Police v Z

[2008] NZCA 27

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA400/07

CA504/07 [2008] NZCA 27

NEW ZEALAND POLICE

v

Z (CA400/07) X (CA504/07)

Hearing:         5 February 2008

Court:            O'Regan, Robertson and Ellen France JJ Counsel:      D La Hood and M J Inwood for Appellant

No Appearance for Respondents
R M Lithgow QC as Amicus Curiae

Judgment:      26 February 2008         at 11.30 am

JUDGMENT OF THE COURT

AWe answer the question of law for which leave to appeal was granted as follows.     The  High  Court  was  in  error  in  holding  that,  before  a reparation order could be made against a parent under s 283(f) of the Children, Young Persons and Their Families Act 1989, both of the following conditions have to be satisfied:

(i)        the parent was at fault; and

(ii)there was a causative link between the parent’s fault and the child’s offending.

NEW ZEALAND POLICE V Z (CA400/07) AND ANOR CA CA400/07  26 February 2008

BNonetheless, the appeal is dismissed.   The order of Mallon J quashing the reparation order made in the Youth Court is confirmed.

C        Leave is granted under s 438 of the Children Young Persons and Their

Families Act 1989 permitting publication of this judgment as a matter of public interest, so long as that does not identify the family.

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]      An order for reparations, in the sum of $10,000, was made in the Youth Court against the respondents as parents of a young person (“J”) by Judge G M Ross (YC PMN 30 June 2006) under s 283(f) of the Children, Young Persons and Their Families  Act  1989  (CYPFA).    The  order  was  overturned  by  Mallon  J  in  the High Court: HC PMN CRI-2007-454-02 30 May 2007.   The New Zealand Police (Police) appeal against that decision.

[2]      Leave to appeal was granted on 2 August 2007 on the following question of law:

Was Mallon J wrong to find that a reparation order could only be made against a parent under s 283(f) of the CYPFA if both of the following conditions are satisfied:

(a)      the parent was at fault; and

(b)there was a causative link between the parent’s fault and the child’s offending?

[3]      The  respondents  were  represented  in  both  the  Youth  Court  and  the High Court but indicated that they lacked the resources to appear in this Court. Because    of    the    novel    nature    of    the    issues,    this    Court    appointed Mr Robert Lithgow QC as amicus to assist.

[4]      There  was  an  application  to  adduce  additional  evidence,  about  which Mr Lithgow was equivocal.  Although it was basically background material, we were concerned as to its impact upon the unrepresented parents, but concluded it should be read, so that all the issues could be considered in context.

Background

[5]      J’s  history  of  offending  and  behavioural  difficulties  were  described  by Judge Ross in the Youth Court and adopted by Mallon J  in the High Court as follows:

[6]       J has been before the Youth Court on many occasions before those orders were made on 17 February 2006.  He has been to the notice of the Youth Aid section of the Police on many occasions.  There have been a total of 11 Family Group Conferences directed for J.  Many of them have had to consider the issue of reparation, on account of victim losses and damage caused.   On numerous Family Group Conference occasions, the admitted damage or losses amounted to thousands of dollars.  Gross damage or losses involved have not been the subject of finite calculation, but will likely be excess of one hundred thousand dollars.  This is J’s share of loss or damage; on many occasions the offending has been carried out in concert with others. The  high  figure  arises  from  the  frequency  and  scale  of  J’s  offending, together with the nature of the offending, which has been relentless while he has been in the community. Amongst a myriad of lesser charges, there are many serious burglaries and car conversion or unlawfully getting into a motor vehicle type charges. There are dozens of victims of this offending.

[6]      Both Judges dealt with the matter on the basis of J’s difficulties, which have included:

•    Behavioural and learning difficulties leading to a diagnosis of ADHD and a prescription for Ritalin;

•    Special    teaching    assistance    from    Research    Teacher    Learning    & Behaviour Service;

•   A reference to Special Education services, as a result of which specific learning difficulties were ascertained which included all forms of written communication;

•   An  attendance  at  a  Health  Camp  in  1999,  after  which  J  was  soon suspended and excluded from school;

•   An involvement with SPELD and SPELADD in 2001, to which J was referred by his parents, giving rise to reports that J showed evidence of severe oppositional behaviour and/or oppositional defiant behavioural syndrome.    Again, difficulties were encountered in meeting J’s educational needs and the involvement lasted only a short period;

•   Also in 2001, an involvement with Strengthening Families.   By now offending had commenced and reintegration into the school system was sought;

•   Then  there  was  a  reference  to  Child,  Adolescent  and  Mental  Health Services.   This gave rise to a prescription for Resperidone for the diagnosed early onset conduct disorder.   The family was unhappy with this medication, and sought an alternative.

•   Attendance at school for a short period, and for a limited time each day, subject to certain conditions;

•   In 2002, attendance at a Residential School of Learning in another city, from which there were numerous abscondings;

•   Attendance at a community high school, which the family found to be a successful initiative, but from which J was excluded for threats made by him to staff;

•   Attendance   at   a   Whanau   Centre   (2004);   again   an   alternative   to mainstream schools, but again J’s behaviour was a problem;

•    A placement in a distant town, from which J absconded and offended leading to his first remand and then sentence to a Youth Justice Centre in

2004;

•    This was followed later in 2004 by J’s being the first admission to a

Severe Conduct Disorder Unit.

•    During a period of post-unit reintegrative supervision at home, the Youth

Horizons Trust became involved.

[7]      From August 2005, J was on bail which involved his being at his parents’

house subject to curfew, the actual hours varying over time.

[8]      On 25 October J, left the house and drove with a co-offender to a nearby district where they burgled a farmhouse.   The burglary involved property of some

$70-80K, some of which was not insured.   The items stolen included firearms, approximately $6,500 in cash from a safe, a 42 inch plasma television, farm equipment and household items.

[9]      In the early hours of the morning of 26 October 2005, J’s father saw J and others with firearms outside his house.  He told J that he did not want the firearms at his house and that J was to remove them immediately. J’s father believed that J and the firearms left his house in a silver car.

[10]     At 9.55am on 26 October 2005, J was spoken to by the Police in Napier and admitted stealing a projector from the National Aquarium.

[11]     During this period J’s bail conditions required him to be at his parents’ house unless he was in the company of approved accompanying persons (which included his parents).  The Youth Court Judge noted that there had been a further condition of bail that the parents of J supervise the curfew, but that condition was not recorded on the notice of bail.

[12]     On 17 February 2006 J was sentenced in respect of a large number of charges for offending between 31 July and 12 November 2005.   The charges included the burglary of the farmhouse. J was sentenced to up to three months’ residence and six months supervision to follow.

[13]     A reparation order was sought by the owner of the property that had been stolen from the farmhouse.  The order was sought against the parents in accordance with s 283(f) of the CYPFA.

[14]     Following a hearing on this specific issue, Judge Ross granted a reparation order for $10,000 against J’s parents.  The Judge found that the CYPFA created an expectation of mutual co-operation and that, in the circumstances, the parents should have been more proactive.   He noted particularly that the father ought to have informed the Police that J was absent from the parents’ home, at least when he knew J was out with his friends, with firearms.

[15]     J’s parents appealed against that order to the High Court.  Mallon J allowed the appeal.  In the course of her judgment she stated that it would not be reasonable to order reparation against a parent under s 283(f) in the absence of fault, nor would it be reasonable to make such an order in the absence of a causative link between the parents’ fault and the offending.  The question of law for which leave to appeal to this Court has been given focuses on these statements which, we were told  by counsel, have led to some practical problems in the Youth Court jurisdiction.   In addition, Mallon J held that parental fault must be casually linked to the offending and that Judge Ross had incorrectly found that the parents were at fault.

Statutory scheme

[16]     An order can only be made under s 283(f) of the CYPFA in favour of the parents where the young person is under the age of 16.  This section provides:

Orders of the Court

Where a charge against a young person is proved before a Youth Court, the

Court may, subject to sections 284 to 290, do one or more of the following:

…

(f)Where the Court is satisfied that any person (other than the young person) suffered—

(i)        Any emotional harm; or

(ii)      Any loss of or damage to property—

through or by means of the offence, order the young person or, in the case of a young person who is under the age of 16 years, any parent or guardian of the young person, to pay to the person who suffered the emotional harm or the loss of or damage to property such sum as it thinks fit by way of reparation …

[17]     Section 284 sets out factors the sentencing Judge must take into consideration when deciding whether to make an order under s 283:

284     Factors to be taken into account on sentencing

(1)      In deciding whether to make any order under section 283 in respect of any young person, the Court shall have regard to the following matters:

(a)       The nature and circumstances of the offence proved to have been committed by the young person and the young person's involvement in that offence:

(b)      The personal history, social circumstances, and personal characteristics  of  the  young  person,  so  far  as  those  matters  are relevant to the offence and any order that the Court is empowered to make in respect of it:

(c)       The attitude of the young person towards the offence:

(d)       The  response  of  the  young  person's  family,  whanau,  or family group to—

(i)       The offending by that young person; and

(ii)      The young person himself or herself as a result of that offending:

(e)       Any measures taken or proposed to be taken by the young person, or the family, whanau, or family group of the young person, to make reparation or apologise to any victim of the offending:

(f)       The effect of the offence on any victim of the offence, and the need for reparation to be made to that victim:

…

[18]     There is nothing in the Act that specifies the appropriate circumstances for making an order against the parents of a young person.

[19]     Some guidance as to how to approach orders under s 283(f) can be gleaned from a consideration of the objects and principles of the Act, set out in ss 4, 5 and

208.  Of most relevance are:

4        Objects

The  object  of  this  Act  is  to  promote  the  wellbeing  of  children,  young persons, and their families and family groups by—

…

(f)Ensuring that where children or young persons commit offences,— (i)       They  are  held  accountable,  and  encouraged  to  accept

responsibility, for their behaviour; and

(ii)      They are dealt with in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways:

5        Principles to be applied in exercise of powers conferred by this

Act

Subject to section 6, any Court which, or person who, exercises any power conferred by or under this Act shall be guided by the following principles:

(a)       The principle  that, wherever  possible, a  child's  or  young person's family, whanau, hapu, iwi, and family group should participate in the making of decisions affecting that child or young person, and accordingly that, wherever possible, regard should be had  to the views  of  that  family,  whanau,  hapu,  iwi,  and  family group:

(b)       The  principle  that,  wherever  possible,  the  relationship between a child or young person and his or her family, whanau, hapu, iwi, and family group should be maintained and strengthened:

(c)       The principle that consideration must always be given to how a decision affecting a child or young person will affect—

(i)       The welfare of that child or young person; and

(ii)      The stability of that child's or young person's family, whanau, hapu, iwi, and family group:

…

(e)       The principle that endeavours should be made to obtain the support of—

(i)The parents or guardians or other persons having the care of a child or young person; and

(ii)      The child or young person himself or herself—

to the exercise or proposed exercise, in relation to  that child  or young person, of any power conferred by or under this Act:

(f)       The  principle  that  decisions  affecting  a  child  or  young person should, wherever practicable, be made and implemented within a time-frame appropriate to the child’s or young person’s sense of time.

208      Principles

Subject to section 5, any Court which, or person who, exercises any powers conferred by or under this Part or Part 5 or sections 351 to 360 of this Act shall be guided by the following principles:

…

(c)       The principle that any measures for dealing with offending by children or young persons should be designed—

(i)To strengthen the family, whanau, hapu, iwi, and family   group   of   the   child   or   young   person concerned; and

(ii)      To foster the ability of families, whanau, hapu, iwi, and family groups

to develop their own means of dealing with offending by their children and young persons:

…

(g)       The principle that any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending:

…

[20]     The  legislation  places  substantial  significance  on  the  importance  of  the family group, and the need to ensure its continuing strength and stability.

[21]     Equally, under s 208(c)(ii) parental responsibility plays a part in dealing with young offenders, and under s 208(g) the interests of victims are to be considered.

Should parental fault be a precondition to the exercise of the discretion under s 283(f)?

[22]     The issue in this case is not whether parental fault is relevant in determining whether  it  is  appropriate  to  make  a  reparation  order  against  a  young  person’s

parent(s).  The appellant accepts that parental fault is a relevant consideration.  The issue is whether parental fault is a necessary precondition to a s 283(f) order and, if so, whether there must be a causative link between the parental fault and the victim’s loss.

Purpose of reparations

[23]     The contrast between a punitive fine and an order for reparation, which is compensatory in nature, was considered recently by this Court in R v Donaldson and Chapman CA227/06, CA233/06 2 October 2006 where it was held at [34]:

In terms of the approach to this concept, it is important to recognise the nature of a reparation order, as compared to a fine, and the interrelationship of the two.   A fine is punitive.   It is a pecuniary penalty imposed by and payable to the state.  By contrast, an order for reparation is compensatory in nature.   Reparation is intended, wherever possible, to restore the victim’s position in relation to property loss or damage, emotional harm, or consequential losses.

And later, at [36]:

These provisions reinforce that a sentence of reparation is compensatory in nature.   This in turn suggests that it may be appropriate to have regard to common law principles of causation.  The statutory phrase, “through or by means of an offence”, is of wide expression and its outer limits are not immediately obvious.  It may, therefore, prove helpful to have resort to the concepts of remoteness, materiality and intervening act (novus actus interveniens),   at   least   in   analysing   more   difficult   factual   situations. However, we endorse the viewpoint that reparation is to be approached in a commonsense way, and resort to refined causation arguments is not to be encouraged.

[24]     In considering reparation, the focus is not on the level of culpability of the offender or the punishment appropriate to the crime committed.  Rather, it is on the harm done to the victim and the need to “make good” the damage done, and the repair of the social relationships between the victim, offender and wider community: Zedner “Reparation and Retribution: Are They Reconcilable?” (1994) 57 MLR 228 at 234.  Hall’s Sentencing notes that there is some doubt as to whether reparation can be considered to be punishment at all: at [I.3.5].  In R v O’Rourke [1990] 1 NZLR

155 (CA) at 158, a case under s 22 of the Criminal Justice Act 1985, reparations were discussed as being equivalent to civil damages.

[25]   If the purpose of reparations is not punitive, can fault be a necessary precondition to the imposition of an order upon a parent?  The section in its plain words encompasses fault only to the extent that the loss must have occurred “through or by means  of  the  offence”.  The  focus  of  the  paragraph  is  on  the  connection between  the offence  and  the  loss/harm  caused  to  the  victim/person,  not  on  the culpability of the offending.  Further, the Court has no discretion to impose a fine (a purely punitive measure) upon a parent or guardian: s 283(d) although they can order a sum towards the costs of prosecution: s 283(e).

The reasoning of the two Judges

[26]     Mallon J reasoned that parental fault, as a precondition, was consistent with the principles of the Act.   She noted, at [53], that “the absence of fault risks interfering with the strength and stability of the family and may hinder the ability of a family to deal with the offending”.  She further held, at [56], that “the philosophy of the Act, while encouraging the involvement of the family, does not require the parent to assume responsibility for the child’s offending”.

[27]     The Judge also had regard to the position in other jurisdictions and noted s 137 of the Powers of Criminal Courts (Sentencing) Act 2000 in England and Wales.     Although  there  are  some  substantial  differences  in   the   legislation (particularly that the Court is required to order that the parent pay the fine, compensation or costs in lieu of the young person unless the Court is satisfied that the parent cannot be found or “that it would be unreasonable to make an order for payment having regard to the circumstances of the case”), the approach in England appears to have influenced her.

[28]     In contrast, Judge Ross approached the matter on the basis that there would have to be reasons to impose liability on the parents beyond the mere relationship or young person’s inability to pay.   He concluded that parental liability was not in conflict with the broad scheme of the Act or with justice principles in general.  But, although the Judge contended that reparation was of central importance, he offered no articulation of the link between parental action and reparation in the particular case.  Judge Ross found that the parents’ failure to advise the police themselves of

the various bail breaches of the young person (although they always answered honestly when asked) was a failure of the proactive co-operation expected.  He said:

[36]      … the Act hints strongly at a form of partnership between the Youth Court  and families, even when young persons are entrusted to their parents on bail;

[34]      This [bail] is a high level of personal involvement of the parents and guardians, and the accountability here is in more than one direction;

[36]      … the statutory expectation is for mutual co-operation;

[36]      … I do not think it is too much to expect in the circumstances of this case for the parents to have been more active and proactive;

[36]      … This involves parental obligations and responsibilities outside the family circle which I consider have not been met in this case;

[38]     … It is in their omission to communicate J being at large in the community that their indirect responsibility largely arises in this case …

[38]      … [It is] [t]he marking out of parental responsibility …

And as to quantum:

[39]     The  order  must  be  enough  to  underline  the  seriousness  and importance of good parenting and the standard required in certain situations, yet not so much as to punish too severely these parents in the particular circumstances of this case.

Discussion

[29]     As Mr Lithgow noted, Judge Ross’s approach imposed a parental duty much higher than that which exists under the Bail Act 2000.   Bail under the inherent jurisdiction of the High Court, which allows for money bonds which can be forfeited upon breach, requires that a surety has signed a bond which sets out the jeopardy and records the surety’s willingness to accept the responsibility.   There is a specific provision in s 240 of the CYPFA enabling the Court to impose a condition on a child or young person “not to be absent from home during a specified period or engage in any particular activity without the consent of the parent or guardian or other persons having their care”, but it was not properly engaged in this case.

[30]     In the instant case Judge Ross linked the lack of parental co-operation, and particularly their failure to be proactive, to the occurrence of the farmhouse burglary.

[31]     While it is clear that the CYPFA places emphasis on the strengthening and maintaining  of  a  young  person’s  family,  we  are  not  satisfied  that  this  requires parental fault to be a precondition to a s 283(f) order, for the following reasons:

(a)      Parliament determined that, in some circumstances, it was appropriate to make reparation orders against a  young person’s parents.   The imposition of a parental reparation order is not, of itself, threatening to the stability/strength of the family group.   The imposition of a reparation order may lead to family disharmony but this is not necessarily so  –  individual  circumstances  will  differ  and  must  be assessed as they arise.  A reparation order may be threatening where the family cannot afford to pay.  This is a separate (although relevant) inquiry, distinct from the issue of parental fault.

(b)Section 284(1)(d) provides that the actions/responses of the young person’s family to the offending must be considered in determining whether to make a reparation order against the parents.  Parental acts or omissions are circumstances to be considered in determining appropriate responses by the court to youth offending.

(c)Section 284(1)(e) acknowledges that a family may seek to make reparation outside the operation of the CYPFA.  Family members may take on responsibility for the actions of the young person, whether or not the parents are at fault.

[32]     Parental fault will always be a relevant consideration in the exercise of the discretion to make a reparation order against a parent.   But the statutory scheme itself does not make parental fault a pre-condition and there is no justification for the Court making it one.  Similarly, causation cannot be a pre-condition, but will be a relevant consideration which requires assessment.

[33]     In  his  comprehensive  submission,  Mr  La  Hood  drew  attention  to  some practical difficulties in the operation of this part of the CYPFA which he said had arisen since the High Court decision.   He pointed out the importance of parental

reparation orders, usually made by consent, in the youth justice process.  He noted that there is now concern that parental reparation orders cannot be made even with the  consent  of  the  parent  unless  the  pre-conditions  identified  by  Mallon  J  are satisfied.  He told the Court of a case where a Youth Court Judge had declined to make a reparation order against a parent who had consented to the order because those pre-conditions were not satisfied.

[34]     It appears to us that there has been some unjustified over-reaction.  There is nothing in the decision of Mallon J which should have put in jeopardy the ability of the Youth Court to sanction reparation orders against parents where those parents have consented to such orders.

[35]     The direction under s 284(1)(e) for the Court to consider any proposal by the family, and under s 284(1)(h) to consider decisions formulated by family group conferences, leaves open the jurisdiction of the Court, and nothing said by Mallon J restricted that.

[36]    There was also a concern that, if the High Court’s position were to be maintained, parental fault and causation, rather than the young person’s role and responsibility for their acts or omissions, might become the focus of family group conferences.  That could have had only a limited effect.

Conclusion

[37]     We are persuaded that Mallon J was in error in elevating parental fault and causation to preconditions to the making of an order against a parent under s 283(f). Fault and causation are relevant considerations but not preconditions.   Statutory construction is against such an additional overlay, and policy considerations do not support it.

The proper determination of this case

[38]     Notwithstanding the manner in which Mallon J expressed herself, and the questions which she formulated for this Court, it is important to note the actual exercise which she undertook when hearing the appeal.

[39]     She said:

[57]     The Judge accepted that the appellants had been good parents and were not at fault in this respect.   The Judge considered, however, that the appellants were at fault in failing to notify the police of J’s absence.   I consider that the Judge erred in two respects in  what is  a difficult  and previously unexamined area.  First, the appellants could not be at fault if it was not made clear to them that they were expected to pro-actively contact the police if J was absent from their house.  It was not a condition of the bail that they do so and they were aware that the police would make regular checks as to compliance.   Even if they were at fault in not assuming a responsibility to pro-actively contact the police, I consider that the second error was in not determining whether a pro-active approach would have been likely to prevent the offending.

[58]      The offending occurred within a short time of J leaving his parents’ address.   It occurred at a farm property near Levin.   There is nothing to indicate that the police would have apprehended J before the burglary had the appellants alerted the police.   In fact, when J absconded from custody while in transit, it seems that J was found fortuitously some days later when a search warrant was executed on an unrelated matter.   In the meantime further offending occurred.  In these circumstances I consider that the failure to call the police to inform them that J had left their house was not a material cause of the loss suffered by the owner of the farm property and the insurers.

[59]     In the absence of fault, the reparation ordered against the parents is unduly punitive.  If they are to be punished it should first be clear what is expected of them and their failures should then have contributed to the loss that is to be compensated.   I also note that a reparation order against the parents could not have had the purpose of encouraging them to become more pro-active in the immediate future since J would not be residing with them.

[40]     Despite   our   conclusion   that   Mallon   J’s   precondition   approach   is unsustainable, there is nothing in the reasoning or assessment which suggests that her decision as to outcome was dependant upon that approach.    These paragraphs carefully and properly assess the total circumstances.   We are satisfied that the Judge’s conclusion is unchallengeable in the circumstances of this case.

[41]     We are satisfied that Mallon J was correct when she found that Judge Ross had put too much emphasis on the fault of J’s parents since they had no obligation to

proactively contact Police.  In such circumstances there were no proper grounds to exercise the discretion as he did.

Postscript – Insurance

[42]     Mr Lithgow, in his submissions, placed some emphasis on the fact that it appeared that an indemnifier had been of somewhat substantial influence in the way in which the application for reparation was advanced.  On the way in which we have approached the matter, we do not need to deal with this aspect.

Result

[43]     It  accordingly follows  that  we find,  on  the  questions  of  law  posed,  that Mallon J was in error.  The discretion under s 283(f) is not subject to any specific conditions.

[44]     However, Mallon J’s assessment of the particular circumstances of this case was correct, and the appeal against her decision quashing the reparation order is dismissed.

[45]     Leave is granted under s 438 of the Children, Young Persons and Their Families Act 1989 permitting publication of this judgment as a matter of public interest, so long as that does not identify the family.

Solicitors:

Crown Law Office, Wellington