Alternative Approaches to Sentencing

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

Tuesday 12 September 2006

CMJA TRIENNIAL CONFERENCE, TORONTO, CANADA

Time to teach the old dog new tricks?
What the adult Courts can learn about sentencing and imprisonment from New Zealand’s Youth Court

I Introduction[1]

Imprisonment is an ineffective - but sometimes necessary - response to crime. Although offenders often have complex problems including mental health issues or drug addictions, prison is a blunt instrument that is used, not in response to offenders' needs, but in response to the seriousness of particular crimes or offenders. The focus is on deterrence (general and specific), public safety and protection and retribution. Consequently, although much good work is done to assist prisoners, in practice rehabilitation is a secondary goal and is often too little, too late. Further, rehabilitation is generally under-resourced and, as a result, high rates of recidivism seem inevitable. Prison is not working well for society placing a huge cost burden on the taxpayer who often receives "up-skilled" rather than reformed criminals for their money.

These familiar and well-rehearsed criticisms often spark debate over which alternatives to traditional sentencing and imprisonment approaches should be adopted. The Youth Court of New Zealand has a unique approach to offending and its processes and experience could prove instructive for other Courts. Some of these alternative approaches are already in evidence in the adult Courts in New Zealand but in many cases they are not mainstreamed or integral to our adult Court process.

The Youth Court of New Zealand views imprisonment as an absolute last resort. Further, every effort is made to keep young people out of the criminal justice system. And the system seeks to acknowledge any needs a young person may have alongside holding that person accountable for their crime.[3] The youth justice system is founded upon a set of principles in the Children Young Persons and Their Families Act 1989 ("CYPF Act"), two of which explicitly mention using custodial sanctions as a last resort.[4] These principles were revolutionary when the CYPF Act was passed in 1989 and its alternative procedures such as diversion and various supervision orders have meant that imprisonment rates, and indeed charging rates in the Youth Court, have dropped significantly. The drop in custodial sentences since 1989 is shown in the graph below:[5]

Figure 1: Custodial Sentences for Youth Court Cases, 1987-2001

Thus, imprisonment is used far less frequently than it was prior to the passing of the CYPF Act in 1989 and far less frequently than it is currently used in the adult system. Despite this drop in sentences of imprisonment, offending rates for young people have been stable over the last six to eight years and have actually fallen in the last year.[6] Overall, the number of cases involving 14 to 16 year olds has dropped dramatically since the 1989 Act was passed, as shown in the following graph:[7]

Figure 2: Number of cases involving 14 to 16 year olds[1] and average number of charges per case 1980 to 2004

Note:

1. This figure includes only those aged between 14 and 16 on their last day in court. The youth justice system covers youth who were aged 14 to 16 when they offended, but not necessarily in that age group when they appeared in court. (In 2004, approximately 20% of youth offenders were aged 17 on their last day in court.) Because the age of an offender when an offence was committed is not available prior to 1992 it is not possible to produce consistent figures based on age at the time of the offence for the whole period.

This paper will analyse why it is important that Youth Courts offer alternatives to imprisonment for young people, what those alternatives are, and will assess the success of the New Zealand system in implementing those alternatives. In concluding that these alternatives have successfully diverted many young people away from criminal careers, this paper will ask whether these alternatives could be used more frequently in adult Courts with similar positive effects. It is stressed that this paper is restricted to young people in custody as a result of a sentence of imprisonment or a Youth Court Supervision with Residence order (as opposed to those young people on custodial remand, pending final determination of their charges).

II New Zealand Demographics and Trends Relating to Young People

New Zealand has a resident population of just over 4 million people.[8] One quarter of that number are aged 16 or under.[9] New Zealand has for many decades been subject to trends of internal migration from rural to urban areas, and from South to North. In the 2001 Census, 86% of New Zealanders lived in urban areas, with 29% of the total population living in the Auckland urban area.[10] At 30 June 2002, 76% of all New Zealanders lived in the North Island.[11] New Zealand has a bi-cultural "constitutional" heritage, with a growing multi-cultural flavour. Eight out of ten people identify themselves as European, 1 in 7 as Māori, 1 in 15 as Pacific Islander, and 1 in 16 as Asian.[12]

Overall, New Zealand has an ageing population. In September 2003, half of the population was over 35, with 1 in 8 people over 65 years of age.[13] It is predicted that by 2051 half the population will be 45 or older and one quarter will be over 65 years old.[14]

In 2003, young people aged 14-16 years comprised 2.3% of New Zealand's population (92,190 individuals in a total population of 4,001,000). By 2030, it is projected that the proportion of "young persons" in the New Zealand population will have fallen to only 1.8% (or 83,240 out of a total population of 4,698,200).[15] However, certain ethnic groups are still characterised by relative youth: 3 in 8 Maori and 2 in 5 Pacific Islanders are under 15 years of age.[16]

The graph below illustrates recent population trends of New Zealand's young people (up to 17 years of age). Note that numbers of 14-16 year olds peak around 2006/2007.

III Why Prison is No Place for Young People

Imprisonment alone is a particularly poor response to youth crime. There are numerous negative psychological and behavioural consequences for young people who are imprisoned as adults, and with adult offenders.[18] While adults adapt to the custodial system, children and young persons may be adopted by it.[19] Marginalised youth may learn to fit into the prison culture in the way they would fit into a family culture and continue to use that culture's norms upon release. Stealing another person's shoes, violence or joining a gang are normal behaviours from the viewpoint of a "custody culture" which prizes power, status and indifference to the predicament of the other person.[20]

Although young people might be adopted by the custody culture, some find it is every bit as dysfunctional as their "birth" families. Young inmates may experience intimidation and bullying by older inmates.[21] Verbal, physical, sexual and emotional abuse is particularly likely for those incarcerated for the first time, those that are small, from a middle class background, are effeminate in behaviour or lack "streetwise" knowledge.[22] Further, juveniles in adult prisons are at greater risk of suicide.[23]

Young people do not have the same developmental level of cognitive or psychological maturity as adults.[24] They are more vulnerable to provocation, duress or threatening behaviour and are particularly influenced by peer approval and fear or rejection.[25] Thus, young people are more likely to react unlawfully to a threatening or provocative situation and, once in prison, are more likely to be negatively influenced by its "custody culture". It is little surprise then that incarcerated youth are at high risk of serious re-offending.[26]

In Roper v Simmons[27] the United States Supreme Court recognised that punishing young people as adults through the death penalty was unconstitutional on a number of grounds including the fact that young people are immature, are particularly susceptible to negative influences and their character is not as well formed as that of an adult. The Court considered that, from a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, because there is a greater possibility that a minor's character deficiencies will be reformed.[28]

Although the Department of Corrections in New Zealand provides four separate, specialist Youth Units to incarcerate vulnerable young offenders, it is preferable for such offenders to be kept out of prison altogether unless their incarceration is necessary for the community's protection or because their offending is so serious, no other response is appropriate. The benefits of incarceration do not outweigh the disadvantages and an adult jail is not a sufficiently rehabilitative option for youth[29] even though these specialist units may include rehabilitative programmes, counselling and vocational training.

The majority of young people will grow out of offending if they are kept away from the criminal justice system, are made accountable for their crimes and are given the right support. These, then, are some of the reasons the Youth Court is statutorily directed to avoid, if at all possible, sending young people to prison.

IV Imprisonment of Youth Offenders in New Zealand

Rates of imprisonment of young people plummeted after the introduction of the Children, Young Persons and Their Families Act in 1989. Since that time relatively few young people have been dealt with through the use of convictions in the New Zealand District and High Court and sentences of penal custody.[30] The Youth Court of New Zealand cannot sentence young people to imprisonment but can convict and transfer them to the District Court where they may receive a sentence of imprisonment[31] or, for certain offences, the Youth Court may conduct a preliminary hearing and then send the matter off to a superior Court for hearing and sentence. The following table shows how many young people, who initially appeared in the Youth Court in one of these ways, were subsequently given a sentence of imprisonment by the District Court or High Court.

Notes:

1. Age taken at time of finalisation.
2. Final court hearing location has been used.
3. Some cases had their final court hearing in a Youth Court yet had other court details as the District Court (perhaps sentencing location) and so these have been categorised under District Court.
4. Figures are provisional.
5. Source: Ministry of Justice, New Zealand.

Thus, only about 50 sentences of imprisonment are imposed on young people whose case originated in the Youth Court each year. This contrasts with the United Kingdom where there has been a sharp increase in the number of young people being imprisoned.[32]

Similarly, the Youth Court does not follow the trend in the New Zealand adult Courts where imprisonment is also being used more frequently. And its "stance", as statutorily directed, is contrary to some views commonly espoused in the media and by members of the public that there is a greater need to "get tough" on crime.[33] That is not to say that youth crime should not be, and is not, taken seriously, or that there should not be prompt and firm responses. But it is to emphasise that relative to the adult courts, imprisonment is rarely used. This is for the following reasons:

• Youth justice decisions must be guided by youth justice principles in the CYPF Act (outlined below) and these encourage the use of alternatives to imprisonment. This ensures that the vast majority of youth offending is dealt with by Police diversion and community based alternative action, and stays away from the criminal justice system.

• Where Youth Court jurisdiction is offered by the Youth Court Judge under the CYPF Act[34] it is less likely that the defendant will receive a sentence of imprisonment - even if the offence is very serious. The young person must first receive a s283(o) conviction and transfer to the District Court and s283(o) sentences may only be handed down where the young person is aged 15 or over and:[35]

• Section 18(1) of the Sentencing Act 2002 of New Zealand limits prison sentences for young people under 17 years of age. It states:

It should also be noted that a child or young person serving a sentence of imprisonment may serve that sentence in a prison or in any residence approved by the Chief Executive of Child, Youth and Family Services.[36] There is no requirement or statutory direction towards either placement in prison or placement in a residence. Also, the Youth Court cannot currently remand young people to penal institutions.[37] Of the young people sentenced to prison, only the six most vulnerable can be housed in the youth criminal justice unit attached to the CYFS Youth Justice Residence in Wiri. The remainder, male and female, are placed in adult prisons in the following ways:

•  
• Male youth offenders are placed in one of four youth units attached to prisons that are intended to house 17-20 year old males. Thus, a 14-year-old who does not qualify to be held in the youth criminal justice unit may be forced to share a facility with a 19-year-old. Specialist youth units operate at four locations in New Zealand and there are plans to build more of these units.[38]

•  
• Female youth offenders are always placed in adult women's prisons as there are no female youth units. This seems contrary to Article 37(c) of the United Nations Convention on the Rights of the Child ("UNCROC") which states that children deprived of their liberty should be "separated from adults unless it is considered in the child's best interests not to do so".

This Article is further violated, at least in spirit, by the all too common practice of keeping young people on remand in Police cells in New Zealand and often in close proximity to adult prisoners. However, the Corrections Act and Regulations require that, as far as practicable, inmates aged under 20 years should be kept separate from older inmates. Young inmates can mix with adult inmates if it is in their best interests or there is a lack of suitable facilities to separate youth from adults.[39] UNCROC further provides that imprisonment must be in conformity with the law and that no child should be subjected to "inhuman or degrading treatment or punishment".[40]

V Alternatives to Imprisonment from the New Zealand Youth Justice System

(a) How the New Zealand Youth Justice System Works

The New Zealand youth justice system operates primarily through its Youth Court. The Youth Court is a criminal Court and a division of the District Court dealing with "young persons", defined as unmarried people aged 14 or over, but under 17 years.[41] The Youth Court can hear all criminal charges, excluding murder, manslaughter and some minor traffic offences.[42] The Youth Court does not determine "purely indictable" charges where Youth Court jurisdiction is not offered or accepted,[43] and cases (very rare) where a jury trial is elected. However, in these circumstances a preliminary hearing is held in the Youth Court. In practice, Youth Court jurisdiction is usually offered for "purely indictable" offences on the basis that if adult sentences, especially prison, are required the young person can later be convicted and transferred to the District Court for sentence. If the young person allegedly committed the offence after turning 17, the matter will be dealt with in the adult Courts.

The vast majority of youth offending in New Zealand is dealt with through Police diversion. About 76% of youth offending does not come to Youth Court and instead the young person receives a warning,[44] formal Police caution,[45] or community based "alternative action".

Police deal with 44% of cases of youth offending by issuing a formal warning, then releasing the young person. This is in keeping with the principle that young offenders should be diverted from the formal justice system wherever possible.[46] It also reflects the relatively minor nature of most youth offending.

If a warning is insufficient or inappropriate, then, given the statutory injunction in s208(a) of the CYPF Act not to issue criminal proceedings if there are alternative means of dealing with the matter and unless the public interest otherwise requires, the Police must consider a diversionary programme for the young person. Diversion/alternative action is usually locally based, often involves members of the community, and is overseen by the Police Youth Aid division.

The limits of what may be used as a form of alternative action are the limits of the imaginations of those involved. The best Police Youth Aid officers spend considerable time and effort tailoring solutions that satisfy victims, prevent re-offending and re-integrate young people into their communities. Examples of the sort of measures taken might include:

A young person who has been involved in offending involving a motor vehicle may:

• agree to write a letter of apology/"life statement" to the victim (to be approved by Police before it is sent);
• make a reparation payment towards the repair of the victim's car; and
• take a defensive driving course (from which the young offender learns the value of working towards and achieving a goal).

A young person who, along with other young people, steals from someone's home while under the influence of alcohol may agree to:

• listen to the victim's account of how the offence affected him or her (where victims are willing to participate in this way, confronting a young person with the personal effects of his or her actions can have a profound and lasting impact, and often leads to acceptance of responsibility and remorse, which are the first steps towards a future without further offending);
• return any stolen property still in his or her possession, or help the Police to recover it;
• attend a programme for alcohol addiction (if this was a relevant factor); and
• produce a school project on how alcohol affects a person's body and judgement.

If the Police wish to charge a young person who has not been arrested, a "pre-charge" Family Group Conference ("FGC") must be convened to consider the matter. About 8% of all offending is dealt with in this way. Usually such an FGC will recommend a voluntary plan for the young person to undertake. If it is satisfactorily completed this will usually be the end of the matter.

Only a small percentage of youth offending (slightly more than 16%), is actually heard in the Youth Court, and a smaller percentage again is heard in the adult Courts. In 2003, 83.9% of this small percentage of cases against young people laid in the Youth Court were disposed of in the Youth Court and 16.1% were finally disposed of in the District Court or High Court.[47]

When a charge is laid in the Youth Court, the young person is required to indicate whether the charge is "denied" or "not denied":

•  
• Denied: If a charge is denied, the matter is the subject of a defended hearing, conducted in the normal adversarial manner, as for adults, under the provisions of the Summary Proceedings Act 1957. If the charge is "proved" in the Youth Court, then a FGC must be convened to consider sentencing options. The Youth Court will impose one of the formal orders set out in section 283 of the CYPF Act or, in some cases may grant an absolute discharge under section 282 of the CYPF Act, whereby the Information is deemed never to have been laid.

•  
• Not Denied: If the charge is "not denied" then an FGC must be convened. Around 98% of charges are "not denied". If the charge is "admitted" at the FGC, then the conference will usually formulate a plan for the young person to undertake. The plan should address both the "deed" and the "need". That is, the young person should be held accountable for the offending but a comprehensive, rehabilitative plan should also be formulated to prevent further offending and to allow the young person to develop in a socially beneficial way without further offending.[48]

The plan will then be presented to the Youth Court, which in about 95% of the cases is accepted, and the case is adjourned for the plan to be completed. If the plan is satisfactorily completed then the young person is often absolutely discharged.

Sometimes the FGC may recommend formal orders being made under section 283 of the Act, or on occasions, such formal orders are necessary because of the young person's failure or inability to complete an agreed FGC plan. A Court-ordered FGC may recommend, in addition to any other recommendations, that a formal Police caution be given to the young person.

A young person appearing before the Youth Court may find themselves in custody in one of the following ways:

1. They may be remanded in the custody of the CYFS chief executive, Iwi Social Service or Cultural Social Service pending hearing in the Youth Court.[49]
2. The young person may be remanded to a police cell, when they are at risk of becoming violent or absconding and there are insufficient beds available in a youth justice residence;[50]
3. Through the imposition of a Supervision with Residence order;[51]
4. By being convicted and transferred to the District Court by the Youth Court. A sentence of up to 5 years imprisonment may be imposed on a young person in the District Court;[52]
5. After a preliminary hearing in the Youth Court on purely indictable charges, if Youth Court jurisdiction is not offered or accepted, or the young person elects jury trial, they are then remanded to the District Court or High Court, as appropriate, for trial or sentence.[53] The higher Court may subsequently impose a sentence of imprisonment upon conviction.

(b) Youth Justice Principles

As noted, imprisonment is an absolute last resort in the Youth Court. This principle is statutorily mandated in section 208 of the CYPF Act where the principles that guide the exercise of any power under the youth justice provisions of that Act are listed. Section 208(d) reads:

This principle is in line with Article 37(b) of the United Nations Convention on the Rights of the Child ("UNCROC") which states that:

Further, any sanction imposed on a child or young person who commits an offence should:[54]

Other key principles in the CYPF Act stress the importance of diverting as many young people as possible away from the criminal justice process. The first principle in section 208 emphasises the importance of:[55]

Further principles promote diversion away from the criminal justice process by stating that criminal proceedings should not be used solely to access welfare assistance for the child or young person,[56] and that responses should strengthen families and assist them in developing their own means of dealing with offending by their young people.[57]

(c) Youth Court Alternatives to Imprisonment

(i) Alternative Intervention

In keeping with the CYPF Act 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",[58] there are three levels of formal alternative intervention. These are noted above in paragraph (a) but are described in more detail in this section:

1. Warning: often given by the attending officer and followed up by a letter from the Youth Aid Officer acknowledging the warning.
2. Alternative Action: a diversion plan put in place by the Youth Aid Officer that may include an apology, reparation and/or community work. Initiatives are locally based, draw on community strengths, and are often very creative plans or programmes that directly respond to local youth offending.[59]
3. Family Group Conference: for offending that cannot be dealt with by way of warning or diversion and where Police intend to lay a charge and there has been no arrest. About one third of the 8,000 FGCs held annually are of this type - they are known as "intention to charge" FGCs.

It should be stressed that only the most serious youth offenders come before the Youth Court and well over half of these receive an absolute discharge, usually after completing a Family Group Conference plan, or the case against them is not proved.

Figure 3: Diversion Rates per 10,000 distinct cases in the New Zealand Youth Court aged 10-16 years; 1987 to 2001[60]

(ii) Family Group Conferencing

Family Group Conferences are a vitally important feature of the New Zealand youth justice process. They have rightly been described as the "jewel in the Crown" of the system.[61] They provide an opportunity for the offender, their family, the Police and the victim to meet and, assisted by a Youth Justice Co-ordinator, decide how the young person can be made accountable for their crime and how the young person's needs, if any, may be met. FGCs emphasise accountability and family involvement in the resolution of a young person's offending. The number of Family Group Conferences held has remained stable over most of the last decade but rose by more than a thousand to 7,552 between 2002/2003 and 2003/2004.

(iii) Imposition of Youth Court Orders a last resort

Of the cases that come to Youth Court, most do not receive formal orders. The usual course is for a plan to be formulated at Family Group Conference and, if this plan is successfully completed, the young person may receive a complete discharge and leave the Court with no criminal record.[62]

(iv) Supervision with Activity

If a case is proven against a young person the Youth Court may impose a range of orders including reparation, community work and fines.[63] Supervision, Supervision with Activity and Supervision with Residence are three other orders open to the Youth Court.[64] Critics have argued that too little use is being made of the Supervision with Activity Order[65] while the custodial Supervision with Residence Order is over-used.[66] Supervision with Activity involves three months of supervision during which the young person must attend and undertake a specified programme or activity. The three months may be followed by a further period of supervision for up to three months.[67] Plans may be detailed and tailored to fit the specific needs of a particular young person. Social Worker, Bobby Bryan, reports that in the early 1990s multiple programmes existed in which young people could carry out their Supervision with Activity Order.[68] Young people discovered a sense of pride from learning skills. But today, due to a lack of resources, the Supervision with Activity Order has become a rarity while there has been relatively greater use of the Supervision with Residence Order.

(v) Supervision with Residence

The Supervision with Residence[69] order places a young person in the custody of the chief executive of Child, Youth and Family Services for 3 months and after this order is completed, a period of up to six months supervision follows. Young people receiving such an order are usually placed in one of three Youth Justice Residences. The average length of stay on Supervision with Residence Orders is approximately 62 days (the average stay on remand is approximately 45 days).[70] In 2004, 449 Supervision with Residence orders were made against young people and in 2005 the figure was 410 such orders. If these figures are added to those for imprisonment, it can be concluded there are now more than 460 custodial sentences handed down to people aged 14 to 16 at the time of their offending in New Zealand each year.

It is difficult to know whether this signals an increasing trend in the use of Supervision with Residence as prior to 2004, New Zealand Law Enforcement System data did not distinguish between the three types of supervision order. Consequently, only figures for all types of supervision combined - including Supervision with Residence and Supervision with Activity orders - are available for these earlier dates:

Table 2: Supervision Orders in the Youth Court 1994 - 2003

Source: Ministry of Justice, New Zealand: Conviction and Sentencing of Offenders in New Zealand: 1994-2003, Table 7.8, p143.

The proportion of proved cases resulting in a Youth Court supervision order has increased since 1997, from 32% of cases to 38% of cases in 2003.[71]

Supervision with Residence is the harshest penalty available to the Youth Court and, as it deals with only the most serious youth offenders, young people on Supervision with Residence are the small but difficult group of young offenders who require intensive and careful intervention. However, Child, Youth and Family Service's Review of the Residential Strategy published in June 2004 stated that there was a need for a greater therapeutic focus in the residences to assist young people, rather than merely containing them. Also concerning is the bed shortage in the youth justice residences that saw the Residential Strategy Review recommend a further 15 to 20 beds be made available for youth justice purposes in the central North Island. As noted, the dearth of beds in the residences has meant that many young people have been remanded to Police cells, without proper sanitation, food or visitation facilities, in solitary confinement but often in close proximity to adult offenders.

The focus on containment and the fact that a young person may be sent to a residence a long distance away from their family is concerning.

VI How the Alternatives have Worked for New Zealand

Despite little use being made of imprisonment in the case of youth offenders, offending by under-17 year olds has only increased a small amount each year over the last six years. And under-17 year olds have remained at about 22% of the total number of apprehended offenders - thus youth offending did not increase at any greater rate than adult offending. Although there was a significant increase in youth offending statistics in the first half of the 1990s, most categories, such as apprehension rates and the number of charges processed in the Youth Court, have been stable since about 1998. Despite an increase in the population, the number of cases finalised in the Youth Court has declined over recent years.

Further, the majority of youth crimes are not serious in nature. In a 2000/2001 study, Police described almost half of youth offences as "of minimum seriousness". Violence only figures in about 10% of offences involving young people and the majority of offences are petty dishonesty or property offences.

This would suggest that the Youth Court alternatives have been successful - the Youth Court works to divert the majority of young offenders away from the criminal justice system and most take the opportunity to maintain a clean record and age out of offending by their early twenties. The small hard-core group of 5-15% of offenders, sometimes called "early onset offenders"[72] pose a greater challenge to the system and it is more difficult to steer them away from a life of crime. But no system in the world has had great success with these difficult youth. They are typified by backgrounds of poverty, abuse, drug and alcohol problems, mental health issues, educational disengagement, and are considered by some to be hard-wired for a life of crime by the end of their preschool years.

VII Youth Court Alternatives and the Adult Courts

A consideration of Youth Court views of sentencing and imprisonment and whether they should be used in the adult Court context must be grounded in an understanding that young people are different to adults. Youth Court processes take account of the fact that young people are immature, easily influenced and more likely to make poor choices, but also are more likely to reform given the proper assistance. Despite the peculiar position of young people, the adult Courts in New Zealand have started to learn some of the Youth Court's "new tricks". In fact, the Youth Court since 1989 has been a fertile source of new approaches to adult offending. All Youth Court Judges are District Court Judges in New Zealand, and many have brought Youth Court approaches directly or indirectly into the adult Court. In this way there has been significant cross-pollination from the Youth Court to the adult Courts. The influence of the Youth Court and Youth Court Judges should not be downplayed, but arguably the cross-pollination process has not gone far enough.

(a) Similarity of Youth Court and adult Court sentencing principles

When New Zealand's Sentencing Act 2002 ("SA") principles are compared with the principles in section 4, 5 and 208 of the CYPF Act there are some striking similarities. For example, a purpose of sentencing noted in the SA "is to hold the offender accountable for harm done to the victim and the community by the offending". Section 4(f) of the CYPF Act states than an object of that Act is to hold children and young people accountable for their crimes. However, the CYPF Act goes further and adds that young people must be 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"[73] (emphasis added).

Other objects of the SA such as to provide for the interests of the victim of the offence,[74] to provide reparation for harm done by the offending, and to assist in the offender's rehabilitation and reintegration[75] also have parallels in the CYPF Act. Section 8 of the Sentencing Act 2002 sets out the principles behind sentencing in the adult Courts. This section states the Court:

The Youth Court also takes account of information provided to the Court, by the FGC, as to the effect of the crime on the victim.

Section 8 further states the Court:

Section 208(f)(ii) states that sanctions against young people "should ...take the least restrictive form that is appropriate in the circumstances.

Section 8 stresses that the Court must take into account the offender's personal and family background in imposing a sentence with a "partly or wholly rehabilitative purpose".[76] The Youth Court similarly considers a young person's circumstances and the level of family support behind that young person in considering the imposition of a sentence.

The Court must take into account any outcomes of restorative justice processes that have occurred in relation to a case.[77] The Youth Court certainly takes into account positive outcomes from the "restorative justice-like" FGC process in making its decision.

In R v M T-J (2002) CRNZ 1051, Judge Harvey noted these similarities between the SA and the CYPF Act and also noted that in both pieces of legislation:

• Age is a mitigating factor.

• There is a recognition of the need to balance community protection and offender rehabilitation/reintegration.

• There is an emphasis on restorative justice (including offers of amends, rehabilitation and reintegration) and the removal of emphasis on punitive/retributive sentencing.

These similarities would suggest that the Sentencing Act 2002 has allowed the adult Courts to move closer to the Youth Court in their approach. It could be argued that this is a change in principle that has not fully taken place in practice as yet.

(b) Youth Court approaches in the adult Courts

The adult Courts have started to adopt Youth Court approaches, particularly its restorative justice focus. The genesis of this movement came in the early nineties when Judge Fred McElrea proposed the introduction of Community Group Restorative Conferences in the adult jurisdiction.[78] Judge McElrea's proposal resulted in the formation of several voluntary groups to provide restorative justice services to the Courts, and later restorative justice pilot schemes were trialled in four District Courts.[79] More recently, the use of restorative justice in the criminal justice system has been given statutory recognition in the Sentencing Act 2002, the Parole Act 2002 and the Victims' Rights Act 2002. This, it could be argued, is a further example of a process of cross-pollination of ideas between the adult and youth jurisdictions.

(i) Community-based restorative justice providers

There are currently 19 community-based restorative justice providers in New Zealand funded by the Ministry of Justice's Crime Prevention Unit. These providers complete somewhere in the region of 1000 restorative justice conferences each year. The conferences are generally run under the auspices of Police diversion, so that in the event that a plan is agreed to and carried out as a result of the restorative justice process, the charges are withdrawn.[80]

Project Turnaround is one example of a community-based restorative justice provider. This project has handled more than 750 cases since 1996 and two thirds of this number have involved victims, a high participation rate. Agreements have been reached at almost all conferences, and approximately 90% of offenders complete all aspects of their plans within the agreed timeframe.[81] Twelve months after the completion of the programme, 82% of offenders had not re-offended, an enviable rate compared to other areas of the justice system.[82]

(ii) Court-referred restorative justice programmes in the adult Courts

A court-referred restorative justice programme pilot began operation in four cities or towns in 2001.[83] This pilot was designed for offences of moderate seriousness and built on the youth justice system's Family Group Conferences and community-based restorative justice programmes. An evaluation into the pilots published by the Ministry of Justice reports that they have resulted in small decreases in re-offending and demonstrated tangible benefits for victims.[84]

(iii) Police diversion scheme

Diversion was first introduced in 1988 after being piloted in Wellington in 1987.[85] Like the Youth Court, the adult Courts reserve diversion for remorseful first offenders who are allowed to escape formal criminal conviction. The goal of diversion is to give first offenders a second chance but also to address victims' needs through, for example, receiving an apology and reparation from the offender. The offender must admit guilt and accept responsibility for their actions and is required to offer some form of recompense to the victim. The system is fairly flexible as it has no statutory basis.

The origins of diversion cannot be traced to the Youth Court as the revolutionary Act under which the Youth Court operates did not take effect until 1989. It is possible to say, however, that the Youth Court has indirectly encouraged the use of the adult diversion schemes because experience shows it has worked successfully in the Youth Court.

(c) Time to Mainstream the "New Tricks"

Thus, the adult Courts have adopted a number of Youth Court innovations but it is nevertheless argued they could become a more integral part of the adult Courts' response to crime.

(i) FGCs and victim involvement

Although successful and growing in acceptance, restorative justice processes remain peripheral to the adult criminal justice arena. Section 8(j) of the Sentencing Act 2002 requires that "any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur" must be taken into account in sentencing.[86] In contrast, restorative justice processes, evidenced in the Family Group Conference procedure, are the "engine room" of the Youth Court process. There are six different types of FGC covering a number of situations including care and protection[87] and the situation where Police intend to charge a young person.[88] In the majority of circumstances the holding of an FGC within prescribed time limits is mandatory. FGCs may take place both pre-charge, to determine whether a prosecution can be avoided, and also post-charge, to determine how to deal with cases admitted or proved in the Youth Court.

Victims' concerns are provided for in the adult Courts through the Victims' Rights Act 2002 ("VRA") and restorative justice conferences but the majority of victims of adult offenders do not have the integral involvement in the criminal justice process allowed in the Youth Court. For example, Section 9 of the VRA provides for the facilitation of a meeting between the victim and the "offender" if the parties agree, resources are available and the meeting is practicable and appropriate.

This contrasts with the Youth Court's approach that encourages victims to become involved in the majority of cases. The CYPF Act states that victims are entitled to attend FGCs[89] and that a Youth Justice Co-ordinator must make all reasonable endeavours to consult with a victim of an offence as to the date, time and place of the relevant FGC.[90] Victims attending a FGC personally may take a reasonable number of support people[91] and a FGC may recommend that a young person make reparation to a victim.[92] In attending the FGC the victim may express their views and communicate to the young person how the crime has impacted on their life. The victim can state their preferred outcome for the young person. If all parties at the FGC agree the recommendation of the FGC will be considered by the Youth Court, and usually the Court will allow the plan to be followed. In this way, the victim is part of the justice process and often finds the process is a healing one.

The FGC provides a forum where the victim is able to see the offender and become acquainted with the challenges that person is facing in their life. Often the result is that the victim recommends a more rehabilitative approach be taken towards the offender rather than a sentence of imprisonment. It may be that this mechanism has the effect of decreasing the number of sentences of imprisonment imposed in cases that have originated in the Youth Court.

The Criminal Justice Act 1985, the forerunner to the Sentencing Act 2002, contained no mention of victims or their rights. However, over time it became clear that the central place victims are given in the youth justice process could be reflected in other legislation. Since that time, the Victims of Offences Act 1987 (now repealed), the Victims' Rights Act 2002 and the provisions about victims in the Sentencing Act have come into force. To some unknown degree, these pieces of legislation owe their introduction to the CYPF Act and its then revolutionary approach to victims.

Although the CYPF Act does not expressly mention restorative justice, through the operation of the FGC it has developed as probably the most comprehensive example of a restorative justice approach anywhere in the world. Judge FWM McElrea has described the three key elements of the FGC process as:

"(i) The transfer of power from the State, principally the Courts' power, to the community.

(ii) The Family Group Conference as a mechanism for producing a negotiated, community response.

(iii) The involvement of victims as key participants, making possible a healing process for both offender and victim."[93]

Arguably, it is the transfer of power from the State to the community that is still lacking in most examples of the adult Court's response to crime.

(ii) Imprisonment

The Youth Court can teach us that, at least for young people, and to the extent that it is valid to draw the same conclusions for adults, a decrease in levels of imprisonment does not lead to greater rates of offending. It appears that we can use imprisonment less, at least in less serious cases, with no detriment to crime figures.

(iii) Focus on Accountability and Needs

Two key objectives of the Youth Court are to hold young people accountable and deal with them "in a way that acknowledges their needs" and gives them "the opportunity to develop in responsible, beneficial, and socially acceptable ways".[94] In the Sentencing Act, rehabilitation and reintegration are one in a list of possible purposes of sentencing.[95] Thus, dealing with need is likely to be peripheral to the adult Court process whereas the CYPF Act insists that in promoting the well-being of young people and their families, the system must "ensure" that opportunity is given for the young person to develop.

Rehabilitation is not the only goal of sentencing but, nevertheless, if a crime is symptomatic of need, then a primarily punitive response is unhelpful and unproductive. The Christchurch Youth Drug Court, for example, recognises that the offending of those appearing before it is symptomatic of drug addiction. The Youth Drug Court seeks to address this underlying problem along with holding the young person accountable. It is argued that, where appropriate, a greater focus on dealing with need, if necessary using a therapeutic jurisprudence approach, is a useful lesson the Youth Court can "teach" the adult Courts.

VIII Conclusion

The Youth Court of New Zealand operates a unique system that recognises the peculiar needs of children and young people. This system focuses on diverting young people away from the criminal justice system wherever possible and using creative alternative action plans to make young people accountable without "labelling" them as criminals. Youth Court orders make heavy use of the various forms of supervision but levels of imprisonment are low. Despite this, rates of youth offending have not increased in recent years but have remained stable. At the heart of this system is the Family Group Conference which allows a type of restorative justice response to be made to youth offending.

This system has been a source of ideas and energy for change in the adult Courts and aspects of some Youth Court processes have been adopted by the adult Courts. In both jurisdictions, diversion has become a useful tool to keep offenders away from formal criminal processes and to keep Court costs down. Therapeutic responses - such as Youth Drug Court - have been highly successful. The restorative justice conferences remain peripheral to the adult criminal justice system although, as demonstrated by the Youth Court, embracing these processes does not lead to an increase in offending rates. Thus, it is argued that restorative justice conferences need not be a "side show" to the adult Court process in any jurisdiction and could, instead, become the "main act".

Overall it can fairly be said that during the 16 years of its existence the Youth Court, a little Court accounting for a relatively small percentage of the District Court's work overall, has had an influence far beyond its size. It introduced "a new paradigm"[96] which focussed on alternatives to the criminal justice system and to imprisonment and which allowed families, victims and the community to become involved in decision-making. Those with ears to listen have already been influenced by the Youth Court and its distinctively different approaches - and the adult Courts have benefited.

Respectfully, it is suggested that there is even more the Youth Court could "teach" the adult Courts and that the revolution associated with the introduction of the CYPF Act in 1989 may provide some alternative approaches to sentencing of interest to other jurisdictions.

Footnotes

1 Paper produced by His Honour Judge A J Becroft, Principal Youth Court Judge of New Zealand and written by Rhonda Thompson (BBS, LLB(Hons)), Research Counsel to the Principal Youth Court Judge. This paper is based on a paper given at the "Beyond Retribution - Advancing the Law and Order Debate" conference of the Prison Fellowship, New Zealand in May 2006.

2 D Cayley, Prison and Its Alternatives, Ideas (CBC Radio Transcript, 1996) 49 quoted in R G Green and K F Healy (2003) Tough on Kids: Rethinking Approaches to Youth Justice, Saskatoon, Saskatchewan, Canada: Purich Publishing Ltd, 23.

3 Children, Young Persons and Their Families Act 1989, s4(f).

4 Children, Young Persons and Their Families Act 1989, s208(d) & (f).

5 Maxwell, Robertson, Kingi (2002) Achieving the Diversion and Decarceration of Young Offenders, Journal of Social Policy, Issue 19 available online at http://www.msd.govt.nz/publications/journal/19-december-2002/19-pages76-100.html (last accessed 10 May 2006).

6 Based on statistics from the Ministry of Justice, Wellington.

7 Conviction and Sentencing of Offenders in New Zealand 1995-2004, Ministry of Justice, New Zealand available at http://www.justice.govt.nz/pubs/reports/2005/conviction-sentencing-1995-2004/index.html (last accessed 7 July 2006).

8 The resident population of New Zealand as at 30 June 2006 was 4,140,458, Statistics New Zealand website at www.stats.govt.nz.

9 National Population Estimates: September 2003, Statistics New Zealand, 23 October 2003 (0-16 year olds estimated at 1,005,100).

10 New Zealand Census 2001, Statistics New Zealand.

11 Sub-national Population Estimates: 30 June 2002, Statistics New Zealand, 13 November 2002.

12 This data is from New Zealand's 2001 Census in which it was possible for people to identify themselves with more than one ethnic group (hence these figures, if converted to percentages, total more than 100%).

13 Statistics New Zealand, 2001 Census, www.stats.govt.nz.

14 Demographic Aspects of New Zealand's Ageing Population, March 2006, Statistics New Zealand, available atwww.stats.govt.nz (last accessed 30 June 2006).

15 Projected Population of New Zealand and Selected Demographic Characteristics, 2001(base) - 2051, Statistics New Zealand.

16 Statistics New Zealand, 2001 Census, www.stats.govt.nz.

17 Goldson, 2002:51 quoted in Geoff Monaghan, Pam Hibbert, Sharon Moore (2003) Children in Trouble: Time for Change, Essex, United Kingdom: Barnados, 33.

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

19 B Clark & T O'Reilly-Fleming, eds. (1993) Youth Injustice: Canadian Perspectives, Toronto: Canadian Scholars Press Inc, 189, 194 quoted in R G Green and K F Healy (2003) Tough on Kids: Rethinking Approaches to Youth Justice, n 2, 23.

20 Jerome Miller, Prison and Its Alternatives, Ideas (CBC Radio transcript, 1996) quoted in R G Green and K F Healy (2003) Tough on Kids: Rethinking Approaches to Youth Justice, n 2, 23.

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

22 Maitland & Sluder, 1998 quoted in Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 18, 6.

23 Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 18.

24 Steinberg & Scott (2003) quoted in Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 18.

25 Moffitt (1993) quoted in Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 18.

26 Dr Nick J Wilson, Assessment, Treatment and Management of High Risk Incarcerated Youth Offenders, Wellington, New Zealand: Department of Corrections. Full report available on http://www.corrections.govt.nz/public/research/risk-need-profile-youth-offenders/method.html (last accessed 10 May 2006).

27 Donald P Roper, Superintendent Potosi Correctional Center, Petitioner v Christopher Simmons (1 March 2005) 543 US (unreported).

28 R Paton, summary of Roper v Simmons n 26, available in Court in the Act newsletter, March 2005 on http://www.justice.govt.nz/youth/media.

29 The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 18, 4.

30 Maxwell, Robertson, Kingi, Achieving the Diversion and Decarceration of Young Offenders, n 5.

31 Children, Young Persons and Their Families Act 1989, s283(o).

32 Geoff Monaghan, Pam Hibbert, Sharon Moore, Children in Trouble: Time for Change, n 17, 33.

33 Judge FWM McElrea, The New Zealand Model of Family Group Conferences, a paper prepared for the International Symposium "Beyond Prisons", Best Practices Along the Criminal Justice Process, March 15-18, 1998, Queen's University, Kingston, Ontario, Canada.

34 Children, Young Persons and Their Families Act 1989, s275, s276.

35 Children, Young Persons and Their Families Act 1989, s290.

36 Criminal Justice Act 1985, s142A(1).

37 New Zealand Crown Law Opinion on Children, Young Persons and Their Families Act 1989, s238, Summary Proceedings Act 1957, s46 and Criminal Justice Act 1985, s142.

38 Department of Corrections, Young Male Inmates, n 21.

39 Department of Corrections, Young Male Inmates, n 21.

40 United Nations Convention on the Rights of the Child, Art 37(a).

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

42 Children, Young Persons and Their Families Act 1989, s272.

43 Under Children, Young Persons and Their Families Act 1989, s275, s276.

44 Children, Young Persons and Their Families Act 1989, s209, s210, s212, s213.

45 Children, Young Persons and Their Families Act 1989, s211, s212, s213.

46 For a discussion of the Children, Young Persons and Their Families Act 1989 objects and principles see Part IV(b) below on page 11.

47 Conviction and Sentencing of Offenders in New Zealand, 1994 - 2003, November 2004, Wellington, New Zealand: Ministry of Justice available at http://www.justice.govt.nz/pubs/reports/2004/conviction-sentencing-2003-04/index.html (last accessed 7 July 2006).

48 Children, Young Persons and Their Families Act 1989, s4(f).

49 Children, Young Persons and Their Families Act 1989, s238(d).

50 Children, Young Persons and Their Families Act 1989, s238(e).

51 Children, Young Persons and Their Families Act 1989, s283(n).

52 Children, Young Persons and Their Families Act 1989, s283(o).

53 Summary Proceedings Act 1957, s153A(6) via s28F District Courts Act 1947.

54 Children, Young Persons and Their Families Act 1989, s208(f)

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

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

57 Children, Young Persons and Their Families Act 1989, s208(c).

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

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

60 G Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, 8.

61 Judge Carolyn Henwood, Wellington District Court - Liaison Youth Court Judge, The Children, Young Persons and Their Families Act 1989 - The New Zealand Situation 1997 - A Judicial Perspective.

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

63 Children, Young Persons and Their Families Act 1989, s283.

64 Children, Young Persons and Their Families Act 1989, s283(k), s283(m), s283(n).

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

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

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

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

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

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

71 Conviction and Sentencing of Offenders in New Zealand, n 47, 144.

72 Moffitt T E, Adolescence-Limited and Life-Course Persistent Antisocial Behaviour: A Developmental Taxonomy, Psychological Review, 100(4): 674-701 quoted in K L McLaren (June 2000) Tough is Not Enough - Getting Smart about Youth Crime, Wellington, New Zealand: Ministry of Youth Affairs, 16, available at http://www.myd.govt.nz/uploads/docs/0.7.4.2%20tough%20fulldoc.pdf (last accessed 17 May 2006).

73 Children, Young Persons and Their Families Act 1989, s4(f)(ii).

74 Sentencing Act 2002, s7(1)(c).

75 Sentencing Act 2002, s7(1)(h).

76 Sentencing Act 2002, s8(i).

77 Sentencing Act 2002, s8(j).

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

79 Prison Fellowship New Zealand, Beyond Retribution - Advancing the Law and Order Debate conference, (May 2006) Speakers and Presenters Information.

80 Hon J Bruce Robertson, S Wadsworth (eds), Adams on Criminal Law, Sentencing Act 2002, Part I, SA10.03 Restorative Justice Processes, Wellington, New Zealand: Brookers Ltd.

81 Speech by Hon Phil Goff, Expansion of Project Turnaround, 28/9/04.

82 Speech by Hon Phil Goff, Expansion of Project Turnaround, 28/9/04.

83 Crime and Justice Research Centre Victoria University of Wellington with Sue Triggs for the Ministry of Justice (May 2005) New Zealand Court-Referred Restorative Justice Pilot: Evaluation, Wellington, New Zealand: Ministry of Justice.

84 Crime and Justice Research Centre Victoria University of Wellington with Sue Triggs for the Ministry of Justice (May 2005) New Zealand Court-Referred Restorative Justice Pilot: Evaluation, n 83.

85 Sue Triggs (June 1998) Crime to Sentence: Trends in Criminal Justice, 1986 to 1996, Wellington: Ministry of Justice.

86 Further, Sentencing Act 2002, s25(b) & (c) allows proceedings to be adjourned for "inquiries as to suitable punishment". Such inquiries include enabling restorative justice processes to occur or enabling a restorative justice agreement to be fulfilled. Under Sentencing Act 2002, s111 the offender may be called up on failure to comply with restorative justice initiatives.

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

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

89 Children, Young Persons and Their Families Act 1989, s251(1)(f).

90 Children, Young Persons and Their Families Act 1989, s250(2)(a).

91 Children, Young Persons and Their Families Act 1989, s251(2).

92 Children, Young Persons and Their Families Act 1989, s260(3)(e).

93 Judge FWM McElrea (1994) Restorative Justice, The New Zealand Youth Court: A Model for Development in Other Courts?, n 66, 3-4.

94 Children, Young Persons and Their Families Act 1989, s4(f).

95 Sentencing Act 2002, s7.

96 Morris and Maxwell (1990) Juvenile Justice in New Zealand: A New Paradigm, Wellington: Victoria University of Wellington. Judge FWM McElrea (1993) A New Model of Justice in Brown and McElrea (eds.) The Youth Court in New Zealand: A New Model of Justice, Auckland: Legal Research Foundation, 13.