WH v Police HC Whangarei CRI 2009-488-48

[2010] NZHC 1392

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF APPELLANT.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2009-488-000048

BETWEENWH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 March 2010

Counsel:         T G Tetitaha for Appellant

N G Dore for Respondent

Judgment:      24 March 2010

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 12.30pm on the 24th day of March 2010.

RESERVED JUDGMENT OF GENDALL J

[1]      This appeal, as originally framed, was against a decision of Judge T H Druce, delivered in the Youth Court at Kaikohe on 18 May 2009.  Judge Druce declined to dismiss two informations alleging burglary against a young person, WH.   WH’s counsel had sought dismissal of those informations due to non-compliance with the statutory  timeframes  relevant  to  the  convening  of  a  Family  Group  Conference (FGC).

[2]      Subsequently the appellant’s counsel filed an amended notice of appeal on

18 January 2010.   It is said to be “by way of appeal against his conviction and sentence in the Youth Court”.   Those “convictions and sentences” related to fine

WH V NEW ZEALAND POLICE HC WHA CRI-2009-488-000048 [24 March 2010]

offences.  Before me, counsel submitted that the appeal was now, in fact, a challenge to all convictions and sentence outcomes relating to this youth for the five offences (the  two  burglaries,  together  with  conversion  of  a  motorcycle,  escaping  from custody, and intentional damage).  These were finally disposed of in the Youth Court at Kaikohe on 11 August 2009.  Of the two supervision and activity orders made, one has now been completed and the other due to expire in two months’ time.

[3]      Counsel for the appellant challenges the decisions on the basis that:

•    time limits prescribed for the convening of FGCs were not met and these were mandatory;

•    if  not  mandatory  the  non-compliance  was  so  significant  that  the conviction and “sentence” orders should be set aside.

[4]      There was a further challenge made by counsel for the appellant relating to other procedural deficiencies which she says arose.  These included the contention that a care and protection co-ordinator did not make the necessary consultations (under s 21 of the Children, Young Persons, and Their Families Act 1989) so that a purported convening of a FGC through notice (on the three non-burglary offences) on 12 January 2009 for a conference on 21 January 2009 was invalid.   Further, because the youth had been remanded in custody from 10 January to 28 January

2010 (following upon his arrest on the burglary matters) before he was granted bail, counsel contends that a FGC had to be convened as a consequence of the remand in custody.  That was not discussed with his family and the process was thereby flawed and led to invalid conviction and sentence for that reason.

[5]      Judge Druce’s decision made on 18 May 2009 declining to dismiss the informations did not seem to me to be a finding or order against which an appeal could be brought (s 351).  An appeal cannot be made until an order has been made. Further, whilst the appeals, through the amended notice, are said to be against the convictions and sentences imposed on all matters, the grounds upon which they are advanced are not upon orders that were challenged at the time but rather upon a

contention that there was a defect in procedure.  The decision of Judge Druce is one to which judicial review would apply, but not a general appeal.

[6]      I had also raised with counsel for WH the point that the appellant has already completed one activity order made when the charges were finally disposed of on

11 August 2009, and the supervision order has substantially been completed with only two months remaining.  I raised whether the general appeal procedure was the appropriate manner to deal with all matters rather than by way of judicial review.

[7]      Nevertheless,  in  order  to  deal  with  the  merits,  and  substance,  of  the appellant’s arguments I am prepared to deal with the issue of all convictions and sentencing outcomes based upon the general challenge now advanced, namely non- compliance with timeframe requirements on the basis of appeals against “convictions and sentence”.

[8]      Part IV of the Summary Proceedings Act 1957 (as it relates to the application of appeal provisions) applies to the appeals, which are very substantially out of time (by about four months).  The Court has power to extend the time under s 123 and I formally do so in order that the matter can be properly dealt with.

Background

[9]      WH   was   aged   14   when   he   unlawfully   converted   a   motorcycle   on

13 November 2008.  He appeared in the Youth Court on 14 November 2008 and was twice remanded to appear again on 15 December 2008.  In the meantime, however, he had committed a burglary on 30 November 2008. This was unbeknown to anyone at the time (apart from himself).  On 11 December 2008 he was charged with wilful damage and escaping from custody.  He was remanded to appear on these charges, together with the conversion charge on 15 December 2008.  On that date pleas of “not denied” were entered to those matters and a FGC was directed.  That conference was required to be “convened” 21 days after notification, however the Christmas vacation intervened.  Although the convening of the FGC for those matters should have been by 29 December 2008, notice of it was not given to WH’s mother and solicitor until 12 January 2009, with the FGC to take place on 21 January 2009.

[10]     In the meantime, WH committed a further burglary on 29 December 2008. He appeared on this and the other burglary charge on 10 January 2009.   Bail was refused and he was remanded in custody until 23 January 2008 where he entered “denial” pleas in respect of those matters.   A date was allocated for the defended hearings on 23 February 2009.   In the meantime the FGC in respect of the other matters took place and a plan accepted.

[11]     Because of an administrative error within the Court Registry the defended hearing of the burglary charges did not proceed, and a new hearing was allocated for

20 April 2009.  After that defended hearing the charges were found to be proved.

[12]     Thereafter,  counsel  applied  to  have  the  two  burglary  charges  dismissed, which led to Judge Druce’s decision of 18 May 2009.  That application dealt only with the two burglary informations, which had been found to be established.  But the disposition of the other three charges also was required.

[13]     Judge Druce accepted that the delay beyond the 14-day period for convening a conference in respect of the burglary informations expired on 4 May, that being outside the statutory timeframe requirements of s 249.  Judge Druce’s determination was  that  the  timeframes  were  not  mandatory  and  following  the  judgment  of New Zealand Police v V and L[1]  declined to dismiss the burglary charges that had been found proved.   He did not have before him any application in respect of the other three offences.  Judge Druce said any delay that had occurred was primarily

[1] [2006] NZFLR 1057.

due to:

•    the not guilty pleas in defending of the burglary charges by WH;

•    the  fact  that  delay  was  relatively  limited  (2  weeks)  in  terms  of  the interests of the victim, public interest and a just outcome;  and

•    the fact that the Youth Justice System would be brought into disrepute if matters were to proceed through a defended hearing, be found proven and

then to be struck out for technical procedural arguments related to the non-compliance with the 14-day timeframe.

[14]     Having declined to dismiss the informations, Judge Druce directed that a further FGC be convened for 9 June 2009.   Notice was given to WH through his family and counsel.   But that conference did not proceed and resulted in an adjournment back to the District Court on 15 June 2009.  There was a further remand on bail to a reconvened FGC on 17 June 2009 so that all existing plans could be integrated.  On 13 July 2009 WH was further remanded and supervision and activity orders on all five informations (from which there had been, essentially, guilty determinations) were made in the Youth Court.

Discussion

[15]     The relevant timeframes which relate to the convening of FGCs after charges are brought, or a remand in custody occurs, or upon a charge against a young person is found proved, are contained in s 249 of the Act.

[16]     In relation to intention to charge, a conference is to be convened within 21 days and completed one month after that.   Where there is a remand in custody a conference is to be convened within seven days and completed within a further seven days.  Where a charge is “not denied” a conference is to be convened within seven days if the young person is in custody otherwise within 14 days, and is to be completed within seven days.  Where a charge is found proved, a conference is to be convened within 14 days and completed within one month after that.

[17]     I repeat some of the chronology.  It is not disputed that the time limits in the present case were not met in a number of respects.  For example, the FGC directed on  15 December  2008  (which  was  in  relation  to  the  motor  vehicle  conversion, escaping  from  custody  and  intentional  damage  charges  –  because  the  burglary matters had not come to light) should have been convened by 29 December 2008.

[18]     When WH appeared later on 10 January 2009 on the burglary charges and was remanded in custody because of the risk of further offending, an FGC should

have been convened.  When the FGC in respect of the original three matters occurred on 21 January 2009, there was no formal notification in respect of the two burglary charges.

[19]     After that conference a family group plan was accepted on 28 January 2009, WH was remanded on bail and a date for the hearing of the defended burglary charges was fixed for 23 February 2009.  It was finally completed after the defended hearing on 20 April 2009.  The 14-day period for convening that conference expired on 4 May 2009.  After Judge Druce declined the dismissal application of the Youth Advocate, he said a conference should be convened immediately.  This occurred on

9 June 2009, but was adjourned to 17 June 2009 to await the outcome of WH’s next Court appearance on 15 June 2009.  A final conference was held on 17 July 2009, agreement being reached which was formalised in the Youth Court on 11 August

2009.

[20]     Clearly there were delays and non-compliance with the statutory timeframe. Judge Druce said:

Much delay has occurred but primarily as a result of the young person defending the matters.  The delay here in convening the FGC is, in terms of the  interests of  victim,  public interest and  the  terms  of  a  just  outcome relatively limited (albeit two weeks) when compared to the three months since his denial was made.  It would bring the system of Youth Justice into disrepute, in my view, for matters to go through a defended hearing, to be found proven, and then to have the matter struck out for non-compliance with a 14 day timeframe due to a two week breach of the timeframes.

[21]     The two questions for this Court are:

(1)Are the timeframes contained in the legislation mandatory so that non-compliance results in the dismissal or stay of the charges;  and

(2)Is non-compliance with time limits in this case sufficiently serious to justify, now, quashing of the findings and orders?

[22]     Ms Tetitaha, on behalf of WH, submitted first that the time limits were mandatory and second, that in any event the proceedings should have been dismissed

pursuant to s 322 of the Children, Young Persons, and Their Families Act.   That section provides:

322      Time for instituting proceedings

A Youth Court Judge may dismiss any information charging a young person with the commission of an offence if the Judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted.

[23]     Although New Zealand Police v V and L is authority for the proposition that these time limits are not mandatory, counsel submitted that it was wrongly decided. There, Rodney Hansen J was dealing with an informant’s appeal by way of case stated.  After a comprehensive review and analysis of the legislative framework, he found that the time limits were not mandatory.  He said that “The consequences of a failure to convene a FGC within the prescribed time can only be decided after inquiry into all the attended circumstances”.[2]  Those considerations were the extent of the delay, the reasons for failing to convene the conference, and consequences of non-compliance.

[2] At [25].

[24]     I need not repeat in detail the thorough and careful review of the legislative framework and decided authorities undertaken by Rodney Hansen J, because I share his views.   Guidance is provided in the well known dicta of Lord Hailsham in London and Clydesside Estates Ltd v Aberdeen District Council[3] and that contained in New Zealand Institute of Agriculture Science Inc v Ellesmere County.[4]    Those authorities make it clear that consideration of the time limits must be viewed as against the scheme of the Act and the degree of seriousness of non-compliance.  For example, where, as here, charges have already been admitted by, and proved against the appellant, to find that timeframes are mandatory would lead to the avoidance of

the consequences of those proven actions on a mere technicality and, in some situations, little practical effect.   In the present case avoiding those consequences becomes even more difficult when they have been all but completed by WH.

[3] [1979] All ER 876 at 883.

[4] [1976] 1 NZLR 630.

[25]     I also agree with the view that delay beyond a prescribed period may be an irregularity for the purpose of s 440 of the Act.  That provides that proceedings or a process under the Act are not to be quashed, set aside or held invalid by reason only of  any  defect  or  irregularity  unless  there  has  been  a  miscarriage  of  justice. Obviously, radical defects which may not be cured.  However, if there were some defect in the process, in the sense of imperfections in convening conferences or some non-compliance with timeframes, s 440 properly applied may save a proceeding despite such non-compliance.

Section 322

[26]     Section 322 provides that a Youth Court Judge may dismiss any information charging a young person with the commission of an offence if the Judge is satisfied that the time elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted.   As Rodney Hansen J observed at [32] where delay is attributable to non-compliance of the time limits for the calling of a FGC, there is no need to resort to s 322.   In serious cases the proceeding may be nullified by non-compliance when not saved by s 440.  In others, non-compliance which is not fatal to a proceeding might combine with other causes to produce undue delay which might justify a dismissal pursuant to the Judge’s discretion under s 322.

[27]     Counsel for WH relied upon s 322 and referred to a number of Youth Court decisions which are part of a developing jurisprudence of consideration to be taken into account in relation to delay between time of offence and hearing.  But it does not  appear  that  s  322  was  the  basis  upon  which  the  application  was  made  to Judge Druce, or the foundation for his decision.   Nevertheless, a stay application under s 322 bears distinct similarity to the manner in which Judge Druce dealt with the application in the Youth Court.  But a stay application under s 322 is not an order (or a refusal of one) based upon a finding of guilt, and the exercise of a discretion to refuse a stay or dismiss proceedings under s 322 does not appear to be open to appeal.[5]

[5] See Trifilo v Police (2006) DCR 796 at [22].

[28]     In the end, however, this is effectively an appeal against the convictions on those proved burglary charges, the other admitted three charges and against the consequential directions or orders.  So the matter returns to the extent of delay, its reasons, and the consequences of non-compliance.

The extent of delay

[29]     The  Act  itself  contemplates  that  there  may  be  delay  in  completing  a conference  within  a  prescribed  time,  whether  or  not  it  is  convened  in  time. Section 249(6) requires the FGC to be completed within the stipulated time “unless there are special reasons”.  Special reasons might well include later, more serious, charges coming to light after a FGC has been convened on lesser matters, but before it is completed.

[30]     Obviously, the longer the delay the more serious non-compliance is to be viewed.   In the present case there was initial non-compliance in convening or completing  the  FGC  (the  last  day  for  technically  completing  the  FGC  was

12 January 2009), but in the meantime WH had been arrested because of statements he made in early January 2009 as to his involvement in two burglaries.  Notification of the FGC set for 21 January 2009 was forwarded to WH’s counsel on 12 January

2009 and on 21 January 2009 it proceeded, but only in respect of the “not denied matters”.  It was two days later that he entered denial pleas to the burglary charges. There could be no FGC in respect of the not denied matters until after the defended hearings and the burglary charges were proved.  This occurred on 20 April 2009 and a conference should have been convened by 3 May 2009 but notice of that was not given to WH’s counsel until 4 June 2009.

[31]     The remand in custody was for 18 days, from 10 January 2009 to 28 January

2009.  Under s 249(4) a conference was required to be convened by 17 January.  An

FGC plan was accepted by the Court on 28 January 2009 arising out of a FGC on 21

January 2009 on the original matters.  Technical breach of time requirements arising out of the remand in custody, and its extent, was minimal, and of little consequence.

[32]     A conference is convened when the participants of the conference are notified of the place and date where it is to be heard.[6]  The timeframes required in respect of the convening of the conferences relating to the three original informations, the defended burglary matters, and the remand in custody, and which were not met, were not by any means inordinate.  In the end the effective completion of the FGCs was not until 17 July 2009, a passage of about 2.6 months when the statutory directed timeframe was one month.  I would not have regarded that delay as being inordinate

or unreasonable in the context of all the circumstances where the progress was complicated by not guilty pleas on serious charges arising after the initial FGC had been directed.

The reasons for the delay

[6] See H v Police (1999) 18 FRNZ 593.

[33]     If there was negligence or gross inefficiency on the part of the Youth Justice Co-ordinator or other administrators then a condign response might be called for.  So too with serious systematic failure.  But mere oversight or the effects of third party intervention may be overlooked and the entire circumstances surrounding delay and reasons for it must be assessed in a measured way.  Here the delay appears to have arisen through a breakdown between the Youth Court and the Ministry, the latter not being made aware that a conference on the burglary matters had to be confirmed by

13 May 2009.   I think the Judge’s reference to delay may well have been in the context of the delay in finally having all the proceedings or matters disposed of.

[34]     Other reasons for delay include the absence of WH and his mother from the FGC which was to be held on 22 June 2009.  There is some dispute as to the reasons for that absence.  WH’s mother says that she had not received formal notification of that, whereas the Youth Justice Co-ordinator contends that she was so advised during a visit to WH and his whanau on 17 June 2009.  Whatever the cause the final FGC was held on 17 July 2009 when agreement was reached.  That was about two months from the date upon which it should have been “convened” (3 May 2009) and about six  weeks  from  the  date  actually  “convened”  (4  June  2009).    Obviously,  short periods of delay can accumulate, but I do not think that the timeframe can be

classified as “undue” or “unreasonable” so as to offend against one’s sense of what was just.

[35]     The process in respect of WH took longer than one would hope but it initially was complicated by the intervention of the Christmas vacation, then by the discovery of other offences (more serious) apparently committed whilst on remand for earlier charges which did not come to light until after the FGC had been directed on those earlier matters.

[36]     The delay in having the original FGC completed and a plan accepted was only until 28 January, a period of about six weeks from the time when the first FGC was directed by the Youth Court.  Thereafter there could be no FGC directed until the two burglary charges were dealt with and it was not sensible for there to be final orders made when those more serious matters remained unresolved.

The consequences of delay

[37]     It may be that WH missed some schooling due to ineffective planning and preparation and whilst he has completed his supervision with activity order at a residential programme, there apparently has been some difficulty with the second programme whilst under supervision as this programme has been shut down.  I do not consider those consequences to be such as to outweigh the entry of convictions. These were not minor offences.

[38]     In  considering  consequences,  the  seriousness  of  the  offending  and  the personal  circumstances  of  WH  are  relevant.    WH  committed  serious  burglaries whilst on remand.  He was charged with unlawfully taking a motorcycle, escaping from custody, wilful damage and advised of an intention to charge for unlawfully getting into a motor vehicle, being a party to theft from a car and a party to burglary. He then committed the second burglary on 28-29 December 2008, which occurred whilst this process was happening.

[39]     I  respectfully  agree  with  the  further  remarks  of  Rodney  Hansen  J  in

New Zealand Police v V and L at [26]:

There may be less tolerance of delay where minor offending is involved. Greater latitude may be extended in cases of serious repeat offending.  In each case a judgment must be made which seeks to give effect to the objects of  the  legislation  while  achieving  an  appropriate  balance  between  the interests of the offender, victims and those of the wider community.  If the cause  and  consequences  of   non-compliance  involve  an  unacceptable intrusion into the rights of the offender, it will be appropriate to dismiss the charge.

[40]     As mentioned above, WH was aged 14 at the time of the offending and on the date of the first FGC (21 January 2009).   About three months elapsed before the burglary charges could be heard and determined.  It was about 2.6 months thereafter before the final FGC was held.   During that period I have no doubt that WH was anxious and troubled as to the ultimate outcome.   Obviously, his age affected the available sentencing options and the sooner all matters concerning him could be dealt with and orders made the better it was in his interests.  Not being over the age of 15 years he was not liable to be transferred to the District Court.  Nor being over the age of 16 years did he become personally liable for paying of, for example, reparation. The penalties which he might face did not alter by reason of the delay.

[41]     In  Trifilo  v  Police  Simon  France  J  was  concerned  with  the  delay  of

17 months between charge and sentence and 9.5 months between hearing date and sentence and his Honour found that none of those periods, standing alone were of undue length so as to engage s 25(b) of the New Zealand Bill of Rights Act.  In the present case, of course, significantly shorter periods of delay were involved.

[42]     Whilst there is scope for argument that the Court may consider delay as a mitigating feature in sentencing, it was not advanced to me on the basis that the orders made were manifestly excessive and I am told that WH has already completed much of his sentence.

[43]     I  am  not  persuaded  that  the  nature,  causes  and  consequences  of  non- compliance meant that this case should be placed near the end of the spectrum where all charges, the rehabilitative sanctions, and measures required of WH should be dismissed and quashed.  Indeed, it was very much in his interests that there be orders involving programmes designed to rehabilitate and advance his welfare, as well as to protect the community from serious offending such as burglary.

[44]     The consequences of delay in this case are not such as to enable the appellant to claim disadvantage and this case does not, in my view, reach the high threshold that I consider is necessary for there to be dismissal of charges, some of which were acknowledged and two of which were proved after a defended hearing.

Conclusion

[45]     Although the timeframes were not complied with they are not mandatory. Failure to meet prescribed time limits did not justify dismissal of the informations and orders.   I am satisfied that first, the delay whilst unfortunate, was not to the extent of being unjustified;   second, there existed a number of explanations for failure to meet time requirements, none of which either individually or cumulatively required the ultimate response of dismissal of serious burglary charges, and the other charges which were admitted;  and third, the consequences of non-compliance were not such as to require dismissal of the charges and orders.

[46]     Judge Druce did not err in the exercise of his discretion in declining to dismiss the burglary matters in his judgment of 18 May 2009.  The disposal of all matters by the agreed plan at the FGC of 13 July 2009, and orders of 11 August

2009, did not follow upon undue and prejudicial delay requiring all charges to be dismissed.

[47]     The appeal is dismissed.

Solicitors:

J W Gendall J

Tumanako Law, P O Box 697, Kerikeri 0470 for Appellant (email:  lawtumanako.com) Crown Solicitor, Whangarei for Respondent