Youth Court Orders – s283
Hierarchy of orders – section 283
Section 283 of the Oranga Tamariki Act 1989 sets out the disposition orders or responses that the Youth Court may make once a charge has been proved.
The responses are set out in “levels” according to the level of restrictiveness.
Under s289 the Court must impose the least restrictive outcome which is adequate in the circumstances.
There are seven groups of possible responses under s283. The groups range from least restrictive to most restrictive. Each order listed within a group is of equal restrictiveness..
The full list is as follows:
Group one responses
(a) Discharge (equivalent to conviction and discharge in the District Court);
(b) Admonish – this means to reprimand (“tell off”) someone firmly about their behaviour
Group two responses
(c) Child or young person to come before the Court within 12 months if called upon (known as a suspended sentence);
(d) Fine – the Court must be satisfied that the child or young person has the capacity to pay the fine within 12 months of the date imposed;
(e) Child or young person if over 16, or if under 16 either the parent/guardian or the child or young person under 16, contributes towards the cost of prosecution;
(f) Child or young person if over 16, or if under 16 either the parent/guardian or the child or young person to pay reparation for emotional harm, property loss or damage.
- There is a common assumption that a child or young person under 16 cannot be ordered to pay reparation. The intent, however, is that for the child or young person under 16 either the parent or the child or young person may be required to pay reparation. If over 16 only the child or young person may be ordered to pay
- Loss of a consequential nature cannot be claimed – s287;
- the chief executive of Oranga Tamariki or other person cannot be required to pay reparation or make restitution if appointed guardian under s110 (s285(3))
(g) Child or young person if over 16, or if under 16 either the parent/guardian or the child or young person under 16, contributes towards the cost of prosecution, to make restitution;
(h) Order for forfeiture of property;
(i) Disqualification from driving;
(j) Confiscation of motor vehicle;
Group three responses
(ja) Parenting order – a child or young person (if soon to be a parent or person having care of a child) or the child or young person’s parent(s) to attend a specified parenting education programme for a specified period not exceeding six months;
(jb) Mentoring Order – a child or young person to attend a specified mentoring programme for a specified period not exceeding 12 months;
(jc) Alcohol or other drug order – a child or young person to attend a specified alcohol or drug rehabilitation programme for up to 12 months;
“Level three” orders may be made subject to conditions specified in the order (286A(3)). As this is a level three response it appears that it is intended that these conditions be specific to the programme being provided – requirement to attend/participate etc. Conditions beyond this would give the order the same effect as a supervision order, which is a higher-level response
Unless the programme is to be provided by the chief executive, the programme provider must agree to provide the programme. The plan for a mentoring order should specify the period of order, the programme provider and when the young person should attend. The plan should also specify objectives and the like. A custody order may be made where alcohol or drug rehabilitation requires the child or young person to live away from home (see “custody” above). If the child or young person does not comply with requirements of the order, the matter may be brought back to Court (see “post disposition) If the parents/guardians of the child or young person do not attend the parenting programme, the Court may direct a care and protection family group conference for all children in their care
Group four responses
(k) Supervision order – A supervision order places the child or young person under the supervision (usually) of the chief executive. The chief executive has a duty to appoint a social worker to supervise the order, and will usually fund implementation. The child or young person is required to comply with specified conditions and requirements. Failure to comply may result in the matter being brought back to Court
Standard conditions of every supervision order – s305
- The child or young person to report to social worker as required;
- The social worker is entitled to visit the home of the child or young person at reasonable times;
- The social worker may prohibit the child or young person from residing at a specified address;
- The young person may continue in specified employment only if approved by social worker;
- The child or young person may be directed by the social worker not to associate with specified persons or class of people;
- The child or young person is required to ensure that the social worker knows where the child or young person is living at all times.
Additional conditions that can be specified in the order – s306
- The child or young person be directed by social worker to pay cost of prosecution or reparation by instalments
- The child or young person may be prohibited from owning or driving a motorcycle or car
- The child or young person may be prohibited from associating with specified persons
- The child or young person may be required to undergo medical or psychiatric/psychological examination treatment, counselling or therapy – this requires the young person’s consent if 16 or over, otherwise parental consent.
- Such conditions as to place of residence, employment or earnings as the Court thinks fit (a requirement to reside at a specified address or at an address specified by the social worker is a frequent requirement)
- Any other conditions the Court thinks fit to reduce the likelihood of further offending. When making this order the Court must have before it a s334 social work report and a s335 plan
(l) Community work order – for between 20 and 200 hours community work during a period specified but not less than 12 months. Court must be satisfied there is suitable work available and it is performed under the supervision of a social worker or person or organisation – s298;
Group five response
(m) Supervision with activity order – s307 – This order may be made for up to six months. It has the same effect as a supervision order (including conditions under s305 and s306). In addition the order may require that the child or young person:
- attend any specified centre for such weekday evening and weekend hours each week for as many months as the Court thinks fit and to take part in such activity as required by person in charge of the centre.
- undertake a specified programme or activity.
A custody order may be made where an alcohol or drug rehabilitation order requires the child or young person to live away from home (see “custody” above).
The residential component must be provided by the chief executive or an organisation approved by the chief executive under s396 (s290A).
Group six response
(n) Supervision with residence – s311 – The child or young person is placed in the custody of the chief executive for a period not less than three months and not more than six months.
This order can be made subject to a condition that the child or young person undertakes any specified programme or activity. This is the basis for attendance at the Military-Style Activity Camps (MAC) or similar programmes
The effect of a supervision with residence order is like a parenting order under the Care of Children Act 2004 and any existing custodial rights, powers and duties are suspended (s312).
The Court may make an access order, however, and parental consent (or consent of the child or young person if over 16) is required for any medical, psychological or psychiatric treatment (319) or by a caregiver if parents or guardians cannot be found a or as a last resort by the chief executive.
During this time the child or young person is usually placed in a residence operated by the chief executive, although technically another placement is possible.
The residence should be specified in the plan, and permission of the Court is required to change the residence (s312(3)).
A judge must record in writing the reasons for making this order (s290).
If a young person absconds while undergoing a term of supervision with residence, the time during which the young person is at large does not count as part of the period of the order. (s315).
There is no ability to cancel a supervision with residence order unless the child or young person has absconded.
Note: For a child (12-13) the chief executive must consider “all reasonably practicable less restrictive alternative placements that may be available and appropriate” before placing in a youth justice residence” (s365(3)).
Group seven response
(o) Transfer to District Court - A young person who is over the age of 15, or is aged between 14 and 15 and is charged with a category four offence or a category three offence with a maximum penalty of 14 years or more imprisonment, may be convicted in the Youth Court and transferred to the District Court for sentence.
This order is not available for children (12-13 years old)
A judge must record in writing the reasons for making this order (s290).
Where a Court makes this order in relation to an offence and the young person is also charged with other offences, the Court can transfer all matters to the District Court (s291).
Before making this order the Court must have before it a s334 social work report. However, no s335 plan is filed as the matter will be determined in the District Court. A sentencing report is usually directed after the order is made. This is provided by Corrections as for an adult.
If transferred to District Court the young person may not be sentenced to imprisonment if:
- the young person was under 17 at the time of committing the offence, unless the offence is a category four offence or a category three offence with a maximum penalty of 14 years or more imprisonment (s18 of the Sentencing Act 2002).
- the young person is of or over the age of 14 and under the age of 15 and the charge proved is in respect of a category four offence or a category three offence with a maximum penalty of 14 years or more imprisonment.