HK v NEW ZEALAND POLICE [2019] NZHC 3346

HK v NEW ZEALAND POLICE [2019] NZHC 3346 [17 December 2019]NOTE: NO PUBLICATION OF A REPORT OF THIS PROCEEDING ISPERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989,EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THEPROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF ABONA FIDE PROFESSIONAL OR TECHNICAL NATURE THAT DO NOTINCLUDE THE NAME(S) OR IDENTIFYING PARTICULARS OF ANYCHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANYPERSON HAVING THE CARE OF THE CHILD OR YOUNG PERSON, ORTHE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR ISATTENDING. SEEhttp://www.legislation.govt.nz/act/public/1989/0024/latest/DLM155054.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2019-404-000359[2019] NZHC 3346BETWEEN HKAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2019Appearances: R Karena for the AppellantS A Rankin for the RespondentJudgment: 17 December 2019JUDGMENT OF GWYN JThis judgment was delivered by me on 17 December at 12.30pmRegistrar/Deputy RegistrarSolicitors/Counsel:Meredith Connell, AucklandR Karena, Barrister, AucklandBackground[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 adecision dated 7 August 2019, Judge P J Sinclair declined to grant the discharge unders 282 and instead granted a discharge under s 283(a) which allows the charges to benoted 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 and5 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 andHK's plan, arranged pursuant to s 260 of the Oranga Tamariki Act, was approved andset to run until 7 August 2019. This plan included that HK would undertake thefollowing activities for the duration:(a) Engage in alternative education with Marist Alternative EducationSchool(b) Participate in the Kaipatiki Youth Mentoring Service;(c) Attend counselling sessions through the Living Without Violenceprovider;(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. Thisreport stated that the plan had been completed by HK and that the social worker wassatisfied a discharge under s 282 was warranted.Youth Court decision[5] On 7 August 2019, Judge Sinclair declined to grant a discharge pursuant tos 282 of the Oranga Tamariki Act.1 Instead, Judge Sinclair granted a discharge unders 283(a) of that Act which, unlike the order sought, allows the charges to be noted onthe young person's record.[6] In arriving at this decision Judge Sinclair had regard to a number of relevantprinciples, including the requirement that the young person be held accountable, thatthe outcome should be the best way to reduce future offending and that the bestinterests of the young person are promoted. In addition, the Judge also had regard toobligations under international conventions which provide that a punitive approach isalways 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 differenttypes of offending and in some instances had caused the victims substantial harm orloss. Overall, the Judge identified the combination of offending as serious. Afteracknowledging this Judge Sinclair had recourse to factors relating to HK, includingher difficult upbringing and the lack of support, both of which likely impacted herefforts in completing the plan provided by the social worker.[8] Judge Sinclair then moved on to address the progress that HK had made towardthe plan, acknowledging that she had not offended since December 2018, and had beencompliant with bail terms and conditions since March 2019, which in itself wassignificant as the conditions had been strict and onerous. HK had also admitted eachof the charges she faced, written apology letters to each of the victims and had engagedin the requisite mentoring programme. However, Judge Sinclair noted that a numberof other parts of the plan had not been completed. HK had not been engaged withMarist Alternative Education for several months, alternative courses had beenexplored but HK had also discontinued these. HK had initially engaged well with theLiving Without Violence programme but had stopped attending after six sessions. HKalso did not find a pro-social activity.[9] In light of the incomplete plan, the seriousness of the offending and the effectsof the offending on the various victims, Judge Sinclair concluded that a dischargeunder s 282 was inappropriate, but, given the efforts that HK had made, an order unders 283(a) ought to be made and was the least restrictive order available in all thecircumstances.SubmissionsAppellant[10] The appellant submits that the Youth Court Judge erred in various respects, andthat 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 thatHK had not completed the social worker's plan as, although there were certain aspectsthat were not completed, overall HK had made substantial progress and the socialworker had concluded that the plan had been completed to an adequate standard towarrant a discharge.[12] Second, the appellant submits that even if the plan was determined to beunfinished, the Judge placed too much weight on its incompletion and ought to havehad 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 anumber of factors, including: HK's engagement with all other areas of the plan, thelength of time HK spent on bail, HK's compliance with strict bail conditions, as wellas her young age, her personal circumstances and the fact that she has not previouslysought a discharge in the Youth Court.[14] Having regard to these factors the appellant asks that the order of the YouthCourt be quashed and that an order pursuant to s 282 be granted. The appellant notesthat an order under s 282 is appropriate and that the granting of such an order is notprohibited 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 correctin refusing to grant a s 282 discharge as HK had not completed the social worker'splan, a conclusion that the Judge was entitled to draw having regard to the finalprogress report of the social worker.[16] Mr Rankin also submits that the Judge did not err in the weight she placed onthe appellant's age, personal circumstances, time spent on restrictive bail conditionsand her compliance with those conditions. Each factor was identified by the Judgeand given appropriate weight in the overall determination.[17] Having regard to the above submissions, that the Judge correctly found thesocial worker's plan to be incomplete and appropriately weighed each of the relevantfactors, as well as the seriousness of the offending and the effect of the offending onthe 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 ofDowns J in MW v Police2 that one should not assume a "worst-case scenario" whereemployers, immigration officials and others with an interest in the young person'spast, will be unreasonable or unfair in their treatment of the notation. Accordingly, hesays this appeal ought to be dismissed.Approach on appeal[18] Section 351 of the Oranga Tamariki Act provides that a young person who hasbeen found by the Youth Court to have committed an offence, may appeal to the HighCourt against any order made by the Youth Court in relation to that finding. Section355 of the Act then provides that such an appeal is governed by Part 6 of the CriminalProcedure Act 2011, subject to the necessary modifications.[19] Part 6 of the Criminal Procedure Act provides for, amongst other things, amechanism to appeal against conviction or against sentence. In this respect the Actprovides for discrete pathways of appeal. However, these pathways do not directlyprovide 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 anovel 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 HighCourt, one must be available to the appellant.[20] In attempting to identify a viable appeal pathway analogy may be drawnbetween an appeal against a s 283(a) order and an appeal against sentence. A findingby the Youth Court that the charges are proved is, for this purpose, analogous to aconviction. 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 thatbasis I approach this appeal as if it were an appeal against sentence. This approach issupported by that adopted by Downs J in MW v Police where an appeal against anorder of the Youth Court to come back to court within 12 months if required wasimplicitly treated as a sentence appeal.32 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 CriminalProcedure Act 2011 which states that the Court must allow an appeal against sentenceif 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 basisthat the appellant had to show that the sentence was manifestly excessive. The "errorprinciple" in s 250(2) allows for a wide range of errors or irregularities to beconsidered by the appeal court, including (of particular relevance here) whether thesentence was inappropriate in the particular case and whether relevant factors beforethe 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 adifferent sentence should be imposed, the evaluation of the factors under ss 282-284of the Oranga Tamariki Act will be considered afresh.Relevant law[24] Section 282 of the Oranga Tamariki Act provides the Youth Court with thepower to discharge the charges faced by a young person. When a s 282 order is madethe 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.84 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 Actprovides for further options which are listed hierarchically in s 283. The next leastrestrictive option is a discharge under s 283(a) which although being a discharge alsoallows the charges to remain noted on the young person's record. This notation issignificant and may operate to restrict a young person from travelling and couldrequire them to disclose the charges to future employers.9[26] When determining whether to grant a discharge under s 282 or s 283(a) theJudge will typically have regard to the general Youth Court principles contained inss 4, 4A, 5 and 208 of the Oranga Tamariki Act, as well as the factors listed in s 284of the Act, which include:(a) The nature and circumstances of the offence;(b) The young person's personal history, social circumstances, andpersonal characteristics;(c) The attitude of the young person toward the offending;(d) Any measures taken by the young person to make reparations orapologise to the victims;(e) The effect of the offence on the victims;(f) Any previous offences proved to have been committed by the youngperson;(g) Any decision, recommendation or plan made or formulated by a familygroup 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 adischarge under s 282 of the Oranga Tamariki Act. The appeal will succeed if theappellant can show that the decision of the Youth Court was made in error and oughtto be considered afresh.[28] HK faced 14 charges that covered a wide range of offending taking place overthe course of a year. Some of this offending was violent and some caused significantharm 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 thegranting of a discharge under s 282, although they are factors relevant to the ultimatedetermination 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 socialworker deemed the plan to have been completed. As I have noted earlier, the planinvolved various activities that H was required to engage in over the course of the fivemonth period. It is clear that not all of those activities were completed as H ceasedattending the alternative education programme she was taking part in; she attended sixcounselling sessions, but not the last session which was expected to be an "exitsession". The Social Worker's Plan Completion Report noted that the therapistbelieved that HK required no further sessions. HK had not taken up a pro-socialactivity. Despite this, the social worker was of the opinion that HK had progressedsignificantly and had completed the plan to an adequate standard. This conclusionwas 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 tothe Court in regard to that plan, but the Court is not required to adopt the view of thereport writer.10 It was therefore open to the Youth Court Judge to deem the planunfinished despite the social worker's report concluding otherwise. Although thisview was open to the Judge, it is not the one I adopt. I agree with the appellant's10 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 therequirements of the plan. For example, she had transport difficulties in getting to theCut Above Academy and I accept that there were confidence issues inherent for HKin 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 oneto a situation when HK lost her phone. HK was in communication with her YouthJustice 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. TheSocial Worker's Plan Completion Report noted that "the focus has been on engagingher in work or on continuing her education."[31] While that information was before the Youth Court Judge it is not explicitlyreferred to in her judgment. My conclusion is that the respects in which the Plan wasnot complied with were over-emphasised and insufficient weight was given to thereasons 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 Courtmust have regard to, including; the appellant's age, their personal circumstances, theirattitude, prior history of offending, apologies or reparations made, and the time forwhich the appellant had complied with restrictive bail conditions. HK was only 14years old at the time of her offending and she struggled in a family environment thatdid not provide her with the support she needed. From December 2018 onwards HKhas not offended. She has also accepted responsibility for each of the charges shefaced and has sent apology letters to all of the victims. While working towardachieving her plan, HK was subject to restrictive bail conditions for approximatelyfive and a half months, and was compliant with these conditions for a considerableperiod. These factors, which were acknowledged by the Judge, show that HK hasmade a real and substantial effort toward turning her life around, an effort that oughtto 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 ofserious offences that caused significant harm and her victims expressed views that HKshould be held accountable for her actions. However, she has also made a significanteffort to address the causes of her offending and to make amends for the harm shecaused. In a finely balanced decision like this one the key principles of the OrangaTamariki Act are decisive. In particular, the requirement that the well-being andinterests of the young person must be the primary consideration for this Court, andthat the outcome arrived at must be the best way to reduce future offending. Althoughthe possible outcomes of a complete discharge and a discharge with residual notationson 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 notationof the charges under s 283 remains on the young person's file. Where notation of thecharges could result in a 'stain' on HK's record, her best interests as well as the bestway 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 as 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) ofthe Oranga Tamariki Act is quashed, and an order pursuant to s 282 of the OrangaTamariki Act is granted.______________________Gwyn J