Youth Offending: Factors that Contribute and how the System Responds

His Honour Judge A J Becroft
Principal Youth Court Judge, New Zealand Youth Court
Te Kaiwhakawa Matua o Te Kooti Taiohi o Aotearoa
&
Rhonda Thompson, Research Counsel to Principal Youth Court Judge

SYMPOSIUM CHILD AND YOUTH OFFENDERS: WHAT WORKS
Tuesday 22 August 2006
Hosted by Dr Cindy Kiro, Chrildren's Commissioner

I INTRODUCTION

Benjamin Lindsey, world-reknowned Judge of the Juvenile Court in Denver (1909)

A single, shocking youth crime often provokes an understandable round of collective hand wringing in the media about the state of today’s young people. How could a teenager become so angry, violent and antisocial in just a few years of life? Tabloid hysteria amplifies and confuses the debate but there is no great mystery. Research reveals that the four key pillars of a child’s life - family, school, peers and community - hold the key to understanding and addressing child and youth crime.

While in the process of maturation, children and young people are still very much part of their families and reflect the behaviours they learn in that environment. If children grow up on a diet of violence, the result is likely to be a violent adult. For this reason, effective interventions start early and start with the family. They also recognise that influencing choices of peer group, improving attendance and achievement at school and alleviating community risk factors are vital.

This paper will explain the importance of family, school, peers and community on child and youth offending and highlight some of the responses to these factors made by the New Zealand youth justice system. In particular, it will analyse the different types of youth offender and the different responses required by each group.

II CONTRIBUTING FACTORS TO YOUTH OFFENDING, AND THE VITAL IMPORTANCE OF EARLY INTERVENTION

(a) Family

The key setting for intervention with young offenders is the family, as this is the place where major risk factors have their source.[1] These factors include neglect, witnessing family violence and harsh physical punishment or abuse.[2] When families are assisted to address these factors, they are often able to steer their young people away from offending.

Outcomes for youth are hugely determined by the action or inaction of families - of particular concern are:[3]

1. Low levels of parental support of children and young people [and lack of positive male role models].
2. Lack of affection between family/whanau members, particularly from parents to children.
3. Poor supervision and monitoring which allows children and young people to form associations with antisocial peers.
4. Parental antisocial behaviour including substance abuse, violence and criminal activity.
5. Low income.

Effective interventions find positive ways to assist families in changing these behaviours and problems. They invite families to own the process and teach them how to:[4]

• Encourage and reward good behaviour.
• Monitor their child’s whereabouts and friendships.
• Use consistent responses to misbehaviour and loss of privileges rather than harsh or physical punishment.
• Spend time with their child doing things they both enjoy, or helping them with homework or problems.
• Encourage parents to show affection to their child.

For high risk young offenders aged 13 or less, training and support for parents in parenting skills and diagnosis and treatment of key risk factors such as drug involvement, school failure, antisocial peers and abuse at home is particularly useful.[5] If families are involved, young people are much more likely to participate in, and stay involved with, any programmes used to assist them. The community can never replicate the emotional nourishment provided by a family, so it is vital that, at least as a first step, youth justice interventions assist families to address their issues rather than try to fill the vacuum with State assistance.

However, poor families face an up-hill battle because poverty increases juvenile participation in crime. This is because it disrupts the parenting process thereby rendering juveniles more susceptible to delinquent peer influence.[6]

Involvement in families of youth offenders is vital but research is showing that intervention at an even earlier age can pay dividends. The years from birth to 5 or 7 years of age are crucial in a child’s development and interventions can be highly effective at this stage.[7]

Early interventions are particularly important for children who are handicapped by serious disorders such as ADHD, Foetal Alcohol Syndrome or Severe Conduct Disorder. For example, children with Severe Conduct Disorder often start life misbehaving and hurting other children, move on to truanting and alcohol/solvent abuse and finally graduate to a life of crime, drugs, domestic violence and motor vehicle accidents.[8] These children become a burden on the criminal justice system and are some of the most difficult facing the Youth Court. They require early intervention by skilled therapists but are usually dealt with via the blunt instrument of suspension and exclusion at secondary school.[9]

Early assistance is also vital for children and young people with dyslexia and other learning difficulties. There is a much higher incidence of dyslexia amongst young offenders.[10] A study carried out jointly by the British Dyslexia Association and the Bradford Youth Offending Team in 2004,[11] concluded that:

(b) School

Every day the Youth Court deals with young offenders who are not part of the education system. While there are no accurate figures, anecdotally, it is thought that up to 80% of offenders in the Youth Court - and only the most serious 16-20% of offending results in Youth Court charges - are not formally engaged with the education system. “Not formally engaged” can mean a number of things. The young person may be truanting, excluded, not enrolled in a school or awaiting employment or placement in alternative education.

As noted, involvement in education is one of the “big four” protective factors against future criminal offending.[12] Helping young people feel part of society through school involvement assists in keeping them out of trouble[13] and thus it is absolutely critical that young people are kept at school for as long as possible. When faithfully attending school they are much less likely to become involved in crime - even if not achieving academically. Thus, alternatives to stand-downs, suspensions, exclusions and expulsions are necessary as are decisive responses to truancy.

In the school year to 31 December 2003, 0.7% of the total New Zealand school population was suspended from school and 0.2% were expelled or excluded.[14] The most common reasons for students to be suspended were drugs (27%) and continual disobedience (24%). The most common reason for students to be stood down were continual disobedience (25%) and physical assault on other students (24%).[15] One survey found that pupils excluded from school were more than twice as likely to offend.[16] These figures describe only a small proportion of the 300,000 odd young people of secondary school age. But these young people outside the school system, are 80% of the problem in Youth Court. This is why focusing on keeping young people in school is an absolutely crucial aim in terms of the youth justice.

The importance of school participation was emphasised in the important research by Kaye McLaren:[17]

The link between young people not attending school and offending may not be causative, but there is certainly a clear association between the two factors. Moreover, non-school attendance is seldom the problem. It is usually a symptom of much greater problems at home, with peers, with drugs/alcohol or with psychological or psychiatric or with learning/behavioural problems.

As noted by Judge Fred McElrea in a 1997 paper,[18] “an American writer recently summed up the connection between education and crime this way”:[19]

Those concerned with youth offending often ask what is the single most important step that could be taken to reduce youth offending. Keeping every young person actively involved in education until the age of 16 would be a very good start. Particularly as Police figures indicate that generally 25% of youth offending takes place between 9.00am and 3.00pm. In some areas the percentage is much higher. Although rather a simplistic analysis, just keeping the young people at school could, conceivably, reduce youth offending by 25%!

(i) Specific issues for education[20]

• The lack of a national secondary school database to clearly establish the extent of non-enrolments: This issue has been frequently discussed. It is understood that given difficulties (such as transient students), the margin of error in any such database may be greater than the group of non-enrolled students sought to be identified. That said, in theory the database would be a useful tool to identify young people who have “fallen through the cracks” in the education system, so that the extent of the problem can be identified and addressed.

• The need for improvements in current policies and action taken to ensure non-enrolled students attend mainstream education: The NETS (Non-enrolment Truancy Service) does very good work in attempting to place non-enrolled students back within the system, but it relies heavily on notifications by others. Without a database it is simply impossible to know the extent of the problem; a “best guess” is that at least 1,000 students slip through the system.

• Truancy: Rates of unjustified absences remain unacceptably high. In 2002, a survey of absences over one week found that one third (86,918) of absences involved truancy. Truancy is more likely for those who are Maori or Pacific Islander, and are from a low socio-economic area. More than likely they come from a town and are at a secondary school of between 251-500 students.”[22] Associated issues include the lack of a clear national policy as to when action should be taken regarding truancy; and the lack of a nationally co-ordinated truancy service. There are around 125 District Truancy Services, most of which do excellent work, but in respect of which there is limited national quality control, accountability and resourcing. The Government has announced new initiatives to target truancy.[23]

• Suspensions/exclusions from secondary schools: As noted above, the small number of students suspended or excluded from secondary school make up about 80% of the Youth Court’s work. Males and Maori are over-represented in these figures, and drugs and continued disobedience are the most frequent reasons for suspensions[24]. A small proportion of schools account for the great majority of all exclusions. Special initiatives to reduce suspensions/ exclusions of Maori students appear to have been very successful.

• Alternative Education: Certain students will inevitably be alienated from school and an alternative education system is necessary for this group.[25] At present there are 1820 places available. There are some important issues around the alternative education debate. Is there a national strategy as to the quality of alternative education? Who should be eligible for it? Is alternative education a threat to mainstream education if the barriers to entry are too low? Should alternative education be limited to students of secondary school age, or should it include those of intermediate age as well? If so, are the aims of alternative education the same for each age group? Should there be a seamless transition between secondary school and alternative education? Why do a small (but significant) number of students not make the transition?

• Correspondence School. Is this excellent service sometimes used as a “dumping ground” for students who simply cannot cope or survive within mainstream education? The question must be asked whether it is fair to place this burden on the Correspondence School, if it is done simply to ensure that problematic youths are technically enrolled.

• Exemptions. The Secretary of Education can exempt a 15-year-old student from attendance where the educational problems, conduct of the student or suitability of the school environment are such as to convince the Secretary to do so. Exemptions are a major concern of the Youth Law Tino Rangatiratanga Taitamariki. In a paper presented at a Youth Law policy conference in November 2003, solicitors from Youth Law noted:

A key issue is whether exemptions are granted too easily. In 2002, early leaving exemptions were granted to 3,848 students, for the purposes of entering employment or being enrolled on Youth Training Courses. There is a question about quality standards of some courses, and the extent to which they address educational under-achievement.

Interventions that improve school attendance include:[27]

• Reducing class sizes.
• Grouping students by their level of academic performance, not by their age.
• Cooperative learning, one to one tutoring and computer-assisted learning.
• Incorporating arts and athletics programmes into the curriculum.
• Behavioural approaches such as providing rewards for effort or achievement.

The education sector cannot solve the problem of seriously at risk youth alone. But it remains the best environment and entry point where the issues facing these young people and their families can be identified and addressed.

(c) Friends

One of the most powerful risk factors for youth offending is involvement with antisocial peers. However, the antisocial peer group only exerts an influence when relationships with parents start to unravel.[28] Involvement with antisocial peers loses some of its power as a risk factor when:[29]

• The young person feels a bond with family and school.
• There is adequate monitoring by parents of their children’s activities.
• Adolescent’s communication skills are adequate.

Other peer related factors that can lead to offending include gang membership or involvement, delinquent siblings and lack of prosocial models.[30]

(d) Community

It is not surprising that young people living in communities typified by extreme poverty, high rates of crime and violence, high drug availability and high population turnover are more likely to offend.[31] Some researchers argue that improving conditions and services in high-risk communities is the best way to combat delinquency. Although many such community-focused interventions have been attempted, little is known about their long-term impact because the appropriate research designs are so difficult to implement. The lack of more community-based approaches on the proven and promising lists may be due more to the difficulties of evaluating them rather than to their underlying effectiveness.[32]

Another important aspect is the fostering of a young person’s connection to their community through involvement with community activities. Belonging to a sports, interest or church group can lead to “social bonding”.[33] “Social bonding” can describe the quality of relationship between young people and adults and also how young people feel about their schools and, as they grow older, their communities. It “reflects an understanding that when young people have a genuine stake in their families, schools and communities they are less likely to commit anti-social acts that place that relationship in jeopardy”.[34]

III PERSISTERS AND DESISTERS - TWO TYPE OF YOUTH OFFENDER

(a) Introduction: Who are Persisters and Desisters?

Significant research has been carried out into the reasons why young people offend to ensure that responses to offending are appropriate and effective for the well-being of children and young people. This research has revealed that there are two distinct types of youth offender, susceptible to different risks, having different needs and requiring different responses. Any response to youth offending must bear this research in mind.

A quarter of young men will commit at least one offence during their formative years but most of these will desist from crime and go on to settle into law-abiding lifestyles by their mid-twenties, having committed only a few trivial crimes. However, in New Zealand and internationally 15%-20% of youth offenders will persist and go on to become “life course” offenders - these “Persisters” are responsible for a large proportion of crime.[35] Thus, there are two groups - those that persist with crime and those that desist from it.

“Desisters” commit at least one crime, but usually start offending after 13 years of age and tend to stop or age out of offending by age 24 to 28.[36] In contrast, “Persisters” start early, before age 14 and as early as 10 years of age,[37] offend at high rates - around 40% to 60% of youth offending in New Zealand - and continue offending into adulthood. The “Persister” statistics in NZ make sobering reading:

• 85% are male.
• 70-80% have a drug and/or alcohol problem, and a significant number are drug dependent/addicted.
• 70% are not engaged with school - most are not even enrolled at a secondary school. Non-enrolment, rather than truancy, is the problem.
• Most experience family dysfunction and disadvantage; and most lack positive male role models.
• Many have some form of psychological disorder, and display little remorse, let alone any victim empathy
• At least 50% are Māori and in some Youth Courts, in areas of high Māori population, the Māori appearance rate is 90%. This figure is a particular challenge to the youth justice system, and to all working with young offenders.
• Many have a history of abuse and neglect, and previous involvement with Child, Youth and Family Services.[38]

These characteristics are common to the small group of serious young offenders who bedevil all Western democracies. Both groups commit serious offences, but the Persisters tend to commit more of them, partly because they are committing crime at such a high rate over a long period. Although some research has suggested that the two groups are not entirely clear cut,[39] persistent young offenders are a difficult and worrying group that requires identification and intervention as early as the preschool years.

(b) Key Risk Factors for Persisters and Desisters

The most rigorous research available shows that the following risk factors are the most powerful causes of offending and are consequently the key targets for programmes aimed at reducing offending. They reflect the importance of the four key factors - family, school, peers and community.

(i) Key Risk Factors for Desisters or “Adolescent-Limited” Offenders

Young people in the Desister group make few Court appearances and have fewer risk factors. Also called “adolescent limited” offenders,[40] they are particularly at risk from substance abuse and antisocial peers, and are considered by some to be the priority for intervention. The following list gives an order of priority for addressing risks with this group:[41]

• 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.

(ii) Key Risk Factors for Persisters or Early Onset Offenders

Persisters tend to come from multi-problem backgrounds, and are the most likely of all offenders to keep offending into adulthood. Also known as “Early Onset” offenders these youths 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:[42]

• 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;
• Lacking cultural pride and positive cultural identity.

Persistent offenders tend to show the most severe and greatest numbers of risk factors from a relatively early age. As Scott (1999)[43] notes, Desisters and Persisters are at separate ends of a continuum of offending defined primarily by the number of risk factors the young person has experienced.

(c) Policy Implications of Research into Persisters and Desisters

(i) Policy Implications for Dealing with Desisters

Desisters require a low-key, measured approach that is nevertheless graduated to deal with escalations in offending. Interventions must emphasise accountability, insist on reparation and restitution and make the young person aware of the impact of their offending[44]. It is important that responses do not confirm the young person as a “criminal” because research shows they are likely to find their way back to a law-abiding lifestyle and are more likely to do so if kept away from the criminal justice system. Responses such as warnings and diversion are particularly useful for this group.

(ii) 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:[45]

• 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.

IV HOW THE YOUTH JUSTICE SYSTEM RESPONDS

As noted, the most effective interventions occur early in children’s lives. The Youth Court is effectively the ambulance at the bottom of the cliff. It can and does make a difference but for some this intervention is too little, too late. The Youth Court was instituted by the Children, Young Persons and Their Families Act 1989 which seeks to hold young people accountable for their offending at the same time as addressing their needs.[46] This is the basis for a youth justice system that seeks to respond to youth offending by strengthening the “four pillars” of a child’s life in the following ways:

(a) Age of Criminal Responsibility

The starting point is a principled approach to setting the age of criminal responsibility. Once old enough to be criminally liable, a young person must be dealt with as an autonomous individual. However, as family is a key contributing factor to youth offending, it is often the case that offending is really symptomatic of care and protection issues. In such cases the child must be viewed in the context of their family environment - or lack of it - and should be dealt with in the Family Court as a product of their family and not fully culpable. There is a very real danger of criminalising welfare issues but equally there is a danger of “welfarising” and prolonging any justice response.

The New Zealand youth justice system recognises that children and young people cannot be dealt with in isolation and seeks to involve families in responding to youth offending. In New Zealand, the age of criminal liability is 10[47]. Child offenders - those aged 10 to 13 years inclusive - can only be charged with murder and manslaughter. In all other cases, the matter must be dealt with by way of a Family Group Conference and if necessary, an application can be made to the Family Court that the young person is in need of care and protection.

The Youth Court deals with “young persons”, those aged 14 or over, but under 17 years of age who are unmarried.[48] This group meets with a “justice” rather than a “welfare” response. However, there is an avenue under section 280 CYPFA where a young person aged 14 to 16 inclusive whose offending is symptomatic of care and protection issues may be dealt with in the Family Court. The matter is adjourned while the Family Court process undertakes to address the young person’s care and protection needs and may be discharged if the matter is satisfactorily dealt with.

(b) Diversion/Alternative Action

The New Zealand system recognises that young people are in the process of maturation and that offending does not confirm them as “bad” people. The four pillars of home, school, friends and community are still shaping their characters and there is room for redemption. If diverted away from the criminal justice system the majority will “age-out” of offending and live law-abiding lives. If labelled as “criminals” and placed in prisons there are likely to be negative influences moulding the young person’s character. Once young people are in the criminal justice system, it is very difficult to get young people out of it again.

The CYPFA gave Police authority to take alternative action through the principle that states:[49]

Diversion/alternative action rates have remained consistently high since the CYPFA was passed in 1989 - around 76% of all cases. “Alternative action” or “diversion” initiatives use community based responses to youth offending by using creative, locally based plans or programmes that respond directly to local youth offending.[50] Such local, community responses strengthen young people’s connections to their communities far more than appearances in a traditional Courtroom. As noted, diversion is particularly useful for the Desister group of youth offenders who usually take the opportunity provided by the alternative measures to put right the wrong caused and move on with their lives free from criminal record and formal involvement in the criminal justice system.

(c) Pre-charge Family Group Conferences

The Family Group Conference process allows the family, the victim and other stakeholders to become involved in the solution to the offending. This recognises that, although the community may contribute to offending, it may also be used to help resolve youth crime. Judge FWM McElrea highlighted the importance of community in the process when he described the three key elements of the FGC process as:

There are six types of Family Group Conference but the pre-charge FGC is particularly useful as another avenue whereby deserving young people may be diverted away from the formal Court system. Pre-charge FGCs account for about 8% of cases and are 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 Youth Justice Co-ordinator. If, after consultation, the Police still wish to charge the young person, an FGC must be convened.[52] 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.[53]

(d) Charges in the Youth Court

(i) Court directed FGC: “not denied” and section 282 discharges

The Family Group Conference process puts the family and the community at the heart of the youth justice system. This is further enabled by Court-directed FGCs and mechanisms such as allowing the young person to “not deny” the offence. Where a (non-purely indictable) charge is “not denied” by the young person in the Youth Court, the Court must direct that a FGC be held.[54] “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. 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.[55]

The system recognises that young people are still in the process of maturation and, if they offend, show remorse and do their best to put the situation right, may deserve a “second chance”. This is provided through section 282 - an absolute discharge. The CYPFA also affords the Youth Court the power to impose a section 283(a) discharge involving no further penalty but the young person will have a recorded Court appearance.

(ii) Top-end Youth Court orders

Most cases that come to Youth Court do not receive formal orders. The usual course is for a plan to be formulated at Family Group Conference and, if this plan is successfully completed, the young person may receive a complete discharge and leave the Court with no criminal record.[56] However, the following top-end orders are available to the Youth Court:

• Supervision with Activity (s283(m))

Critics have argued that too little use is being made of the Supervision with Activity Order[57] while the custodial Supervision with Residence Order is over-used[58]. Supervision with Activity involves three months of supervision during which the young person must attend and undertake a specified programme or activity. The three months may be followed by a further period of supervision for up to three months.[59] Plans may be detailed and tailored to fit the specific needs of a particular young person. Social Worker, Bobby Bryan, reports that in the early 1990s multiple programmes existed in which young people could carry out their Supervision with Activity Order.[60] Young people discovered a sense of pride from learning skills. But today, due to a lack of resources, the Supervision with Activity Order has become a rarity while there has been relatively greater use of the Supervision with Residence Order.

• Supervision with Residence (s283(n))

The Supervision with Residence[61] order places a young person in the custody of the chief executive of Child, Youth and Family Services for 3 months and after this order is completed, a period of up to six months supervision follows. Young people receiving such an order are usually placed in one of three Youth Justice Residences. The average length of stay on Supervision with Residence Orders is approximately 62 days (the average stay on remand is approximately 45 days).[62] The proportion of proved cases resulting in a Youth Court supervision order has increased since 1997, from 32% of cases to 38% of cases in 2003.[63]

Supervision with Residence is the harshest penalty available to the Youth Court and, as it deals with only the most serious youth offenders, young people on Supervision with Residence are the small but difficult group of young offenders who require intensive and careful intervention. However, Child, Youth and Family Service’s Review of the Residential Strategy published in June 2004 stated that there was a need for a greater therapeutic focus in the residences to assist young people, rather than merely containing them.

• Convict and Transfer to the District Court for Sentence (s283(o))

The Youth Court may convict a young person and transfer them to the District Court for sentence. Once in the District Court the young person may receive a sentence of imprisonment of up to 5 years.

• Prison

Prison is necessary for community safety and protection. It is the ultimate sanction and needs to be available for the most serious offenders. It is not lawful 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”.[64] It should also be noted that a child or young person serving a sentence of imprisonment may serve that sentence in a prison or in any residence approved by the Chief Executive of Child, Youth and Family Services.[65]

Since the inception of the Children, Young Persons and Their Families Act 1989, relatively few young people have been dealt with through the use of convictions in the District and High Court and sentences of penal custody.[66]

De-carceration: number of cases receiving custodial sentences: 1987-2001 [67]

Imprisonment alone is a poor response to youth crime. There are numerous negative psychological and behavioural consequences for young people who are imprisoned as adults, and with adult offenders.[68]Young inmates may experience intimidation and bullying by older inmates.[69] Verbal, physical, sexual and emotional abuse is particularly likely for those incarcerated for the first time, those that are small, from a middle class background, are effeminate in behaviour or lack “streetwise” knowledge.[70] Further, juveniles in adult prisons are at greater risk of suicide.[71]

V CONCLUSION

Effective responses to youth offending must recognise the contribution the young person’s family, school, peers and community can make in steering the young person towards offending. But at the same time strengthening these “four pillars” can ensure that a young person will not offend again in the future. The New Zealand youth justice response seeks to strengthen these vital supports underpinning a young person’s life primarily through the FGC process. This puts the family and the community at the heart of the youth justice response.

“Adult crime deserves adult time” is a populist and easy assertion to make. It is arguably flawed however for the following reasons:

1. Adolescents are not junior adults and require a different response to adults. Young people do not have the same developmental level of cognitive or psychological maturity as adults.[72] They are more vulnerable to provocation, duress or threatening behaviour and are particularly influenced by peer approval and fear or rejection.[73]

2. Most adolescent offenders “age out” of offending with prompt, efficient, community-based (but not formal Court) intervention. Formal intervention is, paradoxically, the least effective intervention for these offenders.

3. For the small group of very serious offenders, the potential already exists for them to be, at worst, convicted and transferred to the District Court for sentence. There are about sixty of these cases each year.

4. Most of these young offenders are boys, and they come from seriously disadvantaged and dysfunctional backgrounds. They have had “tough” all their life - thus tough responses are insufficient. While imprisonment necessarily protects the public, and will act as a general deterrent, it increases the risk of re-offending upon release. Research has shown that deterrent sentencing may actually increase expected offending rates by as much as 25%.[74]

5. Statistical figures show that youth offending is relatively stable. The system philosophically is effective but needs fine-tuning. For instance, we need to work better in our monitoring and supervision of Family Group Conference plans and the monitoring of those sentenced to the top-end Youth Court orders, especially Supervision with Residence.

APPENDIX A

1.1 Options When Police Detect Alleged Offending by a Young Person

This Appendix describes the Youth Court process, which begins with Police detecting alleged offending by a young person. Where this occurs, an enforcement officer has three options:

1. To give an on the spot warning or otherwise deal with the matter informally.

2. To notify the Police Youth Aid division for further action.

3. To arrest the young person.

1.1.1 Formal warning

The first consideration when Police apprehend a young offender is whether it would be sufficient to warn the young person. Police deal with 44% 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 the nature of much youth offending (i.e. relatively minor).

1.1.2 Alternative action/diversion

Given the statutory injunction in s208(a) Children, Young Persons and Their Families Act 1989 (CYPFA) 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 if a warning is insufficient or inappropriate. About 32% of all offences are dealt with in this way. 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.

1.1.3 Arrest

There are significant restrictions on the right of the Police to arrest a young person where there is good cause to suspect that he or she has committed an offence. Under s214 CYPFA, a young person can only be arrested:

• to ensure the young person’s appearance before Court (e.g. where the young person refuses to give name and address details); or
• to prevent the young person from committing further offending or to prevent the loss/destruction of evidence or witness interference; and
• where a summons would not achieve the above purposes.

However, where:

• an offence is purely indictable; and
• a Police officer believes arrest is required in the public interest,

there is no such restriction, and 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:

• release the young person without charge (an “intention to charge” Family Group Conference should be held if a charge is later to be laid; or
• charge the young person, in which case he or she may be released with or without conditions to appear later in the Youth Court; or
• in some situations, charge and detain the young person in custody for longer than the standard 24 hour maximum, in which case he or she must be brought before the Court as soon as practicable.

1.2 “Intention to Charge” Family Group Conference

If the Police wish to charge a young person who has not been arrested, an “intention to charge” FGC must be convened to consider the matter.

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. If not, then a charge may be laid in the Youth Court. Alternatively, the FGC may recommend that a charge be laid without a plan.

Police voluntary pre-charge FGC where young person arrested and released: It is common 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 is to be charged with an offence. Technically, as there has been no arrest, there is no statutory obligation to do this (see: s245). However, this course of action is permissible and, indeed, it is highly desirable that this best practice continues (in accordance with the principles of the CYPFA given effect by the FGC procedure).

1.3 Charge Laid in Youth Court

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 three months imprisonment, as with adults, young people may elect jury trial (s66 SPA, applied by virtue of s321(1) and cl. 2 of Sch. 1 CYPFA). If jury trial is elected, the charge is dealt with as for a purely indictable (jury only) offence (see: para 2.5, below).

1.3.1 Charges denied: defended hearing as for adults

Note: for purely indictable charges, or where jury trial is elected, the position is different.

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, an FGC must be convened to consider sentencing options. The Youth Court will impose one of the orders set out in s283 CYPFA or, in some cases, may grant an absolute discharge under s282 (whereby the Information is deemed never to have been laid).

1.3.2 Charges not denied: Court-directed FGC

If the charge is “not denied”, an FGC must be convened.

If the charge is “admitted” at the FGC, the Conference will usually formulate a plan for the young person to undertake. The plan should address both the “deed” and the “need”; the consequences and the causes of offending. 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 (see: s4(f)(i) and (ii)).

The plan will then be presented to the Youth Court. In about 95% of the cases, the plan is accepted and the case is adjourned for the plan to be completed.

If the plan is satisfactorily completed, the young person is often absolutely discharged under s282 CYPFA.

Sometimes the FGC may recommend formal orders being made under s283 CYPFA 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.

1.4 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 and the Court will order one where charges are “not denied”. In addition, FGCs must also be convened:

• when Police believe a child 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 young person denies a charge but, pending its resolution, the Youth Court orders the young person to be placed in CYFS or Police custody;
• 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;
• 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).

1.5 Purely Indictable/Electable (Jury Only) Procedure

Purely indictable charges (and charges where an election is made - i.e. where the offence attracts a potential penalty of over three months imprisonment: s66 SPA) are not within the jurisdiction of the Youth Court, other than for the holding of depositions.

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; or
• at the conclusion of depositions, the Youth Court Judge thinks it appropriate to do so.

If the young person elects Youth Court jurisdiction, the charge remains in the Youth Court and is dealt with entirely according to Youth Court procedure. Like any other charge in the Youth Court, the most serious sentencing option available to a 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.

1.6 Care and Protection Issues

If the charges against a young person indicate that the young person may be in need of care and protection, as defined in s14 CYPFA, the matter may be referred to a care and protection co-ordinator and the proceedings adjourned until the matter can be resolved by use of the care and protection provisions of the CYPFA. In this case, the matter may be discharged under s282 CYPFA.

1.7 Flowchart of Youth Justice Processes

The following flowcharts show:

• the processes of the youth justice system; and
• the processes for purely indictable offences or election of jury trial.

Footnotes

1 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime Ministry of Youth Affairs, Wellington, New Zealand, June 2000, 29 available at <http://www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx > (last accessed 7 August 2006).

2 K L McLaren, Tough is not Enough, n 1, 29.

3 K L McLaren, E-flash 18: "What Works", Ministry of Justice, Wellington.

4 K L McLaren, E-flash: What Works, n 3.

5 K L McLaren, Tough is not Enough, n 1, 53.

6 Weatherburn and Lind (1998) quoted in K L McLaren, Tough is not Enough, n 1, 30.

7 Loeber, Farrington, Petechuk, Child Delinquency: Early Intervention and Prevention, Child Delinquency Bulletin series, Office of Juvenile Justice and Delinquency Prevention, US Department of Justice available at <http://www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx > (last accessed 4 August 2006).

8 Prof J S Werry, Severe Conduct Disorder - What is it?", from Severe Conduct Disorder (Juvenile Psychopathy) II: Toward an Evidence-Based National Strategy for Prevention & Care, proceedings of a conference on June 27/28 2005 at Victoria University of Wellington, 24. Prof Werry notes that Severe Conduct Disorder is: "A repetitive and persistent pattern of behaviour in which the basic rights of others or age appropriate societal norms or rules are violated as manifest by three (or more) of the following criteria in the past 12 months with at least one criterion present in the past 6 months (aggression to people or animals, destruction of property, deceitfulness or theft, serious violation of rules).

9 American Psychiatric Association DSMIV-TR 98-99 quoted in Prof J S Werry, Severe Conduct Disorder - What is it?", from Severe Conduct Disorder (Juvenile Psychopathy) II: Toward an Evidence-Based National Strategy for Prevention & Care, proceedings of a conference on June 27/28 2005 at Victoria University of Wellington.

10 Unrecognised Dyslexia and the Route to Offending, A joint study between the British Dyslexia Association and the Bradford Youth Offending Team, UK, June 2004.

11 Unrecognised Dyslexia and the Route to Offending, n 10.

12 McLaren, Kaye. Tough is not Enough - Getting smart about Youth Crime, n 1.

13 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, 26.

14 Ministry of Education, Report on Stand-downs, Suspensions, Exclusions and Expulsions, April 2004, 3.

15 Ministry of Education, Report on Stand-downs, Suspensions, Exclusions and Expulsions, n 14, 3.

16 Graham and Bowling, Young People and Crime, HORS 145 (London, Home Office, 1995) quoted in J Fionda, Devils and Angels: Youth Police and Crime (Hart Publishing, Oxford and Portland, Oregon, 2005) 221.

17 K L McLaren, Tough is not Enough - Getting Smart about Youth Crime, n 1, 31.

18 McElrea, FWM, "Win-win" Solutions to School Conflict, a paper presented at the Contemporary Issues in Education Law: Strategies for Best Practice Conference, Sydney, 7-9 July 1997.

19 Garry, Eileen M, Truancy: First Step to a Lifetime of Problems, in Juvenile Justice Bulletin, Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, October 1996, 1.

20 For more information see Pat Harrison, Youth Justice: Education Issues, A Discussion Document commissioned by the Institute of Public Policy, School of Government, Victoria University and the Principal Youth Court Judge, May 2004.

21 Pat Harrison, Youth Justice: Education Issues, n 20, 6.

22 Pat Harrison, Youth Justice: Education Issues, n 20, 8.

23 New Zealand Government press release available at <http://www.scoop.co.nz/stories/PA0511/S00358.htm> (last accessed 7 August 2006).

24 Pat Harrison, Youth Justice: Education Issues, n 20, 10.

25 Pat Harrison, Youth Justice: Education Issues, n 20, 12.

26 Hancock, J & Trainor C, Ensuring Consistency with the Education Act 1989: In a Child's Best Interests, Youth Law policy conference, November 2003.

27 K L McLaren, Tough is not Enough - Getting Smart about Youth Crime, n 1, 67.

28 Ary et al (1999) quoted in K L McLaren, Tough is not Enough - Getting Smart about Youth Crime, n 1.

29 K L McLaren, Tough is not Enough - Getting Smart about Youth Crime, n 1, 35.

30 K L McLaren, Tough is not Enough - Getting Smart about Youth Crime, n 1, 35.

31 K L McLaren, Tough is not Enough - Getting Smart about Youth Crime, n 1, 35.

32 P W Greenwood, Changing Lives: Delinquency Prevention as Crime-Control Policy (The University of Chicago Press, Chicago, 2006) 89-90.

33 Hawkins et al, 1992; Brewer et al, 1995; Catalano and Hawkins, 1996 quoted in Risk and Protective Factors, n 13, 26.

34 Hawkins et al, 1992; Brewer et al, 1995; Catalano and Hawkins, 1996 quoted in Risk and Protective Factors, n 13, 26.

35 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 1.

36 Moffitt T E (1996) Adolescence-Limited and Life-Course Persistent Offending: A Complementary Pair of Developmental Theories, in T Thornberry (eds) Advances in Criminological Theory: Developmental Theories of Crimes and Delinquency, 11-54, London: Transaction Press quoted in K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 1, 16.

37 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 1, 16.

38 These statistics are provided by the New Zealand Ministry of Justice, the New Zealand Police and anecdotal evidence from Youth Court Judges.

39 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 1, 18.

40 Moffitt T E, Adolescence-Limited and Life-Course Persistent Antisocial Behaviour: A Developmental Taxonomy, Psychological Review, 100(4): 674-701.

41 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 1, 36.

42 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 1, 36.

43 Scott G (1999) Young Offenders: Current Issues in Policy and Practice, Wellington quoted in K L McLaren, Tough is not Enough, n 1.

44 M Doolan, Work With Young People Who Offend, Paper presented at a conference in Glasgow, Scotland, September 2001.

45 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).

46 Children, Young Persons and Their Families Act, s4(f).

47 Crimes Act 1961, s21.

48 Children, Young Persons and Their Families Act 1989, s2.

49 Children Young Persons and Their Families Act 1989, s208(a).

50 This includes informal and written warnings as well as diversion.

51 Judge FWM McElrea (1994) Restorative Justice, The New Zealand Youth Court: A Model for Development in Other Courts?, A paper prepared for the National Conference of District Court Judges, Rotorua, New Zealand, 6 - 9 April 1994, 3-4.

52 Children, Young Persons and Their Families Act 1989, s245.

53 Children, Young Persons and Their Families Act 1989, s258(b), s259(1).

54 Children, Young Persons and Their Families Act 1989, s246.

55 Children, Young Persons and Their Families Act 1989, s258(d), s259(1).

56 Children, Young Persons and Their Families Act 1989, s282.

57 Children, Young Persons and Their Families Act 1989, s283(m).

58 Bobby Bryan, Advocate, Office for the Commissioner for Children Newsletter, 2003.

59 Children, Young Persons and Their Families Act 1989, s307(2).

60 Bobby Bryan, Advocate, Office for the Commissioner for Children Newsletter, 2003.

61 Under Children, Young Persons and Their Families Act 1989, s311.

62 Child, Youth and Family Service's Review of the Residential Strategy, June 2004.

63 Conviction and Sentencing of Offenders in New Zealand, 1994 - 2003, Ministry of Justice, Wellington, New Zealand, November 2004.

64 Sentencing Act 2002, s18. "Purely indictable" refers to the most serious criminal offences that can only be proceeded with by indictment and a jury trial. They are only within the Youth Court jurisdiction for a depositions hearing (preliminary hearing). However, the Youth Court may give a young person facing a purely indictable charge the opportunity of foregoing the right to a jury trial and electing to have the matter dealt with in the Youth Court.

65 Criminal Justice Act 1985, s142A(1).

66 Maxwell, Robertson, Kingi, Achieving the Diversion and Decarceration of Young Offenders, Crime and Justice Research Centre, Victoria University of Wellington, 2003, 11.

67 Gabrielle Maxwell , Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, Crime and Justice Research Centre, Victoria University of Wellington, June 2003, 8.

68 Adams, 1992; Bishop & Fraser, 2002; Bishop et al., 1996; Calabrese & Adams, 1990; Lane et al., 2002; Taylor, 1996; Tie & Waugh, 2001 quoted in Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, paper in draft at time of going to press.

69 Department of Corrections, Young Male Inmates available online at http://www.corrections.govt.nz/public/aboutus/factsheets/managingoffenders/youngmaleinmates.html (last accessed 10 August 2006).

70 Maitland & Sluder (1998) quoted in Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 68, 6.

71 Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 68.

72 Steinberg & Scott (2003) quoted in Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 68.

73 Moffitt (1993) quoted in Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 68.

74 Lipsey MW, Juvenile Delinquency Treatment : a Meta-analytic Inquiry into the Variability of Effects, Meta-analysis for explanation: A casebook, Cook, TD et al (Russell Sage Foundation, New York, 1992) quoted in M Doolan, Work With Young People who Offend, Paper presented in Glasgow, Scotland, 2001.