HK v Police [2019] NZHC 3346 (17 December 2019)

Last Updated: 10 February 2020

NOTE: NO PUBLICATION OF A REPORT OF THIS PROCEEDING IS PERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL OR TECHNICAL NATURE THAT DO NOT INCLUDE THE NAME(S) OR IDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANY PERSON HAVING THE CARE OF THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR IS ATTENDING. SEE http://www.legislation.govt.nz/act/public/1989/0024/latest/DLM155054.html

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-000359 [2019] NZHC 3346

BETWEEN	HK Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 December 2019
Appearances:	R Karena for the Appellant S A Rankin for the Respondent
Judgment:	17 December 2019

JUDGMENT OF GWYN J

This judgment was delivered by me on 17 December at 12.30pm

..............................

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland R Karena, Barrister, Auckland

HK v NEW ZEALAND POLICE [2019] NZHC 3346 [17 December 2019]

Background

[1] HK faced 14 charges for offences committed whilst she was 14 years of age. HK sought a discharge pursuant to s 282 of the Oranga Tamariki Act 1989. In a decision dated 7 August 2019, Judge P J Sinclair declined to grant the discharge under s 282 and instead granted a discharge under s 283(a) which allows the charges to be noted on HK’s record despite being discharged. HK now appeals that decision.

Facts

[2] HK faced 14 charges for offences committed between 17 September 2017 and 5 December 2018, including:

(a) Unlawfully taking a motor vehicle (x2);

(b) Resisting Police (x2);

(c) Robbery by assault;

(d) Assault with intent to injure (x2);

(e) Unlawfully getting into a motor vehicle;

(f) Assault (x2);

(g) Driving dangerously and causing injury (x2);

(h) Failing to stop when followed by red and blue flashing lights; and

(i) Shop lifting.

[3] On 20 March 2019, HK appeared before Judge Sinclair in the Youth Court and HK’s plan, arranged pursuant to s 260 of the Oranga Tamariki Act, was approved and set to run until 7 August 2019. This plan included that HK would undertake the following activities for the duration:

• (a) Engage in alternative education with Marist Alternative Education School

(b) Participate in the Kaipatiki Youth Mentoring Service;

(c) Attend counselling sessions through the Living Without Violence provider;

(d) Write apology letters to each of the victims of her offending;

(e) Carry out a pro-social activity – she elected to be playing the guitar; and

(f) Comply with Youth Court bail.

[4] On 6 August 2019, HK’s Social worker provided a final progress report. This report stated that the plan had been completed by HK and that the social worker was satisfied a discharge under s 282 was warranted.

Youth Court decision

[5] On 7 August 2019, Judge Sinclair declined to grant a discharge pursuant to s 282 of the Oranga Tamariki Act.¹ Instead, Judge Sinclair granted a discharge under s 283(a) of that Act which, unlike the order sought, allows the charges to be noted on the young person’s record.

[6] In arriving at this decision Judge Sinclair had regard to a number of relevant principles, including the requirement that the young person be held accountable, that the outcome should be the best way to reduce future offending and that the best interests of the young person are promoted. In addition, the Judge also had regard to obligations under international conventions which provide that a punitive approach is always to be outweighed by the wellbeing of a young person.

¹ Police v H K [2019] NZYC 360.

[7] Judge Sinclair noted that the charges HK faced covered an array of different types of offending and in some instances had caused the victims substantial harm or loss. Overall, the Judge identified the combination of offending as serious. After acknowledging this Judge Sinclair had recourse to factors relating to HK, including her difficult upbringing and the lack of support, both of which likely impacted her efforts in completing the plan provided by the social worker.

[8] Judge Sinclair then moved on to address the progress that HK had made toward the plan, acknowledging that she had not offended since December 2018, and had been compliant with bail terms and conditions since March 2019, which in itself was significant as the conditions had been strict and onerous. HK had also admitted each of the charges she faced, written apology letters to each of the victims and had engaged in the requisite mentoring programme. However, Judge Sinclair noted that a number of other parts of the plan had not been completed. HK had not been engaged with Marist Alternative Education for several months, alternative courses had been explored but HK had also discontinued these. HK had initially engaged well with the Living Without Violence programme but had stopped attending after six sessions. HK also did not find a pro-social activity.

[9] In light of the incomplete plan, the seriousness of the offending and the effects of the offending on the various victims, Judge Sinclair concluded that a discharge under s 282 was inappropriate, but, given the efforts that HK had made, an order under s 283(a) ought to be made and was the least restrictive order available in all the circumstances.

Submissions

Appellant

[10] The appellant submits that the Youth Court Judge erred in various respects, and that a discharge under s 282 of the Oranga Tamariki Act ought to be granted.

[11] The appellant contends that the Youth Court Judge incorrectly concluded that HK had not completed the social worker’s plan as, although there were certain aspects that were not completed, overall HK had made substantial progress and the social
worker had concluded that the plan had been completed to an adequate standard to warrant a discharge.

[12] Second, the appellant submits that even if the plan was determined to be unfinished, the Judge placed too much weight on its incompletion and ought to have had regard to the reasons that some of the aspects remained unfinished.

[13] Third, the appellant submits that the Judge failed to place enough weight on a number of factors, including: HK’s engagement with all other areas of the plan, the length of time HK spent on bail, HK’s compliance with strict bail conditions, as well as her young age, her personal circumstances and the fact that she has not previously sought a discharge in the Youth Court.

[14] Having regard to these factors the appellant asks that the order of the Youth Court be quashed and that an order pursuant to s 282 be granted. The appellant notes that an order under s 282 is appropriate and that the granting of such an order is not prohibited by the large number of charges HK faces, nor the seriousness of the charges.

Respondent

[15] Mr Rankin, for the respondent, submits that the Youth Court Judge was correct in refusing to grant a s 282 discharge as HK had not completed the social worker’s plan, a conclusion that the Judge was entitled to draw having regard to the final progress report of the social worker.

[16] Mr Rankin also submits that the Judge did not err in the weight she placed on the appellant’s age, personal circumstances, time spent on restrictive bail conditions and her compliance with those conditions. Each factor was identified by the Judge and given appropriate weight in the overall determination.

[17] Having regard to the above submissions, that the Judge correctly found the social worker’s plan to be incomplete and appropriately weighed each of the relevant factors, as well as the seriousness of the offending and the effect of the offending on the victims, Mr Rankin submits that a discharge pursuant to s 282 was not appropriate. He emphasised that a s 283 notation is not a conviction and relied on the comments of
Downs J in MW v Police² that one should not assume a “worst-case scenario” where employers, immigration officials and others with an interest in the young person’s past, will be unreasonable or unfair in their treatment of the notation. Accordingly, he says this appeal ought to be dismissed.

Approach on appeal

[18] Section 351 of the Oranga Tamariki Act provides that a young person who has been found by the Youth Court to have committed an offence, may appeal to the High Court against any order made by the Youth Court in relation to that finding. Section 355 of the Act then provides that such an appeal is governed by Part 6 of the Criminal Procedure Act 2011, subject to the necessary modifications.

[19] Part 6 of the Criminal Procedure Act provides for, amongst other things, a mechanism to appeal against conviction or against sentence. In this respect the Act provides for discrete pathways of appeal. However, these pathways do not directly provide for an appeal against an order made by the Youth Court for a s 283(a) discharge, as the order is neither a conviction nor a sentence. This appears to be a novel situation, or at least a situation on which there is no directly relevant case law. Despite this, as the Oranga Tamariki Act provides for a right of appeal to the High Court, one must be available to the appellant.

[20] In attempting to identify a viable appeal pathway analogy may be drawn between an appeal against a s 283(a) order and an appeal against sentence. A finding by the Youth Court that the charges are proved is, for this purpose, analogous to a conviction. An order made by the Youth Court based on that finding (s 351(1)(b)), such as a s 283(a) order, is, again for this purpose, analogous to a sentence. On that basis I approach this appeal as if it were an appeal against sentence. This approach is supported by that adopted by Downs J in MW v Police where an appeal against an order of the Youth Court to come back to court within 12 months if required was implicitly treated as a sentence appeal.³

² MW v Police [2017] NZHC 3084, at [33].

³ MW v Police, above n 2.

[21] An appeal against sentence proceeds pursuant to s 250(2) of the Criminal Procedure Act 2011 which states that the Court must allow an appeal against sentence if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[22] In any other case, the Court must dismiss the appeal.⁴

[23] In both MW⁵ and another case identified by Mr Rankin for the respondent, where there was an appeal against a s 283(a) order, ⁶ the appeal proceeded on the basis that the appellant had to show that the sentence was manifestly excessive. The “error principle” in s 250(2) allows for a wide range of errors or irregularities to be considered by the appeal court, including (of particular relevance here) whether the sentence was inappropriate in the particular case and whether relevant factors before the sentencing court were incorrect or incorrectly assessed.⁷ In applying this approach, where an appellant can show that the decision of the Youth Court was in error and a different sentence should be imposed, the evaluation of the factors under ss 282-284 of the Oranga Tamariki Act will be considered afresh.

Relevant law

[24] Section 282 of the Oranga Tamariki Act provides the Youth Court with the power to discharge the charges faced by a young person. When a s 282 order is made the charges are deemed to have never been filed. The discretion under s 282 is “extremely wide” and each case will turn on its own facts.⁸

⁴ Section 250(3).

⁵ MW v Police, above n 2.

⁶ FJF (a minor) v Police HC Wellington CRI 2005 485 97, 12 December 2005.

7. Simon France (ed) Adams on Criminal Law — Procedure (online looseleaf ed, Thomson Reuters) at [CPA250.01].

⁸ Police v HGBH YC Porirua CRI-2005-291-106, 22 May 2006 at [8].

[25] Where it is deemed inappropriate to grant a discharge under s 282, the Act provides for further options which are listed hierarchically in s 283. The next least restrictive option is a discharge under s 283(a) which although being a discharge also allows the charges to remain noted on the young person’s record. This notation is significant and may operate to restrict a young person from travelling and could require them to disclose the charges to future employers.⁹

[26] When determining whether to grant a discharge under s 282 or s 283(a) the Judge will typically have regard to the general Youth Court principles contained in ss 4, 4A, 5 and 208 of the Oranga Tamariki Act, as well as the factors listed in s 284 of the Act, which include:

(a) The nature and circumstances of the offence;

(b) The young person’s personal history, social circumstances, and personal characteristics;

(c) The attitude of the young person toward the offending;

(d) Any measures taken by the young person to make reparations or apologise to the victims;

(e) The effect of the offence on the victims;

(f) Any previous offences proved to have been committed by the young person;

(g) Any decision, recommendation or plan made or formulated by a family group conference; and

(h) The causes underlying the young person’s offending.

⁹ See Police v HC [2016] NZYC 218 at [11] and MW v Police, above n 2.

Analysis

[27] HK appeals against the decision of the Youth Court declining to grant a discharge under s 282 of the Oranga Tamariki Act. The appeal will succeed if the appellant can show that the decision of the Youth Court was made in error and ought to be considered afresh.

[28] HK faced 14 charges that covered a wide range of offending taking place over the course of a year. Some of this offending was violent and some caused significant harm or loss to the victim. There is no doubt that the offending is serious in nature. However, neither the severity nor the number of the charges faced by HK prohibits the granting of a discharge under s 282, although they are factors relevant to the ultimate determination under that section.

[29] The appellant submits that the Youth Court Judge erred in various respects, including in her conclusion that HK had failed to complete the social worker’s plan. In a progress reported dated the day prior to the Youth Court decision, the social worker deemed the plan to have been completed. As I have noted earlier, the plan involved various activities that H was required to engage in over the course of the five month period. It is clear that not all of those activities were completed as H ceased attending the alternative education programme she was taking part in; she attended six counselling sessions, but not the last session which was expected to be an “exit session”. The Social Worker’s Plan Completion Report noted that the therapist believed that HK required no further sessions. HK had not taken up a pro-social activity. Despite this, the social worker was of the opinion that HK had progressed significantly and had completed the plan to an adequate standard. This conclusion was made with reference to the justifications for HK’s “slip-ups”.

[30] The Court is required to have regard to the plan and to any report provided to the Court in regard to that plan, but the Court is not required to adopt the view of the report writer.¹⁰ It was therefore open to the Youth Court Judge to deem the plan unfinished despite the social worker’s report concluding otherwise. Although this view was open to the Judge, it is not the one I adopt. I agree with the appellant’s

¹⁰ Oranga Tamariki Act 1989, s 334.

counsel that HK has put in a significant effort to satisfy the requirements of the plan. I also have regard to the reasons for the situations where HK did not meet the requirements of the plan. For example, she had transport difficulties in getting to the Cut Above Academy and I accept that there were confidence issues inherent for HK in that situation. In relation to the four bail breaches, two related to transport issues, one to attending at hospital to support her aunt with the birth of HK’s cousin and one to a situation when HK lost her phone. HK was in communication with her Youth Justice Social Worker and her lawyer on those occasions to explain what happened. The appellant acknowledged that she had not engaged in a pro-social activity. The Social Worker’s Plan Completion Report noted that “the focus has been on engaging her in work or on continuing her education.”

[31] While that information was before the Youth Court Judge it is not explicitly referred to in her judgment. My conclusion is that the respects in which the Plan was not complied with were over-emphasised and insufficient weight was given to the reasons for those “slip-ups” and to H’s overall commitment to the Plan.

[32] In addition to the Plan, there are a web of interrelated factors that the Court must have regard to, including; the appellant’s age, their personal circumstances, their attitude, prior history of offending, apologies or reparations made, and the time for which the appellant had complied with restrictive bail conditions. HK was only 14 years old at the time of her offending and she struggled in a family environment that did not provide her with the support she needed. From December 2018 onwards HK has not offended. She has also accepted responsibility for each of the charges she faced and has sent apology letters to all of the victims. While working toward achieving her plan, HK was subject to restrictive bail conditions for approximately five and a half months, and was compliant with these conditions for a considerable period. These factors, which were acknowledged by the Judge, show that HK has made a real and substantial effort toward turning her life around, an effort that ought to be applauded in a manner that incentivises further compliance with the law.

[33] Having said that, this is a borderline decision. HK committed a number of serious offences that caused significant harm and her victims expressed views that HK should be held accountable for her actions. However, she has also made a significant
effort to address the causes of her offending and to make amends for the harm she caused. In a finely balanced decision like this one the key principles of the Oranga Tamariki Act are decisive. In particular, the requirement that the well-being and interests of the young person must be the primary consideration for this Court, and that the outcome arrived at must be the best way to reduce future offending. Although the possible outcomes of a complete discharge and a discharge with residual notations on HK’s record are superficially similar, there is a clear distinction between the two: where a s 282 order is made the charges are deemed never to have been filed; a notation of the charges under s 283 remains on the young person’s file. Where notation of the charges could result in a ‘stain’ on HK’s record, her best interests as well as the best way to reduce further offending favour the granting of a discharge pursuant to s 282.

[34] Accordingly, I am satisfied that the Youth Court was in error in making a s 283(a) discharge and declining to grant a s 282 discharge.

Result

[35] The appeal is allowed. The order granting a discharge pursuant to s 283(a) of the Oranga Tamariki Act is quashed, and an order pursuant to s 282 of the Oranga Tamariki Act is granted.








Gwyn J