the parents was one half of the loss. Taking into account their financial position and need to ‘underline the seriousness…of good parenting and the standard required in certain circumstances’, the Judge made the order for $10,000.

The Court considered the principles for making an order for reparation pursuant to s283 of the CYPFA, and the factors to be considered under s284 of the CYPFA. General guidance as the when it would be appropriate to make an order against the parents of a young person is found in ss4,5, and 208 of the CYPFA. Orders for costs of prosecution, reparation and restitution may be imposed on a parent where the young person is under the age of 16 years.

The Court compared the principles of the CYPFA with the similar provision in England in s137 of the Powers of Criminal Courts (Sentencing) Act 2000. In contrast the CYPFA, the English legislation applies to fines, but where the young person is under 16 the Court is required to order that the parent pay the fine, compensation or cost, unless the Court is satisfied the parent cannot be found or it would be “unreasonable to make an order for payment, having regard to the circumstances of the case.” Cases have considered the steps taken by parents and local authorities to control the offender. In relation to parents, parental responsibility has been considered by asking whether the parents have done what they reasonably could be expected to do to keep the young person from offending.

The liability of parents generally is set put in the Care of Children Act 2004. There is no obligation under the provisions of the Care of Children Act 2004 or the common law for a parent to assume financial responsibility for the actions of their children. However, a parent may be liable when he or she has a duty to a third person to control a child and is negligent in the exercise of that control.

Reasoning

Where a young person is under 16 years the presumption is that the young person does not have the ability to pay. Whether it is reasonable to make an order against he parents depends in part on the parent’s ability to pay. It will not be reasonable to order reparation against a parent in the absence of fault. Fault will be determined by what reasonably could be expected of the parents in the circumstances.

There must be a causative link between the parent’s fault and the offending. This is consistent with the requirement that damage be caused “through or by means of an offence”, before reparation is ordered under the CYPFA or the Sentencing Act. It is also consistent with the s4(g) and s280(c) of the CYPFA principles that the relationship between the young person and his family should be maintained and strengthened. Reparation against the parents in the absence of fault risks interfering with strength and stability of the family and may hinder the ability of a family to deal with the offending.

Where the parents have done what reasonably can be expected of them, taking the approach of Wilmot v Police , the parents actions or inactions must have been a material cause of the offending in respect of which reparation is to be ordered.

HELD:

1. It would be inconsistent with other jurisdictions to impose reparation orders against parents when there is no parental fault. It would also be inconsistent with the philosophy of the CYPFA. Imposing a reparation order on parent’s risks alienating them from the Youth Court process, especially where the offending has occurred through no fault of the parents.

2. The Judge erred in finding the parents at fault through their failure to notify the police of J’s absence. They could not be at fault if it was not made clear to them that they were to actively contact the police if J was absent. It was not a condition of bail that they do so and they were aware the police would make regular checks. Even if they were at fault for not pro-actively contacting the police, the second error was in not determining whether a pro-active approach would have been likely to have prevented the offending.

3. There was nothing to suggest the police would have apprehended J before the burglary had the appellants alerted the police. The failure to notify the police was not a material cause of the loss suffered by the owners of the farm property

4. The reparation order was unduly punitive.

5. Appeal allowed.