Download From Little Things, Big Things Grow

“From Little Things, Big Things Grow”1
Emerging Youth Justice Themes in the
South Pacific
Australasian Youth Justice Conference: Changing
Trajectories of Offending and Reoffending
20-22 May 2013
Judge Andrew Becroft
National Convention Centre
Principal Youth Court Judge of New Zealand
Canberra, Australia
Te Kaiwhakawa Matua O Te Kooti Taiohi o
Aotearoa
1
With acknowledgements to Paul Kelly; “From Little Things Big Things Grow”
1
Contents
A.
Introduction ............................................................................................................................. 3
B.
Ten Emerging Themes and Trends ........................................................................................ 5
1. The growing recognition of the relevance of “brain science” – and the need for policy and legislation
to “match” the brain science ...................................................................................................................................... 5
2. A growing emphasis on community based diversionary interventions as an alternative to charging in
the Youth/Childrens’ Court....................................................................................................................................... 7
3.
The challenge presented by disproportionate rates of indigenous offending ........................................... 9
4. The challenge of female young offenders, female violence in particular, and the relative increase in
rates of female offending. ......................................................................................................................................... 13
5. The use of a “restorative justice” approach with partial, delegated decision making from the court to
the community, as witnessed by Family Group Conferencing........................................................................... 16
6. The rise of lay / community advocates into the youth justice process and the Youth Court in
particular ...................................................................................................................................................................... 19
7. A developing understanding of neuro-biological difficulties and their significance: eg Learning
Difficulties; Dyslexia; Communication Disorder; Attention Deficit Hyperactive Disorder; Autistic
Spectrum Disorder; Traumatic Brain Injury; Epilepsy; Fetal Alcohol Spectrum Disorder ........................... 22
8. A growing view that we know “what works” (and what doesn’t) when dealing with young offenders.
A willingness to use evidence-based interventions. An increasing acceptance that custodial sentences
should be relied upon as a genuine last resort. ...................................................................................................... 25
9. The intractable (unsolvable) dilemma for youth justice: the crossover between youth justice and care
and protection ............................................................................................................................................................ 32
10.
A Growing Recognition of the Importance of Participation in Education ........................................ 38
C. A Final Embryonic Emerging Theme : Cross-Pollination of Ideas and Innovations from the
Youth Court into the Adult Courts.................................................................................................. 41
D. Conclusion ................................................................................................................................ 49
2
A. Introduction2
Youth Justice in Australia and New Zealand had small beginnings. In Western legal systems, young
offenders were originally convicted and punished as adults in adult courts, and age offered no
exoneration. In the second half of the 19th century, it was acknowledged that children had their own
unique needs, and a move was made towards “welfare-based” treatment (giving young people help to
address the needs that drove the offending, rather than punishment). 3 Following developments such as
the formalisation in common law of the doli incapax rule (which presumes children are generally
incapable of doing wrong unless there is evidence to the contrary) and the establishment of reformatories
to separate young people from adults, separate Youth Courts began to be developed.4 In New Zealand a
separate, specialist youth Court first emerged in 1925.5
Nowadays, New Zealand and Australia’s “YJ” systems are important and (relatively speaking)
sophisticated components of our criminal justice systems. The modern youth justice approaches,
beginning in the 1970s (in the USA), have abandoned the primarily welfare-focussed approach of the
previous fifty or sixty years. Today our youth justice systems are either hybrid welfare/justice models or
strongly criminal justice and rights focussed.
Also, New Zealand and Australia have influenced, and continue to influence, the development of specific,
specialist approaches to youth crime throughout the South Pacific. For instance, Samoa passed its Young
Offenders Act 2007 which was heavily influenced by New Zealand’s ground breaking Children, Young
Persons and Their Families Act 1989. Recently, those involved in dealing with young offenders in
Vanuatu agreed, in the continued absence of legislation, to move towards the development of a specialist
This paper was compiled by Judge Andrew Becroft, Principal Youth Court Judge, Youth Court of New Zealand,
with the assistance of Emily Bruce BA(Hons) LLB, Research Counsel to the Principal Youth Court Judge.
3 Emily Watt A History of Youth Justice in New Zealand (Wellington, 2003), p 2
<www.justice.govt.nz/courts/youth/documents/about-the-youth-court/History-of-the-Youth-Court-Watt.pdf>.
4 Ibid.
5 Ibid.
2
3
youth justice process.6 Tonga also has made moves to develop a youth specific justice process for
offenders under the age of 18. Arguably, the South Pacific is at the cutting edge of some of the most
creative responses in the world to youth offending.
Youth justice is always susceptible to political and populist pressures. It operates in an environment
where simplistic and seductive solutions are pressed – e.g. “adult time for adult crime”. So far,
Governments in New Zealand have held fast to the principled approach pioneered by our 1989
legislation. The same appears to be the case for the Australian States and Territories. Amidst all the
debate and the pursuit of the Holy Grail - the perfect response to youth offending - persistent and
consistent themes and trends are emerging both in Australia and New Zealand. These themes are more
similar than dissimilar. These themes present enormous challenges. But we have the chance to make some
world leading responses. This paper will be a chance to reflect on and explore some of the big themes
and trends for youth justice in Australasia.
It is important to note that this paper represents only one person’s view, and is written through a judicial
lens. There are also undoubtedly many themes and trends that have been missed off this list which might
be thought to justify inclusion (e.g. the importance of drug and alcohol treatment, the interaction of the
youth justice system with mental health services and the importance of a governance structure – cross
agency and ministry led, but involving community groups also). But this list is a start. Imaginative,
creative and evidence-based responses to these themes and trends are required. Are we up to the
challenge?
A Pacific Judicial Development Programme youth justice workshop was convened from 12-15 February 2013 in
Port Vila. As a result, a Memorandum of Understanding was agreed to which included, for example, the
development of Police Standard Operating Procedures for the investigation of alleged offences by young people and
the interview and treatment of young people during investigation, a commitment to diverting as many young people
from the court system as possible through warnings, cautions, mediation and community conference, the
introduction of a separate court list for young people and encouragement and support for community based
alternatives to custodial sentences.
6
4
B. Ten Emerging Themes and Trends
1. The growing recognition of the relevance of “brain science” – and the need for policy
and legislation to “match” the brain science
The 2010s have been called the “decade of the teenage brain”.7 We will collect more information about
how the teenage brain works in this decade than for the whole of human history put together. This work
is being led out of the United States. It has very significant ramifications for youth justice policy and
legislation. Had we had this information 50 years ago some of our age related legislation – e.g. driving
licence age, alcohol supply age, age of criminal responsibility – may have looked quite different.
In recent years, a wealth of neurobiological data from studies of Western adolescents has emerged,
suggesting that biological maturation of the brain begins (and continues) much later in life than was
generally believed. Many neuroimaging studies mapping changes in specific regions of the brain have
shown that the frontal lobes (which are responsible for “higher” functions such as planning, reasoning,
judgement and impulse control) only fully mature well into the 20s8 (some even suggest that they are not
fully developed until halfway through the third decade of life).9 Brain science research also shows that
when a young person’s emotions are aroused, or peers are present, the ability to impose regulatory control
over risky behaviour is diminished.10
All of these findings can have implications for youth justice policy. They will affect our perceptions of
young people’s culpability for their actions and the establishment of an appropriate age of criminal
responsibility. They also affect our understanding of “what works” with young offenders and what our
This expression was coined by the Brainwave Trust Aotearoa (www.brainwave.org.nz), a not-for-profit
organisation whose aim is to raise public awareness about new findings in brain research and to educate everyone
who has an impact on the early life of children about the important implications of this knowledge on our children’s
physical, social, intellectual and emotional development. In recent years, they have begun similar work in the field of
adolescent brain development.
8
Sir Peter Gluckman Improving the Transition: Reducing Social and Psychological Morbidity During Adolescence (Wellington,
Office of the Prime Minister’s Science Advisory Committee, 2011), p 24. <www.pmcsa.org.nz/wpcontent/uploads/2011/06/Improving-the-Transition-report.pdf>.
9 Sara Johnson, Robert Blum and Jay Giedd “Adolescent Maturity and the Brain: The Promise and Pitfalls of
Neuroscience Research in Adolescent Health Policy” (2009) 45 Journal of Adolescent Health 216, p 216.
10 Laurence Steinberg “Risk Taking in Adolescence: New Perspectives from Brain and Behavioral Science” (2007)
16 Current Directions in Psychological Science 55, p 56.
7
5
expectations should be with respect to various responses and interventions (e.g. we know that exposing
young people to situations where their desire to take risks may be heightened will probably not result in
the outcome desired). Finally, they change any presumption that young people are simply “mini-adults”
and that the same responses to offending should be used for both adults and young people. These
findings make it clear that this is simply not true.
A key challenge for Australasian Courts is how to make use of this growing body of irrefutable research
now before us. There is already evidence in judgments of the higher Courts of New Zealand that brain
science research is looked to and treated as relevant when sentencing young people.11 In the United
States, a recent trilogy of cases has emphasised the importance of brain development research when
considering the culpability of young people. The three cases (delivered in 2005, 2010 and 2012) ruled
against capital punishment for young people,12 sentences of life without parole for young people (under
18) for nonhomicide crimes,13 and finally against automatic sentencing schemes that mandate life in
prison without parole for young offenders who commit homicide offences.14 In each of these cases,
detailed scientific evidence was presented in the form of amicus curiae briefs. This research directly
impacted on the Courts’ decisions. For example, in the first case, Justice Kennedy noted that15 “[t]he
susceptibility of juveniles to immature and irresponsible behaviour means their irresponsible conduct is
not as morally reprehensible as that of an adult.” In the second decision, the Court noted that
“...developments in psychology and brain science continue to show fundamental differences between
juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature
through late adolescence. ... Juveniles are more capable of change than are adults, and their actions are
less likely to be evidence of irretrievably depraved character than are the actions of adults.”16
It is a constant challenge for those involved in youth justice to keep learning more about adolescent brain
development, and to take this into account (wherever the law allows it) when making decisions about
young people who offend.
See for example Churchward v R (2011) 25 CRNZ 446 (CA) and R v Thomas CA138/05 6 July 2005.
Roper v. Simmons 543 U.S. 551 (2005).
13 Graham v Florida 560 U.S. (2010).
14 Jackson v Hobbs/Miller v Alabama 567 U.S. (2012).
15 Roper v. Simmons 543 U.S. 551 (2005): Justice Kennedy at 1195.
16 Graham v Florida 560 U.S. (2010) Justice Kennedy at 17.
11
12
6
2.
A growing emphasis on community based diversionary interventions as an
alternative to charging in the Youth/Childrens’ Court
In New Zealand there was a quiet revolution in 1989, dramatically depicted in the graph below, showing
the enormous reduction in cases coming to the Youth Court after the passing of the Children, Young
Persons and their Families Act 1989.17
CYPF
Act
The (then new) Act emphasised that, unless the public interest required otherwise, criminal proceedings
should not be instituted against a child or young person if there was an alternative means of dealing with
the matter.18 Between 1989 and 1990, the number of cases involving young people appearing before the
court promptly plummeted from around 10,000 to just over 2,000.
Graph adapted from Jin Chong Youth Justice Statistics in New Zealand: 1992 to 2006 (Wellington, Ministry of Justice,
August 2007); and Ministry of Justice Child and Youth Offending Statistics in New Zealand: 1992 to 2007 (February 2009)
at 29.
18 Children, Young Persons and their Families Act 1989, s 208(a).
17
7
Reassuringly, despite an increase in 2006, recent figures suggest that the number of cases appearing before
the Youth Court is again decreasing.19 Furthermore, New Zealand has consistently reached
(approximately) 80% diversion rates, meaning that four out of five young offenders are never charged.20
They are dealt with by the police in the context of firm, prompt, community-based intervention, or by
diversionary family group conferences (see trend 5, discussed later in this paper).
It has been said that New Zealand, and other Australasian nations, should aim to ensure that at least 80%
of young people are diverted from ever entering children’s/youth courts.
Such a target is probably
obtainable and consistent with what we know about brain science and youth justice legislative principles.
Police-led, community-based, interventions work better than court responses. Almost all young offenders
respond better to community-based responses (they do not reoffend at anything like the same rates as
those who appear in Court). This is because almost all young people who offend (approximately 75-80%)
could be considered to be what the research literature refers to as “Desisters” or “Adolescent Limited”
offenders (i.e. those who first commit at least one offence during their formative teenage years but desist
from crime and go on to settle into law-abiding lifestyles by their mid-twenties, having committed only a
few trivial crimes).21 A Court appearance, therefore, provided there is prompt community-based
intervention in its place, would be of little benefit to them (unless there is a clear need, in the public
interest, to bring that young person to Court because of the seriousness of the offending). Furthermore,
once these young people appear in the Youth Court, experience shows it is very hard for them to
extricate themselves from the formal criminal justice process. Too many of them (there are no accurate
statistics available) reappear in the Youth Court and continue into the adult courts.
Negative
consequences can result, such as giving the young person a “badge of honour”, labelling them an
offender for life or exposing them to the quaintly named “deviant peer contagion” (negative influences
from other offending young people).
Ministry of Justice Trends for Children and Youth in the New Zealand Justice System 2001–2010 (Wellington, March
2012) at 9.
20 Ibid, at 8.
21 T E Moffit “Adolescence-Limited and Life-Course Persistent Antisocial Behavior: A
Developmental Taxonomy” (1993) Psychological Review 100(4), p 674, as cited in K L McLaren, Tough is Not
Enough – Getting Smart about Youth Crime (one of New Zealand’s seminal works on the characteristics of young people
who offend) (Wellington, Ministry of Youth Affairs, 2000),
p 17.<www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx>
19
8
A continued commitment to increasing diversionary rates (especially given the conclusions of the modern
brain science and what we know of the typology of youth offenders), is a crucial challenge for the youth
justice community.
3.
The challenge presented by disproportionate rates of indigenous offending22
The well-known and deeply challenging statistics regarding disproportionate indigenous representation in
our youth justice systems are the most challenging that face our countries.
In New Zealand, 23% of the 14 – 16 year old population is Māori.23 It is important to note firstly that it
is a small proportion (5%) of the total group of 14-16 year old Maori young people who appear in the
Youth Court. The vast majority do not come into contact with the youth justice system. However,
those who do come into contact with the youth justice system are disproportionately represented at every
stage of the process. The number of young Māori aged 14-16 who appear in the Youth Court is 5% of
the total population of 14-16 year old Māori.24 However, Māori make up 52% of apprehensions of 14 –
16 year olds,25 and 55% of Youth Court appearances.26 Māori youth offenders are given 65% of
Supervision with Residence orders (the highest Youth Court order before conviction and transfer to the
District Court). 27 In some Youth Courts the percentage of those Māori young offenders appearing in the
This section contains excerpts from Judge Andrew Becroft “Rangatahi Courts As Part of the Wider Youth Court”
in “The Rangatahi Courts Newsletter (Volume 1)” (Youth Court,
2012).<www.justice.govt.nz/courts/youth/publications-and-media/principal-youth-court-newsletter/principalyouth-court-judges-newsletter>.
23 Calculated using statistics for 14-16 year olds in the mean year ended 31 December 2012 from Statistics New
Zealand (www.stats.govt.nz) “Māori Population Estimates: Mean Year Ended 31 Dec 1991-2012 and “Infoshare”
“National Population Estimates” “Population” “Population Estimates DPE” “Estimated Resident Population by
Age and Sex (1991+) (Annual-Dec).”
24 Calculated using statistics for 14-16 year olds in the mean year ended 31 December 2012 from Statistics New
Zealand (www.stats.govt.nz) “Māori Population Estimates: Mean Year Ended 31 Dec 1991-2012 and Statistics New
Zealand “Child and Youth Prosecution Tables” “Multiple-Offence Type Prosecution”.
25 Calculated using statistics for the mean year ended 31 December 2012 from Statistics New Zealand
(www.stats.govt.nz) “New Zealand Police Recorded Crime and Apprehensions Tables” “Annual Apprehensions for
the Latest Calendar Years”.
26 Calculated using statistics for the mean year ended 31 December 2012 from Statistics New Zealand
(www.stats.govt.nz) “Child and Youth Prosecution Tables” “Multiple-Offence Type Prosecution”.
27 Calculated using statistics for the mean year ended 31 December 2012 Statistics New Zealand (www.stats.govt.nz)
“Child and Youth Prosecution Tables” “Multiple-Offence Type Youth Court Order”.
22
9
Youth Court is over 90%. Even given problems with definition of “Māori” (including who determines
ethnicity) and regional variations, these figures are plainly unacceptable in any civilised community. They
have long-term implications and the figures tell their own quiet story of deep-seated disadvantage.
Much has been written and discussed about the reason for this tragic disproportion. Obviously it is not
just limited to the youth justice sector, and has a much wider context. Many researchers point to a
combination of long-term disadvantage, dating its roots back to colonial settlement of New Zealand,
combined with current socio-economic disadvantage in which Māori are disproportionately represented
in all relevant measurements. Also, systemic bias cannot be excluded. All these factors work together to
create the current disproportion.
In discussing these disproportionate figures it is all too easy to resort to generalisations and, at least
subconsciously, to “demonise” indigenous young people. It is worth repeating that only a small
proportion of the overall Māori youth population are apprehended. It is also worth observing that recent
research from the longitudinal study conducted by Canterbury University and Professor David Fergusson
tends to suggest that Māori young people who are disconnected from their culture and cultural roots
make up the vast proportion of Māori youth offenders.28 In reality this may just be another way of
pointing to the effects of long term socio-economic disadvantage: ie those Māori families who are most
disadvantaged are most likely to be disconnected from their culture. At any rate, the issue of
disproportionate Māori youth offending is more complex and subtle than is often recognised in this
important discussion.
In this context, our Māori Youth Court Judges in particular feel they cannot sit by. The daily work of
Youth Court Judges in our contact with Māori young offenders clearly presents a challenge that we
cannot ignore. For many years we have reflected on whether we could do better with our Māori young
offenders, especially to reduce re-offending rates and to better involve Māori families and communities.
But, there are no magic bullets or quick fixes.
Joseph M Boden, David M Fergusson and Danette Marie “Ethnic Identity and Criminal Offending in a New
Zealand Birth Cohort” (2009) 42 Australian and New Zealand Journal of Criminology, p 354.
28
10
One thing that judges can do under New Zealand law is order that for individual young offenders, the
next hearing of their case can be conducted at a place which is deemed convenient. A marae (centre of
Māori living) satisfies the definition.
This forms the basis of New Zealand’s ten Rangatahi Courts (our two Pasifika Courts also follow a
similar model). Young people who appear before the Youth Court and do “not deny” the charge are
referred to a Family Group Conference (attended by the young person, their family, professionals and
(sometimes) the victim and victim’s support people). The Family Group Conference formulates a plan to
address the young person’s offending, which is usually approved by the Judge and then monitored by the
Judge on a regular basis. At the Family Group Conference, the option will be presented to the young
person to have the plan monitored on the Rangatahi Court. The victim must agree in order for this to
occur.
On the Rangatahi Court, the same law and principles apply as in the other Youth Courts. The difference
is that processes and procedures are significantly adapted and provided through a different cultural lens.
Tikanga Māori (Māori customs and traditions) are observed, Māori language is incorporated into elements
of the process (e.g. the young person must introduce him or herself in Māori) and elders from the
community sit next to the Judge on the bench, and offer advice to the young person. All young people in
the Rangatahi Court are represented by lay advocates (who represent the young person’s culture and
family).
A recent qualitative evaluation of the Rangatahi Courts (which involved site visits and interviews with
stakeholders, including young people and their families) found positive early outcomes for the court, both
expected and unexpected, such as:29
High levels of attendance at the Court (by both young people and their family);
Young people and their families feeling welcome and respected and understanding the court
process;
Ministry of Justice “Evaluation of the Early Outcomes of Ngā Kōti Rangatahi” (Wellington, 2012) <
www.justice.govt.nz/publications/global-publications/r/rangatahi-court-evaluation-of-the-early-outcomes-of-tekooti-rangatahi/publication>.
29
11
Young people perceiving the monitoring process as legitimate, and having positive relationships
with youth justice professionals and the marae community. One young person noted for example
that “[They] listen and hear what we are saying – we listen to [them]. [They] respect all the
tamariki that come in and in return we respect [them].30
Young people showing improved positive attitudes and behaviour, and demonstrating
responsibility for their offending and its impact;
Families reporting a sense of being supported in their parenting role;
Agencies reporting having had the opportunity to develop networks with the wider Māori
community; build relationships with whānau; and increase their own cultural competency; and
The Courts validating the mana (authority) and identity of the marae community and creating
opportunities for people within it.
The report also suggests some good practice responses to key challenges faced by Ngā Kooti Rangatahi
such as the need to cater to education, health and cultural needs.
The evaluation of the Rangatahi Courts emphasised that the lack of availability of programmes to which
young people can be referred is a crucial issue facing the Rangatahi Courts at present. Two of the
Rangatahi Courts currently refer young people to tikanga programmes, which immerse young people in
Māori culture and learning. The rationale for such programmes is summarised effectively by the Liaison
Judge for the Rangatahi Courts, Judge Heemi Taumaunu, who notes that “[i]t is a tragedy that most
Māori youth who appear before the Youth Court have no knowledge of their own Māori language and
have no idea of who they are and where they are from. Most do not know what tribe they belong to, what
marae they originally come from, what mountain and river they belong to. They have no idea of the rich
treasures left to them by their ancestors. Their language and culture is often borrowed from Black
American hip-hop culture. Most of them live for the present, they exist in a vacuum, where the “here and
now” is all that matters. For these young Māori to have any sense of purpose in the future, they need to
start by knowing where they have come from and who they are. It is difficult, if not impossible, for any
Court to attempt to point young people in the right direction if they are without this knowledge.”31
30 Ibid,
at 55.
Judge Heemi Taumaunu Rangatahi Courts of Aotearoa/New Zealand - An Update (New Zealand Law Society
Continuing Legal Education Criminal Law Symposium, 22 February 2013), p 55.
31
12
There is also some scientific evidence base for a view that cultural programmes are effective (though
more research is needed). Prominent New Zealand researcher Kaye McLaren reviewed relevant
international and national literature to develop a “Youth Services Checklist” against which youth justice
programmes in New Zealand can be measured. In the guidelines to the checklist, she notes that
“[r]esearch on the importance of cultural factors has also been growing, although unfortunately not at
quite the rate of other research. There is now some evidence that tailoring interventions to the culture of
clients makes them more effective. For this reason, including cultural components is part of effective
practice, especially for Māori.”32 McLean also notes that a bicultural programme, incorporating both
“what works” components and cultural components is thought to be more effective than purely cultural
programmes, although more evidence is needed to confirm this.33
There is certainly a strong sense within Rangatahi Court communities that these programmes be
developed, and a keenness to support them.
4.
The challenge of female young offenders, female violence in particular, and the
relative increase in rates of female offending.
The perceived rise of female offending has been a popular topic in the media recently, and one worthy of
our consideration.
Trends in New Zealand suggest that for young women overall (aged 10-20), offending in general is
decreasing, but violent offending is on the increase. Last year in New Zealand, the rate of females aged
10-20 apprehended by the police for all offences was 12% lower than a decade before, but violent
offending was 33% higher.34 It is important to note, however, that the case is slightly different for the 14K McLaren Programme Development Guide for the Youth Offending Services Checklist (YOSEC) (2009), p 7. <
www.justice.govt.nz/publications/global-publications/y/youth-offending-services-effectiveness-checklistyosec/documents/YOSEC-Programme-Development-Guide.pdf>.
33 Ibid.
34 Calculated using statistics for the mean year ended 31 December 2012 from Statistics New Zealand
(www.stats.govt.nz) “New Zealand Police Recorded Crime and Apprehensions Tables” “Annual Apprehensions for
the Latest Calendar Years” and Statistics New Zealand “Infoshare” “National Population Estimates” “Population”
“Population Estimates DPE” “Estimated Resident Population by Age and Sex (1991+) (Annual-Dec).” “Violent
32
13
16 year old age group. Both general and violent offending rates for 14-16 year old females have
remained relatively stable (with the exception of a slight peak in both in 2009 and 2010) over the past
decade.35 However, rates of 14-16 year old apprehensions for the offence category “acts intending to
cause injury” increased around 2008, and though they are now on the decrease also, are still higher than
for any of the years 1994-2007.36
Furthermore, research suggests that females present to Courts with unique concerns that we need to be
wary of and address. It has been said that in general there is little research concerning the “origin, severity
and maintenance of female criminal behaviour”37 (Loucks & Zamble, 2000). However, some unique
factors for women include:38
Issues which may be drivers of crime which affect women exclusively or more than men
e.g.(unwanted) pregnancy, (adolescent) motherhood, sexual abuse, sexual assault, domestic
violence and depression. Sexual abuse is particularly prominent among young women who
offend. Dr Donna Swift, who carried out research through interviews of 1704 girls and 1720
boys in Nelson, New Zealand39 notes that “[i]t is well documented in New Zealand that 1 in 4
females have been victims of sexual violation and both international and national research
acknowledges that many females who end up in the justice system have also been survivors of
sexual violation. During their interviews, many girls spoke about their unwanted sexual
experiences. The girls’ quotes scattered throughout this report provide the evidence. A girls’
reputation for violence almost always paralleled her experience of sexual abuse”40; and
offending” is determined using ANZSOC categories, and the rate is calculated using the formula
Apprehension/Population Group x 10,000.
35 Ibid.
36 Ibid. 1994 is the first year from which data is publicly available in the “Annual Apprehensions for the Latest
Calendar Years” table.
37 Department of Corrections New Zealand “Female Offenders” <www.corrections.govt.nz/research/riskassessment-of-recidivism-of-violent-sexual-female-offenders/female-offenders.html>.
38 Ibid.
39 Donna Swift The Girls’ Project. Girl fighting: An Investigation of Young Women’s Violent and Anti-social Behaviour (Nelson,
Stopping Violence Services, 2011). <www.thegirlsproject.org.nz/results.htm>.
40 Ibid, p 91.
14
Pathways into crime. Research also suggests that motivations for crime can be different for
women. Some suggest that the "most common pathways to crime (for women) are based on
survival (of abuse and poverty) and substance abuse" 41
Dr Donna Swift gives the following conclusions drawn from her research. These may be of interest to
those working with young people who offend:42
Girls’ violence and anti-social behaviour sits on a continuum of intensity beginning with
relational aggression (“negative social behaviours that are intended to harm relationships, social
roles and/or social standing”43) and progressing to serious physical altercation. The further
along the continuum the girl was the more her behaviour extended beyond her female peers to
include male peers, parents, extended family, teachers and police.
Violence within a household was commonplace with sibling violence between sisters intensifying
to cause physical injury.
Girls with little respect for their mothers responded to them with the same violence as they did
their female peers. Girls were more hesitant to physically fight fathers, acknowledging differences
in strength.
A lot of fighting amongst females was instigated through competition for peer popularity and
male attention. Dr Swift found that not only did some girls fight to keep themselves safe and
secure, but that they earnestly defended those they value (it was common, found Swift, for young
women to be violent on behalf of other young women). For others, violence was seen to foster
their reputation and was key to their social identity; hence it was perceived to be better to “take a
hiding” than to back down. It was also used to impose retribution for perceived injustices that
affronted them.
Some girls rationalised and ritualised violence as a ‘normal’ and a ‘natural’ part of their world.
Therefore, violence for the purpose of defence was viewed as a morally acceptable action.
Issues of concern associated with girls’ use of violence and anti-social behaviour include gender
specific issues enmeshed with youth risk factors.
Department of Corrections New Zealand “Female Offenders” < www.corrections.govt.nz/research/riskassessment-of-recidivism-of-violent-sexual-female-offenders/female-offenders.html>.
42 Donna Swift The Girls’ Project. Girl fighting: An Investigation of Young Women’s Violent and Anti-social Behaviour (Nelson,
Stopping Violence Services, 2011), p 1. <www.thegirlsproject.org.nz/results.htm>.
43 Ibid, p 18.
41
15
New Zealand’s Youth Offending Strategy 2002 noted a scarcity of programmes targeting young female
offenders in New Zealand.44 This continues today. Dr Swift advocates for the development of female
specific programmes in her research, stating that her findings “highlight the need for New Zealand to
follow international prevention and intervention strategies. These use a gender specific, gender responsive
and trauma informed approach to address girls’ use of violence and anti-social behaviour. This means
programmes must be designed specifically for our girls and young women.”45
5.
The use of a “restorative justice” approach with partial, delegated decision
making from the court to the community, as witnessed by Family Group
Conferencing.46
There is a growing interest, internationally and in New Zealand, in restorative processes for people who
offend and are affected by crime.
Restorative processes centre around repairing harm that has been
caused and they enable families and victims to take an active role in communicating the harm that has
been caused to the offender, and to suggest and determine solutions. A growing body of evidence
suggests that restorative processes breed satisfaction from parties involved (even in cases of serious
crime).47
In New Zealand, our youth justice process takes the revolutionary step of (partially) transferring decision
making power from the State to families, victims and communities by using Family Group Conferencing.
Family Group Conferencing could also be said to be a (somewhat) restorative process. Family Group
Conferencing was introduced with the Children, Young Persons and their Families Act in 1989 and is
often described as the “lynch-pin” of New Zealand’s youth justice system.
Ministry of Justice and Ministry of Social Development Youth Offending Strategy (Te Haonga) (Wellington, 2002), p
32 < www.msd.govt.nz/>.
45 Donna Swift The Girls’ Project. Girl fighting: An Investigation of Young Women’s Violent and Anti-social Behaviour (Nelson,
Stopping Violence Services, 2011), p 95. <www.thegirlsproject.org.nz/results.htm>.
46 This section contains excerpts from Judge Andrew Becroft and Judge Chris Harding The New Zealand Youth Justice
Process (Pacific Judicial Development Programme, Youth Justice Workshop, 24-27 July 2012, Koror, Palau and 1215 February 2013, Port Vila, Vanuatu) (unpublished).
47 See for example Public Safety Canada “Restorative Justice in Cases of Serious Crime” (Canada, 2004)
<www.publicsafety.gc.ca/res/cor/sum/cprs200507_1-eng.aspx>.
44
16
What are Family Group Conferences (“FGCs”)?
FGCs allow the offender, the offender’s family, the victim, the Police and other youth justice
professionals to meet to discuss and make decisions, recommendations and a plan for the young person.48
FGCs occur in several situations:
If Police seek to lay a charge (and there is no arrest); and
Where charges are laid (following arrest) and are “not denied”.
In addition:
When Police believe a child or youth offender needs care and protection because there is serious
concern for his or her wellbeing due to the number, nature and magnitude of a child offender’s
offending;
When a charge is admitted or proved in the Youth Court and there has been no previous
opportunity to consider the appropriate way to deal with the young offender; and
Any other time a Youth Court considers it necessary or desirable (for example, where the Youth
Court is considering offering jurisdiction to a young person charged with a purely indictable
offence).
What happens at a FGC ?
At the FGC, expert reports dealing with education, health and welfare and other topics may be available.
The offender, together with his or her family, is required to propose a plan aimed at addressing past
offending, repairing present harm and meeting future needs. A range of outcomes are available to the
offender and his or her family.49 Generally, suggested outcomes must be “necessary or desirable in
relation to the child or young person”50 and must “have regard to the [youth justice] principles set out
48 For
a full list of who can attend a Family Group Conference, see Children, Young Persons and their Families Act,
s 251.
49 Children, Young Persons and Their Families Act 1989 (NZ), s260.
50 Children, Young Persons and Their Families Act 1989 (NZ), s260(1).
17
in..[the Children, Young Persons and their Families Act].”51 More specifically, and depending on the
purpose of the Conference, the plan can make a number of recommendations.
The young person and his or her family, together with youth justice professionals who attend the
conference, use the information obtained from earlier discussions in the FGC to formulate an appropriate
plan. The Court retains the overriding responsibility for decision-making. While the Court is required to
consider the plan, it is not obliged to adopt it, although it does in the vast majority of cases. After this,
the plan that is made is monitored on a regular basis by a Judge in the Youth Court.
Advantages of the “delegated process”
The fact that the FGC partially transfers leadership to families, victims and the community is beneficial
firstly because it engages people who are likely to know best what a particular young person’s needs are.
Secondly, it empowers families and communities to take some responsibility for the young person and
their offending, and to use their extensive knowledge to find the best solution for the young offender.
Thirdly, it fosters a sense of ownership of a plan. If a young person and his or her family have been
engaged in making a plan, this can give the plan a sense of legitimacy.
A delegated process can allow for a more culturally appropriate response to offending for the young
person and his or her families. For example, it allows for the family to meet wherever they feel most
comfortable, which can mean better engagement in the process from the young person and their family.
In New Zealand, we have also found that it accords better with Māori notions of collective, rather than
individual responsibility. Though certainly not an overt, explicit Māori model , the FGC model, at its
highest, is consistent with and attempts to harmonise with the Māori world view and the Māori way of
doing things.
A final advantage is that if victims attend such a conference, they can be meaningfully involved and may
even feel vindicated. A Family Group Conference gives the victim the opportunity to tell the offender of
51
Children, Young Persons and Their Families Act 1989 (NZ), s260(2).
18
the impact that the offending had on them, and allows the victim to have a say in the plan that the
offender will have to complete.
A restorative process?
It is clear that FGCs and similar processes certainly have the opportunity to be restorative processes.
However, not all victims – a key player in any restorative process – attend FGCs. Recent advice from
Child, Youth and Family suggests that 22% of victims attend FGCs in person, and 39% make written
submissions.52 When victims do attend FGCs, research suggests that in general, they are satisfied with the
outcome. In a survey of 100 victims who attended Family Group Conferences in New Zealand, 90%
reported having been treated with respect, 88% reported understanding what was going on, 83 %
reported having had a chance to explain the effect of the offending on them, 86% reported having had
the opportunity to say what they wanted, and 71% claimed that their needs were met.53
Attendance of victims is a real issue that needs to be addressed. The effectiveness of an FGC, both as a
restorative process and more generally, is compromised when key players cannot attend. A strong FGC
process requires good attendance and a strong FGC co-ordinator who facilitates the conference in a way
that is appropriate for the family involved. It must also meet timeframes that are young person friendly.
In general, however, delegation of responsibility to families, victims and communities is nonetheless a
vital, and effective, characteristic of a good youth justice system.
6.
The rise of lay / community advocates into the youth justice process and the
Youth Court in particular
In New Zealand, the idea of lay advocates – representatives of the community rather than the legal
profession – is not a new invention. In fact, lay advocates were provided for right from the beginning
52
Advice given from Child, Youth and Family.
Gabrielle Maxwell, Venezia Kingi, Jeremy Robertson, Allison Morris and Chris Cunningham Achieving Effective
Outcomes in Youth Justice: Final Report (Wellington, Ministry of Social Development, 2004), p 155.
<www.msd.govt.nz/about-msd-and-our-work/publications-resources/research/youth-justice/>.
53
19
with their “creation” in the Children, Young Persons and their Families Act 1989. However, this vision
was never realised. Lay advocacy, as an idea, lay “fallow”.
Within the last few years, and with the advent of Rangatahi Courts, lay advocates have now begun to
occupy a very important part of the youth justice landscape. While lay advocates were first utilised in
Rangatahi Courts, they are now being appointed in many mainstream Youth Courts in the Northern
Region (Auckland and Northland) and gradually around the whole country
The Role of the Lay Advocate
Section 326(2) of the Children, Young Persons and their Families Act 1989 provides that a lay advocate
should be someone who “has, by reason of personality, cultural background, knowledge, and experience,
sufficient standing in the culture of the child or young person in respect of whom the appointment is to
be made to enable that person to carry out his or her duties under this Act.”
The principal functions of a lay advocate are set out in s 327, these being to:
ensure that the court is made aware of all cultural matters that are relevant to the proceedings;
and
represent the interests of the child's or young person's whānau, hapu, and iwi (or their
equivalents (if any) in the culture of the child or young person) to the extent that those interests
are not otherwise represented in the proceedings. (emphasis added).
A lay advocate’s key tasks include:54
Assisting and supporting the provision of appropriate cultural advice and information to the
Youth Court. This may be verbally or in writing. (NB: most lay advocates provide a written
report to the Court);
Providing additional and complementary services to the court and young person and young
person’s family in respect of culture. These services are in addition to the core services provided
by existing youth justice professionals that ensure that the case proceeds (for example, the lay
54
Taken from the Ministry of Justice role description for lay advocates.
20
advocate may assist the young person to learn how to introduce themself in Māori before the
Court, or to research his or her family history);
Explaining the young person’s family (in terms of cultural context) to the Youth Court;
Providing expertise to the court on the young person and the young person’s family’s culture;
Identifying opportunities/sources of support/potential links to agencies or organisations that
may assist the young person and their family in connecting with their culture and make
appropriate recommendations on these matters to the family group conference; and
Providing support to other youth justice professionals regarding the young person’s culture.
Advantages of Lay Advocates
There are several reasons why lay advocacy in courts is helpful and successful.
First, it would be fair to say that lay advocates are providing information to the Youth Court and the
youth justice process that no other person or organisation could easily access. They are providing a family
perspective and background information that sometimes is simply inaccessible, especially when families
take a “closed-rank” position to government agencies.
Lay advocates are also providing important cultural background information that may not otherwise be
available. This gives the court a deeper pool of information that it can use to craft appropriate responses
to the young person and his or her family. It also helps the Judge and elders in the Rangatahi Courts to
draw connections to the young person’s family in a “strengths-based” manner. Often, elders can inform
a young person, using the lay advocate’s information, of ancestors who have played an important role in
the local community, for example.
Finally, lay advocates help young people who offend to develop an interest in the culture from which so
many are disconnected. In the evaluation of the Rangatahi Courts, one young person commented that
21
“[s]he [the lay advocate] helps us with our mihi and that. I wasn’t really interested in that when I first
started. Now I just want to find more out.”55
Challenges of Lay Advocates
The introduction of lay advocates has not come without its challenges. A key challenge is defining the
role of a lay advocate, and its boundaries. It is clear that they should not be doing the work of a social
worker, for example, but sometimes these boundaries can be blurred.
A further challenge is the training of lay advocates. A theme in the Rangatahi Courts’ evaluation, coming
from lay advocates, was that standardised national training is needed in order to help lay advocates to fully
understand the conventions and confines of their role.56
In general, however, the presence of lay advocates in our courts is an exciting innovation, and one which
will hopefully grow in Courts across Australasia.
7.
A developing understanding of neuro-biological difficulties and their significance:
eg Learning Difficulties; Dyslexia; Communication Disorder; Attention Deficit
Hyperactive Disorder; Autistic Spectrum Disorder; Traumatic Brain Injury; Epilepsy;
Fetal Alcohol Spectrum Disorder57
The Children’s Commissioner of the United Kingdom recently published a report entitled “Nobody
Made the Connection: The Prevalence of Neurodisability in Young People Who Offend”.58
Ministry of Justice Evaluation of the Early Outcomes of Ngā Kōti Rangatahi (Wellington, 2012), p 36
<www.justice.govt.nz/publications/global-publications/r/rangatahi-court-evaluation-of-the-early-outcomes-of-tekooti-rangatahi/publication>.
56 Ministry of Justice Evaluation of the Early Outcomes of Ngā Kōti Rangatahi (Wellington, 2012), p 83.
<www.justice.govt.nz/publications/global-publications/r/rangatahi-court-evaluation-of-the-early-outcomes-of-tekooti-rangatahi/publication>.
57 This section excerpted in part from Judge Andrew Becroft “Special Report - Nobody Made the Connection: The
Prevalence of Neurodisability in Young People Who Offend” in “Court in the Act (newsletter of the Principal
Youth Court Judge) (Vol 62)”, p 2 << www.justice.govt.nz/courts/youth/publications-and-media/principal-youthcourt-newsletter/principal-youth-court-judges-newsletter>.
58 Children’s Commissioner (United Kingdom) Nobody Made the Connection: The Prevalence of Neurodisability in Young
People Who Offend (United Kingdom, 2012)
<www.childrenscommissioner.gov.uk/content/publications/content_633>.
55
22
This is a challenging but disturbing report regarding the nature, prevalence and proper response to young
people with neurodevelopmental disorders who break the law.
The highly readable and well structured report identifies the prevalence of neurodevelopmental disorders
in the population of young offenders in custody, the implications for the youth justice system and
concludes by setting out a number of recommendations.
If the overseas research is to be relied upon, the prevalence of neurodevelopmental disorders is
spectacularly higher amongst young people in custody. Table 1 from the report, set out below, makes the
position clear.
Table 1: The Prevalence of Neurodevelopmental Disorders59
Neurodevelopmental disorder
Reported prevalence rates
amongst young people in the
general population
Reported prevalence rates
amongst young people in
custody
Learning disabilities3
2 - 4%4
23 - 32%5
Dyslexia
10%6
43 - 57%7
Communication disorders
5 - 7%8
60 - 90%9
Attention deficit hyperactive disorder
1.7 - 9%10
12%11
Autistic spectrum disorder
0.6 - 1.2%12
15%13
Traumatic brain injury
24 - 31.6%14
65.1 - 72.1%15
Epilepsy
0.45 - 1%16
0.7 - 0.8%17
Foetal alcohol syndrome
0.1 - 5%18
10.9 - 11.7%19
In particular, there is a call for:
Ensuring early identification through education and public health interventions
59
Ibid, p 23.
23
Enabling effective early intervention
Reforming the youth justice system
Addressing gaps in research
The report concludes:60
“Our findings call into question whether a criminal justice system that commits young people with
neurodisability to custody is a fair and just system if those young people are affected in such a way that
they do not understand the consequences of their actions, nor have the cognitive capacity to instruct
solicitors, and furthermore if their neurodisability and their associated needs are not identified, recognised
or responded to, such that interventions and sentences serve to further criminalise rather than to offer
support”.
This report is very timely. In New Zealand, we have a somewhat fractured and disconnected approach to
these issues, which often depends upon the energy and level of funding that is given to the various
community agencies and interest groups that deal with these disorders.
For instance, in recent years, this office has been persuasively approached by groups working with young
people with Specific Learning Disabilities, Autism Spectrum Disorder, Fetal Alcohol Spectrum Disorder
and most recently Communication Disorders. It seems clear that all these issues relate to and are
causative of youth offending. There is now a statutory mandate that all those involved in responding to
youth offending ensure that the causes of the offending are properly addressed.61
The real question is whether in New Zealand, as is clearly recommended by the Children’s Commissioner
of England, the time has come to provide a comprehensive health response to all these issues, with an
emphasis on early identification and early intervention. At the same time, the Youth Court itself needs to
be much better supported by appropriate experts and community groups who can identify these issues
amongst young offenders and ensure that the response by the youth justice system is appropriate in all the
60
61
Ibid, p 57.
Children, Young Persons and their Families Act. s 208(fa).
24
circumstances. This is especially so given, what on the English figures appear to be, the exceptionally high
prevalence of neurodisabilities amongst young offenders in custody.
This report is worth reading, but even more so, it demands our response.
8.
A growing view that we know “what works” (and what doesn’t) when dealing
with young offenders. A willingness to use evidence-based interventions. An
increasing acceptance that custodial sentences should be relied upon as a
genuine last resort.62
Today, Australia and New Zealand are increasingly analysing the worth of interventions in terms of
success – i.e. reoffending rates. More and more, our interventions are not just well meaning attempts to
do good, but interventions with a principled basis. In Kaye McLaren’s “Tough is not Enough”, the
author notes that “[t]here is hope. More than ever before, we know what to do to reduce offending by
young people. We know more about how to spend taxpayer dollars wisely to protect the public and
reduce the likelihood of serious, violent crime by young offenders than at any other time in the history of
society. We also know more about how to build on young people’s strengths and address their weak areas
so that they are less likely to offend than ever before.”63
There is ample research available to guide an evidence-based approach to youth justice. Research makes
clear that effective responses to young people in conflict with the law should as a starting point take into
account that (as a generalisation) there are two types of youth offender – “Persisters” and “Desisters”.
This section contains excerpts from Judge Andrew Becroft and Judge Chris Harding Types of Youth Offender (Pacific
Judicial Development Programme, Youth Justice Workshop, 24-27 July 2012, Koror, Palau and 12-15 February
2013, Port Vila, Vanuatu) (unpublished).
63 K L McLaren, Tough is Not Enough – Getting Smart about Youth Crime (Wellington, Ministry of Youth Affairs, 2000),
p 9. <www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx>.
62
25
Desisters – Who are They?
About a quarter of all young men are Desisters. Also called “adolescent limited” offenders,64 they
commit at least one offence during their formative years but desist from crime and go on to settle into
law-abiding lifestyles by their mid-twenties, having committed only a few trivial crimes. “Desisters”
usually start offending after 13 years of age and tend to stop or age out of offending by age 24 to 28.65
Like Persisters, they can and do commit serious offences, but the Persisters tend to commit more of
them.
The following list gives an order of priority for addressing risks with this group:66
Mixing with antisocial peers;
Substance abuse;
Family problems – poor parental monitoring, negative parent-child relationships;
Poor performance and attendance at school, negative feelings about school;
Others as per the Persisters list below.
Persisters- Who Are They?
Both in New Zealand and internationally, around 15-20% of youth offenders are “Persisters”. Also
known as “early onset” or “life course” offenders, they continue to offend into adulthood. “Persisters”
are responsible for a large proportion of crime.67
Persistent young offenders are a difficult and worrying group that requires identification and intervention
as early as the preschool years.
T E Moffit “Adolescence-Limited and Life-Course Persistent Antisocial Behavior: A
Developmental Taxonomy” (1993) Psychological Review 100(4), p 674, as cited in K L McLaren, Tough is Not
Enough – Getting Smart about Youth Crime (one of New Zealand’s seminal works on the characteristics of young people
who offend) (Wellington, Ministry of Youth Affairs, 2000),
p 17.<www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx>
65 Ibid, p 16.
66 Ibid, p 36.
67 Ibid, p 16.
64
26
In contrast to Desisters, “Persisters” start offending early, before age 14 and as early as 10 years of age, 68
offend at high rates – around 40% to 60% of youth offending in New Zealand – and continue offending
into adulthood.
Persisters tend to come from multi-problem backgrounds. These young people are usually seekers of
immediate gratification and give no thought to the consequences of their actions. Effective interventions
with this group must tackle multiple identified risk factors.
Risk factors in order of the highest to lowest priority for Persisters are:69
Having few social ties (being low in popularity, and engaging in few social activities);
Mixing with antisocial peers;
Having family problems, particularly poor parental monitoring of children and negative parent-child
relationships;
Experiencing barriers to treatment, whether low motivation to change, or practical problems such as
difficulty in attending appointments due to lack of transport and work hours;
Showing poor self-management, including impulsive behaviour, poor thinking skills, poor
social/interpersonal skills;
Showing aggressiveness (both verbal and physical, against people and objects) and anger;
Performing and attending poorly at school, lacking positive involvement in and feelings about school;
Lacking vocational skills and a job (for older offenders);
Demonstrating antisocial attitudes that are supportive of crime, theft, drug taking, violence, truancy
and unemployment;
Abusing drugs and alcohol;
Living in a neighbourhood that is poor, disorganised, with high rates of crime and violence, in
overcrowded and/or frequently changing living conditions; and
Lacking cultural pride and positive cultural identity.
68
69
Ibid, p 16.
Ibid, p 10.
27
Policy Implications for Dealing with Persisters
Early identification of Persisters is vital as is information sharing between education, health, police and
welfare agencies to identify and deal with this group. Research shows that the greatest change in expected
re-offending rates for Persisters was achieved through:70
Preparation for employment (35% decrease)
Behaviour contract (25% decrease)
Institutional training (15% decrease)
Court/Probation (10% decrease)
Offender Counselling (8% decrease)
Family Counselling (No change)
Deterrent Sentencing (25% increase).
Also of value was a Family Group Conference preceded by full assessments such as risk and needs
assessments, psychological, medical, educational and cultural assessments and comprehensive plans or
supervision orders. Multi-systemic therapy, a licensed and franchised intensive community-based
intervention programme for serious young offenders, a specialist Youth Drug Court and other
programmes that provide intensive assessment and supervision have also proved useful in assisting
Persisters.
Other General Information– What Works and What Doesn’t
What Doesn’t Work
Responses to youth offending that are focussed solely on deterrence, supervision and
punishment are often ineffective.71 There will be times when in the interests of protecting the
community, punitive responses and prison will be necessary. The point is that these responses do
70 M
W Lipsey, The Effect of Treatment on Juvenile Delinquents: Results from Meta-Analysis, in F Losel, D Bender and T
Bliesener (eds) Psychology and Law: International Perspectives (Walter de Gruyter and Co, Berlin, 1992).
71 See for example K L McLaren, Youth Offending Teams: What Works to Reduce Offending by Young People, e-flash 18
(Wellington, Ministry of Justice, 2005) and K L McLaren, Youth Offending Teams: What Doesn’t Work to Reduce Offending
by Young People, e-flash 19 (Wellington, Ministry of Justice, 2005).
28
not work in the sense of reducing re-offending and may in fact make the situation worse. This is
probably because punishment and deterrence do not address factors that put young people at risk
of offending, or teach them new skills to succeed in conventional life. Having a “fear of
punishment” has not been found to have any relationship to offending and, in fact, some
research shows that young people who believe they will be caught and punished severely actually
commit more crime.72
“Boot camp”approaches if they focus solely on military-style discipline, hard physical work and
rigorous exercise. This may result in improved fitness and respect for staff, but numerous studies
have shown that they have little effect in reducing offending. If a “boot camp” approach is used,
it is important that the programme targets the needs and problems related to offending, that it
builds up strengths that protect young people, and that it aims to build skills that are relevant to
these needs and strengths, for example by staff demonstrating the skills by their own behaviour
and responding warmly when young people model this behaviour. Relevant new skills might
include thinking before acting, learning to manage anger and resolving conflict without violence.
Less time should be spent on military style drills and discipline and more time on building new
skills and relating to young people with warmth and acceptance.
Long periods of incarceration: this has been found to be ineffective in reducing offending but the
New Zealand experience shows that when prisons provide treatment through effective
programmes, an impact on offending can be achieved. Intensive supervision involves staff
spending large amounts of time with clients and being very strict about rule breaking but it has
not been found to be effective unless it is used alongside rehabilitative services.
Of itself, a curfew is usually ineffective in reducing crime but when combined with parental rules,
affection and positive attention by parents, a curfew can be a useful intervention. Restitution is
another intervention that must be combined with other services such as probation, supervision,
rehabilitation, family/parent counselling and academic enhancement in order to have an impact.
K McLaren, Youth Offending Teams: What Works to Reduce Offending by Young People, e-flash 18 , p 4 (Wellington,
Ministry of Justice,, 2005).
72
29
What Does Work?
Programmes which specifically target the risk factors described for Persisters and Desisters.
Ideally, all these needs and problems should be addressed by one intervention so that young
people and families do not need to travel to several locations and can avoid issues with various
services not providing co-ordinated services. Research shows that accessibility is an important
factor in a young person completing a programme.
Programmes which provide services which:
Teach young people how to manage their emotions, particularly anger, and how to manage
impulsiveness.
Teach effective violence prevention skills, for young people and parents.
Treat substance abuse using effective techniques.
Teach relapse prevention skills.
Teach parenting skills such as reasonable rules and discipline, the importance of knowing
where their children are and what they are doing; affection and acceptance.
Provide practical support for families with financial matters, particularly making sure they are
not living in poverty.
Increase social skills among young people, and get them involved in positive activities where
they can make law-abiding friends.
Improve attitudes to school, attendance and academic performance.
Help families cope positively with poor neighbourhoods or move to less risky
neighbourhoods.
The most effective interventions target young people who have a longer and more serious offending
history and who are more likely to offend again rather than young people who have committed few
and/or petty crimes. Effective interventions also build in multiple components (e.g. education, work skills
and substance abuse), address multiple needs and strengths (such as anger management, thinking skills
and making law-abiding friends) and work in multiple environments. The more characteristics of effective
practice a programme incorporates, the more impact it has on offending.
30
Effective staff is a key determinant of the usefulness of programmes addressing youth offending. Staff
who can relate to young people, who model good behaviour and who ensure that the programme actually
runs as it was intended can ensure that an intervention is effective – as long as the intervention is of the
type identified under the “what works” section in the first place. Research has shown that programmes
run by adults are more effective than those run by young people.
Lastly, programmes that work across several areas of a young person’s life – such as family, peer group
and school – are more likely to be effective than those that work in only one area.
Examples of Effective Programmes
Some internationally promising, cost-effective programmes which provide alternatives to incarceration
and deviant group placement, and which involve family and community groups in the treatment of young
people appear to be Functional Family Therapy (FFT) and multi-systemic therapy (MST)73 and
Multidimensional Treatment Foster Care Evaluation.74
Functional Family Therapy
FFT targets young people who have problems with delinquency, substance abuse or violence and
focusses on improving and strengthening the functioning of the family unit. FFT is a short-term
programme delivered by therapists, normally in the home setting.75
Multisystemic Therapy
The purpose of this approach is to assist parents to deal effectively with their young person’s behaviour
problems. Help is provided to disengage young people from their deviant peers and with poor school
Kenneth Dodge, Thomas Dishion and Jennifer Lansford “Chapter 20, “Findings and Recommendations: A
Blueprint to Minimize Deviant Peer Influence in Youth Interventions and Programmes” in Kenneth Dodge,
Thomas Dishion and Jennifer Lansford Deviant Peer Influences in Programs for Youth: Problems and Solutions (New York,
The Guildford Press, 2006), p 385.
74 Wayne Osgood and Laine O’Neill Briddell “Chapter 8, “Peer Effects in Juvenile Justice” in Kenneth Dodge,
Thomas Dishion and Jennifer Lansford Deviant Peer Influences in Programs for Youth: Problems and Solutions (New York,
The Guildford Press, 2006), p 153.
75 Peter Greenwood “Chapter 15, Promising Solutions in Juvenile Justice” in Kenneth Dodge, Thomas Dishion and
Jennifer Lansford in Kenneth Dodge, Thomas Dishion and Jennifer Lansford Deviant Peer Influences in Programs for
Youth: Problems and Solutions (New York, The Guildford Press, 2006), p 287
73
31
performance. MST addresses barriers to effective parenting and helps parent build a support network.
MST is generally provided in the home, school and other community locations.76
Multidimensional Treatment Foster Care Evaluation
This approach is based on close monitoring and supervision by trained foster parents so that the young
person is not able to interact with deviant peers. In two randomised trials MTFC boys had “significantly
lower rates of official and self-reported delinquency at the 12-month follow-up and lower rates of violent
offending than did group care youth…”77
All of this information contributes to our understanding of “what works” and can shape evidence-based
youth justice policy.
9.
The intractable (unsolvable) dilemma for youth justice: the crossover between
youth justice and care and protection78
It is no secret that young people who regularly appear in the Youth Court (the serious persistent
offenders particularly) almost always present with care and protection issues. In New Zealand we know,
in fact, that three quarters (73%) of youth justice clients have been the subject of Child, Youth and Family
notifications – i.e. there have been concerns of abuse or neglect at some point in their lives.79 Research
suggests a similar gross overrepresentation in Australia.80
Peter Greenwood Changing Lives: Delinquency Prevention as Crime-Control Policy, (The University of Chicago Press
2006), p 72.
77 Kenneth Dodge and Michelle Sherrill Deviant Peer Influences in Programs for Youth: Problems and Solutions (New York,
The Guildford Press, 2006), p 107.
78 This section contains excerpts from Judge Andrew Becroft Addressing the Underlying Causes of Offending: What is the
Evidence? Are There Lessons to be Learned from the Youth Justice System? (Institute for Governance and Policy Studies
Forum, Victoria University of Wellington School of Law, 26 February 2009) <http://igps.victoria.ac.nz/>.
79 Centre for Social Research and Evaluation Te Rokapu Rangahau Arotake Hapori Crossover between Child Protection
and Youth Justice, and Transition to the Adult System (July 2010), p 8 as cited in Judge Peter Boshier Achieving Equity: Our
Children’s Right to Opportunity (Wellington, 2012), p 4.
80Judge Mark Marien SC Cross-over Kids – Childhood and Adolescent Abuse and Neglect and Juvenile Offending (Australia,
2012)<www.childrenscourt.lawlink.nsw.gov.au/agdbasev7wr/_assets/childrenscourt/m410051l1/nat%20juv%20jus
t%202012%20cross_over_kids_2012.pdf.>.
76
32
These young people present a difficult challenge to the criminal justice system. On the one hand their
backgrounds of abuse and environmental dysfunction categorise them as vulnerable victims in need
of help. On the other, their offending demands accountability and creates damaged victims. In
reconciling these conflicts, two fundamental questions must be answered. They are the great
imponderable questions that should dominate Youth Justice debates. We can never discuss them too
much. These are:
1.
When and on what basis, should offences committed by young people be seen primarily as a
result of care and protection failures (requiring resolution in the Family or Care Courts).
Further, when and on what basis should offences be dealt with as intentional breaches of the
criminal law by autonomous, responsible individuals requiring resolution in the criminal
courts? This raises the issue of how care and protection issues are to be recognised and
importantly, how it is to be concluded that those issues have been causative of offending. It
also raises the profound risk of criminalising what is essentially a welfare issue.
2.
At the stage when the law does require that young offenders are dealt with in the criminal
Court, to what extent should any underlying care and protection issues that may have
contributed to their offending be addressed in the Criminal Court?
How does the New Zealand legal system manage the interface?
In New Zealand, almost all young offenders under 14 years of age (except when facing murder or
manslaughter charges), are dealt with on the basis that care and protection issues are the primary
cause of their offending. They are dealt with in the Family Court (under care and protection
provisions of the Children Young Persons and their Families Act 1989) and cannot be charged in any
Criminal Court. In other words, by definition, most offending by an under 14-year-old is seen as
being of a care and protection origin. However, the net of children whose offending is seen to be
requiring a youth justice response appears to have recently widened. Since 1 October 2010, the
jurisdiction of the Youth Court has extended to 12- and 13-year-olds who commit purely indictable
offences or who seriously reoffend. This was done in the face of trenchant criticism from the United
33
Nations Committee on the Rights of the Child. New Zealand, along with countries such as
Azerbaijan and Mongolia, featured on a list of countries asked to address deficiencies in their
legislation.81 However, the legislation affords the flexibility to refer the child back to the informant to
consider care and protection proceedings if that is considered to be the overwhelming need.82
After 14 years of age, all youth offenders can be charged in the Youth Court. But, even then, there
is a process whereby care and protection issues may be referred to a Care and Protection Family
Group Conference Co-ordinator at the direction of the Youth Court Judge (with the option then of
further referral to the Family Court). When that happens, the criminal charges can be adjourned, and
then the offender discharged absolutely.
When young people are charged in the Youth Court, the twin emphasis is on accountability and
addressing the underlying causes of offending (the latter was included in the core principles in the
legislation in 2010)83; but there is also an explicit principle that provides that a young person should
not be brought to the Youth Court specifically to address welfare needs”.84
This system appears philosophically sound. Indeed it is frequently considered as world leading. In
practice, it faces problems of adequate resourcing and difficulties in adequately meeting both the
accountability and welfare needs of child and youth offenders.
Strengths and Weaknesses of the New Zealand System
Strengths
The New Zealand system avoids an unhelpful, artificial, rigorous split between the youth justice and
care and protection provisions by allowing a cross-over between the two parts. Former President of
United Nations Committee on the Rights of the Child Consideration of reports submitted by States parties under article 44
of the Convention Concluding observations: New Zealand (CRC/C/NZL/CO/3–4, 11 April 2011) at [56].
82 Children, Young Persons and their Families Act 1989, s 280A.
83 Children, Young Persons and their Families Act 1989, s 208(fa)
84 Children, Young Persons and their Families Act 1989, s 208(b).
81
34
the Children’s Court of New South Wales, Judge Mark Marien SC warns against a rigorous split in
the Australian context, noting that “[o]ver the past 25 years there has been a widespread trend
(particularly by government and government agencies) to view these two jurisdictions of Children’s
Courts as quite separate and distinct. However, they are not separate and distinct. There is a
considerable overlap between the two jurisdictions because many young offenders who come before
the Children’s Court in its criminal jurisdiction have a history of being in care. We also see in our
criminal jurisdiction young offenders who should have had interventions from the child protection
agency but ‘have slipped through the cracks’ in the child protection system.”85
Flexibility between the two systems allows youth offenders with care and protection issues to be
dealt with appropriately and allows room for discretion as to whether an incidence of offending is
really care and protection based. This enables the justice system to concentrate on justice issues and
avoid getting involved in care and protection work, which it is poorly equipped to carry out.
The system does not criminalise most behaviour of children between 10 and 13 years of age and, as
with youth, allows child offenders to be dealt with according to the true causes of their offending.
The focus of the Children, Young Persons and their Families Act 1989 encourages the rebuilding of
families and assists in empowering families to take control of their young person’s offending.
Essentially, the New Zealand approach to child offenders appears to be a more enlightened approach
that does not blur the distinction between child offenders and their care and protection issues.
Finally, the Youth Court has the advantage of specialist courts, which avoid welfarising the response
but which are designed to address the underlying needs of the young people before it, as well as
providing a justice response to the offending. A strong example of this is Auckland’s Intensive
Monitoring Group (“IMG”) Court. Judge Tony Fitzgerald set this up in 2007 to provide therapeutic
justice to young people considered to be at particularly high risk in terms of mental health concerns
and/or alcohol/drug dependence.
Prior to referral to the IMG Court, a therapeutic plan is
Judge Mark Marien SC Cross-over Kids – Childhood and Adolescent Abuse and Neglect and Juvenile Offending (Australia,
2012), p 5
<www.childrenscourt.lawlink.nsw.gov.au/agdbasev7wr/_assets/childrenscourt/m410051l1/nat%20juv%20just%20
2012%20cross_over_kids_2012.pdf.>.
85
35
prepared at the FGC. The young person‘s case is then separated out from the regular Youth Court,
and they begin the IMG process. Once in the IMG system, the young person is assigned a Judge, and
there is an unbroken, continuous involvement of the Judge in monitoring the progress of the young
person with their plan. The young person meets regularly with that Judge, as well as with a social
worker who is assigned to their case, and a group of professionals who assist that young person to
meet their plan. In addition to the professionals who surround a young person in the main Youth
Court, the IMG professional team includes service providers, a representative from Regional Youth
Forensic Services and Ministry of Education representatives (who are available in some but not all
Youth Courts). Before each sitting of the IMG, the professional team sit down together and go
through the cases set down for the day. At each meeting, the social worker assigned to the young
person's case is required to file a written progress report on the young person’s compliance with their
plan and related issues for the team to discuss. This intensive therapeutic support for the young
person does not welfarise the response: there is still a justice focus in that the young person must
complete a FGC Plan and could still be subject to formal orders. However, the IMG Court provides
a flexible and effective way of addressing some of the needs which may have driven the young
person’s offending.86
Weaknesses
The difficulty with the New Zealand system is that if care and protection issues are dealt with badly,
young people and children are not held to account for their crimes. Further, a heavy burden is placed
on the care and protection system that is not always adequately resourced to cope with the workload.
This leads to the reluctance and in some cases refusal to carry out some care and protection work,
poor communication and even patch wars as a result. Police are, at times, in breach of s 208(b),
tempted to prosecute youth offenders to access welfare services when faced with huge delays in
referrals to welfare agencies.
This paragraph excerpted from “IMG Court” in “Court in the Act (newsletter of the Principal Youth Court
Judge) (Vol 56)”, p 5 <www.justice.govt.nz/courts/youth/publications-and-media/principal-youth-courtnewsletter/principal-youth-court-judges-newsletter>.
86
36
Historically, referrals out of the Youth Court to Care and Protection Co-ordinators have been
unproductive and there is no easy mechanism to ensure that referral results come back to a Youth
Court Judge.
A further issue is the lack of awareness that the Youth Courts sometimes have of the care and
protection needs of young people appearing before them. This is vital not only because it enables
the Judge to identify whether the overwhelming need is in fact care and protection (and thus a
different response is warranted), but it also enables the Judge to tailor the most effective responses in
the Youth Court. Since July 2007, there has been in effect a protocol which allows for the Youth or
Family Court to request the young person’s file in another Court. Prior to this, a Judge may have
gone into Youth or Family Court proceedings entirely unaware of issues in the other jurisdiction
(even current issues). Further promotion and awareness of this protocol is still needed.
Looking to the Future
Judge Mark Marien SC points out that in order to effectively prevent the flow on from care and
protection to the juvenile and adult justice systems, we must ensure that child protection agencies
play a role in the juvenile justice system and do not abandon young offenders with serious welfare
concerns who have entered that system.
He notes, citing a recent report on this issue, that:87 “[m]altreated adolescents across Australia need
early intervention and support, in part at least to try to reduce the risk of their later offending. We
need to understand how many children in care are involved in offending and what interventions and
services are successful in preventing later offending (Jonson-Reid, 2002, 2004), especially for
maltreated children and adolescents. It seems very likely that some prevention measures are working,
but we have little information about who these work for and under what circumstances. It is
important to build this knowledge and to increase the focus on adolescent and child protection, on
Judge Mark Marien SC Cross-over Kids – Childhood and Adolescent Abuse and Neglect and Juvenile Offending (Australia,
2012), p 21
<www.childrenscourt.lawlink.nsw.gov.au/agdbasev7wr/_assets/childrenscourt/m410051l1/nat%20juv%20just%20
2012%20cross_over_kids_2012.pdf.>.
87
37
the understanding that intervening early means intervening early in the pathway as well as early in life.
The window for effective intervention, especially in relation to offending behaviours, is not closed
after early childhood, though it is likely to be more expensive to intervene at later ages. Crucially,
state parental responsibility for children and young people in care must not stop once they have
offended and become troublesome as well as troubled.”
10.
A Growing Recognition of the Importance of Participation in Education
That this topic is the final point in the list has little to do with its pivotal importance. In New Zealand,
there has been a growing recognition of the need for young people who offend to be engaged or reengaged in education or vocational training.
Participation in Education and Offending: The Realities88
As a general proposition, the single fact that most characterises young offenders in the Youth Court,
apart from being male, is their lack of engagement within the education system. While there are a number
of other risk factors which contribute to young people being before the Youth Court, including family
dysfunction, abuse of drugs and/or alcohol, and conduct disorder issues, it is submitted that the single
biggest initiative to reduce youth offending would be to ensure that all young people were engaged in
meaningful mainstream secondary school, alternative education or vocational training.
We currently estimate that up to 80% of young offenders appearing before the Youth Court are not
engaged with education. This is a best estimate only as there are no exact figures available. Nonenrolment, rather than truancy, is the problem.
This paragraph contains excerpts from Youth Court of New Zealand “Alternative Education Submission to the
Ministry of Education” (November 2008) and Judge Andrew Becroft “Education and Youth Offending:
Introductory Notes” (unpublished).
88
38
Further, our best guess is that there are up to 3,000 young people who are currently non-enrolled. They
are not within the education system or involved in any vocational training. They are simply drifting and
in such circumstances a life involving criminal offending is highly likely.
Police figures also indicate that generally 25% of youth offending takes place between 9.00am and
3.00pm. In some areas the percentage is much higher.
Anecdotal evidence would suggest that not only are there an increasing number of students suffering
from complex and difficult behavioural needs but that those students are younger with the effect that
students requiring intensive intervention or consideration for involvement in alternative educational
initiatives are coming not only from secondary schools but also from intermediate schools.
It is important to note also that non-school attendance is seldom the sole problem. It is usually a
symptom of much greater problems at home (including abuse and neglect), with peers, with
drugs/alcohol or with psychological or psychiatric or with learning/behavioural problems.
The Importance of Education for Young Offenders
Involvement in education is essential. It is one of the “big four” protective factors against future criminal
offending. Helping young people feel part of society through school involvement assists in keeping them
out of trouble.89 A report compiled by the Los Angeles County Office of Education on factors
contributing to juvenile delinquency concluded that chronic absenteeism is the most powerful predictor
of delinquent behaviour.
The importance of school participation is also emphasised in the research of Kaye McLaren, who states:90
See for example K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime (Wellington, Ministry of Youth
2000), p 29 <www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx>and Hawkins et
al, 1992; Brewer et al, 1995; Catalano and Hawkins, 1996 quoted in Risk and Protective Factors, Research undertaken by
"Communities that Care" on behalf of the Youth Justice Board, Youth Justice Board for England and Wales,
London, 2005, p 26.
90 See K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime (Wellington, Ministry of Youth 2000), p 31
<www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx>.
89
39
“Lipsey (1992) found that impact on delinquency was more strongly linked with participation in
school by young people than with school achievement or changes in psychological measures. Neither
of the latter had a significant relationship with delinquency. Simply participating in school appeared
to lead to changes in psychological measures, interpersonal adjustment, academic performance and
vocational accomplishment. Lipsey concluded that “while change in psychological variables and
interpersonal adjustment... does not seem to be closely linked to change in... delinquency, it does
seem to be closely linked to change in... school participation which, in turn, is linked to change in
delinquency” (1992:142). So it appears that increasing participation in school by young people is a key
part of reducing their antisocial behaviour and offending.” (Emphasis added).
In 2010, an amendment to the Children, Young Persons and their Families Act recognised the
importance of education by directing consideration of a young person’s education needs at the Family
Group Conference. Section 255 of the Act provides that “every youth justice co-ordinator who convenes
a family group conference must take all reasonable steps to ensure that all information and advice the coordinator considers is required by the conference to carry out its functions.” The amendment to this
section added a requirement that the information and advice provided to the conference include
“information and advice relating to the health and education needs of every child or young person in
respect of whom the conference is convened”.
The Youth Court Education Officers Initiative91
The Education Officers’ initiative is an exciting and relatively new initiative available in some Youth
Courts. The role of an education officer is to:92
provide timely, useful and accurate information about a young person’s education status for the
youth court
help address a young person’s education needs
assist the family group conference coordinator determine whether a more detailed education
assessment is required
Based on information provided by the Ministries of Justice and Education.
Ministry of Education “Education Service for Youth Courts”
<www.minedu.govt.nz/NZEducation/EducationPolicies/Schools/Initiatives/EducationOfficersYouthCourts.asp>
.
91
92
40
assist the young person to re-engage in education or vocational training (if suitable).
Currently, there are or soon will be, education officers present at each fortnightly sitting of the Youth
Court of seven Youth Courts. The Ministry also provides written education reports on a fortnightly basis
to seven Youth Courts.
From 15 February-30 June 2010, an analysis of a random sample of 30 young people with education
officers before two Youth Courts (Manukau and Porirua) revealed:
That at three different periods in 2010, over half the young people continued to attend
some form of educational or vocational training
That only 13% reoffended (compared to 46% of a comparison group who had not been
assisted by an education officer).
C. A Final Embryonic Emerging Theme : Cross-Pollination of Ideas and
Innovations from the Youth Court into the Adult Courts.93
In many ways, the Youth Court is a laboratory for new ideas. Since the creation of the Youth Court in
New Zealand, energy and new ideas from the Youth Court have “cross-pollinated” into the adult District
Court. This is not surprising as all Youth Court judges are District Court judges, and where appropriate,
they have taken into the adult court their Youth Court understanding and practice.
Recently, the Youth Court compiled a list of ten suggestions that might be considered by those involved
in adult District Court practice that arise from the different processes used by the Youth Court. The list
arises directly from the previous 21 years of Youth Court practice. This is a statement of ideals, the
adoption of some of which would have clear cost implications to the justice system.
It is recognised that this process has already commenced.
Some of these ideas are already being
incorporated into adult District Court practice. For instance, a restorative justice sentencing option was
introduced into many District Courts in the late 1990s.
This section contains excerpts from Judge Andrew Becroft “10 Ideas that Might ‘Cross-Pollinate’ from the Youth
Court into the Adult District Criminal Court” (Wellington, 2012) (unpublished).
93
41
The list is:
1.
Significant Use of “Non-Charge” Diversion
Challenge: to consider using a diversionary approach instead of charging in court for some adult
offenders (and in particular 17-20 year olds).
As explained at trend 2 in this paper, most young people (around 75%94) who offend in New Zealand are
diverted out of the Youth Court. In the adult criminal justice system, around 33% of apprehensions are
dealt with using a caution or warning.95 There is also a formal police diversion scheme which an adult can
be referred to following an appearance in court. Around 3% of charges laid in court are dealt with in this
way.96
Increasing the use of diversion and out of court responses for adults could be effective for several
reasons:
1) Evidence suggests that restorative justice processes can be up to ten times more effective when
they take place outside of the criminal sanctioning process.97
2) Research into alternative action has also shown that young people who are dealt with by Police
warning or Alternative Action re-offend significantly less than those who attend a Family Group
Conference or appear in Court (though there are some limitations to these findings).98
Anecdotally, there are estimates that around 83% of those who take part in alternative action do
not reoffend.
Calculated using statistics for the mean year ended 31 December 2012 from Statistics New Zealand
(www.stats.govt.nz) “New Zealand Police Recorded Crime and Apprehensions Tables” “Annual Apprehensions for
the Latest Calendar Years”.
95 Ibid.
96 Ministry of Justice Trends in Conviction and Sentencing in New Zealand 2011 (Wellington, 2012), p 6
<www.justice.govt.nz/publications/global-publications/t/trends-in-conviction-and-sentencing-in-new-zealand2011-1>.
97 Bonta, J., Jesseman, R., Rugge, T., & Cormier, R. (2006) “Restorative Justice and Recidivism: Promises Made,
Promises Kept?” in D. Sullivan & L. Tifft (eds) Handbook of Restorative Justice: A Global Perspective, (Routledge, New
York, 2006), as cited in New Zealand Police Alternative Actions that Work. Youth Services Group (Wellington, Police
National Headquarters)(2011), p 30.
<www.rethinking.org.nz/assets/Young_People_and_Crime/Alternative_Actions_2011.pdf>.
98 New Zealand Police. Alternative Actions that Work. Youth Services Group (Wellington, Police National Headquarters)
(2011) , p 18. <www.rethinking.org.nz/assets/Young_People_and_Crime/Alternative_Actions_2011.pdf>.
94
42
3) Researchers have also concluded that Alternative Action plans and processes emphasise both
rehabilitation and reintegration, which other research shows is ‘likely to prevent re-offending’99
2.
Youth Courtroom Layout
Challenge: to consider using a different layout of the adult courtroom furniture (where greater offender
engagement is sought, provided security is not compromised).
The Youth Court is set out differently to adult District Courts, which follow a standard courtroom layout
with rows of tables. The following image gives a basic idea of what a Youth Court looks like.100
An advantage of this set up is that the young person sits effectively in the centre of all participants. The
young person can easily interact with the Judge and with the government and community personnel
engaged in the process. All of these participants can also interact easily with one another, which also
encourages a collaborative approach to each case.
Where necessary, a dock can be placed in the middle
for security purposes, or a dock that is already in the room could be used (which may not place the young
person in the middle).
99 Gabrielle
Maxwell & Judy Paulin The Impact of Police Responses to Young Offenders with a Particular Focus on Diversion.
(Wellington, Crime and Justice Research Centre, Victoria University of Wellington. in New Zealand Police, 2011), p
18.
100 Diagram taken from Ministry of Justice training package for lay advocates.
43
3.
Appointment Times
Challenge: to introduce a structured appointment system for all defendants.
When a young person appears before the Youth Court, he or she will generally be allocated an
appointment slot of 10-15 minutes. The young person and his/her family or whānau will be informed
what time to turn up at the Youth Court. In some courts, they are instructed not to turn up early and
entry is prevented. The appointments system has proved in practice extraordinarily hard to achieve, and
there is still a long way to go, but where it works well:
a) Families/whaānau arrive on time;
b) Waiting times are reduced for young people and family/whānau101 which can increase satisfaction
with the court process, and enable some participants to attend who may not be able to commit a
large portion of their day;
c) The “peak time railway station” appearance that a District Court list will often have is avoided.
Waiting rooms are empty or near empty. This also minimises the chance for young people to
mix outside the courtroom (or for young people to mix with adults who have offended) which
can be harmful to the young person’s progress and pose security risks; and
d) Lawyers and other government and community personnel are able to be informed about and
prepared for the list and the timing of their specific involvement.
4.
“Community Group Conferences”
Challenge: to consider using “community group conferences” as an explicit decision making mechanism,
as an option to assist in sentencing decisions.
As mentioned at trend 5, a model like the FGC in the Youth Court is effective because it partially
transfers leadership to families, victims and the community. This empowers families and communities to
take responsibility for young people who offend, fosters a sense of ownership of the plan, and can be a
more culturally appropriate response to offending.
For more information on appointment times and their efficacy, see Ministry of Justice Youth Court Research:
Experiences and Views of Young People, their Families and Professionals Youth Court User Research (Wellington, Research
Team: Justice Sector Strategy, 2011). <www.justice.govt.nz/publications/global-publications/y/Publication>.
101
44
There is no reason why a sentencing decision in the adult Courts has to be the sole preserve of the Judge.
A “community group conference” in the adult criminal jurisdiction would allow the victim, community
member, families and communities to contribute to the decision making (subject, nonetheless, to the
Judge’s approval).
5.
Judicial Monitoring
Challenge: to implement more judicial monitoring in the adult court to ensure compliance with the
sentence.
In some cases in the Youth Court, the young person will appear before the court only a couple of times:
initially, when the Judge approves his/her plan, and then again when the plan is completed. However, the
Judge has the option in the Youth Court to monitor the young person’s compliance with their plan on a
more regular basis (e.g. fortnightly appearances until the plan is completed). This can be a very helpful
way to ensure that the young person stays on track with their plan, and to review the plan if issues arise or
the young person is performing particularly well. It also allows government and community personnel to
regularly discuss the young person’s progress in each area of his/her life. This is important as the young
person will usually present with a number of complex issues (such as drugs and alcohol, family issues and
absence from education), which could each individually determine whether or not the young person is
likely to succeed with their plan.
The Children, Young Persons and their Families Act also directs that, in some situations, Judges can
monitor compliance with the conditions of some specific orders that they make (supervision with activity
or supervision orders).102
Judicial monitoring in the adult jurisdiction is certainly possible. The Sentencing Act 2002 already
effectively allows for judicial monitoring in some situations. It permits the court to impose a condition of
judicial monitoring on a sentence of intensive supervision (s 54I(3)(d)) and on a sentence of home
detention (s 80D(4)(d)). Where judicial monitoring is ordered, probation officers must make written
progress reports to the Judge (s 80ZJ) and after considering this, may order that the offender attend
102
Children, Young Persons and their Families Act, s 308A
45
before him or or her if the Judge considers it desirable for the administration of the sentence or for the
rehabilitation or reintegration of the offender (s 80ZK).
6.
Continuity of Judge
Challenge: to consider a more sophisticated scheduling system to promote, where possible, judicial
continuity.
In the Youth Court, the young person will ideally have the same Judge for every appearance. This
provides both administrative and efficacy benefits. For example:
Judicial time is not wasted by rereading the same material;
It ensures for example when bail is breached, that the same Judge knows very clearly what the
expectations were and what the consequences would be for breach. Judges well know how
defendants can “play” the system and rely on making the same excuses to a succession of
different judges or to easily slide out of responsibility;
It enables the young person and the Judge to develop an understanding or a relationship, which
enhances communication and promotes accountability.
Scheduling one Judge to an individual’s case could certainly be effective in the adult District Courts.
Adult Judges from the provinces of New Zealand already know the advantages of this because they are
the sole Judge, and it is a very different approach to the main city centres, where Judges are constantly
rotating.
7.
Recognition and Involvement of Offenders’ Family/Whānau
Challenge: to make more effort to recognise and acknowledge the family/whānau in proceedings and to
understand how their support and involvement might be crucial to an offender’s rehabilitation.
The family/whānau of a young offender is included in the youth justice process in several ways. For
example:
They are included in the FGC. The FGC empowers families and communities to take
responsibility for the young person and their offending, and to use their extensive knowledge to
find the best solution for the young offender;
46
Youth Court Judges generally ensure that family members are introduced to the Court. They also
often consult with families in court during the young person’s appearance; and
Youth Court Judges have the ability to engage family in programmes. They can order attendance
at parenting education programmes.103
In the adult court, it is not unknown for defendants to appear in Court with significant support from their
wider family and for that family to be no more than unacknowledged observers. They should always have
an important role, and a vested interest in an offender’s rehabilitation. For all intensive purposes, the
District Court procedure acts as if every defendant is an “island, entire of itself”.
The inclusion of family/whānau in the youth justice process recognises the fundamental role that
family/whānau plays in a young person’s life, and the responsibility that they have for the young person.
It encourages them to actively partake in helping the young person to fulfil their plan. So too, could
family play a similar role in the adult courts.
8.
Integral Involvement of Offender
Challenge: to look for ways, without compromising the lawyer/client relationship, for the Court to
engage directly with the defendant and to encourage a defendant’s participation.
The young person’s involvement is integral to the Youth Court process in several ways. For example,
he/she is encouraged to participate in determining the plan to address offending at the FGC stage; and
the Judge will engage in conversation with him/her in Court.
Youth Court Judges work to ensure that the young person is able to be an integral part of the process.
They are encouraged to use language that is understandable to, and appropriate for, young people.
Making the young person an integral part of the process helps to ensure accountability and buy-in from
the young person. It also helps to ensure that the young person is treated with respect and dignity, and
that international obligations to ensure participation in the court process are complied with.104
103
Children, Young Persons and their Families Act, s 283 (ja).
47
Recent research conducted by the Ministry of Justice into Youth Court users’ perceptions of the Court
shows that there is still a long way to go. Only about half of the young people interviewed for the
research purported to understand what was happening in court.105
However, the adult District Court could consider ways to better involve the offender in decision making.
9.
Emphasis on Collaboration and Teamwork
Challenge: to consider developing a more explicit, collaborative approach (Judge-led) to better address
offending in the area the District Court serves.
Judges in the Youth Court will try to develop amongst all those involved a sense of collaboration and
teamwork, while always recognising the different perspectives and statutory roles of those involved.
Many Youth Courts convene quarterly “stakeholders’ ” meetings to address issues of process and
procedure in the District Court.
As noted throughout this paper, the Youth Court may also have in attendance several other participants
(in addition to standard participants). These include, for example, lay advocates, education officers, social
workers, alcohol and drug clinicians and forensic nurses.
The inclusion of a full team of government and community personnel in the Youth Court acknowledges
that offending does not exist in a vacuum: any offender will have underlying issues that need to be
addressed first in order for any intervention to be successful. It would be very difficult, for example, for a
young person to stop drug and alcohol fuelled offending, if drug and alcohol needs are not addressed.
Likewise, it would be difficult for a young person to engage with many rehabilitative interventions if their
mental health issues are not first addressed. A collaborative team of professionals ensures a holistic,
wraparound service that seeks to address the many potential causes of offending. Such an approach
could benefit the adult District Courts greatly.
United Nations Convention on the Rights of the Child, art 12.2.
Ministry of Justice Youth Court Research: Experiences and Views of Young People, their Families and Professionals Youth
Court User Research (Wellington, Research Team: Justice Sector Strategy, 2011).
<www.justice.govt.nz/publications/global-publications/y/Publication>
104
105
48
10.
Convening Sittings of Court at A Different Venue
Challenge: to consider utilising s 4(4) of the District Courts Act 1947, which is equally applicable to
adults, to hold hearings or other appearances on a marae or another culturally appropriate venue.
Section 4(4) of the District Courts Act 1947 allows a Judge to hold or direct the holding of a particular
sitting of a court at any place they deem convenient. This subsection has been relied upon, where there
is consent, to have the cases of young people held either on a marae (i.e. a Rangatahi Court) or a Pacific
Island Cultural Centre (i.e. a Pasifika Court).
Courts such as the Rangatahi Court have a multitude of positive outcomes, as were outlined at trend 3.
Such an approach would certainly be possible in the adult District Courts, given that s 4(4) applies in all
District Courts. Furthermore, the Court is directed in the Sentencing Act to be mindful of an offender’s
cultural background. For example, section 8(i) requires the sentencing Judge to take into account the
offender’s personal, family, whanau, community, and cultural background when imposing a sentence or
other means of dealing with the offender. The offender can also request the court to hear a
person/people to speak about their personal, family, whānau, community, and cultural background.
D. Conclusion
Though the youth justice system in New Zealand started from small and humble beginnings, it is now
nearly 100 years old. During that time, it has undergone considerable pendulum swings. What was
initially purely a welfare-focussed model is now, arguably in New Zealand and Australia, a justicefocussed model (though there is always a balance to strike between addressing a young person’s welfare
needs, and focussing on the criminality of their actions). It is worth noting, however, the observations of
academic Dr Nessa Lynch, who charted legislative amendments in the New Zealand youth justice system
as compared to the adult justice system, and youth justice systems in similar jurisdictions. Dr Lynch
concluded that the New Zealand youth justice system has remained stable and non-punitive despite a
“volatile and punitive adult criminal justice system”, and the “punitive turn” in the youth justice systems
of comparable jurisdictions. She noted that reforms in 2010 to the Children, Young Persons and their
49
Families Act brought with them significant change and conceptual shifts, but that in her view, the factors
which enabled the youth justice system to remain non-punitive up to now may act to mitigate the
potentially harsh effects of the legislative changes.106
There are some significant challenges that our systems face. However, Youth Courts have always been
pioneering and adaptive courts – and the challenge now is to continue to grow them and push to improve
them. The Youth Courts could be seen as a laboratory for criminal justice as a whole. Some of the best
ideas in the adult Court have come from the youth justice system.
A conference such as this is an excellent chance to analyse trends and challenges in our respective youth
justice systems. A future challenge for youth justice in Australasia will be to retain a principled, evidencebased approach to youth justice, and not to surrender to populism. It will be important to hold fast to
this approach – the way our systems operate will not always be popular – but what is important is that we
achieve the most effective outcomes for young people who appear in the Courts. And we are all
undoubtedly up to the challenge of doing this.
Dr Nessa Lynch “Playing Catch Up? Recent Reforms of New Zealand’s Youth Justice System” (2012) 13
Criminology and Criminal Justice, p 507.
106
50