The incident happened at Avalon Park, Lower Hutt. Photo / Melissa Nightingale
Graphic content warning: This story discusses sexual assault
The family of a 10-year-old boy subjected to a horrific sexual assault in the public toilets of a popular Lower Hutt playground say the teen attacker’s mental and intellectual conditions created a “foreseeable risk”.
An Oranga Tamariki (OT) spokeswoman said the agency was limited in its powers to physically detain the youth the day he fled his community home and raped the young victim, as he was not under any detention order at the time.
The defendant has since been found unfit to stand trial and may be held indefinitely in a secure facility so long as he is considered a risk to the public.
The traumatic incident happened at the end of last year at Avalon Park in the Hutt Valley.
Court documents recently released to the Herald mean the case can now be reported for the first time.
According to the summary of facts, the defendant, 14 at the time, ran away from his OT residential placement on the morning of December 28 and went to the park, where the victim and three of his siblings were with family setting up for a late Christmas party.
The victim was playing tag with his siblings while his father was being shown around the Avalon Park Pavilion by one of the groundsmen, the summary said.
The boy went to the nearby public toilet, noticing the defendant slouching against a pole outside the entrance. The defendant followed him into the toilet block and grabbed him when he tried to leave, lifting him off the ground and dragging him back inside.
The defendant put the child in a headlock and covered his mouth, carrying him into a cubicle and locking the door behind himself. He held a cold object, which the victim believed could be a pencil or knife, against his throat.
He then rummaged through the boy’s pockets, taking a Prezzy card that the victim had received for Christmas.
“[The defendant] made numerous threats to the victim, including, ‘if you cry out then I’ll stab you’, ‘I’ve got friends in the Mongrel Mob’ and ‘I’ll slit your throat if you don’t do as I say’,” the summary said.
“This caused the victim to become paralysed with fear and he didn’t make a sound or shout out for help.”
The defendant continued to make violent threats against the boy as he sexually assaulted and raped him.
The Herald has chosen not to publish further graphic elements of the attack detailed in the summary of facts.
“At some point during this ordeal, [the defendant] realised that the victim’s nose was bleeding and asked him ‘why is your nose bleeding? Is it because you are so frightened?’”
He told the victim to lock the door behind him and wait 10 minutes before leaving. The victim waited about 30 seconds then fled the toilet and alerted his father, who called the police.
The defendant was found a short time later near the park by his caregivers. He told them he had assaulted a boy in the toilets, then he ran away from his caregivers again.
Shortly before midday, he entered a nearby petrol station and tried to use the victim’s Prezzy card to buy fizzy drinks.
He was caught trying to evade police just before 6pm. He had shaved his hair to avoid being recognised.
In March this year, the defendant was found unfit to stand trial under the Criminal Procedure (Mentally Impaired Persons) Act, based on two mental health reports.
One expert said he had a well-established diagnosis of a moderate intellectual disability, which had been evident from an early age. He was formally assessed at the age of 9. His IQ score as of April this year was 45, compared to an average of 100.
He has significant delays compared to other children at his age and is illiterate, despite receiving high levels of learning support for most of his schooling. He was also diagnosed with global developmental delay, ADHD and Fetal Alcohol Syndrome Disorder.
The expert said his risk of reoffending was high to very high and he continued to show “offence parallel behaviour” despite the structure and supervision he currently receives in a secure, restrictive environment.
Judge Mike Mika made a finding in April that, on the balance of probabilities, the teen had committed offences of abduction for sex, strangulation, assault with a weapon, four counts of sexual violation, two counts of indecency on a child, attempted sexual violation, robbery and two counts of dishonestly using a document for pecuniary advantage.
Judge Jan Kelly ordered in May that the defendant be detained in a secure facility under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 for three years. The act allows for his detention to be continually extended if, at the end of the three years, he is still considered a risk.
The maximum sentence of detention that could otherwise be handed down under the Youth Court jurisdiction is six months.
A relative of the victim told the Herald the family was “shocked, appalled and sickened” at the serious violence involved in the attack.
“He was a defenceless young boy in a public park in the middle of the day,” he said.
“His condition was well known to Oranga Tamariki. He had the potential to inflict serious harm if he was left unsupervised and the risks were entirely foreseeable.”
The defendant “should have been infinitely better-assessed, managed and supervised in his day-to-day activities to guard against the obvious risks that he presented to the physical and mental safety of members of the public”, he said.
OT’s national commissioner south, Arihia Bennett, said the offending was “devastating” and extended the agency’s “deepest sympathies” to the victim and his whānau.
“Oranga Tamariki has more than 4000 children in its care. While most tamariki [children] live with whānau or non-whānau caregivers in the community, some require more intensive support and supervision,” Bennett said in a statement.
“At the time of the incident, this young person was living in a community home run by a care provider that specialises in supporting children with high and complex needs.”
These homes provide “some of our most challenging young people” with intensive, one-on-one support from experienced staff, but were not secure residences, Bennett said.
“This young person had not offended and he was not detained, so staff were limited in what they could do to physically stop him from leaving the home.
“We must operate within the legislation and seek the support of other agencies when caring for young people in the community to ensure safety.”
There is no explicit provision in legislation that gives OT the power to use physical force on children in community homes.
Minister for Children Karen Chhour said she had introduced the Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill to create a new declaration for young offenders to ensure they faced tougher consequences and were better supported to turn their lives around.
This would provide more options for the Youth Court and police to hold “serious and persistent” young offenders accountable and make “powerful interventions in their lives”, she said.
Children’s Commissioner Dr Claire Achmad said it was crucial for the care and protection and youth justice system to have processes in place to ensure young people were safe.
“I extend my aroha [compassion] to [the victim] and their whānau and I will discuss this matter with Oranga Tamariki.”
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 12 years.