HK v Police - [2019] NZHC 3346

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HK v Police

Details

AGLC: HK v Police [2019] NZHC 3346
Case: [2019] NZHC 3346
Decision Date: 17 December 2019

CaseChat Overview and Summary

HK, a young person facing 14 charges for offences committed while she was 14 years old, appealed against the decision of the Youth Court to grant a discharge under s 283(a) of the Oranga Tamariki Act 1989, rather than under s 282. The Youth Court had declined to grant a discharge under s 282, which would have resulted in the charges being deemed never to have been filed, and instead granted a discharge under s 283(a), which allows the charges to be noted on the young person’s record. The appeal raised issues including whether the Youth Court erred in concluding that HK had not completed the social worker’s plan, whether the incompletion of the plan was overemphasised and whether the Youth Court appropriately weighed the various factors relevant to the determination. The Court found that the Youth Court was in error in making a s 283(a) discharge and declining to grant a s 282 discharge. The appeal was allowed, the order granting a discharge pursuant to s 283(a) of the Oranga Tamariki Act was quashed, and an order pursuant to s 282 of the Oranga Tamariki Act was granted.

The Court examined the principles and factors relevant to the determination of whether to grant a discharge under s 282 or s 283(a) of the Oranga Tamariki Act. The Court found that the seriousness of the offending and the effects of the offending on the victims were relevant factors, but not prohibitive of a s 282 discharge. The Court found that the Youth Court erred in its conclusion that HK had not completed the social worker’s plan and that the respects in which the plan was not complied with were overemphasised. The Court found that insufficient weight was given to the reasons for those “slip-ups” and to HK’s overall commitment to the plan. The Court found that the Youth Court appropriately weighed the various factors relevant to the determination, including HK’s age, personal circumstances, attitude, prior history of offending, apologies or reparations made, and the time for which HK had complied with restrictive bail conditions. The Court found that HK had 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. The Court found that the key principles of the Oranga Tamariki Act were decisive and that the best way to reduce future offending favoured the granting of a discharge pursuant to s 282. The Court found that the possible outcomes of a complete discharge and a discharge with residual notations on HK’s record were superficially similar, but that there was 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 favoured the granting of a discharge pursuant to s 282.

Orders