New Zealand Law Society - Committee recommends passage of Oranga Tamariki Legislation Bill

Committee recommends passage of Oranga Tamariki Legislation Bill

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The Social Services and Community select committee has reported on the Oranga Tamariki Legislation Bill and recommends that it be passed with amendments.

Minister for Children Tracey Martin is in charge of the bill, which was introduced on 18 March 2019.

Under the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017, the youth justice jurisdiction was expanded to include 17-year-olds. The 2017 Act amended the Children, Young Persons, and Their Families Act 1989 and will take effect on 1 July 2019.

The bill proposes consequential and minor amendments and transitional provisions to 11 Acts and related Regulations to ensure that the benefits of including 17-year-olds in the youth justice jurisdiction are fully achieved.

Sections 3A, 4A to 4J, and 36A come into force immediately after the commencement of ss113(6), 116 and 144 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017.

The rest of the Act comes into force on 1 July 2019.

Main recommendations - Oranga Tamariki Act 1989

Managing related charges for 17-year-olds

The 2017 Act differentiates between two types of offences for 17-year-olds—Schedule 1A (specified serious offences) and non-Schedule 1A (less serious offences).

From 1 July 2019, 17-year-olds charged with a Schedule 1A offence will be transferred from the Youth Court to the District or High Court at their first appearance.

The Oranga Tamariki Act will not consistently allow related charges for a 17-year-old to be heard with the Schedule 1A charge in the adult courts. There is therefore a risk that two separate processes will be required to deal with alleged offending that occurred at the same time, as a series of related incidents, or against the same person.

The committee recommends inserting clause 4G, new sections 276AA, 276AB, and 276AC, to include provisions for 17-year-olds who have been charged with Schedule 1A and non-Schedule 1A offences to require the Youth Court to transfer related non-Schedule 1A charges to be heard together with the Schedule 1A charge.

Suspending family group conferences

The requirements for family group conferences will not apply in respect of Schedule 1A charges. When a prosecutor proposes, or intends to propose, that non-Schedule 1A charges are related to Schedule 1A charges, the Committee considers that it is not in the best interests of a 17- year-old or complainants to hold the family group conference unless and until the Youth Court determines that the charges are not related. If they are determined related, the charges will be addressed together in the adult court, regardless of the outcomes of the conference.

Therefore, the committee recommends inserting clause 4B, inserting new section 247A, to specify when family group conferences would have to be suspended or would not be required.

Joint charges with another person

The Oranga Tamariki Act currently allows children and young people to be tried jointly with adults. The process ensures that children and young people are dealt with in the Youth Court wherever possible, however the application of the rules is not clear in the case of a 17-year-old co-defendant charged with a Schedule 1A offence.

Inconsistencies may arise in respect of where the trial should be held because the 17-year-old may be considered a young person for the purposes of the existing rules, and because the Youth Court’s jurisdiction does not include Schedule 1A charges against 17-year-olds.

The committee recommends inserting clause 4F, amending section 275 to ensure that where a 17-year-old charged with a Schedule 1A offence is jointly charged with a young person or child, the 17-year-old is not transferred until and unless either the 17-year-old or a young person elects a jury trial, or both the 17 year old and the child elect a jury trial or the 17-year-old elects a jury trial and the child does not elect, in which case the child would remain in the Youth Court and the 17-year-old would be transferred to the adult court.

The committee recommends inserting clause 4I, amending section 277 to enable a joint trial in the Youth Court of a 17-year-old charged with a Schedule 1A offence jointly charged with a young person or child.

It would also authorise the Youth Court to sentence a 17-year-old who pleads, or is found, guilty of a Schedule 1A offence in the Youth Court in a joint trial as if they pleaded, or were found, guilty of the offence in the adult jurisdiction.

Mixed pleas for non-Schedule 1A and Schedule 1A offences

The committee recommends inserting clause 4G, new section 276AC, to provide that there only be one set of proceedings for the same incident or series of incidents.

The new section 276AC would ensure that, when a 17-year-old pleads guilty to a Schedule 1A charge, any related charge would still be dealt with in the adult court. This would enable sentencing for all admitted or proven offences to occur together. However, this provision would not apply if a court determined that it was in the interests of justice for the 17-year-old to be dealt with separately in the Youth Court for the non-Schedule 1A charges.

Transferring proven non-Schedule 1A offences

The 2017 Act inserted transfer provisions that enabled proceedings to be transferred back to the Youth Court if the reason for the transfer no longer applied. This could apply, for example, where a Schedule 1A charge was downgraded or otherwise amended to a non-Schedule 1A charge. It is not clear whether a transfer is available in the situation where a 17-year-old is found not guilty on a Schedule 1A charge, or that charge otherwise falls over, but related non-Schedule 1A charges are still live or subject to a guilty plea or verdict.

Therefore, the committee recommends inserting clause 4H, amending section 276A. This would ensure that where only non-Schedule 1A charges have a guilty plea or verdict, they could be transferred back to the Youth Court for disposition unless it is in the interests of justice for them to remain in the adult court for sentencing.

Transitional provisions

Under Schedules 1, 2, 3, 5, and 7 of the bill, 17-year-olds would come under the adult or youth jurisdiction, depending on whether the criminal proceedings begin before or after 1 July 2019.

The committee was advised that there could be an estimated 1,000 proceedings involving 17-year-olds in the District Court or High Court on 1 July 2019, ranging from minor to serious offending.

Charges related to the same incident, or series of incidents, should be joined to those already under way in an adult court. The committee recommends inserting clause 20A in Schedule 1 to allow related charges against a 17-year-old filed on or after 1 July 2019 to be joined to proceedings for the 17-year-old already under way in an adult court before 1 July 2019.

Applying the youth justice jurisdiction to certain 18-year-olds

Some people who were 17 years old when they offended (before 1 July 2019) may have turned 18 before being charged (after 1 July 2019). Section 2(2) of the Oranga Tamariki Act states that a person who offends when they are a young person is considered to be the age they were when they offended. This interpretation is used for determining the correct jurisdiction and proceedings taken. Section 2(2) requires that the person was a young person when they offended, which a 17-year-old was not if they offended before 1 July 2019.

Therefore, the committee recommends amending clause 20 in Schedule 1, new Part 4A to ensure that an 18-year-old who offended as a 17-year-old before 1 July 2019 could have proceedings in the Youth Court on or after 1 July for that offending.