YOUTH JUSTICE – THE
“Past Lessons and Future
Challenges”
(See the Youth Court website for more information:
http://www.courts.govt.nz/youth/)
i. to ensure that children and young persons who offend are held accountable for their offending; and
ii. to deal with them in ways that eliminate re-offending and help them develop into “good citizens.”
Is the New Zealand System a Restorative Justice Approach?
The New Zealand system, especially the FGC, has been practised as a restorative justice system, though this was not necessary to conform to the provisions of the Act. Restorative justice is nowhere mentioned in the Act, yet a restorative justice approach is entirely consistent with its objects and principles.
The answer to the question then: No, not necessarily in theory; but yes, in practice. See the discussion at heading 5, following, for further detail.
The Youth Court is a division of the District Court. 48 of the current 120 District Court Judges are designated as Youth Court Judges. Given the significant diversion rates (see heading 6, following), none need to sit full time in the Youth Court.
Youth Court jurisdiction is established primarily by reference to age (14, 15 and 16 year olds falling within the jurisdiction of the Court), but also in respect of the type of charge; some charges are excluded from Youth Court jurisdiction, either absolutely or conditionally.
The age of criminal liability in New Zealand is 10[13].
A “child” is defined as someone aged under 14. A “young person” is defined as someone aged 14 or over, but under 17 (and does not include any person who is married)[14].
Whether a person is a child, young person or adult for the purposes of the New Zealand Youth Justice system is determined by their age at the time of offending.
In addition to the overall objectives of the Act, a series of general principles[22] emphasise the need to:
“According
to retributive justice, (1) crime
violates the state and its laws; (2) justice focuses on establishing guilt; (3) so that doses of pain can be measured
out; (4) justice is sought through a
conflict between adversaries; (5) in
which offender is pitted against state;
(6) rules and intentions outweigh outcomes. One side wins and the other loses.”
“According
to restorative justice, (1) crime
violates people and relationships; (2)
justice aims to identify needs and obligations
(3) so that things can be made right;
(4) justice encourages dialogue and mutual agreement, (5) gives victims and offenders central
roles, and (6) is judged by the extent to which responsibilities are assumed,
needs are met, and healing (of individuals and relationships) is encouraged.”
Some senior Youth Justice practitioners have observed that the New Zealand legislation does not explicitly require a restorative justice approach to be taken in order for it to be properly implemented and adhered to. Indeed, as His Honour Judge FWM McElrea, has noted:
“…it is
essentially the practice of youth justice, as experienced by practitioners,
that is restorative, rather than the legislation underlying that practice. (Sections 4-6 and s208 spell out certain
objectives of the Act and principles to be applied in youth justice. These are partly restorative, but mostly
reflect a narrower emphasis namely the strengthening of the relationships
between a young person and his family, whanau, hapu, iwi, and family group, and
enabling such group whenever possible to resolve youth offending – see the
short and long titles of the Act and ss408 and 208(c)).”[25]
Judge McElrea went on, however, to say that the partly restorative aspects of the Act should not be downplayed.
Judge McElrea
has elsewhere analysed in detail the extent to which the New Zealand system of
Youth Justice represents a new model of justice[26]. His analysis may be summarised as follows:
Features of the New Zealand System Found in Other Systems of Justice
1. The New Zealand model retains the adversary system for the determination of liability.
2. It retains the option of sentencing by the Court, as occurs in a few cases.
3. It has important diversion objectives and clear parallels with other diversion systems.
4. The involvement of the victim is also nothing new, even in Western legal systems. Victim offender mediation schemes are common in Canada, the USA, and the United Kingdom. A number of ancient societies applied principles of reconciliation, reparation and community involvement – Hebrew, Mäori and North American Indian to mention three. The centralisation of power under the modern nation state has largely undermined those principles.
5. The Youth Court model allows considerable flexibility for different attitudes about justice to be applied. Elements of deterrence, retribution and reform can feature in any FGC plan.
Features of the New
Zealand System Not Found in Other Systems of Justice
A. No other system of justice replicates the FGC as it operates in New Zealand. A unique combination of participants is the key to the new regime.
B. In contrast to the New Zealand regime, most overseas mediation schemes involve the voluntary participation of both victim and offender.
C. The Youth Court legislation in New Zealand applies across the board – to all young persons, in all parts of the country.
D. The New Zealand system represents the first time a Western nation has enacted a legislative system of, essentially, restorative justice.
6.1 Options
when Alleged Offending Detected
When the Police detect a young person in alleged offending, they have three options:
6.2 Formal
Warning
Police deal with 44% of cases of youth offending by issuing a formal warning, then releasing the young person. This is in keeping with the principle that young offenders should be diverted from the formal justice system wherever possible. It also reflects that nature of much youth offending (i.e. relatively minor).
6.3 Alternative
Action/Diversion
If a warning is insufficient or inappropriate, then, given the statutory injunction in s208(a) of the Act not to issue criminal proceedings if there are alternative means of dealing with the matter and unless the public interest otherwise requires, the Police must consider a diversionary programme for the young person. About 32% of all offences are dealt with by alternative action. Diversion/alternative action is usually locally based, often involves members of the community, and is overseen by the Police Youth Aid division.
The limits of what may be used as a form of alternative action are the limits of the imaginations of those involved. The best Police Youth Aid workers spend considerable time and effort tailoring solutions that satisfy victims, prevent re-offending and re-integrate young people into their communities. Examples of the sort of measures taken might include:
· agree to write a letter of apology/“life statement” to the victim (to be approved by Police before it is sent);
· make a reparation payment towards the repair of the victim’s car; and
· take a defensive driving course (from which the young offender learns the value of working towards and achieving a goal).
· listen to the victim’s account of how the offence affected him or her (where victims are willing to participate in this way, confronting a young person with the personal effects of his or her actions can have a profound and lasting impact, and often leads to acceptance of responsibility and remorse, which are the first steps towards a future without further offending);
· return any stolen property still in his or her possession, or help the Police to recover it;
· attend a programme for alcohol addiction (if this was a relevant factor); and
· produce a school project on how alcohol affects the body and the judgement.
6.4 Arrest
About 12% of all youth offending is dealt with by arrest. Unlike the situation with adult offenders, there are significant restrictions on the right of the Police to arrest a young person, when there is good cause to suspect that he or she has committed an offence. Under s214 of the Act, a young person can only be arrested:
However, where:
there is no such restriction, the Police officer may make the arrest (provided he or she has good cause to suspect the young person of offending).
There are also significant limitations upon the Police questioning of young people.
Upon arrest, the Police may:
If the young person is released without charge, as a matter of best practice, a charge should not be laid days, weeks or months later until a pre-charge Family Group Conference has taken place.
6.5 “Pre-charge”
Family Group Conference
If the Police wish to charge a young person who has not been arrested, a “pre-charge” Family Group Conference (or ‘FGC’) must be convened to consider the matter. About 8% of all offending is dealt with in this way. Usually such an FGC will recommend a voluntary plan for the young person to undertake. If it is satisfactorily completed this will usually be the end of the matter. Alternatively, the FGC may recommend that a charge be laid or, if the FGC plan is not completed, then a charge may be laid in the Youth Court.
6.6 Police
Voluntary Pre-charge FGC Where Young Person Arrested and Released
It is standard practice for the Police to voluntarily submit to a pre-charge FGC in a situation where a young person has been arrested, released and some days or weeks later the police wish to charge the young person with an offence. Technically, as there has been an arrest, there is no statutory obligation to do this, but it is permissible and is encouraged by Youth Court Judges.
6.7 Charge
Laid in Youth Court
About 16% of all offending results in charges laid directly in the Youth Court, either as a result of an arrest, or following a pre-charge FGC.
When a charge is laid in the Youth Court, the young person is required to indicate whether the charge is “denied” or “not denied”.
If the charge is one where the maximum penalty exceeds 3 months imprisonment, as with adults, young people may elect jury trial[27]. If jury trial is elected, the charge is dealt with as for a purely indictable (jury only) offence (see below).
6.8 Denied
Charges: Defended Hearing as for Adults
If a charge is denied, the matter is the subject of a defended hearing, conducted in the normal adversarial manner as for adults, under the provisions of the Summary Proceedings Act 1957. If the charge is dismissed the young person is free to go. If it is proved in the Youth Court, then an FGC must be convened to consider sentencing options. The Youth Court will impose one of the orders set out in s283 of the Act (see heading 8, following, Formal Orders) or, in some cases may grant an absolute discharge under s282, whereby the Information is deemed never to have been laid.
6.9 Not
Denied: Court Ordered-FGC
If the charge is “not denied” then an FGC must be convened. Around 98% of charges are “not denied”.
If the charge is “admitted” at the FGC, then the conference will usually formulate a plan for the young person to undertake. The plan should address both the “deed” and the “need”. That is, the young person should be held accountable for the offending but a comprehensive, rehabilitative plan should be formulated to prevent further offending and to allow the young person to develop in a socially beneficial way without further offending.
The plan will then be presented to the Youth Court, which in about 95% of the cases is accepted, and the case is adjourned for the plan to be completed.
If the plan is satisfactorily completed then the young person is often absolutely discharged under s282 of the Act.
Sometimes the FGC may recommend formal orders being made under s283 of the Act, or on occasions, such formal orders are necessary because of the young person’s failure or inability to complete an agreed FGC plan.
A Court-ordered FGC may recommend, in addition to any other recommendations, that a formal Police caution be given to the young person.
6.10 Family
Group Conferences
Family Group Conferences are the lynchpin of the New Zealand Youth Justice process. As above, they must occur before Police may lay charges (around 35% of FGCs are held for this purpose) and the Court must order one in every case where charges are “not denied” (the most common type of FGC, around 55% are held for this purpose). In addition, FGCs must also be convened when:
See heading 7, following, Family Group Conferences, for further detail.
6.11 Purely
Indictable Procedure, or where Jury Trial Elected
Purely indictable charges are not within the jurisdiction of the Youth Court other than for the holding of depositions/a preliminary hearing.
Youth Court jurisdiction may be offered by the Youth Court at any stage prior to or during depositions if a young person indicates a desire to plead guilty[28], or at the conclusion of depositions if the Youth Court Judge considers there is sufficient evidence to put the young person on trial[29].
If the young person elects Youth Court jurisdiction, then the charge remains in the Youth Court and is dealt with entirely according to Youth Court procedure. Like any other charge in Youth Court, the most serious sentencing option available to Youth Court, following the charge being “proved”, is for a conviction to be entered and the matter to be transferred to the District Court for sentence. In that case, the maximum sentence is five years imprisonment.
6.12 Care
and Protection Issues
If the charges against a young person, properly laid in accordance with Youth Justice principles, indicate that the young person may be in need of care and protection (as defined in s14 of the Act), the matter may be referred to a Care and Protection Co-ordinator (social worker) and the proceedings adjourned until the matter can be resolved by use of the care and protection provisions of the Act. In this case the matter may be discharged under s282 of the Act.
6.13
Miscellaneous
The Media
The Youth Court is closed to the public, but the media may attend as of right[30]. There is automatic name suppression, and reporters must have permission from the Youth Court Judge before they may publish any record of the proceedings. There are exceptions for professional and research reports[31]. Generally, Youth Court Judges encourage media attendance at hearings and invariably give leave to report, except where (rarely) fair trial or personal safety issues outweigh the public interest in reporting.
Youth Advocates
Every young person is entitled to legal representation by a Youth Advocate (a Court-appointed lawyer paid for by the state[32]). Young people have the right to retain a lawyer of their choosing, rather than being assigned a Youth Advocate, but, in almost all cases in practice, Youth Advocates are used (see heading 11, no. 10 for further detail).
6.14
Youth Court Process Flow-charts
On the following pages are two flow-charts depicting the processes of the New Zealand Youth Court in general, and purely indictable, matters.
7.
Family Group
Conferences
The Family Group Conference (or ‘FGC’) is the lynch-pin of the New Zealand Youth Justice system. It is the practical mechanism by which effect is given to the principles that:
The ultimate aim in any case is to reach a group-consensus and ‘just’ outcome (i.e. an outcome which both holds a young offender accountable and aims to reduce re-offending).
7.1 Types of FGC and decisions that may be made at each
There are 6 types of FGC. For each, a different set of considerations need to be addressed and different decisions made. The sort of decisions to be made at an FGC will depend on its purpose. The functions of the various FGCs are proscribed by statute[33]. In addition, the Court may direct an FGC to turn its mind to certain issues (for example, whether or not the Court should offer jurisdiction to a young person in an FGC ordered by the Court).
1. Child offender care and protection conference
If the Police believe, after inquiry, that an alleged child offender is in need of care and protection, he or she must report this to a Youth Justice Co-ordinator (or ‘YJC’). YJCs are employees of the New Zealand Government’s Children Young Persons and Their Families Service (or ‘CYFS’) and are often qualified Social Workers.
The YJC and Police must consult, after which, if the Police believe an application for a declaration of care and protection is necessary in the public interest, an FGC must be held[34] to address the child’s offending.
At a care and protection FGC, the group must determine whether the offence is admitted, and, if so, what steps should be taken, including whether a declaration that the child is in need of care or protection should be filed in the Family Court[35].
2. Intention to charge FGC
We have already discussed this type of FGC, which is required whenever a young person is alleged to have committed an offence and has not been arrested (or has been earlier arrested and released) and the Police intend to lay charges. The Police must first consult a YJC. If, after consultation, the Police still wish to charge the young person, an FGC must be convened[36].
This is the second most common type of FGC, and accounts for between one third and one half of all FGCs annually.
At an intention to charge FGC, the group must determine whether the charge is admitted and, if so, decide what should be done. This may include completion of an agreed plan, which if successful will be the end of the matter, or a decision that a charge should be laid in Court[37].
3. “Custody conference” FGC
Where a young person denies a charge, but, pending its resolution, the Youth Court orders the young person to be placed in CYFS or Police custody, an FGC must be convened[38].
At a custody FGC, the group must decide whether detention in a CYFS secure residence should continue and where the young person should be placed pending resolution of the case[39].
4. Court directed FGC: “not denied”
Where a (non-purely indictable) charge is “not denied” in the Youth Court, the Court must direct that a FGC be held[40]. “Not denied” is a somewhat odd, but very useful, mechanism. It triggers an FGC without the need for an absolute admission of culpability. It may indicate the young person’s acceptance that he or she is guilty of something, although not necessarily the charge as laid. Invariably, in such cases, the details can be resolved at FGC.
This is the most common type of FGC and accounts for at least half of all FGCs.
At a Court ordered FGC, the group must determine whether the young person admits the offence, and, if so, what action and/or penalties should result[41].
5. FGC as to “orders” to be made by Youth Court
Where 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 an FGC must be held[42].
At a penalty FGC, the group must decide what action and/or penalties should result from a finding that a charge is proved[43].
6. FGC at Youth Court discretion
A Youth Court may direct that an FGC be convened at any stage in the proceedings if it appears necessary or desirable to do so[44].
An example of where this might happen would be where a young person indicates a desire to plead guilty to a purely indictable charge and there is a possibility that Youth Court jurisdiction will be offered. An FGC would then be ordered to consider whether such an offer should be made. If the FGC recommends that jurisdiction should be offered, it will usually recommend how the Youth Court should dispose of the matter.
When the Youth Court exercises its discretion to order an FGC, it may also make directions as to the decisions to be made there.
In the case of an FGC to consider purely indictable charges, the group will be asked to decide whether Youth Court jurisdiction should be offered, and if so, whether the offence has been committed and what should be the result.
7.2 Who
May Attend and Participate in an FGC?
Persons entitled to attend an FGC are:
Attendance is a right, not an obligation. Any of these people may choose not to attend. The YJC has an implied obligation to be there in order to facilitate the conference.
A young person does not have to attend an FGC, but it is rare for one to proceed without a young person present. A fundamental element of most FGCs is the young person’s admission to the offence. Without this, it is not possible to formulate a meaningful plan.
7.3 General
Procedure at FGC
The participants regulate the procedure at any FGC[45]. There is, therefore, considerable variation in practice at FGCs. However, the process generally involves:
The young person's family (and their supporters) may deliberate in private during an FGC and may ask for the meeting to be adjourned to enable discussion to continue elsewhere.
Professionals play a low-key role. The YJC is a specialist facilitator, managing the process at the FGC. The Police usually describe the offence (and the impact of it on the victim if he or she does not attend) and will intervene if any subsequent proposal seems inadequate or excessive. A Youth Advocate, if present, advises on legal issues and protects the young person's rights; they are often involved in suggesting aspects of an FGC plan, and will certainly also express an opinion about any proposals that seem inappropriate or excessive. A Social Worker, if present by consent, will usually only provide background information on the young person and participate in supporting the plans of the family and the young person for the future.
7.4 FGC
Plan
FGCs are empowered by the Act to make decisions, recommendations and plans as to how a young person should be dealt with[46]. Successful FGCs (where agreement is reached) usually produce a plan of action. An FGC plan may include recommendations that:
FGC plans must reflect the principles laid down in the Act[48]. Beyond that, the FGC is free to do what it wants in a plan. Creativity is to be encouraged.
7.5 No
Agreement
If participants at an FGC cannot agree on a way of dealing with a young offender, the fact of non-agreement is reported back to the Youth Court by the YJC and the Court may either deal with the young person in whatever way it deems appropriate or may order the FGC to be reconvened to consider a suggested course of action.
If there is agreement on some, but not all, issues, the Youth Court may be asked (if the parties all agree to this) to approve the agreed matters and resolve the outstanding issues itself.
7.6 Bottom
Lines
7.7 After
an FGC
The Youth Court must consider every FGC plan presented to it[49]. It may then adopt a plan, but it is not bound to do so. It may require an FGC to reconvene to modify a plan, or it may make orders of its own.
Where an FGC reaches agreement, the FGC plan will almost always be accepted, unless it is clearly impracticable or clearly inconsistent with the principles of the CYPF Act, or so extreme or so lenient as to lack general parity with outcomes in respect of similar offences.
In some cases, an FGC plan may go beyond the matters that should be dealt with in an FGC (according to the CYPF Act) and the Youth Court will, consequently, make decisions as to what it will accept and endorse.
An FGC plan is binding when agreed to by all participants and, when relevant, by the Court.
The Youth Court may accept an FGC plan but exercise its residual discretion to impose additional orders. It may, for example, impose a fine or direct community work[50].
If an FGC plan is successfully completed, the Youth Court is able to order a discharge either:
8. Formal Orders Available to the New Zealand Youth Court
The Youth Court is empowered to deal with young offenders in a number of ways.
It may, where appropriate, discharge the information as if it had never been laid[51] – i.e. grant an absolute discharge. The Court may, at the same time, impose formal orders such as payment of reparation or a fine (s282), which are expunged from the young person’s record upon completion.
8.2 Orders
Under Section 283
Alternatively, the Court may impose a formal order under s283. The formal orders available to a Youth Court are[52]:
The following are two newspaper headlines that are
typical of front page news stories:
“There are a number of children
running about the streets of Dunedin without the control of parents. If the government does not take them in hand
they will become members of the criminal class.
Youth offending is out of control.”
And the second headline:
“There is a definite relationship
between the increase in the number of children on the streets and the increase
in juvenile crime.”
The first statement is from the Otago Daily Times,
1884. The second statement was made in
1886[53]. The point is that every generation compares
“today’s” young people with a supposed previous golden age. The past is idealised: “no one has had it as
tough as we have it” is the familiar catch cry of those involved in Youth
Justice. In fact, every generation tends
to have its particular difficulties and challenges posed by young offenders.
In the debate within New Zealand about youth offending, there has been inadvertent reliance placed on selected statistics that can give a very misleading picture. This picture may then be painted for the public by the media in shocking news headlines that lead to calls for fundamental change, increased penalties, lowered age of criminal responsibility and assumptions that “the system is failing”.
It is vital, then, that the real position, as best we know it, is made clear so that sensible and informed discussion can take place.
Despite a lack of a centralised system of collection and analysis of statistics about youth offending in New Zealand (one of the weaknesses of our system; see heading 12, following), the following can be said about “the real position”.
9.2 Offending Attributed to Under 17 Year
Olds Has Increased Over the Last 12 Years, But Much Less So Over the Last 5
Years
Generally, during the last 5 years there have been relatively small increases in offending by under 17 year olds, and the trends have been relatively stable.
Police apprehensions of children and young people aged between 10 and 16 increased by no more than 4.8% between 1996 and 2001 (a period when the total population in that age group rose more than 8%)[58].
9.3 Offending By Under 17 Year Olds Has
Remained a Relatively Static Proportion of Total Offending Over the Last 10-12
Years
Under 17 year olds account for about 22% of total offending.
This figure has not significantly changed over the last decade. In other words, while offending by under 17 year olds has increased, it has not increased at any greater rate than adult offending[59].
In fact, offending by under 17 year olds in the 2000/01 year was a slightly lower percentage of overall crime than in the 1999/2000 year[60].
Debate about increasing youth crime should take place in the context of all crime increasing.
9.4 Only a Small Percentage of Offending by
Under 17 Year Olds is "Serious" Offending
9.5 Is Violent Offending by Under 17 Year
Olds Increasing?
Yes, and no. Violent offending attributed to 14–16 year olds has increased since 1991 but only slightly since 1995.
Apprehensions by the Police of 14–16 year olds for violent offences increased from 104 per 10,000 of the population in 1991 to 196 in 1995, and has increased only slightly since then to 210 in 2001[62].
The number of serious offences for 14–16 year olds has remained reasonably static over the last 5 years. For instance, there were 354 robberies by 14–16 year olds in 1995 and 310 in 2000[63].
Violent offending attributed to 10–13 year olds peaked in 1997, but has decreased slightly since then. Apprehensions for 10–13 year olds for violent offending increased from 17 per 10,000 of the population to a peak of 47 in 1997. They were reduced to 45 in 2000. Robberies increased from 66 in 1994 to 77 in 2000[64].
It should be noted that over the last decade, the total number of violent offences recorded by the Police in New Zealand has increased. For instance, the rate per 10,000 of violent offences committed by 31–50 year olds increased more than for 14–16 year olds.
It may be that society is becoming less tolerant of violence and that there are more complaints made. Whatever the reason for the increase, an important question is “why is our society as a whole (not just young people) apparently becoming more violent?”
Also the increase in violent offending does not represent any significant change in the percentage of young people involved in violence, which has fluctuated from 11 to 13% of all offences recorded by the Police.
Moreover, in the Police diversion study, mentioned at heading 6, prior, 56% of the violent offences were not rated by the Police as of medium or greater seriousness.
However, front line Police officers and social workers believe that the relatively stable figures mask the significant trend that the violence is becoming more profound and serious.
9.6 Is The Age at Which Under 17 Year Olds
Start to Commit Violent Offences Decreasing?
The Police certainly believe this to be the case.
The Police are also of the view that the type of violence is becoming more serious. This is the perception of many in the community.
However, there are simply not the figures to prove or disprove this. The lack of statistics upon which informed debate can take place is concerning.
What is clear is that over the last 10 years the proportion of young offenders in each of three different age groups under 17 has remained approximately the same:
Also, the percentage of total offences which are violent, by age group, has remained stable over the last 7 years:
9.7 Nearly 80% of Youth Offences are Dealt
with by the Police by "Alternative Action" Through a Diversionary
Approach, and do not Result in a Youth Court Appearance
9.8 The Number of Family Group Conferences
for Youth Offenders has Remained Much the Same Over the Last Decade: About
6,000 per annum
9.9 Charges Processed in the Youth Court Have
Increased Over the Last 10 Years, but Have Remained Stable in the Last 5 years
and Dropped Last Year
Recent media claims, therefore, that the workload of the Youth Court has tripled[69] are without foundation and wrong.
It should be remembered that only the most serious youth offending comes to the Youth Court. And only the most serious of those serious offences are transferred for sentence in the adult Courts. In the last ten years, though there have been fluctuations, there has been no overall change in the figure for transfers from Youth Court to the adult Courts for sentencing (254 young offenders were convicted in the District or High Court in 1991 and 253 were convicted in 2000[70]).
9.10 Numbers of Young Persons in the Youth Court
Have Dropped in the Last 2 years Even Though the Population has Increased
9.11 There are Huge Regional Variations in Youth
Offending Throughout New Zealand
Far from youth offending increasing, in some areas it has significantly reduced.
This is usually due to good local practice and co-operation between government agencies and the community, and particularly because of pro-active and creative policing by the Police Youth Aid section.
9.12 Recent
Police Statistics Relied Upon by the Media can be Misleading
Police Statistics are based on "apprehensions" and are not offender based
"Apprehensions" are not necessarily a reliable statistical indicator of Youth offending:
The number of apprehensions is heavily influenced by:
An increase in apprehensions does not necessarily mean that offending has increased. Police figures can be heavily influenced by Police policy and the targeting of certain types of offence.
Police Statistics, may include non-imprisonable traffic offences which do not come within the Youth Court jurisdiction
In using Police statistics, care should be exercised that any increase in "apprehensions" is not attributable to the increase in non-imprisonable traffic offences (such as careless driving; driving without a seat belt) that are not within the jurisdiction of the Youth Court.
9.13 Conclusion
Offending by young people should always be taken seriously and should concern any community. Many, but by no means all, young offenders are tomorrow's adult criminals.
A young person who offends should be held accountable, must make amends to the victim wherever possible, and be dealt with so that the risk of re-offending is reduced as far as is possible.
However, important and necessary recent public discussion about youth offending has been based on some misleading and incomplete statistics. It is important that the real position, as best we know it, is made clear so that sensible discussion can take place.
It has been rightly said that each generation unfavourably compares the young people of today with previous golden ages. However an analysis of the available statistics shows that the popular belief that youth offending is rapidly increasing and out of control is not actually accurate, and does not accord with the experience of those working with young people.
In short, while there have been very significant increases in youth offending since 1990, there has been relative stability in the last 5 years. The latest police apprehension statistics for the calendar year to 31 December 2001 show a drop in police apprehensions for 10-16 year olds from 43,732 to 41,916. The number of charges processed in the Youth Court has also dropped from 14,253 to 14,060. Similarly, the 2001 figure for the number of young offenders convicted in the District or High Court is 234, as compared to the 2000 figure of 253.
In general, there is room for cautious optimism as to the levels and trends of youth offending in New Zealand. The only reservation relates to a small number of “serious offenders” (discussed in heading 12, following), about 5% -10% of all youth offenders, who remain a real challenge for the system.
10 Lessons From the New Zealand
Experience: Looking Back and Looking Forward to a Road Map for the Future
In the New Zealand system, offending by children (10,11,12 and 13 year olds) is seen as a “care and protection” issue involving a whole family. Other than for murder or manslaughter, under 14 year olds are not regarded as “mature” or “grown-up” enough to take full responsibility for their offending. Child-offending is dealt with in the Family Court, although the offences must still be proved to the criminal standard, and the Court must be “satisfied that the child knew either that the act or omission constituting the offence was wrong or that it was contrary to law.”[72]
Upon a finding that the number, nature or magnitude of offence(s) committed by a child are such as to give serious concern for the child’s wellbeing, a declaration can be made that the child is in need of care and protection.
The Family Court has greater powers available to it in dealing with child offenders than the Youth Court does in dealing with youth offending. These include counselling and support orders made against the parents/guardians of the child. Such measures may be agreed to at an FGC, without the need for a formal Family Court hearing.
“The central
duties of the Police are the prevention, detection and control of criminal
behaviour. The normal outcome of successful Police action is a prosecution. To
ask the Police to act as the main agency for keeping young people out of court
creates a conflict in the various roles to be played by an individual Police
Officer and may lead to conflict with his/her colleagues.”[73]
The limitation of the Police power to arrest a child or young person without warrant is significant. Arrest is only justified to ensure appearance at Court, to prevent further offending, or to prevent witness inference/evidence tampering. Arrest occurs only in about 12% of all cases of youth offending. The restrictions on arrest encourage consideration of diversion.
Further, there are strict provisions controlling Police questioning and interviewing of children and young persons, including that an independent representative or nominated person must be present at any interview, to support the young offender.
5.
Prohibition
on charging in non-arrest cases unless there has been “pre-charge” FGC
The restriction of the Police power to lay charges where there has been no arrest (or arrest and release with no charge laid soon after), unless there has first been a FGC, has acted as a real restraint on bringing young people to the Youth Court.
Pre-charge FGCs are convened after consultation between the Police and the YJC. They usually result in a plan or programme of action for a young person, and if the young person successfully completes this plan or programme, the result is that no charges are laid; the matter never comes to Youth Court. Pre-charge FGCs are, in effect, a diversionary mechanism. About 8% of all offending is dealt with in this way.
(For further discussion of pre-charge FGCs, and how the fit into the youth justice process, see headings 6 and 7, prior).
6.
The “not denied” response as
a trigger for a FGC
All charges which are “not denied” must proceed to an FGC. “Not denied” is an odd but very useful response. It unlocks the door for a Court directed FGC, without the need for a formal admission of guilt. It is possible, using this “plea”, for a young person to acknowledge culpability without 100% accepting the Police version of events. The FGC participants can discuss the matter in full, making any amendment to the charge or Summary of Facts as may be required.
7.
The Family Group Conference
as the “jewel in the crown” of the NZ system
The FGC is the “lynchpin”of the New Zealand system. It allows for a quite radical transfer of State power to the family, victim and wider community, subject, of course, to the Youth Court’s power to approve and monitor decisions and recommendations that are made.
As observed by Michael Doolan, former Chief Social Worker for the New Zealand Government’s Child Youth and Family Services:
“The Family Group
Conference applies to all offenders between the ages of 10 and 17 whom the
Police believe require a more definitive response than is permitted to them
under the law. It is the only forum available for the management of a child
offender (other than one charged with murder or manslaughter) and is the
primary forum for dealing with young persons who offend. It brings together the child or young person
who offends and their immediate family, members of the extended family and
significant others [and the victim and supporters of the victim] to work with
professionals to devise a plan for the management of the young person. Its aims
are to keep young people within the context of their family and to give their
wider family systems the power, the opportunity and the resources necessary to
reassume their control of and influence on the young people.”[75]
In particular the FGC allows:
The Youth Court and Police nearly always accept plans made at FGCs, and upon successful completion a s282 “absolute discharges” can be ordered.
8.
Purely indictable cases may
be dealt within the Youth Court jurisdiction
Rather than all serious cases immediately being directed into the adult justice system, under the New Zealand legislation, very serious or “purely indictable” offending by young people is addressed by first filing charges in the Youth Court and holding the preliminary hearing of the matter there. There is an opportunity prior to such hearings, on an indication of a desire to plead guilty, or at the end of such hearings, where there is sufficient evidence to take the matter to trial, for Youth Court jurisdiction to be offered to young offenders[78]. Such an offer, if accepted, opens up the standard Youth Court procedure, including the FGC and the possibility of resolving the matter with input from the offender, victim and family members. It is possible, by going down the Youth Court route, that a young offender who would almost certainly be facing a lengthy period of time in prison if dealt with in an adult “tariff” Court for this sort of offending, may be able to turn his or her life around. If Youth Court jurisdiction is offered, it is still possible for a young person to be convicted and sentenced to up to 5 years in prison in the adult Courts, if all other options in the Youth Court fail. It is not a soft option, but a “last chance” for youngsters who may be able to step back from the brink of a ruined life.
It should be noted however that the provisions governing “purely indictable” offences are needlessly complex. See the comments at the end of heading 11, following
9.
Restriction on imprisonment
and “de-institutionalisation” of young people
It is not lawful in New Zealand to impose a sentence of imprisonment in respect of an offence committed when a person is under 17 years of age, unless the offending in question was purely indictable[79]. This restriction reinforces the principle that young people should be kept in the community (and out of the criminal justice system) as far as possible; as do the general principles governing the youth justice provisions of the Children, Young Persons and Their Families Act which emphasises that young offenders should be kept in the community so far as that is practicable and consonant with public safety (s208(d)), and that sanctions should take the least restrictive form that is appropriate in the circumstances (s208(f)(ii)).
Since the inception of the current system of Youth Justice in New Zealand, there has been a marked decline in incarceration of young people.
De-carceration: number of cases receiving custodial
sentences: 1987-2001[80]
In addition, there has been a huge reduction in the number of children and young persons in State institutions since the passage of the new legislation. The Department of Child Youth and Family Services maintains about 75 beds today for Youth Justice purposes, compared to the more than 1000 beds available in the 1980’s. In the last 6 years or so, the pendulum has arguable swung too far, and more beds are required for Youth Justice (see following, heading 12, where this “weakness” of the system is discussed in more detail).
10. Designation of Youth Advocates to
represent all young people
Every young person is entitled to legal representation by a Youth Advocate (a Court-appointed lawyer paid for by the state irrespective of means[81]). Young people have the right to retain a lawyer of their choosing, rather than being assigned a Youth Advocate, but, in almost all cases, Youth Advocates are used.
Youth Advocates are appointed if “by reason of personality, cultural background, training, and experience” they are “suitably qualified” to represent children or young people in Youth Court[82].
A Protocol has been developed for appointing Youth Advocates, and this has resulted in a small group of highly specialist lawyers committed to the ethos and principles of the Act. It has made the administration of the Act and Youth Court proceedings much more efficient and effective – there is less debate of technical issues, and a greater commitment to getting to the heart of the matter and assisting young people to succeed within the system.
11.1 Conclusion
Youth crime has not increased as a proportion of total resolved offending since the passage of the Act. It has remained a very stable 22% of all offending since 1989, despite decreased resort to Court proceedings and a significant reduction in youth imprisonment rates.
There is no centralised collection of statistics and trends about youth offending in New Zealand. What we do know comes from a comparison of figures from Police, Child Youth and Family, Department for Courts, and the Ministry of Justice. Even then, the statistics are sometimes not comparable.
There is an urgent need for a more co-ordinated and "scientific" approach to the collection of statistics about youth offending, and for one agency to take a clear leadership role in this respect. The Children, Young Persons and Their Families Act came into force in late 1989 and most of the statistics date from soon after the commencement of that Act.
The Crime and Justice Research Centre (Victoria University, Wellington), and the Ministry of Justice have been responsible for most of the recent analysis, but they have been hampered by unsatisfactory data collection.
Child Youth and Family Services (CYFS), which has the responsibility to deliver the Youth Justice provisions of the Act, has faced chronic and profound systemic problems, including:
Poor Attendance at FGCs
Poorly Prepared, Resourced and Monitored FGC Plans
“…concerns arose
during the 1990’s that the [New Zealand system] was proving largely impervious
to a small but significant group of young people, who were responsible for an
amount of offending out of all proportion to their number. There was concern
that public confidence in the law was at risk unless determined efforts were
made to address what was seen as a significant problem in the system. In addition, it was thought that there should
have been stronger evidence of a reduction in those young people who continue
to offend into young adulthood than was apparent at the time.
Policy debate
centred about whether there was a need for a differentiated response. The principle
that welfare services should not be delivered through the criminal justice
system (in other words, young people should not be locked up “for their own
good”) seemed to have resulted in a denial of social services to those who
needed them or a failure to identify the need for social services because of the
effectiveness of the police diversion activity. Diversion from the criminal
justice system may have become for many diversion from services.”
Doolan drew attention to the need to differentiate between “adolescent specific” offenders, often called “desisters”, and early onset offenders, also described in the literature as “life course offenders” or “persisters”.
In relation to “adolescent specific” offenders he noted:
“Most young people who offend can be regarded as adolescent specific offenders. They are young people whose lives are not markedly disordered but who through factors such as poor parenting, low socio-economic status or attraction to deviant peer models, or even none of these, embark on a period of offending in their early and middle teenage years, some of which can reach serious proportions. Such young people are best managed through an approach that emphasises accountability for their offending, being made to address the impact of their offending and ensure appropriate reparation to their victims. As they are not seriously disordered, and do experience the range of emotions from which remorse and a willingness to put things right spring, they seem to be good candidates for a restorative justice approach. Adolescent specific offenders age out of lives of crime as they grow up, leave school, find work and form new peer relationships, particularly a sustained partner relationship. It is important that the management of this group is low-key and measured and does not involve responses that may confirm the young person in an adult offending career. The regime should be focussed on shutting down the offending cycle at the earliest possible time, but should also include increasing personal cost for increased offending.”
By contrast he noted that “early onset” offenders:
“… [are] a much
smaller group, but may account for the majority of the crime committed by young
people. These young people are characterised by major personal, social and
family disorder. They typically lack developed feelings of guilt or regard for
others and are quite egocentric and seekers of immediate gratification. While
they should be held accountable for their offending, and their victims have a
right to restitution and reparation, these processes are likely to have limited impact on the thinking and behaviour
of these young people. A much more sophisticated policy and practice
response is required.” (emphasis added)
In New Zealand it is estimated that between 5-15% of young offenders account for 50-65% of all youth offending. In the writer’s experience, 85% are male and they present with a constellation of problems including family dysfunction, lack of a positive male role model, a failure to engage with the education system, chronic drug and/or alcohol addictions, psychiatric or psychological issues, with a disproportionate Mäori representation (50%, compared to 16% of the population).
Objective confirmation of this profile has been provided by recent statistics from the Auckland Youth Forensic Service. All of the young people described below have offended and have an identifiable psychological or psychiatric problem. In addition:
Neither is this just a New Zealand problem. Serious young offenders challenge most countries. See, for instance, the recent figures for England and Wales. In an analysis of 4000 young offenders, in 2000/2001:
The following comments by Doolan, justify re-publication in full in this paper.
“These young people can be identified and policies and services developed directly to meet their needs. The Children’s Research Centre of the American Council for Crime and Delinquency (ACCD 1995) distilled the following descriptors as predictive of the onset of life course persistent offending.
· Offending or non-compliant behaviour starts at an early age.
· There is evidence of a number of incidents over time.
· There is evidence that the young person has hurt a victim.
· There has been separation from parents for a significant time.
· Substance abuse.
· Truancy, school failure or school exclusion.
· Association with peers showing similar patterns of behaviour.
· Family criminality, violence or substance abuse.
These are seen to be universal variables and are usually accompanied by all or some of the following:
· Hard to manage behaviour while under supervision or in public care.
· A history of running away from home or care.
· Abuse victimisation.
· The absence of protective influences.
· Mental Health issues.
Taken together (DSW 1997) these variables can be organised into four domains as a focus for policy and programme development. These are:
1. The nature of the young person’s family.
2. Peer influences on the young person.
3. The nature and frequency of offending or serious non-compliance.
4. School performance.”[89]
There are a number of policy implications arising from the awareness that, generally, there are these types of young offender:
1. Sound assessment tools should be used at an early stage after initial offending to identify likely ‘serious young offenders’.
2. “Adolescent limited” offenders respond well to the current New Zealand system.
3. Much more focused approaches are required for serious young offenders. For them, regular repeat FGCs are counter-productive. Indeed, there is a legislative amendment proposed to limit ‘repeat’ FGCs to no more than 3 separate sets of offending.
4. The FGCs that are held must be ‘armed’ with sound assessments from a variety of domains: health, education, drug/alcohol, etc.
5. FGC plans must reflect effective intervention that, from a sound research base, can be shown to “work”. It is beyond the scope of this paper to analyse the complex issue of what works and what doesn’t (although there is very good international research on this point). However, the material from the Doolan paper justifies reproduction here.
“Lipsey (1992) brought into a single statistical study the results of almost 400 evaluations of delinquency interventions. His study shows that interventions can both decrease and increase the chances of further offending. He used his database to determine the effectiveness of different kinds of approaches to offender management. The table shows seven common types of strategy together with the average decrease or increase in offending that occurred in all the studies using that intervention:
Intervention Type
|
Change in
expected re-offending
rate |
|
Preparing 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 |
(Lipsey 1992, page 125)
Analysis (DSW 1997) of the policy implications of this is interesting and points a way ahead.
· Most un-researched interventions are either detrimental, produce no change at all or produce relatively little cost-effective change.
· Providing the right kind of intervention is more important than providing a lot of intervention.
· Contact with the official, punishment oriented justice system has either no effect on future offending behaviour or increases it.
· Treatment based around counselling and psychotherapy have limited impact and are probably not cost effective.
· Programmes that keep young people in the mainstream (school for example) and prepare them for adult roles, or actually getting them employment are the most effective.
· All cultures and both genders respond in similar ways.
The US Comprehensive Study (USDJJ 1995) between 1993 and 1995 found that the most effective programmes were those that:
· Were directed to achieving the outcome of interrupting progress towards adult offending.
· Incorporated prevention services involving the identification of the small group of high-risk children who are showing problem behaviour before they offend.
· Immediate intervention in response to the onset of offending.
· Aftercare involving progressively declining levels of supervision and support.
The most effective programmes reduce re-offending by 50 per cent or more; all make use of structured decision-making; and all programmes pay particular attention to cost effectiveness and allocate resources according to level of risk. Cases are managed at the least restrictive level possible.
Clearly, evidence-based policy and programme development is going to be more focussed, understandable in terms of its goals and objectives and much less susceptible to the fads and fancies approach that tends to characterise young offender policy.
CHOOSING INTERVENTIONS THAT WORK
The New Zealand analysis (DSW 1997) concludes that there are six key features of successful approaches to the hard to manage young person:
1 Family focussed early intervention strategies that identify children showing high risk behaviour patterns and offer assistance to families and schools. Early identification is possible (Fergusson 1998). Three intervention points are targeted – neo-natal families, entry to school and entry to adolescence. Neo-natal families are offered an intensive home-based visiting service. Services to junior schools are aimed at preventing school failure and exclusion and bring home and school together to do so. Teenage programmes emphasise school maintenance, trained and supervised role models and behaviour contracts.
2 Helping them get back on track. Most young people want a life. These young people have lost the track to success in the mainstream and are vulnerable to becoming a member of a subculture that has highest regard for the most deviant. Getting them back on track involves restarting progress towards mainstream developmental goals and rebuilding esteem through mainstream achievement – re-introduction to school, successful sports participation, getting a drivers licence, having and keeping a boy/girl friend, and shutting down involvement with deviant peers.
3 Reducing personal disorder. Most of these young people come from families that are not coping well. Everything is a mess. Key targets for intervention are substance abuse, harsh discipline, abusive treatment at home, sexual victimisation, domestic violence, parental criminality and barriers to learning (not being able to read) and social participation (having no money).
4 Extra help for young women. Practice knowledge indicates that as many as 4 out of every 5 young women in this group of young people will have been sexually victimised at some time in their lives. They may be involved in prostitution, have experienced abortion, incest or a sexually transmitted disease. A high number will be mothers before 18. These young women need practical assistance in preventing unwanted sexual involvement and maintaining sexual health, as well as help to overcome the emotional impact of sexual victimisation. A key result area could be that such young women do not become mothers until they freely choose to do so.
5 Appropriate use of increasing sanctions. Increasing accountability for continued offending is an important part of shutting it down. While there is clear evidence that deterrent sentencing, particularly where it involves custody, helps young people develop their offending careers, for repetitive offenders who are not markedly disordered, continued offending should result in increasing personal cost.
6 Getting the system right. This involves developing policies and practices that provide a series of increasingly powerful barriers to continued offending or delinquency. Early minor contacts are dealt with in a low cost way, with problem escalation resulting in increasingly more targeted and powerful interventions. Intensive re-socialisation and personal development programmes will be necessary for the small number who are clearly headed for life-course persistent problems. All service providers are organised in an integrated, highly professional process. Common decision-making strategies are used across the system. All intervention proposals are researched before introduction and continually evaluated.”[90]
9. Lack (until recently) of an effective
national Youth Justice leadership structure
The purpose of the IAG is to assist in the delivery
and implementation of the Youth Offending Strategy. The IAG will be a forum for discussing
initiatives and developments in the Youth Justice sector and developing
independent advice to Ministers. It will
also be a forum for feedback and constructive comment from the community and
Youth Justice practitioners to senior Government officials in the Youth Justice
sector.
To nourish children and
raise them against odds is in any time, any place, more valuable than to fix
bolts in cars or design nuclear weapons.
Marilyn French
The Youth Court is the ultimate ambulance at the bottom of the cliff; it can and does make a difference. But the real solution, and the really compelling need, is for a comprehensive, cross-Government Department early intervention programme. It would take fifteen years for such a policy to bear fruit, at least through to the youth offending stage. Regrettably, three-year election cycles make this kind of delayed political gratification unattractive.
The case for early intervention:
Good common sense
“Give me a
child until he is seven, and I will give you the man (or woman)”
St. Ignatius of Loyola (1491 -1557)
Sound cost benefit
One year in prison costs $54,020.
Early intervention is designed to address issues of inadequate/inappropriate parenting, abuse, neglect, early childhood cognitive and behavioural problems, and family poverty, all of which are factors in future offending (amongst other negative consequences later in life).
“In recent years, there has been a great deal of
research into the way human beings develop, especially in the first five years
of life… There has been a rediscovery
in the policy world, of the role of early childhood as a lifelong determinant
of health, well being and competence… .
Recent insights from neurobiology, developmental psychology, and
longitudinal studies of children give credibility to notions long held as
common sense…”[91].
“The better the care and stimulation a child
receives, the greater the benefit for the national economy as well as the
child. The world is finally recognising
that children’s rights to education, growth and development - physical,
cognitive, social, emotional and moral - cannot be met without a comprehensive
approach to serving their needs from birth.”[92]
Seven Important Principles
1. The earlier the better.
2. An holistic, family
centred approach is best:
“...counter-productive to isolate children from
their living and learning environments...early intervention initiatives must
offer support across the major systems of influence in a child’s life...”
3. Multi-component
approaches, over prolonged periods of time, are likely to be more effective
than single faceted, “one shot”, approaches. (NB. One programme doesn’t have to do it all: a co-ordinated range of
programmes will be effective.)
4. But,
reducing one risk factor is likely to reduce others as well.
5. Programmes
designed to:
will be particularly important.
6. Targeting a particular
disadvantaged group is effective.
7. Ongoing, repetitive effort required.
What isn’t
happening?
At the moment, the New Zealand
system is lacking. There is:
The Youth Offending Task Force recognised the need for appropriate and effective early interventions as one of its key focus areas. In its 2002 report (at pages 26 and 27), the Task Force said:
“There is a
long-standing concern that the need to respond to immediate and tangible
problems, including youth offending, takes priority over the need to intervene
early in children’s lives. This is
particularly where the benefit of that intervention may not be immediately
apparent and the identification of that child or family may be difficult. A balance is required between responding to
the needs of children and young people who offend and improving the provision
of services at the early developmental stages of childhood. The importance of
early intervention initiatives needs to be supported and reinforced by the
youth justice sector.
…
As with other key areas, increased co-ordination and collaboration between government agencies and with the community is required to improve consistency of funding and programme objectives, identification of gaps in services, and appropriate assessment and referrals of families/whanau and their young children.”
The Task Force proposed the following initiatives to improve early interventions:
13 Conclusion