THE HISTORY OF THE YOUTH COURT SINCE 1989

Part IV: JUDICIAL TRENDS WITHIN THE YOUTH COURT

How have these currents impacted actual decisions of the Youth Court? The impact of underfunding is considered through analysing how the judicial discretion to dismiss information if there has been undue delay is exercised. The interface of the public interest and the aims of the Act are considered through a sample of cases where Youth Court Judges exercise their discretion under the "jurisdictional decision" of ss 275 and 276. The cases show that while Youth Court judges have acknowledged a public interest in accountability, and in some instances, harsher penalties, many proceed on a pragmatic, case by case basis.

A The Judicial Discretion to Dismiss Information

As outlined above, up to 2003 "considerable delays" have been noted in Police and Youth Court referrals to FGCs and within the Youth Court, "especially where sittings are infrequent, where administrative problems arise and, less frequently, where there is repeat offending before a case is completed."[89] A series of cases regarding s 322 demonstrate that delays in the system have been met by a pragmatic response by Youth Court Judges, who attempt to balance the youth justice principle of timeliness against counter objectives such as accountability. However, it is difficult to determine any clear trends, a situation that is not improved by there being no single law report series for Youth Court decisions.

S 322 empowers Youth Court judges to disregard information if there has been undue delay:

"Time for instituting proceedings - a Youth Court Judge may dismiss any information charging a young person with the commission of an offence if the judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted."

This is to give effect to s 5(f), which sets out the principle that decisions affecting a child or young person should be made and implemented within a time frame appropriate to the child's or young person's sense of time.[90] Understandably, "sense of time" is not defined in the Act but reflects the idea that a child or young person should not be subject to undue delay as delay may cause distress, a lack of memory, or erode the young person's sense of responsibility and accountability for the alleged offending.

S 5(f) was used to interpret s 322 in Police v BRR[91] where the defendant young person was alleged to have committed an assault on 6 June 1992, but the matter was not heard in the Youth Court until over one year later, on 23 June 1993. Judge DJ Harvey dismissed the information, taking into account events that took place before and after the laying of information. He was satisfied that there was an unduly protracted delay in investigation (which began six months after the alleged offence), laying of information (ten months after the alleged offence) and in bringing the matter to hearing, to justify the Court exercising its discretion under s 322, considering that the history of the case was one of consistent delay. He emphasized that s 5(f) should guide Youth Court Judges when deciding whether there has been unduly protracted or unnecessary delay: "It is something that is continually in the mind of a Youth Court Judge when scheduling defended cases that these matters not be scheduled too far out so that the significance of the case is lost."

In Police v C[92] information was also dismissed on the basis of a s 322 delay. In this case there was also a six month delay between the date of the alleged offence and the laying of information, and there was also over a year's delay between the commission of the alleged offence and the date of trial. The young person, aged sixteen at the time of the alleged offence and aged seventeen at the date of trial, faced the indictable-only charge of sexual violation by unlawful connection. Judge Carruthers emphasized that the s 5(f) "principle of timeliness" is relevant to considerations under s 322. However, he also read s 5(f) against s 245, which provides that proceedings are not to be instituted against a young person unless the YJC and the informant have consulted and the matter has been considered at a FGC convened under the Act. He held that consultation under the Act required a genuine attempt to convene with an open mind about possibilities of intervention other than prosecution. Therefore in some situations the particular issues of the young person may require that a longer span of time be regarded as appropriate. While an expansive view was appropriate when considering the time taken to implement the FGC plan, the time finally taken was also relevant to other aspects of the application of s 322. While there were no strict time limits involved, the actions in this case of laying and proceeding with the information had been unnecessarily and unduly protracted, and the young person's rights under the criminal proceedings had been irretrievably compromised.

A contrasting approach was taken in B G T D v Youth Court Rotorua[93] where s 5(f) was balanced against contrasting youth justice principles contained in s 4(f). This section states that one of the objects of the Act is to ensure that children and young persons who commit offences are:

i Held accountable and encouraged to accept responsibility for their behaviour; and

ii Dealt with in a way that acknowledges their needs and that will give them an opportunity to develop in responsible, beneficial and socially acceptable ways.

A series of adjournments and resulting delays were the basis for judicial review proceedings against a decision of a Youth Court Judge not to dismiss charges of aggravated burglary under s 322 of the Act. Robertson J noted that Parliament had not adopted a strict time-based requirement and that s 5(f) was qualified by the words "wherever practicable". Although there had been avoidable delays, his honour took a commonsense approach, balancing the individual rights of the young accused against the public interest. The young person had consistently denied being present when the burglaries took place, and that delay would be unlikely to affect his ability to recall whether he was present. In this case, the public interest was equated with a desire to hold the offender accountable, an issue which often arises whether to refer a young person to a higher court for sentencing.

B Elections to be Dealt With Under the Youth Court

There are two ways in which a matter can end up in the District/ High Court. Sections 275 and 276 provide for the "jurisdictional decision". Prima facie, purely indictable offences will not be heard in the Youth Court, except for depositions. However, if the young person is charged with a purely indictable offence other than murder or manslaughter and there is either sufficient evidence to put the young person on trial or the young person desires to plead guilty, the Youth Court has the option of offering Youth Court jurisdiction. The young person may accept this opportunity. If jurisdiction is declined, the charge will end up either in the District Court of the High Court according to the principles set out in the District Courts Act 1947 and the Summary Proceedings Act 1957.

The second way of transferring a case from the Youth Court is under s 238(o), which enables the Court to enter a conviction and order that the young person (who is of or over 15) be brought before a District Court for sentence or decision. This is the most serious sentencing option within the Youth Court and can occur in respect of a charge which originated in the Youth Court or purely indictable charges for which Youth Court jurisdiction was offered and accepted.

Jurisdictional decisions under ss 275 and 276 are guided by the principles of the Act, including s 208. S 208(a) provides that "unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is alternate means of dealing with the matter." One rationale for violent offences to be transferred to higher courts for sentencing is that in these circumstances there is a "public interest" in subjecting the youth to the greater range of punishments available in the higher courts. This public interest is often assumed to be opposed to the objectives of the Act:

"The public interest requires the court, in the exercise of its discretion, to consider sentencing matters and in particular to consider whether the public interest outweighs the policy of the Act and the sentencing options available to the Youth Court."[94]

Fisher J R v Police[95] took this approach, balancing the interest of the public against the objectives of the Act. This case was a judicial review proceeding against a Youth Court decision allowing police submissions as to whether the youth should be sentenced in the Youth or District Court; whether the Court should exercise its discretion under s 276. Fisher J held that the Police were entitled make submissions under the Court's inherent jurisdiction and the principle that each party must be given a fair chance to put forward his or her view. In criminal cases the prosecutor normally represents the community, and therefore there was a legitimate public interest in the prosecutor putting forward its case. The following dictum demonstrates the way the public interest was balanced against the Act:

"One might think that it will always be in the interests of the youth concerned to be sentenced in the Youth Court than the High Court. If s 6 were to be read literally, one wonders how the jurisdiction could ever be exercised in favour of sentencing in the High Court [...] the public interest is to be regarded as at least a relevant consideration if not a potentially determinative one." [96]

With respect, it must be noted that s 6, which declares the interests of the child as paramount, does not apply to Youth Court proceedings but applies to care and protection issues under the Family Court. The judgment continues, equating the public interest with a desire for punitive over rehabilitative sentencing:

"The discretion must be there for a purpose. It is not easy to think of many reasons for declining to make available the young person the more rehabilitative sentencing process of the Youth Court apart from the public interest." [97]

Other cases show that there is no presumed single public interest, only different public interests that depend on the facts of the case, such as the severity of the crime and whether the offender admits guilt. Police v James also involved the exercise of judicial discretion under s 276.[98] Judge DJ Harvey acknowledged that there are competing interests within the broad concept of the public interest, ultimately taking a broader view that is compatible with the aims of the Act: "it demands that those who can contribute to society, and become a productive and useful member thereof should be encouraged to do so." Applied to the facts of the case, this meant giving the offender the opportunity to redress his offending in the forum of the Youth Court rather than the High Court, which applies the "limited resources available in the Criminal Justice Act 1985." [99]

While this case involved a first-time offending and the FGC had recommended that the matter remain in the Youth Court, the more serious charges of rape and indecent assault in Police v S and M[100] led to refusal of the Court to exercise its discretion under s 275. While it was argued that the Youth Court would be more suited to traditional Samoan culture of dispute resolution, Judge Harvey stated:

"There is definitely a public interest aspect to the question of sentence. To allow this matter to remain in the Youth Court would be to deprive the community to see that justice was properly done and equally done to those who commit the most serious crimes." [101]

What seems to have been determinative in this case was the seriousness of the crime, and the fact that if found guilty the youths could be sentenced for four to six years, which could not be ordered in the Youth Court.

Orders to transfer a case to a higher court for sentencing are made sparingly, consistent with the youth justice principle that young persons should be kept out of the criminal justice system as far as possible. According to Ministry of Justice Case Monitoring Data, 80% of proved cases involving young offenders in 1998 were finalised in the Youth Court, 20% in the District Court, with only eleven of the 1,768 proved cases being finalised in the High Court.[102] The proportion of cases sentenced in the Youth Court has remained relatively constant between 1989 and 1999. The table below shows that violence and property offences were significantly represented within referrals to higher courts.

Court where proved cases involving young offenders were finalised in 1998

Footnotes

89 Supra n 44.

90 S 5(f).

91 Police v BRR (1993) 11 FRNZ 25.

92 Police v C (Youth Court, Otahuhu, M11/00, 8 August 2000).

93 B G T D v Youth Court (High Court, Rotorua, M119/99, 15 March 2000).

94 JM Priestley QC "S 275, - The Judicial Discretion" (Paper given at Youth Court Conference 16-18 March 1995) 9 (emphasis added).

95 R v Police (1990) 6 FRNZ 538.

96 Ibid 543.

97 Ibid 544.

98 Police v James (1991) 8 FRNZ 628.

99 Ibid 640-641.

100 Police v S and M (1993) 11 FRNZ 322.

101 Ibid 331.

102 Ministry of Justice website
http://www.justice.govt.nz/pubs/reports/1999/convict_sentence/chapter_5_sec_3.html)
(at 22 August 2003).