COMMUNITY-BASED APPROACHES TO YOUTH OFFENDING: A RECIPE FOR SUCCESS

His Honour Judge A J Becroft
Principal Youth Court Judge, New Zealand Youth Court
Te Kaiwhakawa Matua o Te Kooti Taiohi o Aotearoa

Conference on the Rehabilitation of Youth Offenders

Singapore
20-21 November 2007

1. Introduction

2. Practical imperative for community-based approaches to youth offending

2.1 The case of Bailey Junior Kurariki
2.2 Lessons from two recent psychological reports

3. Theoretical imperative for community-based approaches to youth offending

3.1 No single solution
3.2 Identifying the persistent offender
3.3 Criminogenic needs
3.4 Key ingredients of effective interventions
3.5 What doesn't work and why
3.6 'Segregation' followed by 'aggregation': an ineffective response

4. Third Imperative - UNCROC and other international conventions mandating
community-based approaches

5. Examples of community-based approaches to youth offending

5.1 Police diversion: warnings and 'alternative action'
5.2 Family Group Conferences (FGCs)
5.3 An innovative court order: Supervision with Activity - rehabilitation in the community
5.4 Transfer to the adult criminal court for trial/sentence - ineffective as a deterrent
5.5 Imprisonment - too much heat?

6. Conclusion

1. Introduction

This paper contends that the weight of evidence shows a community-based approach to be more likely to reduce re-offending than custodial sanctions. While the imposition of prison sentences on young offenders is sometimes necessary to protect the community and or/to reflect the wider public interest, it seems that such sentences are not as effective in reducing re-offending as are less punitive, community-based approaches that take into consideration the special characteristics and needs of the young offender.

Internationally, there is an increasing trend towards treating youth offenders as junior adults for whom "adult crime demands adult time". The pendulum swings between "welfare" and more punitive "justice" approaches in different youth justice systems. These changes in policy have historically bedevilled a consistent approach to youth crime. Currently, the pendulum is moving firmly towards a more punitive approach. For example, in the United Kingdom, ten to fourteen year olds are increasingly considered (legally) fully competent. Julia Fionda, in Legal Concepts of Childhood, argues:[1]

"Policy changes and recent legislation have increasingly treated this age group as fully competent, aware of the significance and repercussions of their actions and mature enough to accept responsibility for them. Concomitant with the erosion in the recognition of children's incapacity and lack of awareness is a trend towards punitive treatment ... Fionda argues that many of these policy changes are politically motivated rather than based on any real change in the nature of childhood or the competence of children."

New Zealand is not exempt from such trends. With the introduction to Parliament of the Young Offenders (Serious Crimes) Bill on 16 March 2006, it faces a debate on this very issue. How and in what context should we deal with at risk young people in the community using a collaborative approach? When and to what extent should we attempt to deal with these young people in a custodial environment?

A reasoned approach, based on sound research and practice, rather than an intuitive or anecdotal response, is required. It must recognise that at one end of the spectrum are the proponents of the so-called "lock 'em up and throw away the key" approach. At the other, are those who support a community-based solution best illustrated by the well-known African proverb, "it takes a village to raise a child".

This paper will examine some imperatives for a community-based approach to young offenders, including:

• the practical imperative;
• the theoretical imperative, and;
• internationally mandated imperatives.

It will provide some examples of New Zealand community-based approaches. It will look at both why a community-based approach works best in addressing youth offending and how it might operate.

2. The practical imperative for community-based approaches to youth offending

It is difficult to compartmentalise the "criminogenic needs" of young offenders into easily discernible, discrete categories. Most persistent young offenders present with a raft of problems and needs. These do not come neatly boxed with appropriate labels and they are usually interrelated. Generally, those needs will fall into one or more of the four main domains of a young person's life: dysfunction occurring in the family; school; peer-group or community (often in combination) can lead to criminal behaviour.[2]

A community-based approach is better placed to address the needs of at risk youth. Firstly, access to services is readily provided through the community. Secondly, it is better to effect changes within the community/family that was, at least partially, causative of the offending. The provision of residential programmes is artificial in the sense that the young person is 'treated' in an environment that does not include exposure to normal stresses of community living. Community-based, collaborative interventions are better able to provide a holistic approach to the rehabilitation of young offenders.

Recent cases in New Zealand graphically demonstrate the complex web of risk factors that young people experience and highlight the need for a community-based collaborative approach. The following are three particularly relevant examples.

2.1 The case of Bailey Junior Kurariki

On 25 August 2002, one adult and four young people were convicted of various charges in relation to the death of Michael Choy on 13 September 2001. Bailey Junior Kurariki, who was 12 years old at the time of the attack on Michael Choy, and who was later convicted of his manslaughter, was the youngest member of the group.

The Ministry of Justice subsequently undertook a review of the dealings over time between the convicted offenders and the Police, Department of Child Youth and Family, and Health and Education Services to consider what improvements could be made in services available to those young people and their families[3].

The Ministry's review produced "3 key lessons", each of which point to opportunities for effective collaboration:

• The underlying causes of Kurariki's behaviour were not addressed, and, following a decision to keep him in the family home, a lack of support for Kurariki's mother meant that she was not equipped to manage him.

Underlying causes of offending can be better targeted by training frontline staff and police in the use of risk assessment tools and processes. These tools are developed by medical professionals and researchers and can be ordered by a FGC or a CYF Youth Justice Co-ordinator. Education and heath assessment tools are also used to help get a comprehensive understanding of all relevant influences on a young person's offending.

• Kurariki had been excluded from formal education because schools could not cope with his behaviour. The review concluded that the burden of dealing with Kurariki was too much to place on the shoulders of the schools alone, and that greater assistance should have been available from other social service agencies. The review pointed out that CYF fund a number of community based social service agencies which should be used by schools to help manage young people with difficult behaviours. To facilitate this, the review recommended that directories of community agencies should be compiled at a local or national level and distributed to schools by CYF or Youth Offending Teams.

• Poor communication between Police and CYF in Kurariki's case meant that full advantage was not taken of the provisions of the Children, Young Persons and their Families Act 1989 (CYPFA) in relation to the holding of an FGC. A FGC is a measure provided for in the CYPFA as a positive early step to holding a young person or a child accountable for their offending.

The review identified a need for more training of Police and CYF staff in the use of CYPFA provisions. It also recognised that poor understanding of the CYPFA amongst Police supervisors meant that subordinate officers did not thoroughly record apprehensions of young people, and did not refer these cases to specialist Youth Aid officers. This highlighted inter-agency collaboration issues. Objectives 1.5 and 4.1 of the Police National Youth Policing Plan 2005 - 2006[4] describe Police youth work as traditionally defined as being on the margins of frontline policing, and commit to increasing the knowledge base, understanding and monitoring of all staff, in relation to Police powers and obligations under the CYPF Act.

2.2 Lessons from two recent psychological reports

Section 333 of the CYPFA provides for a Youth Court to obtain a medical, psychiatric or psychological report to assist the Court to determine what sort of order or condition should be imposed on a young person, or indeed whether the young person is legally insane, or is fit to stand trial. Two such psychological reports recently encountered in respect of 14 year old young offenders, are illustrative. These reports provided thorough assessments of the psychological health of the two young people in question. They also highlighted the diversity of issues, and, by implication, the diversity of agencies and groups which needed to collaborate in providing services to these young people if their offending was to be properly addressed.

A's case: Wounding with intent to cause grievous bodily harm; Assault with a stabbing or cutting instrument

A's report showed a personal history of witnessing violence in the home, and multiple changes of residence, school and family group. A drank regularly, was dependent on cannabis, and was mildly clinically depressed. He was also prone to anger and violence, had a fascination with knives and had not responded well to an anger management course. The psychologist pointed out that A's lack of symptoms of post traumatic stress disorder were of particular concern when viewed in conjunction with his lack of empathy and emotional connection to violent episodes in his life, and should be addressed in therapy. The report writer also advised that A's suicidal tendencies should be closely monitored given his alcohol use. The report describes A as talking about a culture of violence and substance abuse within his whānau, (extended family) and about living virtually independently with his girlfriend, without the benefit of boundaries set or enforced by his closest parent. The report concluded that:

• A should live away from his mother in a "supportive residential type environment"
• A needs positive male role models and contact with his grandparents
• A should return to fulltime education
• A should receive counselling to address his anger and unresolved childhood experiences
• A needs intensive psychological therapy to create cognitive conflict about his violent behaviours and to enable him to empathise with others
• A should receive alcohol and drug counselling
• A needs to learn appropriate self defence techniques; and
• A's self esteem, confidence, and positive cultural identity would benefit from educational, leisure and Māori cultural activities which build on his strengths and interests.

B's case: Robbery; Aggravated wounding

B lives with four brothers and a sister, plus a step father and a step brother in a town described by a social worker as "a cesspool of gangs". His mother works night shifts and sleeps during the day. B has previously been placed in CYF care twice due to his mother and step father's drinking and violence. B's step father used to be a gang member. B's father, a gang member, was murdered when B was 8 years old. B's father was violent towards the family although B reports that he was "loving and cool". B's 16 year old sister has been hospitalised twice due to heavy drinking sessions with B's twin brother.

B has been hospitalised a number of times for violence-related injuries, and once when he was 3 years old, after swallowing 31 adult neuroleptic prescription tablets. B's school previously reported him as having significant behavioural difficulties. B was in trouble at many of the various primary schools he attended, being suspended many times, and was finally expelled. He reports responding positively to teachers helping him with his behavioural problems, and to being involved in singing and kapahaka (cultural performance). B reports doing well academically at his current high school. He is involved in sports and cultural groups. Some of his friends get into trouble, but others conform and play sports.

At the time of the report, B was resident at a CYF Youth Justice Residence. B reported drinking socially, but not to excess and admitted returning to cannabis use while staying at the Residence. B was remorseful, and regretted injuring his victim. B's high school principal reports B as sometimes volatile and violent, although polite in the right company. B's outlook on the future included returning home, and eventually attending university to do music or art.

In B's case, the report concluded that:

• B has a clinical conduct disorder
• B does not have PTSD, and is not clinically depressed when staying away from home
• B has witnessed and been subject to violence in the home, has suffered from poor parenting, and demonstrates risk factors for aggressive behaviour
• B needs strong male role models and a nurturing environment with firm boundaries and limitations
• B needs to live somewhere that is violence free, drug and alcohol free, is structured and has good monitoring
• B needs to go to school fulltime and to have limited contact with his mother
• B should have therapy that addresses his own violence, as well as the violence that he has witnessed within the family
• B should do cultural and leisure activities that build on his strengths and interests. These would help him develop a strong positive sense of self esteem and confidence and a positive cultural identity.

The web of factors which have contributed to the offending of these young people, and the variety of actions needed to address their offending and keep them out of Court in the future, are interrelated and interdependent. The two reports, typical of so many obtained by the Youth Court, strongly imply that strategies to rehabilitate A and B and to restore them to the communities which have suffered from their offending, cannot ignore the collaborative imperative and must encompass:

• Psychologists
• Social workers
• Teachers
• Police
• Sports groups
• Cultural groups
• Victims or their representatives.

Responses to youth offending simply have to be community-based and collaborative because the problems faced by young people and the causes of their offending are not readily compartmentalised or boxed. In the same way that the problems are interrelated and overlap, so must the responses be.

3. Theoretical imperative for community-based approaches to youth offending

Surprisingly, little research has explicitly addressed the issue of whether community-based approaches to youth offending are more effective than custodial approaches and if so, by what degree. It seems that the underlying writing and research on the topic merely assumes this to be the case. Certainly there is no evidence known to the writers which suggests that custodial/residential programmes are more effective than non-residential approaches. But it does appear that it is much harder for residential/custodial interventions to succeed to the same degree as non-residential approaches and that much more work is required to achieve equivalent results.[5]

The only specific research able to be located provides promising evidence that community-based approaches to effective rehabilitation treatment are twice as effective as custodial/residential-based approaches.[6] This research, from the United States of America,[7] showed that a 35% percent reduction in offending was achieved for non-residential programmes in contrast to a 17% reduction for custodial/residential.[8] These results were produced when there was adherence to the following principles of effective "correctional treatment"[9].

• "Treatment" delivered to the high-risk cases - rather than moderate to low risk offenders
• Criminogenic needs are targeted for change
• Approaches to treatment are used that are capable of influencing the criminogenic needs of the offender, rather than focussing on more nebulous concepts of life-skills training
• The professional(s) working with the offender reviews and adapts risk, need and responsivity considerations as they apply to each individual.

A more recent article[10] reinforces the concept that failure to adhere to any of those principles will seriously compromise the success of intervention programmes, especially community-based interventions.

While this research was carried out for offenders of all ages, there is every reason to conclude that it would be just as effective for young people, if not more so. Young offenders are still maturing and developing and are more susceptible to positive influences than adults.

3.1 No single solution

There is no "magic bullet", to reducing re-offending by serious young offenders. What is required is a tailored and targeted response aimed at the right offender in a way that addresses the criminogenic needs of that offender, and at the same time addresses the family environment which "produced" the offender.

Any response aimed at rehabilitating offenders will be time consuming, challenging and expensive. Resources are always limited and it is important that they are not squandered, but are directed in an efficient and effective manner.

World leading New Zealand research has categorised young offenders as commonly falling into one of two types: "desisters" or "persisters".[11] The latter group will be harder to rehabilitate, but research has shown that efforts and resources may be better and more effectively utilised and directed within this group of young offenders.[12] The desisters (those with less offending history) who usually only offend as teenagers, invariably age-out of offending and often do not require as much formal help.

3.2 Identifying the persistent offender

A number of factors have been identified as key indictors that a young person might be at risk of persistent offending.[13] Early onset of frequent and violent offending is one of them. These young people may also have been in the care or custody of the Department of Child Youth and Family and have family members who have been arrested or appeared in Court. They will typically have more than three criminogenic needs (see below). Most will not be attending school or be meaningfully involved in education. Up to 80% will have drug and/or alcohol problems. Most will be from disadvantaged/dysfunctional families and will lack positive adult male role models. A significant number will be "conduct disordered". In New Zealand, 50% will be Māori (Māori youth make up 17% of the population), and 83% will be male.

3.3 Criminogenic needs

Criminogenic needs are those risk factors that can be changed and which place the young person at risk of offending. Programmes for intervention should be targeted at these needs because here lies the greatest chance of eliminating re-offending.

The following factors have been identified:[14]

• Psychological characteristics such as poor impulse control and medical or physcial conditions
• Antisocial attitudes including few activities with pro-social peers
• Lack of or limited ability to appreciate the consequences of high risk behaviour
• Parental criminality
• Child maltreatment or lack of supervision and affection by adults
• Poor attitude to school including truancy. No participation in after school activities
• Barriers to treatment including lack of transport, difficulty attending appointments
• Poverty
• Community disorganisation
• Availability of drugs.

As observed in Tough is not Enough, "interestingly this review shows that dysfunction in any of the four areas in which youth development takes place (family, community, school, and peer group) can lead to criminal behaviour."[15]

3.4 Key ingredients of effective interventions

There is no definitive answer to what works. However Kaye McLaren in Tough is not Enough - Getting Smart about Youth Crime[16] has comprehensively reviewed the research on what works to reduce offending by young people. It is beyond the scope of this paper to fully describe the results of this research, but below is a brief summary of the main findings in relation to effective services.

(i) A multi-faceted approach

Using an approach that targets a number of needs and uses a variety of techniques, including modelling of desired behaviour by staff, has been shown to be effective.

(ii) Cognitive-behavioural techniques[17]

Using cognitive-behavioural techniques to actively teach new skills and attitudes also works. The young person is given the opportunity to practice skills in the community. This technique may include behavioural contracts and techniques to encourage the young person to stop and think before acting.

(iii) Targeting risk factors or criminogenic needs

Some risk factors (or needs) are related to the offending and some are not. When the right needs are addressed the impact on offending is proven.

(iv) Teaching life skills to higher risk offenders

While a summary of the research in 2000 (Tough is not Enough)[18] concluded that teaching life skills to higher risk offenders is effective, it is far from clear whether this is still the prevailing view. There is now far more emphasis on meeting identified criminogenic needs. Life skills, unless taught in the context of meeting the needs that caused the offending, will not be effective in addressing the underlying issue. It will only result in young offenders with better life skills!

(v) Family focussed

Families have an impact on offending and including a young offender's family in an intervention will result in less crime.[19] Families should be invited to participate in the programme or intervention, be made to feel welcome and encouraged to reinforce new positive behaviours of the young person at home and in the programme setting. See point (ix), below.

(vi) Streamlined

The programme should comprehensively address as many of the young person's criminogenic needs as possible and not attempt to target factors that will not make a critical difference. Ideally these needs should be addressed at one venue or in one programme as a frequently identified barrier to success is the difficulty that young offenders have in keeping appointments. This can be due to logistical issues such as lack of transport, or of money for transport, or because appointments are scheduled during parental work hours.

(vii) Positive role modelling

Generally, the persistent young offender will commit some violent crime as part of their offending. Most programmes should provide some training in violence prevention. This will include social skills, anger management and relapse prevention skills. The programme should have a component where socially appropriate ways to behave and solve problems are modelled so that the young person is less inclined to react violently when faced with a stressful situation.

(viii) Quality controlled

Once an effective programme is in place it should be consistently monitored to ensure that it remains effective. Staff changes, financial or administrative pressures are potential problems that need to be managed in a way that will not affect the integrity of the programme. Staff must be skilled and well trained. A protocol manual is an effective way of providing guidance for staff and of clarifying the aims of the programme.

Monitoring could include taking video or audio tapes of staff interacting with clients, as well as asking supervisors to fill in forms rating staff adherence to prescribed guidelines. An independent expert could be used to rate staff adherence to the programme. Adequate funding is essential to ensure consistency of programme quality.

(ix) Multi-systemic therapy[20] - A successful approach that uses the right ingredients

One acclaimed community-based approach that specifically targets the criminogenic needs of at-risk youth is Multi-Systemic Therapy (MST). This therapy identifies the causes of offending and structures the therapy accordingly. The needs of the young person and the family are addressed in the four domains of the young person - the family, school, community and peer group.

MST is apparently proving effective, resulting in significantly fewer arrests from young people two and a half years after they had completed an MST programme.[21]

3.5 What doesn't work and why

It is inherently difficult and expensive to measure the effectiveness of preventative programmes. Some programmes persist in spite of evidence that they are not effective. Once a programme has been found not to be effective, the fundamental question is why not?

(i) "Getting tough"

A commonly held and erroneous perception, at least in New Zealand, is that youth offending is "out of control". Knee-jerk responses can all too easily include "scare them straight and send them to boot camp/corrective training" demands. These types of suggestions are usually "intuitive", well meaning and born out of profound concern. But it is clear that they are not effective in reducing youth offending.[22] Possibly this is because punishment and deterrence do not address the factors that put young people at risk of offending, or teach them new skills to succeed in conventional life. Some research shows that young people who believe they will be caught and punished severely actually commit more crime.[23]

(ii) Not addressing enough needs

Young offenders most at risk have multiple needs. An approach that only targets one or two of those needs is less likely to be effective. Similarly, an isolated programme that lacks liaison and co-ordination with other programmes will be less effective. A narrow approach to problem solving will be less effective than the use of a range of techniques that are able to meet a wide range of needs.

(iii) Addressing the wrong needs

Young offenders have a variety of problems and needs. It is a waste of time and resources to attempt to change non-criminogenic needs in order to reduce offending. Examples of wrong targets include:[24]

• Vague emotional or personal problems
• Low self-esteem
• Increasing work skills without putting the person into work
• Physical activity.

These targets may be included, but will not impact on offending. The one target that should not be included, as it may actually increase offending, is increasing the fear of punishment.[25]

(iv) Ineffective staff - unfocussed programmes

The effectiveness of a programme always depends on the staff running it. A programme is unlikely to succeed if staff are not competent, do not follow guidelines or are unable to relate positively to young people. Programmes with vague or undefined goals are not effective.

(v) Curfews

These are ineffective as they do not take into account factors that make offending more likely.[26] Curfews on their own do not reduce crime; they only alter the time at which crime is committed. To be effective, parents need to be actively involved in and committed to monitoring both the young person and the curfew.

(vi) Restitution alone

Often a young person is asked to make an apology or payment to the victim. While this may be appropriate, there is evidence that of itself it does not result in less offending and is better used in combination with other orders[27] such as orders relating to supervision, an effective programme or work with the young person's family.

(vii) Peer influences

Recent research from the United States demonstrates that segregating young offenders from society and then aggregating them with other similar "deviant peers" often has a negative influence on their behaviour.

(viii) 'Intensive' community supervision

This involves adding more checks and surveillance, such as drug use checks and electronic monitoring. Research has shown that it is no more effective than ordinary supervision at reducing crime.[28]

3.6 'Segregation' followed by 'aggregation': an ineffective response

In addition to the above factors, recent research from the United States is beginning to highlight one reason why some types of programme not only fail to provide the desired objective - a reduction in youth re-offending - but may increase delinquent behaviour.[29]

The all too typical Western World response to "deviant" youth behaviour is to segregate these young people from their families, schools and communities and from other non-at-risk youths and then to aggregate them in groups with young people who exhibit similar behaviours. These groups may include group counselling sessions, residential programmes, imprisonment, boot-camps and 'scared straight' programmes. The agencies involved are tempted to use this approach because "[s]uch practices make meeting the needs of deviant youth more financially and logistically feasible and serve the potential function of protecting non-delinquent youth from harm or negative influence."[30] Emerging research however suggests that segregation and aggregation may in fact serve to spread deviant behaviour.

Deviant peer contagion refers to 'inadvertent negative effects associated with intervention programmes that aggregate peers in the delivery of a therapeutic protocol, educational service, or community programme.' [31]

The evidence for this phenomenon has recently been reviewed in a recent book[32] written in the United States. The basic thesis is that the placement of high-risk young people in group settings with deviant peers (even in community based settings) has the potential to worsen their problems. Deviant behaviour is known to be concentrated in groups such as gangs. However, the recent hypothesis is that deviant peer contagion also occurs in groups designed to treat or reduce the behaviour. This is called the iotrogenic effect.

Although research directly examining peer influence in justice programme settings is rare, concerns that grouping anti-social youth will result in negative social influence are not new. In 2002, a Commission of Scholars was formed to study the problem of peer contagion. The following is a summary of the Commission's findings and recommendations:

(i) Deviant peer contagion occurs in naturally occurring peer interaction and is strongest:

• during early adolescence
• for youth who have not yet committed themselves to a deviant life
• for youth who are exposed to other youth slightly more deviant than themselves
• for youth who interact in unstructured, unsupervised settings
• for behaviours normally acquired through social process.[33]

(ii) Segregation and aggregation provide 'short-lived' protection for society and illusory cost benefits

The majority of public spending in response to youth deviance is dedicated to the segregation and aggregation model. The justification for this is the protection of society, cost saving and optimal treatment for deviant youth.[34]

The researchers argue that society's protection is 'short-lived' as these youth soon return to society. The costs savings also may amount to a false economy as deviant youth who are not successfully socialised away from a criminal life may cost society more than $2 million (US$) each.[35] The argument that aggregation is an optimal treatment model is not supported by empirical analyses.

(iii) Treatment or placement with deviant peers reduces the potential for positive impact and in some cases has adverse effects on youth adjustment

It was long assumed by those involved in treating young offenders that the admitted power of deviant peer influences could be harnessed to effect positive change for vulnerable youth.[36] However, it is clear from the research that some group-administered interventions, including 'scared straight' programmes have adverse effects on their recipients although it is not always clear what aspect of the intervention is responsible for the adverse effects. However, on the basis of compelling studies involving random assignment and long-term follow up, it was concluded that:

'under some circumstances the aggregation of deviant peers subverts the intended benefits of interventions and leads to less positive, sometimes even negative, outcomes for participating youth.'[37]

(iv) While treatments often have positive effects, these may be eroded through group administration

Cost and feasibility dictate the delivery of group programmes although no studies have been conducted to test the cost-benefits of individual programmes in the long term.

(v) Placement with deviant peers further erodes treatment effects

Programmes in which at-risk youth are placed with deviant youth further erode positive treatment effects. In addition, deviant peer contagion may occur. While this does not operate uniformly, it occurs with "alarming frequency".[38]

The researchers suggest that official processing of youths in Court may exacerbate antisocial development through the perception both of the young person themselves and of others that the youth is a member of a deviant group.[39] They refer to deviancy training, which involves reinforcement of deviant behaviour among peers.

(vi) Not all deviant peer group placements are equal.[40]

Despite the finding that outcomes associated with deviant peer aggregation appear to be unpredictable, the researchers found that several factors were important when determining whether an outcome would result in a negative or positive impact. These factors are:

• Age and gender of child
• The level of progression into deviance
• The amount of time in the group
• Opportunities for interaction among members outside the group
• Ratio of deviant to non-deviant in the group
• The group structure
• The level of expertise of the group leader
• Cultural context of the intervention
• The outcome in question.

4. The third imperative - UNCROC and other international conventions mandating community-based approaches

The 1989 United Nations Convention on the Rights of the Child (UNCROC) sets out key principles regarding the maintenance of rights of children and young people. UNCROC also acts as the umbrella for three sets of non-binding rules that deal with youth justice:

1. The UN Guidelines for the Administration of Juvenile Delinquency ("the Riyadh Guidelines")[41]

2. The UN Standard Minimum Rules for the Protection of Juvenile Justice ("the Beijing Rules")[42], and

3. The UN Rules for the Protection of Juveniles Deprived of their Liberty.[43]

The commentary to Rule 17 of the Beijing Rules refers to the "unresolved philosophical conflicts" between concepts of "rehabilitation versus just deserts" and "assistance versus repression" and states that "it is not the place of the rules to prescribe an approach to be followed," but to "identify an approach consonant with internationally accepted principles". However, the consistent tenor of these instruments with reference to the rehabilitation and prevention of recidivism of youth offenders is that community-based, non-residential alternatives should be provided wherever possible.

Rule 33 of the Riyadh Guidelines sums up the position quite succinctly by stating,

"Communities should provide, or strengthen where they exist, a wide range of community-based support measures for young persons...to respond to the special problems of children who are at social risk..."

UNCROC itself makes no specific mention of the importance and primacy of a community-based approach, but this is implicit, for instance, in Article 37(b), which provides that arrest, detention or imprisonment of a child should be a "measure of last resort".[44]

5. Examples of community-based approaches to youth offending

Having identified and discussed three key imperatives for a community-based approach to youth offending, this paper will now discuss some effective community-based approaches that are used in New Zealand at key stages in the youth justice process.

These include:

1. Police warnings/"alternative action", as a mandated approach instead of formal charging in the Youth Court;

2. Family Group Conferences

(a) "Intention to Charge" Family Group Conferences - a diversionary mechanism to reduce prosecutions.

(b) "Court ordered" Family Group Conferences.

3. "Supervision with Activity": An innovative community-based Court order, as a statutory alternative to a custodial response.

The passing of the Children, Young Persons and Their Families Act in 1989, ("CYPFA") heralded a new approach to dealing with young offenders in New Zealand and placed an unmistakable emphasis on community-based approaches. Born out of concerns with the previous "welfare-based approach" and the heavy emphasis on institutional/custodial interventions, the principles of the CYPFA require that a young offender is held accountable for his or her actions, while at the same time having his or her needs acknowledged.[45] A special significance is placed on the participation of the young person and the family, including extended family, at every stage of the youth justice process. It also includes explicit recognition that a young person who commits an offence should wherever possible be kept in the community (subject to public safety concerns), and that a custodial approach is an absolute last resort.[46]

5.1 Police diversion: warnings and 'alternative action'

Most offending by children and young people in New Zealand does not come to Court. Until recently, at least 83% of young offenders were diverted away from the formal Court system. This is a world leading statistic and a very important one. It is very difficult to extract young people from the formal justice system once they have been dealt with by it. The reasons for this are not clear. Possible explanations include that the young offender may become "inoculated" to the Court system, and/or become at risk of peer contagion due to the generally greater opportunity to meet other young offenders while appearing at Court.

The use of diversionary measures recognises that most young people who offend will develop into responsible adults and go on to make a positive contribution to society. This group is best dealt with by alternative measures that will assist them in putting right the wrong and helping them to move on, free from formal involvement in the criminal justice system. Contrary to what people think, the Youth Court is not as effective as a community-based, non-court intervention. An informal, but firm, prompt and creative community-based intervention works best.

(i) Section 208(a) of the Children, Young Persons and Their Families Act 1989 Section 208 of CYFPA sets out general principles which must guide decision makers exercising powers under the Youth Justice part of the Act. Section 208 (a) provides:

208 Principles

(a) The principle that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter." (emphasis added)

At the time of its introduction, this principle, which contains a clear and dramatic direction not to prosecute, was truly revolutionary. It turned traditional police practice on its head. Its introduction was not without debate and provoked considerable controversy. Those concerned to ensure that the practice of diverting young offenders was encouraged were distinctly uneasy that the discretion to divert was to rest with the police - the very agency trained to prosecute. It was also felt that those within the police who would be required to make the decision to divert -the Police Youth Aid division- could all too easily become marginalised and misunderstood by police at the front-line.

As it turned out, the former concern proved unjustified. The specialist Youth Aid Division of the New Zealand Police bought into the ethos of the Act in a quite spectacular way. Rates of diversion (including warnings) have remained consistently high - around 76% of all cases. "Alternative action" or "diversion" initiatives are locally based, draw on community strengths, and are often very creative plans or programmes that directly respond to local youth offending.[47]

However, the latter concern has partially eventuated. The emphasis on diversion and the high levels of diversion over the last seventeen years have been generally misunderstood by at least some front line police and have been viewed as counter-productive and "soft".

(ii) Warnings

The most "lenient" and least intrusive of Police community based responses to Youth Offending is the use of formal police warnings. Section 209 of CYPFA provides the Police with the authority and discretion to take this course of action.[48]

209 Consideration of warning as alternative to prosecution

Where an enforcement officer is considering whether to institute criminal proceedings against a child or young person for an offence alleged or admitted to have been committed by that child or young person, that officer shall consider whether it would be sufficient to warn the child or young person, unless a warning is clearly inappropriate having regard to the seriousness of the offence and the nature and number of previous offences committed by the child or young person". (emphasis added)

The use of formal warnings is the method of resolution used by the police in about 23% of total police apprehensions of young people. A warning is often given by the attending officer and followed up by a letter from the Youth Aid Officer acknowledging the warning.

Table 1 below, demonstrates that the proportion of apprehended youths warned or cautioned was at its highest in 2006 (at 23%). From 1995 to 2005 the proportion was relatively steady at around 20%.

(iii) 'Alternative action'/diversionary plans

'Alternative action', has become a peculiarly New Zealand term, used to describe diversionary practice. It originates from the particular wording of s208 (a) which refers to

"... an alternative means of dealing with the matter". "Alternative action" is the term coined by the New Zealand Youth Aid Police to sum up "alternative means of dealing

The Police have total control over how a young offender is to be dealt with initially. Minor incidents may be dealt with by an immediate warning. The incident is then recorded and a report is sent to the specialist Youth Aid Division of the New Zealand Police for their records. While serious cases where there has been an arrest will be dealt with by the laying of charges in the Youth Court, most other incidents may be referred to Youth Aid. Diversion/alternative action rates have been consistently high, at around 70-76% of all cases. Risk assessment tools are used to assess those young people who are referred to Police Youth Aid[49] in order to establish who is best suited for an "alternative action plan" and who needs to be charged.

Figure 1 Rate per 10,000 population of 14 to 16 year-olds, of cases appearing in the Youth Court 1980-2006.[50]

Notes
1 Source: Ministry of Justice.
2 Age is as at time of offence.
3 Rates per 10,000 have been calculated using population estimates (as at 30 June each year) from Statistics New Zealand based on the 2006 census.
4 Cases are counted over calendar years.

5 The system used to log cases was updated in 2004 (from LES to CMS). This has caused changes in the figures and trends in cases that are observed prior to 2003 and following 2004. In particular, any changes in the number of cases in 2004 may not represent a true change in offender patterns. Accordingly, extreme caution should be used when making inferences based on any change between 2003 and 2004. Please also note that any other changes in the above data are due to, for example, finalised appeals

Figure 1 is a graphic representation of the dramatic reduction in the use of the Youth Court for young offenders since the introduction of the CYPFA in 1989. In particular, it clearly depicts the almost overnight revolution in Police practice and the extent of diversionary practice over the last ten years.

Table 1 Percentage of each resolution type for Police apprehensions of 14 to 16 year olds for non-traffic offences, 1995 to 2006[51]

Notes

1. Resolution is the method by which Police deal with an offender. It does not provide information on the number of convictions.
2. Refers to intention to charge (ITC) FGCs. There are two types of FGCs: ITC FGCs ordered by Police and those arising from charges laid in the Youth Court once the young person admits they committed the offence or it has been proven.
3. Refers to alternative actions (diversion), often after consultation with victims, the young person and their family/ whānau.
4. Police issue a formal warning.
5. The resolution category of 'Other' indicates that the offence was resolved, but none of the specified resolution actions are recorded as having occurred. This could be for a variety of reasons, such as death of the alleged offender, the mental condition of the alleged offender, or the offender already being in custody for a more serious offence.

Two areas of concern are identified in Table 1 above:

• Over half of 14 to 16 year olds (between 53% and 57%) were dealt with by Police Youth Aid "diversionary plans" prior to 2005, decreasing to 46% in 2005 and 39% in 2006. This relatively sudden change in Police practice is causing concern.
• In 2006, the proportion of youth apprehensions resolved by a prosecution increased to 29%, compared to 13% in 1995, and 17% as recently as 2004.

(iv) Key features of Police diversion/alternative action plan[52]

The Crime and Justice Research Centre at Victoria University, Wellington, carried out a project to collect and study police youth diversion data from 16 areas in New Zealand. From December 2000 to May 2001, Youth Aid officers filled out checklists describing the details of the young offenders and the nature of the responses made to the offending. This project resulted in the Police Youth Diversion Report which was published in 2002 and presented the results from 1794 cases.

The alternative action plans may take various forms: including an apology, reparation, community work or the requirement to attend a programme.

• The most common component of diversionary plans was an apology, which was ordered for two thirds of cases.[53]
• Reparation to the victim was arranged for about one fifth, and a small number made donations to a charity.[54]
• Work in the community was arranged for about a third. The work may be of a general nature or may be related to the offence. The hours required are usually around 20-29, but may be up to 50 or more.
• Attending programmes of some sort was an outcome for one in five. These programmes include, for example, the Police Youth at Risk programme, anger management programmes, drug and alcohol programmes, fire awareness, driving instruction, strengthening families meeting, counselling referrals, church groups, outdoor programmes and various education options.[55]
• A diversionary plan may include the imposition of curfews or restrictions, such non-association with specific other young people, an agreement about not trespassing or driving. One in six of the young people in this study were required to write an essay, tour police cells or complete a good behaviour contract with their school.[56]

Generally, the choices of diversionary responses are in line with the intent of the CYPFA and encourage the use of restorative and rehabilitative responses.[57]

(v) Alternative action and community collaboration: a practical example[58]

One example of a successful alternative action plan is the Hamilton Alternative Action Project, where Police Youth Aid has partnered with Taiohi Toa Charitable Trust. The project has been running for over a year and has had a "... dramatic impact on the number and quality of alternative actions carried out in the Hamilton area." [59]

The approach taken by the Police Youth Development staff, the sergeant in charge of Youth Services, two Youth Aid officers and a researcher was based on three key principles of reducing youth crime.[60]

1. Early intervention to address the criminogenic[61] needs of the young offender.

2. Adopting processes that encourage compliance with Alternative Action plans will reduce the numbers of youth progressing into the youth justice system.

3. Using responses that focus on the causes of offending are likely to be more effective.

The main goals of the project were to increase the number of young people who complete their plans; improve the monitoring and support of young people being dealt with by police diversion; provide earlier identification of youth offenders' risks and needs and to facilitate appropriate referrals to external support agencies.

Taiohi Toa provided funding for the role of an Alternative Action Co-ordinator. This person takes referrals from Hamilton Police Youth Aid and works to prepare and engage the young offender and their family with the Alternative Action process. The Co-ordinator also provides monitoring and support to enable the young offender and their family to complete the Alternative Action plan. They are involved in re-engaging the young person with school and other education opportunities.

The Co-ordinator is in a good position to make referrals to other agencies, as he or she develops a deeper understanding of the young person's needs. The Co-ordinator and a Police Youth Services team member also plan and supervise community work days, which are designed to provide young offenders whose Alternative Action plan includes community work, with specific tasks that benefit the community as well as deliver some measure of punishment. Before the introduction of the Alternative Action co-ordinator, non-completion of community work was one of the major factors behind the poor completion rate of Alternative Action plans. The increase in completion rates by young offenders following the introduction of a fulltime Alternative Action Co-ordinator was almost universal[62].

Hamilton Police Youth Aid officers use risks and needs assessment screening tools to provide a useful background picture of a young person's chance of re-offending. The use of these screening tools has meant a significant increase in the number of young offenders referred to external providers such as youth services or mental health agencies.

In the first year the project has resulted in:[63]

• A 97% completion rate of Alternative Action plans by young offenders.
• Youth Aid Officers providing assistance to develop and monitor Alternative Action Plans.
• All of the young people receiving at least one home visit.
• All of the young people receiving a risk and needs screen and, where appropriate, referral to external support agencies.
• Youth Aid Officers receiving more information on young people's background circumstances to develop plans that target causes of offending.
• Increased contact with Student Support at the Ministry of Education.
• An increase in Alternative Action young people being re-engaged in education or training.

(vi) Police diversion: does it reduce re-offending?

One focus of the follow-up report for the New Zealand police[64] "Impact of Police Responses to Youth Offenders" was to provide information on the re-offending of the sample of the 1794 offenders collected in 1998 -1999, discussed at 5.1 (iv), previously.[65] The following is an excerpt from the report which provides support for the argument that "simply punishing offenders is likely to further alienate them from society and lead to re-offending."[66]:

"Overall, twenty percent of the 1438 young people in the sample on whom data was available re-offended within 18 months. The re-offending rate was lowest for those young people for whom the Police responded to by way of a warning (9%) or for whom the Police arranged a diversionary plan (16%). Rates were highest for those for whom the Police responded to by way of a family group conference (37%) or a hearing in the Youth Court (51%).

Five factors - the type of Police response, having a previous record, being a young male, having a history of truancy, and being aged 14 years or older - independently predicted young people's likelihood of re-offending over an 18 month period.

For those young people for whom the Police arranged a diversionary plan, six factors -being a young male, the number of elements in the diversionary plan, being aged 14 years or older, having a previous record, whether the diversionary plan included a donation, and the ethnicity of the young person - independently predicted young people's likelihood of re-offending over an 18 month period.

In general, these results are consistent with previous findings (Maxwell et al., 2004) that show that, other things being equal, dealing with young people at the lower end of the scale and including more restorative, reintegrative and rehabilitative options is likely to be more effective than relying on tough punitive and restrictive sanctions."[67]

In conclusion, the use of warnings and alternative action has been a very significant and undervalued part of the New Zealand Youth Justice system. It has been extraordinarily successful. Referrals to the Youth Court have, until recently, been at very low levels. This has been one of the real success stories of the New Zealand youth justice system. New Zealand has demonstrated that young people do not need to be brought to Court in order to effectively stop re-offending. In some parts of New Zealand, the use of warnings and alternative action/diversion plans have accounted for up to 90% of all instances of youth offending.

It is the writer's tentative thesis that world-wide, as little as 10% of youth offending actually needs to result in charges being formally laid in Court.

This presents a real challenge for every Youth Justice system.

5.2 Family Group Conferences (FGCs)

The FGC system, which was introduced along with a diversionary emphasis of unprecedented scale, revolutionised the New Zealand youth justice landscape.

The FGC became the prime mechanism both for discharging the accountability and rehabilitation responsibilities required by the Children Young Persons and Their Families Act 1989[68] for those prosecuted in the Youth Court or for whom Police desired to prosecute- but could not do so because there had been no arrest.

Around 24% of youth offenders are dealt with by FGC - about 8% of this number via an intention to charge FGC and 16% by Court ordered FGC.

The success of the New Zealand Family Group Conference is world-renowned and has been adopted and adapted in many other jurisdictions. The American Humane Association recently presented an award to our New Zealand Ambassador in recognition of New Zealand's role as the pioneer of the Family Group Conference (FGC).

FGCs are a practical manifestation of the recognition that the "community" is where the offender, victim and their families live and therefore it is from within the community that our lives may be shaped for the future.[69]

The FGC is made up of the young person, his or her advocate, members of the family and whoever they invite, the victim(s) and/or their representative, the police, the social worker (if one has been involved with the family) and the specialist Youth Justice Coordinator, YJC.[70]

5.2.1 Process

The legislation envisages considerable variation in practice at FGCs. However, the process generally involves:[71]

• Introductions
• An explanation of the procedure by the co-ordinator
• The presentation of the summary of facts of the offence by the police
• An opportunity for the offender to comment on the accuracy of the police statement and to formally admit the offence
• An opportunity for the victim (or representative) to present their view if the offender admits the offence
• A general discussion of possible outcomes
• A discussion of options among the offender's family
• The formulation of a plan, response or outcome by the offender's family
• General negotiation
• Agreement from the enforcement agency and the victim
• Recording of the agreed plan and closure of the meeting

There are six situations where a youth justice FGC must be convened. The two relevant situations for the purposes of this paper are the "intention to charge" FGC and the "Court directed FGC" which are described later in detail. For informational purposes a brief description of the other four situations are included within the following list:

1. "Child" offender (10-13 years of age) care and protection conference

If the Police believe, after inquiry, that an alleged child offender (aged 10 - 13) is in need of care and protection, this must be reported to a Youth Justice Co-ordinator. 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[72] 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.[73]

2. "Intention to charge"FGC (discussed later)

3. "Custody conference"FGC

Where a young person denies a charge, but, pending its resolution, the Youth Court orders the young person be placed in CYFS or Police custody, an FGC must be convened.[74] 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.[75]

4. Court directed FGC: after a "non-denial" by a young person"[76] (discussed later)

5. FGC as to "orders" to be made by the 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.[77] At a penalty FGC, the group must decide what action and/or penalties should result from a finding that a charge is proved.[78]

6. FGC at Youth Court discretion at any stage in the process

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.[79] 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.

5.2.3 Why the FGC is a good model of youth justice

(i) Empowerment of Māori[80]

Arguably, colonialism all but destroyed indigenous systems of justice in New Zealand. From a Māori cultural perspective, Māori do not view themselves as individuals, but rather as part of a collective - tangible and intangible. Tangible aspects of collectivist include whānau (family), hapu (sub-tribe) and iwi (tribe). Intangible aspects include hinengaro (desire, heart, conscience, and mind), wairua (spirit), and the tinana (body). Māori believe that anything presenting as 'disease' in the hinegaro or wairua eventually manifests itself as a disease in the tinana and offending behaviour is such a manifestation. Restorative conferencing is the means of discovering the source of the disease. Marae justice is about healing both the victim and the offender.[81]

The fundamental elements of a Māori model of justice include:[82]

• An emphasis on consensus and involvement of the whole community rather than of a single individual
• Reconciliation as to the desired outcome and a settlement acceptable to all involved parties
• Examination of the wider reasons for the wrong
• Restoration of harmony.

It should be emphasised that the FGC system is not a wholesale adoption of an indigenous method of dispute resolution, but an attempt to be culturally appropriate, and thus empower Māori by incorporating traditional Māori cultural values. While not a Māori model, much of the FGC process is consistent with a Māori approach to resolving conflict. This is a most important feature of the system because Māori children and young people are tragically over-represented in youth offending trends.[83]

(ii) Empowerment of the family

In the most direct sense, families are involved in the FGC. The process encourages the family to determine the process and procedures to be followed at the FGC and to decide who should be invited to participate, choose the venue and agree with a plan to deal with the offending.

(iii) Empowerment of offenders

In contrast to their status as "bystanders", even "objects" in conventional criminal justice systems[84], offenders are given the opportunity in FGCs to actively participate in discussions about their past offending and its causes, about how the harm caused can be rectified and about their own future needs.

By bringing offenders and victims together, FGCs enable offenders to understand the consequences of their actions from the victim's perspective, to accept responsibility for them and to actively make a commitment to some reparation.

(iv) Empowerment of victims

The FGC model anticipates and facilitates the participation of victims in arriving at a satisfactory outcome which includes reparation for the harm done to them by the offender. Attendance at the FGC offers the victims the opportunity and the environment to express their views about the offending and outline its impact on their lives. It allows the victim to ask questions of the offender.

Most victims find the experience helpful and positive.[85] However, a small number find the experience negative, most often because they feel that the offender is not truly sorry.

It has been suggested that the victim is at the heart of the youth justice process; however there is an inherent conflict between this view and the provisions of the legislation, which has as its primary focus offenders and their families. This is perhaps reflected in statistics that indicate that on average only half of victims are satisfied with FGC outcomes, while over 80% of police, offenders and offenders' families are happy with outcomes.[86] However, statistics also indicate that those victims who attended the FGC were more likely to report agreeing with the decisions made at the conference. It is understandable that high proportions of victims[87] do not attend FGCs for a variety of reasons. However, in some cases the reason may be that Youth Justice Coordinators do not, or because of caseloads cannot, make sufficient effort to encourage a victim to attend.

(v) Group consensus decision making

A group approach to decision-making aims to move away from adversarial and confrontational procedures of the courtroom towards outcomes shaped by those touched by the offending. The New Zealand Children Young Persons and Their Families Act expressly allows FGC members, following discussions, to recommend that proceedings continue or discontinue;[88] that a formal Police caution should be given;[89] that a declaration be made that the young person is in need of care and protection;[90] that appropriate penalties be imposed[91] and/or that reparation be paid to the victim of the offence.[92] The legislation requires that FGC plans reflect the principles laid down in the Act.[93]

However, there are no other formal or informal prescriptions for FGC plans. There are no limitations on the imagination and ideas that flow from the group of people who wish to produce constructive solutions to the problems of the young person's behaviour. This is the strength of the system -that the plan designed by the offender, victim and community is likely to be realistic and to reflect the resources and support available.[94]

This paper will now discuss the "intention to charge" and the "Court directed FGC" as these represent the majority of FGCs in the youth justice system and are the two ways in which those offences where the police charge a young person, or intend to charge a young person are dealt with in the Youth Court.

5.2.4 Intention to charge FGC as a Community-Based, Diversionary Mechanism

Where an offence is alleged and the Police believe criminal proceedings are "required in the public interest", the Police and a youth justice co-ordinator, (YJC) consult and the matter is considered by an "intention to charge" FGC.[95] This avenue is taken where the young person has not been arrested (or has been earlier arrested and released). Under s 214 of the CYPF Act there are tight restrictions on the ability of the Police to arrest a young person. If the Police intend to lay charges they must first consult a Youth Justice Co-ordinator. If, after consultation, the Police still want to charge the young person, a FGC must be convened.[96]

At the 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.[97]

"Intention to charge" FGCs are a sophisticated "diversionary" mechanism designed to divert cases away from Court - even those where the Police at first wish to charge a young person. The "intention to charge" FGC is also to be seen as a second "barrier" to formal Court-based interventions (when there has been no arrest), to be surmounted even if Police diversion is considered inappropriate.

5.2.5 Court-ordered FGC

A second route by which a young person may find themselves in the Youth Court occurs where a young person is arrested for an offence and is brought before the Youth Court to answer the charge.[98] (If there has been a valid arrest, no prior intention to charge FGC is required). In this situation, the offence is either "denied", in which case the charge is dealt with in accordance with the traditional common law adversarial approach,[99] or "not denied" and the Court orders a youth justice co-ordinator to convene a FGC. Proceedings are adjourned until the FGC has been held. 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.[100] 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:

• establish if the charge is admitted;
• formulate a plan for approval by the Youth Court in response to the admitted offending;
• decide what action and/or penalties should result.[101]

5.2.6 Issues facing the current system

(i) The perception that FGC is a soft response to crime.

When well prepared, conducted and followed up, the FGC has been a powerful response to youth crime. It is demanding on the young offender; it facilitates, and necessitates the active involvement of the young person's family and it can be satisfying for victims.

(ii) Poorly prepared, resourced and monitored FGC plans:

One tendency noted by Youth Court Judges in relation to FGCs, is the 'sameness' of their plans. Young offenders may have similar characteristics and similar needs to be addressed, but each person is unique. Youth Court Judges address this issue by sending plans back seeking a more creative and tailored approach to the young offender's needs.

Other difficulties have included a lack of proper psychological, psychiatric, education and health assessments to identify the complex issues that a young offender may face. However a recent collaborative programme established by the New Zealand Ministry of Health, the Department of Child Youth and Family and the Ministry of Education aims to address this problem. This programme is called The Health and Education Assessment Programme and its objectives are to complete health and education assessments on young offenders before the FGC. These assessments will then inform the FGC decision making and provide recommendations that specifically address issues that are contributing to the offending. All child offenders subject to a FGC are eligible.

(iii) Is sufficient emphasis placed on Rehabilitation and Reintegration at Family Group Conferences?

The CYPF Act emphasises the need for accountability and rehabilitation of young people. New Zealand's FGCs have been an excellent forum for achieving accountability and for ensuring that any wrong is put right but have been less successful at helping to rehabilitate and reintegrate young people.[102] The following table from Achieving Effective Outcomes in Youth Justice[103] demonstrates the success of the system in achieving accountability and restorative outcomes and its lack of success in reintegrating and rehabilitating (sometimes called "enhancing well being") the majority of young people being dealt with at FGC:

Table 2 Recommendations of agreed family group conference comparing the combinations of primarily restorative, restrictive, rehabilitative and re-integrative measures for the retrospective sample; number and percentages (n = 904)

This may suggest that a "restorative approach", emphasising accountability and putting right the wrong has relegated addressing the well-being of youth offenders to a secondary position. A guiding principle of the CYPF Act, and of youth justice in New Zealand, is that criminal proceedings may not be instituted against a young person solely to access welfare services.[104] This principle was one part of the CYPF Act's move away from a "welfarist" approach. It is possible that the failure of the system to achieve adequate rehabilitative outcomes at FGC

reflects zealous adherence to a justice, rather than a "welfarist" principle[105] and indicates a failure to fully implement s 4(f)(ii) of the CYPF Act 1989.

4 Objects

The object of this Act is to promote the well-being of children, young persons, and their families and family groups by—

(f) Ensuring that where children or young persons commit offences,—

(i) ...

(ii) They are dealt with in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways

The FGC system is an effective and groundbreaking process. It is a sound model of practice which supports the spirit and intent of the CYPFA. There is evidence that the FGC system has increased the number of youth offenders carrying out "active penalties" for offending, for example, community work and reparation. Custodial and residential penalties are rarely recommended by FGCs. Generally therefore, more young people are being held accountable for their offending than in the past, and in ways that emphasise restoration[106] and which keep them in the community.

5.3 An innovative court order: Supervision with Activity - rehabilitation in the community[107]

Supervision with Activity[108] is the third most serious order available to the Youth Court, and also, by statute[109] a true alternative to Supervision with Residence (the Youth Court's only custodial order) for some offenders.

s 283 Orders of the Court

Where a charge against a young person is proved before a Youth Court, the Court may, subject to sections 284 to 290 of this Act, do one or more of the following: ... (m) Make a supervision with activity order under section 307 of this Act:

s 307Supervision with activity order

(1) Where a charge against a young person is proved before a Youth Court, the Court may, with the consent of the young person, make an order placing the young person under the supervision of the [chief executive] or such person or organisation as may be specified in the order for a period not exceeding 3 months, and imposing either or both of the following conditions:

(a) That the young person attend and remain at, for such weekday, evening, and weekend hours each week and for such number of months as the Court thinks fit, any specified centre that is approved by the Department, and take part in such activity as may be required by the person in charge of the centre:

(b) That the young person undertake any specified programme or activity.

(2) Where the Court makes an order under subsection (1) of this section in respect of a young person, it may at the same time make an order under section 283(k) of this Act placing that young person under the supervision of the [chief executive] or such person or organisation as is specified in the order for such period (not exceeding 3 months) as the Court may specify, and any order so made under that section shall come into force on the expiry of the order made under subsection (1) of this section.

Supervision with Activity involves the young person attending and remaining at a specified centre for certain hours as the Court thinks fit, and/or undertaking a specified programme or activity for up to 3 months (24 hours a day, 7 days a week if necessary), followed by 3 months supervision. The legislation deliberately envisages collaboration between the Court, Child Youth and Family, and community providers to produce a programme targeted at making the young person face up to their offending and address the damage caused to their victims, their community and to themselves.

Supervision with Activity has been described as "intensive management of a young person in the community by providing opportunities for the young person to engage in meaningful activities which would be sufficiently structured to give the Court confidence that opportunities for further re-offending would be significantly reduced, and that the interests of the community would be sufficiently protected."[110]

"The order was introduced as a response to the knowledge of the day regarding such matters as:

- The negative effects of involvement with the criminal justice system (leading to the Act's emphasis on diversion, and short, focused sanctions when this is not possible);

- The benefits - for young people and the community overall and over time - of community based provisions over provisions involving custody (leading to sanctions such as Supervision with Activity as an alternative to custody);

- The dangers of congregating young people who offend in programmes with one another (leading to the emphasis on individual plans in which families are centrally engaged);

- The benefits of maintaining a child or young person in the context of their family system, rather than in the context of their peer systems (leading to the FGC decision-making and planning model essential to achieving family ownership of the issues);

- The harmfulness of professional discretion (leading to rules around detaining and questioning young people, restrictions on the use of the more severe sanctions and the now criticised procedural clarity of the Act).

Orthodox approaches to criminal justice pushed young people towards custody and distanced them from the community. Repeat involvements with the system, even if offending was not escalating markedly, tended to catapult young people towards custody in ways that were unlikely to have happened had they been adults (the former system enabled young persons to be committed to care for reasons of their offending behaviour, resulting in sharply disproportionate consequences for them that could not have occurred had they been a year or two older)"[111]

Unfortunately, the use of Supervision with Activity as a true alternative to Supervision with Residence has declined for a number of years to the point where it is virtually extinct in some areas. Mike Doolan attributes this decline to, amongst other things:

• a disconnection between the development of the policy and the implementation of it at an operational level;
• too much optimism that family groups could provide core programme activities without support; due to
  • insufficient funding of social workers following the economic reforms of the early 1990s;
  • a lack of skills in flexibly funding wrap-around service agreements with family providers; and
  • a lack of quality and intensive training of Child Youth and Family staff.

The history of Supervision with Activity is a valuable lesson, if we needed one, that good community based collaboration will not just happen by itself even if it is prescribed by an Act of Parliament.

5.4 Transfer to the adult criminal court for trial/sentence - ineffective as a deterrent

Consistent with international trends towards a more punitive approach, there seems to be a growing trend for an increasing number of youth offending cases to be transferred to the adult courts. The use of transfer provisions or "waiver" laws are justified as a deterrent for those young people who are considered to be beyond the rehabilitative measures of a Youth Court, but those arguments are not necessarily convincing. Recent research[112] from the United States has assessed the effects of 'direct file waiver laws'[113] in fourteen states and in the District of Columbia. The findings from the study do not support the conclusion that young offenders are being deterred by the threat of receiving criminal sanctions following direct waiver. The analysis showed that the direct file law had a deterrent effect in only one state. The other thirteen states had either no effect or experienced an increase in their arrest rate for violent youth crime.[114]

In many jurisdictions there are some serious cases that can only be dealt with by the adult Courts - sometimes the superior adult Courts. In New Zealand, an example is murder and manslaughter which, apart from the preliminary hearing, can only be dealt with in the High Court of New Zealand. Almost all other jurisdictions provide for a discretion for Children's Courts to transfer cases to the adult courts. In the USA, this is known as "waiver" of jurisdiction. It has become a controversial issue and the subject of considerable debate in that country. There is a growing list of cases subject to waiver in most states in America.[115]

There are said to be sound policy and public interest considerations as to why this should be so. These include, for example, the need for the most severe cases where penalties of life imprisonment may be imposed, to be heard and determined in the same superior Courts as adults to encourage public confidence in the criminal justice system. Also, and more colloquially, - that "adult crime demands adult time." However, in the writers' view, if there is to be such a group of charges, it should be as small a list as possible and should probably be limited to cases of alleged homicide.

As a matter of principle, Youth Courts should be empowered to deal with all cases involving young people, with all the sentencing options that would be available in the adult Courts, being available to the Youth Court instead.

5.5 Imprisonment - too much heat?

It is accepted unequivocally that imprisonment will sometimes be the only appropriate response to youth offending. For a small group of serious young offenders, a community-based approach will not provide adequate protection for the community. It may also be that the offending is so serious that the public interest cannot be adequately addressed short of a prison sentence.

Although it is sometimes the only response available, imprisonment is generally considered to be a poor rehabilitative response to youth crime. There are numerous negative psychological and behavioural consequences for young people who are imprisoned as adults, and with adult offenders.[116] Not only are young people likely to adopt the prison culture and to continue to use that culture's norms upon release, they may experience intimidation and bullying by older inmates.[117] Young people in adult prisons face an increased risk of suicide[118] and may be subjected to sexual, physical and emotional abuse by older inmates. See also the discussion of "deviant peer contagion" at 3.6, before.

Young people do not have the same level of cognitive or psychological maturity as adults.[119 ]They are more vulnerable to provocation, duress or threatening behaviour and are particularly influenced by peer approval and fear of rejection.[120]

Although the New Zealand Department of Correction does provide for some separate, specialist units to deal with young offenders in prison, it is preferable for young people to be kept out of prison altogether. The benefits of incarceration do not outweigh the disadvantages.[121]

(i) Imprisonment of Youth Offenders in New Zealand

The New Zealand Youth Court cannot sentence young people to imprisonment but can, in limited circumstances, convict and transfer them to the District Court where they may receive a sentence of imprisonment.[122] (In the adult courts, imprisonment can only be imposed in respect of a small list of very serious offences). Alternatively, for certain very serious offences, the Youth Court may conduct a preliminary hearing and then send the matter to an adult Court for a jury trial and sentence.

The following graph and table show how many young offenders who initially appeared in the Youth Court were subsequently given a sentence of imprisonment by the District Court or High Court. In particular, Figure 2, below, demonstrates the dramatic reduction in the use of imprisonment with the introduction of the 1989 CYPF Act. It is no exaggeration to say that the numbers of young offenders sent to prison plummeted overnight. There was a two thirds drop. Since 1990 rates of imprisonment have remained very stable. It should be noted that the sentence of Corrective Training, referred to in Figure 2, was abolished in late 2001. It had been designed as a short, sharp, three month "shock" in a military training/borstal type facility for 15 - 19 year old boys. It proved a spectacular failure. If anything, it simply produced fitter and stronger young offenders. The re-offending rates approached 92%. It was the least successful intervention in New Zealand's criminal justice history!

Figure 2 Custodial Sentences for Youth Court Cases, 1987-2001

Table 3[123]

Number of cases where the offender was under the age of 18, first appeared in a Youth Court and was then sentenced to imprisonment in either the District Court or High Court, 2001 to 2006

Notes:

1. Age taken at time of finalisation.
2. Final court hearing location has been used.
3. The few cases that had their final court hearing in a Youth Court have been categorised under the District Court.
4. Figures for 2006 are provisional.
5. Source: Ministry of Justice.

Only about 50 sentences of imprisonment are handed down against young people whose case originated in the New Zealand Youth Court each year. The New Zealand Youth Court's stance that imprisonment of young offenders should be used infrequently is mandated by legislation.

1. The guiding principles of the Children Young Persons and Their Families Act 1989 encourage the use of alternatives to imprisonment.

2. The Youth Court has limited jurisdiction to transfer a young person to the adult court for sentencing.

3. The Sentencing Act 2002 also restricts prison sentences for young people under 17 years of age to a small list of very serious offences .[124]

4. A child or young person may serve a sentence of imprisonment in a prison or in any residence approved by the chief executive of Child Youth and Family Services.[125] There is no requirement or statutory direction towards either placement in prison or placement in a residence.

5. The Youth Court cannot currently remand young people to penal institutions.[126]

6. Conclusion

This paper presents a significant challenge to the prevailing populist view that custodial sentences for young offenders are best in the interests of the community. In fact, it contends that the reverse is true.

There are both practical and theoretical imperatives (to say nothing of the direction given by the international covenants) which strongly suggest that a community-based approach to dealing with young offenders is the way forward - simply because it is more likely to effectively reduce re-offending. That is not to say that the need for community safety and protection, or the severity of offending itself, will not, in some cases, necessitate imprisonment. Rather, we should rethink our approach, reinforce a community-based model, and use a custodial sentence for young offenders only as a last resort.

These imperatives are borne out by the New Zealand experience. In 1989 a radically new community-based model of responding to youth offending was introduced which rejected the custodial and institutionalised responses of the past. The new model showed that up to ninety percent of youth offenders could be effectively dealt with without being charged and brought to court. Police diversion programmes and intention-to-charge FGCs have been an effective substitute for the traditional approach of charging most young offenders. And when offenders are brought to the Youth Court, the compulsory FGC system has ensured family and community responses are given primacy, which emphasise rehabilitation and reintegration. Also, innovative court orders, such as Supervision with Activity which delivers comprehensive rehabilitation in the context of the community, became a meaningful alternative for custodial responses. Imprisonment rates for young people have dropped dramatically.

It is up to us all at this Conference to take up the challenge and to promote the vision of community-based solutions to youth offending wherever possible. Otherwise, youth justice systems will be no more than a pale imitation of our beleaguered adult criminal justice counterparts.

1 Julia Fionda (ed), Legal Concepts of Childhood (Hart Publishing, Oxford, 2001) 6

2 Kaye L McLaren, Tough is Not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000, 21

3 Ministry of Justice Youth Justice and Social Sector Service Delivery to the Children and Young People Convicted in relation to the Death of Michael Choy, http://www.justice.govt.nz/pubs/reports/2003/choy-report/index.html.

4 New Zealand Police, National Youth Policing Plan 2005 - 2006, http://www.police.govt.nz/resources/2005/youth-policing-plan/youth-policing-plan.pdf, 30, 34.

5 Kaye L McLaren, Tough is Not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000, 58

6 Andrews, D A, Bonta, J the Psychology of criminal conduct (Anderson Publishing, 2006) 4th edition, 334

7 Andrews, D A, Bonta, J the Psychology of criminal conduct (Anderson Publishing, 2006) 4th edition

8 Note 5. Andrews, D A, Bonta, J the Psychology of criminal conduct. Chapter 10 "Prevention and Rehabilitation" , 334

9 Note 5. Andrews, D A Bonta, J the Psychology of Criminal Conduct. Chapter 10 "Prevention and Rehabilitation" 327

10 Andrews DA, "Enhancing Adherence to Risk-Need-Responsivity: Making Quality a Matter of Policy"

11 Moffitt TE (1993) "Adolescent-Limited and Life-Course Persistent Antisocial behaviour: A Developmetnal Taxonomy" Pyscological Review 100(40: 674-701)

12 New Zealand Ministry of Justice E-flash 18, Kaye McLaren, p11. An e-flash is an electronic newsletter produced by NZ Youth Justice Leadership Group, and provides relevant information for the 31 Youth Offending Teams in New Zealand. These may be accessed at www.justice.govt.nz

13 Kaye L McLaren, Tough is Not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000

14 Loeber R D P Farrington (1998) Serious and Violent Juvenile Offenders: Risk Factors and Successful Interventions, Thousand Oaks, California: SAGE Publications, cited in Kaye L McLaren, Tough is Not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000, page 21

15 Ibid, p21

16 Tough is Not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000

17 Kaye L McLaren, Tough is Not Enough – Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000, 57. The term "Cognitive behavioural" refers to the use of approaches that teach certain behavioural and thinking skills, and encourages their use by offering rewards. Behaviour inconsistent with the new skills is either punished or ignored.

18 Kaye L McLaren, Tough is Not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000, 58

19  E-flash 18, 12, see note 12

20 Kaye L McLaren, Tough is Not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000, 64

21 Kaye L McLaren, Tough is Not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Ministry of Youth Affairs, June 2000, 65

22 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People e-flash 19, 2. See note 12

23 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19, 4. See note 12

24 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19, 6. See note 12.

25 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19, 6. See note 12

26 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19, 9. See note 12

27 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19,  10. See note 12

28 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19, 11. See note 12.

29 Dishion, J Thomas and Dodge, Kenneth A, Deviant Peer Influences in Programmes for Youth, Problems and Solutions, (The Guilford Press, 2006)

30 Dishion, J Thomas and Dodge, Kenneth A, Deviant Peer Influences in Programmes for Youth , Problems and Solutions, (The Guilford Press, 2006) Chapter 1 "The Problem of Deviant Peer Influences in Intervention Programs" Dodge, Lansford, Dishion, p4

31 Dishion, J Thomas and Dodge, Kenneth A, Deviant Peer Influences in Programmes for Youth , Problems and Solutions, Dishion, T, Dodge, K, Chapter 2 "Deviant Peer Contagion in Interventions and Programs An Ecological Framework for Understanding Influence Mechanisms", 14

32 Note 29. This research was developed over 3 years of collaborative research and systematic analysis of problems and solutions.

33 Note 29, Dishion, T, Dodge. K and Lansford, J, Chapter 20, "Findings and Recommendations: A Blueprint to Minimize Deviant Peer Influence in Youth Interventions and Programmes", 367

34 Note 29, Dishion, T, Dodge. K and Lansford, J, "Findings and Recommendations: A Blueprint to Minimize Deviant Peer Influence in Youth Interventions and Programmes", Chapter 20, 368

35 Note 29, Dishion, T, Dodge. K and Lansford, J, "Findings and Recommendations: A Blueprint to Minimize Deviant Peer Influence in Youth Interventions and Programmes", Chapter 20, 368

36 Note 29, Dishion, T, Dodge. K and Lansford, J, "Findings and Recommendations: A Blueprint to Minimize Deviant Peer Influence in Youth Interventions and Programmes", Chapter 20, 368

37 Note 29, Dishion, T, Dodge. K and Lansford, J, Chapter 20, 369

38 Note 29, Dishion, T, Dodge. K and Lansford, J, Chapter 20,370, n33

39 Note 29, Dishion, T, Dodge. K and Lansford, J, Chapter 20, 371, n33

40 Note 29, Dishion, T, Dodge. K and Lansford, J, Chapter 20, 379-377

41 United Nations Guidelines for the Prevention of Juvenile Delinquency ("The Riyadh Guidelines"), G.A. res. 45/112, annex, 45 U.N. GAOR Supp. (No. 49A) at 201, U.N. Doc. A/45/49 (1990).

42 United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"), G.A. res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (1985).

43 United Nations Rules for the Protection of Juveniles Deprived of their Liberty, G.A. res. 45/113, annex, 45 U.N. GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49 (1990).

44 The 1989 United Nations Convention on the Rights of the Child, Article 37(b)

45 The Children Young Persons and Their Families Act 1989 (NZ), s4(f)

46 The Children Young Persons and Their Families Act 1989 (NZ), s 208(b),(c), (d),(f)

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

48 Children Young Persons and Their Families Act 1989 (NZ), ss 209 -212

49 Crime Reduction Strategy: Youth Offending Teams http://www.justice.org.nz/crime-reduction/youthoffending-teams/yot-introhtml

50 Table produced in, G Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, Paper presented at AIC Conference, Sydney, December 2003, 8. Source Ministry of Justice.

51 Report "Youth Justice Statistics in New Zealand: 1992 to 2006." Table 3.1. Accessed at http://www.iustice.govt.nz/pubs/reports/2007/nz-youth-iustice-statistics-1992-2006/index.html

52 G Maxwell, J Robertson, T Anderson, Police Youth Diversion - Final Report, Crime and Justice Research Centre, Victoria University of Wellington, Prepared for New Zealand Police and Ministry of Justice, January 2002

53 Police Youth Diversion Report, Final Report, 2002, 60

54 Police Youth Diversion Report, Final Report , 60

55 Police Youth Diversion Report, Final Report, 2002.

56 Police Youth Diversion Report, Final Report, 2002, 61

57 Police Youth Diversion Report, Final Report, 2002, 72

58 e-flash; Ministry of Justice Valid from 19 March 2007 - 19 March 2008

59 Youth Offending Teams, Hamilton Alternative Action Project, e-flash 20, Ministry of Justice, See note 12.

60 Youth Offending Teams, Hamilton Alternative Action Project, e-flash 20, Ministry of Justice. See note 12.

61 Criminogenic needs are discussed further in the section of this paper headed, "What works to reduce offending".

62 Ministry of Justice Youth Offending Teams e-flash 20 Hamilton Alternative Action Project, http://justicedev/youth-justice/e-flash/e-flash%2020.pdf, 3,4.

63 Youth Offending Teams, Hamilton Alternative Action Project, e-flash 20, Ministry of Justice

64 G. Maxwell, J Paulin, The Impact of Police Responses to Young Offenders With a Particular Focus on Diversion: A report for the New Zealand Police, Crime and Justice Research Centre, Victoria University of Wellington, 2005

65 G Maxwell, J Robertson, T Anderson, Police Youth Diversion - Final Report, Crime and Justice Research Centre, Victoria University of Wellington, Prepared for New Zealand Police and Ministry of Justice, January 2002

66 G. Maxwell, J Paulin, The Impact of Police Responses to Young Offenders With a Particular Focus on Diversion: A report for the New Zealand Police, Crime and Justice Research Centre, Victoria University of Wellington, 2005, 99

67 G. Maxwell, J Paulin, The Impact of Police Responses to Young Offenders With a Particular Focus on Diversion: A report for the New Zealand Police, Crime and Justice Research Centre, Victoria University of Wellington, 2005, Executive Summary, iv

68 Children, Young Persons and Their Families Act 1989, s4(f)(i) & (ii)

69 His Honour, Former Chief District Court Judge DJ Carruthers "Restorative Justice and Juvenile Justice: A Comparison of the Singapore and New Zealand Experience" (Unpublished, 2002) 14

70 The Youth Justice Co-ordinator's duties in relation to the FGC include: ensuring everyone is present and adequately informed; ensuring information on the impact of the offence on any victims is given; to provide families, whānau, hapu, iwi and family groups with the information they need, and to facilitate access to any resources that the family may need to carry out the decisions.

71 http://www.justice.govt.nz/pubs/reports/1996/restorative justice/chapter3.html (last accessed 28 September 2007)

72 Children, Young Persons and Their Families Act 1989, s18(3).

73 Children, Young Persons and Their Families Act 1989, s258(a), s259(1).

74 Children, Young Persons and Their Families Act 1989, s247(d).

75 Children, Young Persons and Their Families Act 1989, s258(c).

76 "Not denied' is a useful mechanism. It triggers a FGC without the need for an absolute admission of culpability. It may indicate the young person's acceptance that they are guilty of something, although not necessarily of the charges laid.

77 Children, Young Persons and Their Families Act 1989, s281.

78 Children, Young Persons and Their Families Act 1989, s258(e).

79 Children, Young Persons and Their Families Act 1989, s281B.

80 This section is sourced primarily from a paper of His Honour , New Zealand Principal Youth Court Judge, Judge Andrew Becroft "Family Group Conferences as a Model of Justice," Justice Model, World Congress 2002

81 Anne Hayden Restorative Conferencing Manual of Aotearoa New Zealand (Department for Courts, 2001) 2-3

82 Allison Morris and Gabrielle Maxwell, Juvenile Justice in New Zealand: A New Paradigm (1992) 203

83 Ministry of Justice, Youth Offending Strategy: Preventing and Reducing Offending and Reoffending by Children and Young People. Te Haonga, (Ministry of Justice, April 2002, Wellington) 11. Statistics suggest that in some regions the rate of Māori youth offending significantly higher, comprising 80-90% of total youth offending. As at June 2005 565,329 people identified themselves as Māori which represents 14.6% of the total NZ population.

84 Morris and Maxwell "Juvenile Justice in New Zealand: A New Paradigm' (1992) 7

85 Maxwell, Kingi, Robertson and Morris Achieving Effective Outcomes in Youth Justice: Draft Final report to the Ministry of Social Development (unpublished, 2002) 141

86 Allison Morris and Gabrielle Maxwell Restorative Justice in New Zealand: Family Group Conference as a Case Study (1998) Western Criminology Review http://wcr.sonoma.edu/v1n1/morris.html> last accessed 28 September 2007

87 Of a 100-person sample, 42 victims chose not to attend the FGC, Maxwell, Kingi, Robertson and Morris Achieving Effective Outcomes in Youth Justice: Draft Final Report to the Ministry of Social Development (Unpublished, 2002) 141

88 Children Young Persons and Their Families Act 1989, 269(3)(a)

89 Children Young Persons and Their Families Act 1989, 269(3)(b)

90 Children Young Persons and Their Families Act 1989, 269(3)(c)

91 Children Young Persons and Their Families Act 1989, 269(3)(d)

92 Children Young Persons and Their Families Act 1989, 269(3)(e)

93 Children Young Persons and Their Families Act 1989, 269 (3)(e) Note to s208

94 His Honour, former Chief District Court Judge DJ Carruthers "Restorative Justice and Juvenile Justice: A Comparison of the Singapore and New Zealand Experience" (Unpublished, 2002), 17

95 Children, Young Persons and Their Families Act 1989, s245

96 Children, Young Persons and Their Families Act 1989, 245

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

98 Children, Young Persons and Their Families Act 1989, s246

99 Children, Young Persons and Their Families Act 1989, s273-276

100 Children, Young Persons and Their Families Act 1989, s246

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

102 Maxwell, Kingi, Robertson, Morris, Cunningham, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, 6.

103 Maxwell, Kingi, Robertson, Morris, Cunningham, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, n 102, 241.

104 Children, Young Persons and Their Families Act 1989, s208(b).

105 Morris and Maxwell, Juvenile Justice in New Zealand: A New Paradigm, n 82, 13.

106 Allison Morris and Gabrielle Maxwell, Restorative Justice in New Zealand: Family Group Conferences as a Case Study, note 86.

107 This section draws on a previous paper by Judge A J Becroft, Youth Justice – "collaboration – by definition" Collaboration for Success Conference 2007, Wanganui, New Zealand, October 2007

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

109 Children, Young Persons and Their Families Act 1989, s289

110 Mike Doolan, former Child Youth and Family Chief Social Worker, quoted in Court in the Act, Issue 30, A Newsletter published by the Office of the Principal Youth Court Judge.

111 Idem.

112 Benjamin Steiner & Emily Wright, Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance? Journal of Criminal Law &Criminology 96(4), 1451-1470

113 Note 112. 1454. Direct file, or prosecutorial discretion, authorises prosecutors to file certain cases in either a youth (juvenile) Court or a criminal Court under a concurrent jurisdiction statute.

114 Note 112, Benjamin Steiner & Emily Wright, Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance? 1467

115 More information on the United States waiver position can be found at http://oiidp.ncirs.org/pubs/tryingiuvasadult/transfer.html.

116 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, The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons , Papers still currently in draft, Auckland, New Zealand, 2006

117 Department of Corrections, Young Male Inmates available online at http://www.corrections.govt.nz/public/aboutus/factsheets/managingoffenders/youngmaleinmates.html last accessed 2 October 2007

118 Dr Ian Lambie, The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, Note 116

119 Steinberg & Scott, 2003 quoted in The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, Note 116

120 Moffitt, 1993 quoted in The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, Note 116

121 Dr Ian Lambie, The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, Note 116

122 Children, Young Persons and Their Families Act 1989 (NZ), s283(o)

123 Source: NZ Ministry of Justice

124 The Sentencing Act 2002, s18

125 Children Young Persons and Their Families Act 1989, s140(1)(a)

126 New Zealand Crown Law Office opinion dealing with Children, Young Persons and Their Families Act 1989 (NZ), s238; Summary Proceedings Act 1957 (NZ), s46: Criminal Justice Act 1985 (NZ) s142