I INTRODUCTION | II “CHILDREN”, “YOUNG PEOPLE” AND “JUVENILES” | III KEY PRINCIPLES FOR DEALING WITH CHILD OFFENDERS | IV A PRINCIPLED APPROACH TO CHILDREN IN CONFLICT WITH THE LAW | V ASKING THE HARD QUESTIONS | VI CONCLUSION | APPENDIX

APPENDIX

Description of New Zealand and the New Zealand Youth Justice Process [177]

New Zealand has a population of about 4.1 million people. In 2001 there were 675,087 people aged 12 to 24, making up 18% of the total population. The overall proportion of young people as part of New Zealand’s population is declining and is expected to drop to 15% by 2051. Only 12% of young people live in rural areas. The ethnic diversity of New Zealand is increasing with the proportion of young people of European extraction decreasing while the proportion of Maori, Pacific, Asian and other young people is increasing.[178]

1.1 Options When Police Detect Alleged Offending by a Young Person

The Youth Court of New Zealand is a division of the New Zealand District Court established by section 433 of the Children, Young Persons and Their Families Act 1989. It deals solely with young people aged 14 to 16 years inclusive. Child offenders – those aged 10 to 13 years inclusive – are dealt with in the Family Court unless the charge is murder or manslaughter. This is because child offending is seen as symptomatic of care and protection issues.

The Youth Court process begins with Police detecting alleged offending by a young person. Where this occurs, an enforcement officer has three options:

1. To give an on the spot warning or otherwise deal with the matter informally.

2. To notify the Police Youth Aid division for further action.

3. To arrest the young person.

1.1.1 Formal warning

The first consideration when Police apprehend a young offender is whether it would be sufficient to warn the young person. Police deal with 44% of youth offending by issuing a formal warning then releasing the young person. This is in keeping with the principle that young offenders should be diverted from the formal justice system wherever possible. It also reflects the nature of much youth offending (i.e. relatively minor).

1.1.2 Alternative action/diversion

Given the statutory injunction in s208(a) Children, Young Persons and Their Families Act 1989 (CYPFA) not to issue criminal proceedings if there are alternative means of dealing with the matter and unless the public interest otherwise requires, the Police must consider a diversionary programme for the young person if a warning is insufficient or inappropriate. About 32% of all offences are dealt with in this way. Diversion/alternative action is usually locally based, often involves members of the community, and is overseen by the Police Youth Aid division.

The limits of what may be used as a form of alternative action are the limits of the imaginations of those involved. The best Police Youth Aid workers spend considerable time and effort tailoring solutions that satisfy victims, prevent re-offending and re-integrate young people into their communities.

1.1.3 Arrest

There are significant restrictions on the right of the Police to arrest a young person where there is good cause to suspect that he or she has committed an offence. Under s214 CYPFA, a young person can only be arrested:

• to ensure the young person’s appearance before Court (e.g. where the young person refuses to give name and address details); or
• to prevent the young person from committing further offending or to prevent the loss/destruction of evidence or witness interference; and
• where a summons would not achieve the above purposes.

However, where:

• an offence is purely indictable; and
• a Police officer believes arrest is required in the public interest,
  there is no such restriction, and the Police officer may make the arrest (provided he or she has good cause to suspect the young person of offending).

There are also significant limitations upon the Police questioning of young people.

Upon arrest, the Police may:

• release the young person without charge (an “intention to charge” Family Group Conference should be held if a charge is later to be laid; or
• charge the young person, in which case he or she may be released with or without conditions to appear later in the Youth Court; or
• in some situations, charge and detain the young person in custody for longer than the standard 24 hour maximum, in which case he or she must be brought before the Court as soon as practicable.

1.2 “Intention to Charge” Family Group Conference

If the Police wish to charge a young person who has not been arrested, an “intention to charge” FGC must be convened to consider the matter.

Usually such an FGC will recommend a voluntary plan for the young person to undertake. If it is satisfactorily completed, this will usually be the end of the matter. If not, then a charge may be laid in the Youth Court. Alternatively, the FGC may recommend that a charge be laid without a plan.

Police voluntary pre-charge FGC where young person arrested and released: It is common practice for the Police to voluntarily submit to a pre-charge FGC in a situation where a young person has been arrested, released and some days or weeks later is to be charged with an offence. Technically, as there has been no arrest, there is no statutory obligation to do this (see: s245). However, this course of action is permissible and, indeed, it is highly desirable that this best practice continues (in accordance with the principles of the CYPFA given effect by the FGC procedure).

1.3 Charge Laid in Youth Court

When a charge is laid in the Youth Court, the young person is required to indicate whether the charge is “denied” or “not denied”.

If the charge is one where the maximum penalty exceeds three months imprisonment, as with adults, young people may elect jury trial (s66 SPA, applied by virtue of s321(1) and cl. 2 of Sch. 1 CYPFA). If jury trial is elected, the charge is dealt with as for a purely indictable (jury only) offence (see: para 2.5, below).

1.3.1 Charges denied: defended hearing as for adults

Note: for purely indictable charges, or where jury trial is elected, the position is different.

If a charge is denied, the matter is the subject of a defended hearing, conducted in the normal adversarial manner as for adults under the provisions of the Summary Proceedings Act 1957. If the charge is dismissed, the young person is free to go. If it is proved in the Youth Court, an FGC must be convened to consider sentencing options. The Youth Court will impose one of the orders set out in s283 CYPFA or, in some cases, may grant an absolute discharge under s282 (whereby the Information is deemed never to have been laid).

1.3.2 Charges not denied: Court-directed FGC

If the charge is “not denied”, an FGC must be convened.

If the charge is “admitted” at the FGC, the Conference will usually formulate a plan for the young person to undertake. The plan should address both the “deed” and the “need”; the consequences and the causes of offending. That is, the young person should be held accountable for the offending but a comprehensive, rehabilitative plan should be formulated to prevent further offending and to allow the young person to develop in a socially beneficial way without further offending (see: s4(f)(i) and (ii)).

The plan will then be presented to the Youth Court. In about 95% of the cases, the plan is accepted and the case is adjourned for the plan to be completed.

If the plan is satisfactorily completed, the young person is often absolutely discharged under s282 CYPFA.

Sometimes the FGC may recommend formal orders being made under s283 CYPFA or, on occasions, such formal orders are necessary because of the young person’s failure or inability to complete an agreed FGC plan.

A Court-ordered FGC may recommend, in addition to any other recommendations, that a formal Police caution be given to the young person.

1.4 Family Group Conferences

Family Group Conferences are the lynchpin of the New Zealand youth justice process. As above, they must occur before Police may lay charges and the Court will order one where charges are “not denied”. In addition, FGCs must also be convened:

• when Police believe a child offender needs care and protection because there is serious concern for his or her wellbeing due to the number, nature and magnitude of a child offender’s offending;
• when a young person denies a charge but, pending its resolution, the Youth Court orders the young person to be placed in CYFS or Police custody;
• when a charge is admitted or proved in the Youth Court and there has been no previous opportunity to consider the appropriate way to deal with the young offender;
• any other time a Youth Court considers it necessary or desirable (for example, where the Youth Court is considering offering jurisdiction to a young person charged with a purely indictable offence).

1.5 Purely Indictable/Electable (Jury Only) Procedure

Purely indictable charges (and charges where an election is made – i.e. where the offence attracts a potential penalty of over three months imprisonment: s66 SPA) are not within the jurisdiction of the Youth Court, other than for the holding of depositions.

Youth Court jurisdiction may be offered by the Youth Court at any stage prior to or during depositions if:

• a young person indicates a desire to plead guilty; or
• at the conclusion of depositions, the Youth Court Judge thinks it appropriate to do so.

If the young person elects Youth Court jurisdiction, the charge remains in the Youth Court and is dealt with entirely according to Youth Court procedure. Like any other charge in the Youth Court, the most serious sentencing option available to a Youth Court following the charge being “proved” is for a conviction to be entered and the matter to be transferred to the District Court for sentence. In that case, the maximum sentence is five years imprisonment.

1.6 Care and Protection Issues

If the charges against a young person indicate that the young person may be in need of care and protection, as defined in s14 CYPFA, the matter may be referred to a care and protection co-ordinator and the proceedings adjourned until the matter can be resolved by use of the care and protection provisions of the CYPFA. In this case, the matter may be discharged under s282 CYPFA.

1.7 Flowchart of Youth Justice Processes

The following flowcharts show:

• the processes of the youth justice system; and
• the processes for purely indictable offences or election of jury trial.

Footnotes

177 Taken from the New Zealand Youth Court Bench Book, a resource for Youth Court Judges, published by the Institute of Judicial Studies, 2005 edition, edited by Judge Harding, Judge Whitehead and Rhonda Thompson. If conference delegates would like a copy of the Bench Book emailed to them, please contact Rhonda Thompson on Rhonda.Thompson@justice.govt.nz.

178 12 to 24: Young People in New Zealand, Te taiohi I Aotearoa, Ministry of Youth Development, Wellington, New Zealand, 2003.