R v AB
[2022] NZHC 1761
•21 July 2022
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-209-000241
[2022] NZHC 1761
THE QUEEN v
AB
Hearing: 19 July 2022 via telephone conference Appearances:
K A White for the Crown
C J Lange for the Defendant
H R Hancock for the Department of Corrections and Oranga Tamariki
Judgment:
21 July 2022
JUDGMENT OF NATION J
[1] AB1 is aged 17. He has been in the Youth Prison, Te Puna Wai [awaiting sentence after pleading guilty to manslaughter].
[2]Section 175 of the Criminal Procedure Act 2011, relevantly states:
175 Remand of defendants aged 17 to 20 years
1 AB’s name has been anonymised and any identifying particulars have been redacted, pursuant to paras [22]-[24] of this judgment.
R v AB [2022] NZHC 1761 [21 July 2022]
(1)This section applies to a person who is remanded pending hearing or sentence and who appears to the court to be of or over the age of 17 years but under the age of 20 years.
(1A) Despite section 15 of the Bail Act 2000, if the person is aged 17 years and is charged with, or convicted of, any offence in the District Court or the High Court, the court may remand that person in custody, and if the court does so,—
(a) the person must be remanded in the custody of the chief executive of the department responsible for the administration of the Oranga Tamariki Act 1989, unless that chief executive and the chief executive of the Department of Corrections agree on the matter in subsection (1B):
(b) if the 2 chief executives agree on the matter in subsection (1B), the person may instead be remanded in custody in a youth unit of a prison.
(1B) The matter that must be agreed by the 2 chief executives is that detention in a youth unit of a prison is necessary to ensure the safety of a young person (as defined in section 2(1)) who is in the custody of the chief executive.
(2)Despite section 15 of the Bail Act 2000, if the person appears to the court to be aged 18 or 19 years, the court may—
(a) remand the defendant in the custody of the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 if—
(i)in the court’s opinion it is desirable to do so by reason of special circumstances; and
(ii)the court is satisfied that the chief executive of that department is able and willing to keep the person in custody in accordance with this section; or
(b) direct that the defendant be detained in a prison if, in the court’s opinion, no other course is desirable having regard to all of the circumstances.
[3] The Chief Executives or Oranga Tamariki and Ara Poutama Aotearoa (the Department of Corrections) have agreed it is necessary that AB be transferred from the custody and care of Oranga Tamariki to a youth unit in a Corrections’ Prison to ensure the safety of other young people in the custody of the Chief Executive of Oranga Tamariki at Te Puna Wai. The Executives sought an order pursuant to s 175(1A)(b) to facilitate the transfer to a youth unit at Christchurch Men’s Prison.
[4]The Crown abide the decision of the Court.
[5]The transfer was initially opposed by AB.
[6] The application was supported by an affidavit from the Team Leader of Clinical Practice at Te Puna Wai. With her affidavit, she provided details of 22 incident reports between December 2021 and June 2022. I have read those reports. Those reports show there has been an increase in AB’s use of aggression and violence following the entry of his guilty plea on […]. Since […], AB has assaulted three resident staff members and, unprovoked, punched one young person in the face. In the incident reports, there are details of his threatening staff, threatening other young persons at Te Puna Wai and inciting or attempting to incite other young people at Te Puna Wai to assault other young people there.
[7] Counsel has explained how Oranga Tamariki does not have the necessary powers and infrastructure to manage the risk presented by AB, so the proposed transfer is necessary for the safety of other young people at Te Puna Wai.
[8] For example, Oranga Tamariki has the ability to place a young person in secure care following an incident. However, absent an on notice application to the Court, this young person cannot be in secure care for more than 72 continuous hours.2 In addition, a young person cannot be confined to a room in the open units for any continuous period of more than one hour between the hours of 7 am and 8 pm each day, except where this may be required due to illness or injury (and, in any event, the room must not be locked during any period of confinement to a room in an open unit).3
[9] The Corrections Regulations 2005, made pursuant to s 200 of the Corrections Act 2004, make provisions for different regimes for different classes of prisoners, including the safety and welfare of young people detained in prisons. These require that all prisoners under the age of 18 must be kept apart from prisoners who are 18 years or older.4 However, there can be an exception allowing those aged 18 to 19 to mix with prisoners who are under 18 but only if the Chief Executive assesses it as being in the best interests of the prisoners concerned.5 The units have higher staff to
2 Oranga Tamariki Act 1989, s 370(1).
3 Oranga Tamariki (Residential Care) Regulations 1996, reg 24.
4 Corrections Regulations 2005, reg 179.
5 Regulation 180.
offender ratios than in the adult prison. The youth units of a prison provide rooms that are locked each night and are single bunked. If a person poses a risk to others, the unit has the ability to remove that person and place them securely in their room.
[10] The application was supported by an affidavit from Angela Coyle, Manager Youth (acting) at Ara Poutama Aotearoa, Department of Corrections. She explains that, with the higher staff ratio, staff can be more responsive to the needs of young people in the unit as well as protecting others in situations of escalating risk.
[11]The Christchurch Men’s Prison Youth Unit unlock hours are from 7.30 am to
6.00 pm. During unlock hours, the young men can move freely around the unit, participating in a structured day. She says the day is structured around rehabilitative programmes, education, employment, vocational training and recreational activities. The unit can be locked down in whole or in part if there are risks. Directed segregation can be utilised if an individual poses a risk to others in the unit.
[12] Since changes to the Oranga Tamariki Act in July 2019, there have been a small number of young people under the age of 18 in Corrections’ care, but only one other at the time of Ms Coyle’s affidavit of 6 July 2022.
[13] Ms Coyle said planning is already underway between key people who will work with AB on a transfer into Corrections’ custody. She says this will ensure all Corrections’ staff members are aware of the possible risks and, together, they will formulate a plan on managing AB’s safety and the safety of others.
[14] Oranga Tamariki obtained a young person placement assessment from psychologists. AB’s counsel has claimed privilege in respect of that assessment. Counsel for Corrections and Oranga Tamariki do not accept that privilege is available but, given AB’s claim to privilege, made their application without referring to it.
[15] I nevertheless accept that the information provided as to the incidents AB has been involved in since May 2022 does suggest his violent behaviour is likely to escalate as he prioritises his desire to establish his strength and status, despite the risks involved to all.
[16] The incident reports show there has been such an escalation since AB entered his guilty plea. There is likely to be further escalation after he has been sentenced.
[17] The Court arranged a hearing by way of a telephone conference on 19 July 2022. During that conference, Mr Lange, for AB, suggested the conduct which Corrections and Oranga Tamariki considered required this transfer resulted from conflict AB had with another particular young person at Te Puna Wai. He suggested that conflict had been resolved. He sought further time to obtain detailed instructions and potentially put affidavit evidence as to this before the Court. The Court arranged for a further telephone conference to take place on 20 July 2022.
[18] In anticipation of that conference, counsel for the Department of Corrections and Oranga Tamariki filed an updated affidavit from the team leader. It referred to three further incidents on 3, 6 and 14 July 2022. One of those incidents involved AB kicking a female staff member in the abdomen and another involved him engaging in bullying activity with another young person. She also advised that the earlier incidents of concern involved a particular young person but also seven other young people. Referring to an incident that had occurred on 8 June 2022, she explained how that incident had involved a person, who had been AB’s friend, nevertheless being attacked by AB, indicative of the potential for AB’s aggressive behaviour to be random and unprovoked.
[19] The updated affidavit was provided to AB’s counsel, Mr Lange. Prior to the further scheduled conference, Mr Lange filed a memorandum saying he had taken further instructions. The remand in custody in a youth unit of a prison under s 175(1A)(b) of the Criminal Procedure Act was not opposed.
[20] I accept that the transfer from Te Puna Wai to prison is necessary for the safety of young people in Oranga Tamariki care. The transfer does take into account the needs of AB as a 17 year old and the obligation to keep him separate from adults, consistent with obligations under article 37 of the United Nations Convention on the Rights of the Child.
[21] I accordingly direct, pursuant to s 175(1A)(b), that AB be remanded in custody in a youth unit at Christchurch Men’s Prison.
[22] Given his age and the importance of the rehabilitative aspect of his prison sentence,6 I consider AB would suffer extreme hardship if his conduct at Te Puna Wai is the subject of publicity, whether in mainstream or social media.7 The Court is required to recognise s 25(i) of the New Zealand Bill of Rights Act 1990 and the United Nations Convention on the Rights of the Child by dealing with this young person in a manner that takes account of his age.8 A young person is likely to suffer a greater degree of hardship because they lack the required maturity to deal with publicity.9
[23] This judgment does not relate to any hearing of the criminal proceeding AB faces. It primarily concerns how Oranga Tamariki and Corrections can best ensure the safety of both AB and other young people who have to be held in custody and whose safety is their responsibility. The United Nations Convention on the Rights of the Child requires AB’s interests to be prioritised.10 In such circumstances, the principle of open justice does not necessitate the publication of his name as it is not in the public interest.
[24] I accordingly make an order for permanent suppression of AB’s name in connection with this judgment and for suppression of the information in para [1] of this judgment.11
Solicitors:
Raymond Donnelly & Co., Christchurch C J Lange, Barrister, Christchurch
Luke Cunningham & Clere, Wellington.
6 DP v R [2015] NZCA 476, [2016] 2 NZLR 306 at [31].
7 See X v R [2020] NZCA 387 at [52]-[53] for the impact of social media reporting on young people.
8 DP v R, above n 6.
9 At [23].
10 At [10] and [38].
11 Criminal Procedure Act 2011, s 200.
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