Our work relating to a Young Serious Offender declaration

What does having a Young Serious Offender declaration mean

The making of a Young Serious Offender declaration enables specific court orders and conditions, including:

• longer Supervision orders (up to 18 months) and Supervision with Activity orders (up to 12 months)
• curfew and electronic monitoring conditions that can be part of Supervision with Activity orders
• the removal of early release from a Supervision with Residence order (3 to 6 months)
• an order to attend a Military-Style Academy.

Policy: Young Serious Offender declaration

Eligibility

To be declared a Young Serious Offender under section 320J of the Oranga Tamariki Act, a rangatahi must:

• be between 14 and 17 years old at the time of the offending
• have been proven to have committed at least 2 serious unrelated offences (punishable by 10 years or more imprisonment)
• be deemed likely to reoffend, with evidence that previous interventions have not worked to reduce offending and the declaration is necessary to promote compliance with orders.

A rangatahi may be eligible for an application for a Young Serious Offender declaration if:

• they are currently charged with a specified offence (punishable by 10 years or more imprisonment) that has been proved, and
• they have previously been charged with 1 or more specified offences, with at least 1 being proved or resulting in conviction, or
• they are currently charged 2 or more unrelated specified offences, both of which have been proved, and
• the Youth Court has not yet responded under sections 282 or 283.

Subsequent Young Serious Offender declaration applications

Offences that were used in a previous successful Young Serious Offender declaration, or to extend the earlier declaration, cannot be reused in a new declaration.

Offences that were used in an unsuccessful application may be reused unless quashed on appeal.

Offences that were used in an unsuccessful application where there is a Declaration of Failure to Comply or absconding from residences while on a section 311 Supervision with Residence order may be treated as current offences, even if the Youth Court has already responded under section 283.

Unrelated specified offences – offences are considered unrelated if they are not of the same or similar kind, or they are of the same kind but occurred in different, separate incidents. 

Next steps when Police indicate a possibility of applying for a declaration

If a police officer (constable) believes that a rangatahi might meet the criteria for a Young Serious Offender declaration based on the seriousness of the offence they’re currently charged with or may be charged with, they must let the youth justice family group conference coordinator know as soon as possible. This should happen no later than the day before the first family group conference is held for that offence.

When Police advise the youth justice coordinator of the possibility of an application for a Young Serious Offender declaration, we can contact yso@ot.govt.nz for advice.

We hold a pre-family group conference consultation to understand the Police reasons for submitting an application.

The youth justice supervisor and youth justice coordinator discuss the success of previous orders or programmes, Police-led alternative action plans and any other information that may help the youth justice social worker complete the assessment report, including any previous care or protection assessments or plans, and victim views if known.

Social work assessment before family group conference

We need to build an understanding of what may be impacting on the oranga of the rangatahi and their whānau or family. This will include understanding the underlying causes of offending behaviour.

Organising My Practice will support assessment planning.

Use Te Puna Oranga to consider our section 4A(2) obligations and focus on building an understanding of:

• the context for the offending, including peer groups, peer coercion, thrill seeking, attitudes and care or not for others 
• rangatahi capacity, goals, motivations, what ‘needs’ the offending is meeting
• whānau or family situation and aspirations, understanding whānau or family life
• siblings and how offending could adversely affect them
• current risk, including family harm concerns for the rangatahi and/or other tamariki or rangatahi living in the home – use Tiaki Oranga
• family violence, or other harmful aspects of family life
• the support network: whānau or family, and others providing support – section 66C can be used to support conversations with other professionals involved
• the environment that the rangatahi will be living in after the residential phase.

We also need to consider:

• whether we believe that the grounds for the Young Serious Offender declaration have been met – considerations should include things like:
  • what previous interventions have occurred?
  • what was the impact of these?
  • was there a reduction in offending numbers, frequency and magnitude, improvement in oranga for the rangatahi and/or their whānau or family, no decrease in offending behaviour but the severity was lower?
  • was there an improvement in engagement in education or training?
• likelihood of reoffending – consider things like:
  • dynamic and static risk factors
  • care and protection concerns.

We consider the least restrictive options for rangatahi while still meeting our section 4A(2) obligations:

• the wellbeing and best interest of the rangatahi
• the public interest (which includes public safety)
• the interest of any victims
• the accountability of the rangatahi for their behaviour.

When considering if we support an application for a Young Serious Offender declaration, we need to consider whether we believe this approach is the best option, including:

• options opened by the Young Serious Offender declaration
• community providers and supports that can deliver the necessary programmes
• attitude of the rangatahi and their whānau or family to engage with programmes or services
• legal consequences or ability to breach for non-compliance – Oranga Tamariki and Police
• whether the declaration will support compliance.

It is important to consider a case consult to ensure robust social work analysis and critical thinking. Consider who are the right people to attend, such as our supervisor, practice leader and/or the Young Serious Offender practice leader and Legal Services, to support our planning. We use Organising My Practice to plan and organise our thinking to ensure the right decision is made for the rangatahi and within the context of their whānau or family.

We complete an assessment report to outline the factors for and against the making of a Young Serious Offender declaration. This will enable us to provide the family group conference with all the information in order to make a decision and plan.

Organising my practice

Underlying causes of offending behaviour – dynamic and static risk factors

Assessment report

Family group conference to consider a Young Serious Offender declaration

Before the Youth Court can make a Young Serious Offender declaration, we hold a family group conference to look at what should happen if the serious charges against the rangatahi are proven and if the court decides to declare them a Young Serious Offender. The family group conference may also give recommendations to the court about which pathway should be taken with the rangatahi.

To support whānau-informed decision-making, we need to ensure rangatahi and their whānau or family understand what a Young Serious Offender declaration means and the orders and support that are available.

We should support rangatahi to get their own legal advice from their own counsel.

Young Serious Offender declaration: information to help rangatahi and their whānau or family (PDF 887 KB)

Family group conference participants, including us, do not have to agree. If there is non-agreement to a Young Serious Offender declaration, the family group conference outcome does not record the disagreement. This is recorded in the court application by Police.

Application for a Young Serious Offender declaration

A Young Serious Offender declaration can be applied for in 2 ways:

1. A prosecutor can apply to the Youth Court within 10 working days after a serious charge (or 2 unrelated serious charges) against a rangatahi has been proven in court. However, this application can’t be made if the Youth Court has already made a decision on those charges under section 282 or 283.
2. A police officer (constable) can apply for a Young Serious Offender declaration if the rangatahi is already involved in court proceedings for breaching a Youth Court order (section 296B) or for absconding from a youth justice residence (section 316) while on a section 311 Supervision with Residence order.

Social worker report to court

A social worker report to court should provide our recommendations in relation to disposition orders (whether it be section 282 or section 283 orders, including Young Serious Offender specific orders for which a Young Serious Offender declaration would be required). This decision will be made following our oranga-framed assessment using our practice models, tools and resources.

Before the court can make or extend a Young Serious Offender declaration or make an order under section 283(ja) to (o), they need to request a section 334 report from the social worker.

The social worker outlines the factors the judge considers on sentencing, which are listed in section 284 and section 320I. It includes the effect on the victim of the offence and any need for reparation to be made to the victim. The social worker should also consider whether a Young Serious Offender declaration is required to reduce the risk of the rangatahi offending, and to promote the young person’s compliance with section 283 orders.

Where an application of a Young Serious Offender declaration has been made by Police, the report should also include details of any past offending, section 283 interventions tried to address offending behaviour and the effect these interventions had. The social work report should also indicate the view of the social worker on whether a Young Serious Offender declaration is the appropriate option for the rangatahi, and clearly document the factors (for and against the declaration) that were considered when coming to this viewpoint.

Our report should set out all relevant information from our assessment in addition to the specific information required when considering a Young Serious Offender declaration. The Youth Court looks at several things (under section 320I):

• the nature and circumstances of the offences and how the rangatahi was involved
• the personal history, social circumstances and personal characteristics of the rangatahi
• the attitude of the rangatahi towards the offences
• how their whānau or family have responded to the offending and what support they’ve offered
• any steps taken to apologise or make up for the harm caused to victims
• the impact of the offences on victims and whether reparation is needed
• any previous offending and how past penalties or orders affected the rangatahi
• what was discussed or recommended at the family group conference
• the reasons behind the offending and what can be done to address those causes
• whether the rangatahi has breached any bail or other conditions.

If the court is also considering making an order at the same time as a Young Serious Offender declaration, they will also consider the seriousness of the offence, criminal history (excluding charges discharged under section 282), victims’ interests, risk to others, and unjustified livestreaming, posting or digital distribution that glorified the offending.

We also submit section 335 plans setting out the plan for if the declaration is made and the plan for if it is not (if this is the social worker’s recommendation, or as requested by the court). As the plans are based on our assessment, the plans should look similar as they are addressing the same identified needs.

Support can be sought from our practice leaders, Intensive Case Management Teams where available or the Young Serious Offender practice leader by emailing yso@ot.govt.nz 

Court to advise rangatahi of Young Serious Offender declaration

After the Youth Court decides to declare a rangatahi a Young Serious Offender, the court must clearly explain what that means to the rangatahi and their parent, guardian or caregiver. The explanation must be easy to understand and cover:

• why the declaration was made
• how long it will last
• what the consequences are
• the rights of the rangatahi to ask for the declaration to be shortened or cancelled
• their right to appeal the decision.

The court must also give a written summary of this information to the rangatahi and their lawyer or youth advocate. If the written summary can’t be given before the rangatahi leaves court, it must be sent to their lawyer as soon as possible. The court can ask the rangatahi to stay for up to an hour to receive the written summary.

Supporting tamariki and rangatahi with their family group conference plan or court order – section 258(3)

Duration of Young Serious Offender declaration

A Young Serious Offender declaration usually lasts for 2 years, but it can end earlier if:

• the rangatahi turns 19 years old
• the court extends or reduces the term
• the declaration is discharged by the court through applications on compassionate grounds
• the declaration is quashed after an appeal
• the declaration is set aside by the court for legal reasons.

When a Young Serious Offender declaration ends, court orders made on the Young Serious Offender declarations linked to it are also cancelled.

Term of Young Serious Offender declaration may be extended

If a rangatahi who already has a Young Serious Offender declaration is charged with another serious offence, the Youth Court can extend the declaration. A prosecutor must apply for the extension within 10 working days after the new offence is proven. The court will only consider extending the declaration at the same hearing where it responds to the new offence.

Before making a decision, the court will seek a further social worker report and considers the background and attitude of the rangatahi, and the impact of the offending (factors under section 320I), like when the original declaration was made. The court can extend the declaration if it believes that will help reduce further offending and support the rangatahi to follow court orders.

The extension can be for up 1 year and may be extended more than once, but the total time the declaration is in place cannot go beyond 3 years, or past their 19th birthday.

If the charge is proved before the date on which the Young Serious Offender declaration expires but the hearing to decide on the extension happens after the original declaration expires, the declaration stays active until the hearing but any related orders are paused during that time and the rangatahi is not treated as a Young Serious Offender until the court makes its decision.

Term of Young Serious Offender declaration may be reduced

The following people can ask the Youth Court to shorten the length of a Young Serious Offender declaration:

• the rangatahi or their lawyer or youth advocate
• a parent or caregiver
• the chief executive of Oranga Tamariki.

Applications can be made once the declaration has been in place for 12 months, and again after 18 months.

To reduce the term, the court must be satisfied that:

• the rangatahi is unlikely to reoffend, and
• the declaration is no longer needed to help them follow court orders.

If the court agrees, it can also:

• cancel or shorten any related orders (like supervision or military-style academy placement), or
• change or remove conditions attached to those orders.

The court must also make sure that no order lasts longer than the new, reduced term of the Young Serious Offender declaration.

Discharge of Young Serious Offender declaration

The following people can ask the Youth Court to discharge a Young Serious Offender declaration:

• the rangatahi or their lawyer or youth advocate
• a parent or caregiver
• the Oranga Tamariki chief executive.

The request can only be made for compassionate reasons, such as:

• the rangatahi has given birth, or is expected to soon give birth
• the rangatahi is seriously ill and unlikely to recover
• a parent or caregiver is seriously ill and unlikely to recover.

The court will only discharge the declaration if it agrees the reason is valid and believes that changing or cancelling the related orders (like supervision or academy placement) wouldn’t be enough to deal with the situation. If the declaration is discharged, those related orders are also discharged. The court may also make new orders if needed, or adjust existing ones even if it doesn’t discharge the declaration.

Young Serious Offender declaration set aside if previous finding or conviction for specified offence quashed on appeal

A Young Serious Offender declaration is set aside if the serious offence it was based on is later overturned (quashed) by a higher court (High Court). This can happen if:

• the offence that led to the declaration is quashed on appeal
• the conviction in the High Court is overturned, and it was the offence used to justify the declaration.

Even if the declaration is set aside, any related Youth Court orders (like Young Serious Offender supervision or military-style academy placement) don’t automatically end. Instead, the Oranga Tamariki chief executive must quickly apply to the court to cancel those orders and ask for new ones if needed, except for certain types of intensive orders, which cannot be reissued. These are:

• Young Serious Offender supervision order
• Young Serious Offender supervision with activity order
• Young Serious Offender supervision with residence order.

Work with your legal team to make the necessary applications.

Further offending by a rangatahi subject to a Young Serious Offender declaration

If a rangatahi who is subject to a Young Serious Offender declaration reoffends while being subject to a Youth Court order:

• they can lose their automatic entitlement to a family group conference
• they may be subject to more restrictive orders that are only available if a Young Serious Offender declaration is in place, such as a Military-Style Academy order.

The court can also impose additional orders to start after the Young Serious Offender declaration ends.

However, there are limits to how long these follow-up orders can last:

• If the court gives an additional supervision order after a Young Serious Offender supervision order, the total time for both must not be more than 12 months (or 6 months in some cases).
• If the court gives a  supervision with activity order after a Young Serious Offender version of the same order, the total time must not be more than 6 months.

A Young Serious Offender response can include:

• Supervision for up to 18 months
• Supervision with Activity for up to 12 months
• Supervision with Residence for 3 to 6 months in residence and 6 to 18 months under Supervision
• Military-Style Academy for 3 to 12 months followed by Supervision.

Responses when a rangatahi is no longer subject to a Young Serious Offender declaration are less intensive and shorter, usually up to 6 months.

This allows the court to plan ahead and ensure the rangatahi continues to receive support and monitoring after their Young Serious Offender status ends.

Once a rangatahi has a Young Serious Offender declaration, they are able to be arrested by Police when Police reasonably believe they are breaching a specified condition under a Young Serious Offender supervision order or a supervision with activity order, or there has been further offending, or breaching their bail conditions.

Orders and monitoring for the Youth Court

Failure of rangatahi to comply with conditions of orders or the Young Serious Offender declaration

If a rangatahi with a Young Serious Offender declaration breaks the conditions of their court order – like not following conditions, absconding from a youth residence, or failing to comply satisfactorily without reasonable excuse in a military-style academy – the Youth Court can cancel the current order and replace it with a new one.

The court can also plan ahead by setting up a non-Young Serious Offender section 283 order that will start after the Young Serious Offender declaration ends. These follow-up orders are less intensive and shorter, but there are limits:

• If the court gives a non-Young Serious Offender supervision order after a Young Serious Offender supervision order, the total time for both must not be more than 12 months (or 6 months in some cases).
• If the court gives a non-Young Serious Offender supervision with activity order after a Young Serious Offender version of the same order, the total time must not be more than 6 months.

This approach helps the court manage ongoing support and accountability for the rangatahi, even after their Young Serious Offender declaration status finishes.

A Young Serious Offender declaration may remain in place without any corresponding court orders. If this occurs:

• consideration should be given to making an application to reduce the term of the declaration, or
• we can continue to work with the rangatahi and their whānau or family with their consent.

Your assessment will enable the court to determine the appropriate action.

A rangatahi on a Young Serious Offender declaration that is about to end can be placed on back-to-back supervision with activity orders if:

• they reoffend or fail to comply with conditions of a Young Serious Offender order
• a section 311 supervision with residence order is cancelled by the court
• a Military-Style Academy order is cancelled by the court.

The first order would be a Young Serious Offender supervision with activity order (section 320RA(2) or section 320RB(2)).

The subsequent order would be a standard (non-Young Serious Offender) section 307 supervision with activity order.

The total length of both supervision with activity orders cannot exceed a period of 6 months.