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Police v Z,X , 26 February 2008 , Court of Appeal, O’Regan, Robertson and Ellen France JJ, CA400/07 CA504/07 [2008] NZCA 27

Name: Police v Z,X
Unreported
File number: CA400/07 CA504/07 [2008] NZCA 27
Court: Court of Appeal
Location:
Date: 26 February 2008
Judge: O’Regan, Robertson and Ellen France JJ
Charge: n/a
CYPFA: s283(f)
Key title: Reparation

Case Summary:

Issues: 1. Are parental fault, and a causative link between parental fault and young person's offending, preconditions for making a reparation order against parents? 2. Was the original HC dismissal of the Youth Court reparation order of $10,000 still allowable?

X & Z are parents of J (a young person). J is a persistent offender, responsible for damages and losses to victims in excess of $100,000. J committed a number of burglaries while on bail and living at his parents' house in 2005. J was sentenced to supervision with residence, and the Youth Court subsequently granted an application by a victim of the burglaries for reparation against the parents. The Youth Court Judge said that J's father should have been more proactive in telling Police when he knew J was in breach of his bail by being out with friends, and being in possession of stolen firearms.

The High Court overturned the reparation order after the parents appealed. Justice Mallon held that parents could only be liable for reparation if they were at fault, and if there was a causative link between that fault and the offending of their child.

CA has now held that, while fault will always be a relevant consideration in deciding whether or not to make a parental reparation order, the purpose of a reparation order is compensation, not punishment. The Court argues that there can be no necessary link between parental fault and a reparation order against parents, if the purpose of reparations is compensation and not punishment. The Court further held that the Bail Act does not impose such a high standard of responsibility on parents, and the statutory scheme of Children, Young Persons and Their Families Act 1989 (CYPFA) does not make parental fault a precondition for a reparation order.

In response to submissions from counsel for the parents, the Court said there was still nothing hindering the ability of the Youth Court to sanction reparation orders against parents where parents have consented to those orders.

Decision: - Parental fault, and a causative link between that fault and a young person's offending are not necessary preconditions for the making of a reparation order against parents under s283(f) of the CYPFA. However Mallon J's quashing of original order in the HC is untouched, as her reasoning was based on an assessment of the total circumstances of the case, not simply the issues of causation and fault. The judge in the original YC case put too much emphasis on the fault of the parents, as they had no obligation to proactively contact Police.