Children, Young Persons and their Families (Oranga Tamariki) Legislation Bill

 

 

CHILDREN, YOUNG PERSONS AND THEIR FAMILIES (ORANGA TAMARIKI) LEGISLATION BILL

  

JUSTSPEAK SUBMITS IN PARTIAL SUPPORT OF CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES (ORANGA TAMARIKI) LEGISLATION BILL

 

  1. JustSpeak welcomes the opportunity to submit on the Children, Young Persons, and their Families (Oranga Tamariki) Bill (“the Bill”). JustSpeak's submission focuses on the aspects of the Bill relating to youth justice (Part 4 to Part 6 of the Bill).
  2. JustSpeak is a non-partisan, independent network of people across Aotearoa seeking to change the conversation on criminal justice in New Zealand. As an organisation comprised primarily of young people, JustSpeak represents a new generation of thinkers working for change in the criminal justice system. We advocate for a criminal justice discussion based on evidence, experience and compassion. As such our submission focuses on the parts of the Bill that relate to criminal justice.

EXECUTIVE SUMMARY

 

  1. JustSpeak supports raising the age of youth justice to include all 17 year olds. This is because:
    1. Interaction with the adult criminal justice system has long-term negative consequences for young offenders. The youth justice system is a more appropriate and more effective forum to respond to offending by young people and prevent escalation into a long-term pattern of offending.
    2. Expansion of the youth court jurisdiction will have particular benefits for Māori. The adult criminal justice system is failing Māori; the youth justice system offers better options in addressing Māori youth offending in a more effective and culturally-responsive way. Expanding the youth court jurisdiction will allow the Government to better meet its Treaty obligations in this area, if this is coupled with targets to reduce Māori over-representation in both the youth and adult justice systems. 
    3. Many young people in the justice system have neurodisabilities. The adult criminal justice system is ill-equipped to recognise and respond appropriately. 
    4. There is a scientific basis for not treating seventeen year olds the same way as adults in their interactions with the criminal justice system. At seventeen, a young person's brain is not fully developed, and they are not able to fully assess the long-term consequences of actions taken in the moment. 
    5. It is inconsistent with other domestic legislation to treat 17 year olds as adults for the purposes of our justice system. Treating 17 year olds as adults when they interact with the criminal justice system is also counter to New Zealand's international obligations and undercuts the reputation of New Zealand's youth justice system as world-leading.  
  2. JustSpeak recommends a number of specific changes to the Bill:
    1. Removing the proposed clauses 103 and 104 of the Bill.  The existing machinery and discretions are more than adequate and no problems have been identified with how they currently operate.  
    2. Removing clause 107. Clause 107 would amend s 284 of the Act to make it more likely that the Youth Court would transfer young persons to the District Court for sentencing and undercut Judges’ discretion.
    3. Including provision to transfer 18, 19 and 20 year olds with neurodisabilities into the youth justice system, which is more appropriate for their needs.
    4. Including provision to abolish the use of police cells to hold children and young people once they have appeared in court.
  3. Further, JustSpeak submits that the age of youth justice should be increased over time so that all young adults up to the age of 21 are included in the youth justice system.

 

WE SUPPORT TAKING SEVENTEEN YEAR OLDS OUT OF THE ADULT JUSTICE SYSTEM

The adult justice system is ineffective and inappropriate for young people

  1. This section sets out the reasons adult court is not an appropriate forum for young people. They are deprived of the Youth Court’s procedural protections and benefits (which are designed to with young people’s maturation in mind), and are exposed to sentences which have quantifiably worse outcomes for young people. The Youth Court requires a deeper involvement from family members, those harmed, and experts to ensure the context in which the young person offended is understood. Young people who are subjected to the adult criminal justice system lose those valuable procedural and sentencing options.
  2. A recent public opinion survey shows that twice as many New Zealanders think that our youth justice system should include 17 year olds than those who do not. This survey was of over 5000 people and was nationally representative. The survey question was ‘Should we include all children up to 18 in the youth justice system?’ 

 Public opinion survey 2017

The Youth Court offers procedural protections and benefits

  1. The main differences between the adult and youth justice systems are described in the table below:

  1. The Youth Court is designed to make the justice process intelligible to a young person, and to minimise the long-term consequences of a youthful mistake after the court process is complete. For example:
    1. Proceedings in the Youth Court are closed to the public. A limited list of  people, such as the young person, his or her family, and professionals assisting the Court are entitled to be present. The media must seek permission before reporting on Youth Court cases, and may not name the young person involved. This means the ‘labelling’ effect (where young people hear themselves called criminals and come to see themselves as such) is reduced, as is the likelihood of being stigmatised years after their justice involvement by an historic internet article.
    2. Proceedings in the Youth Court only involve young people, and are (or should be) physically separate from adult courts. This prevents young people associating with adults accused or convicted of offences while awaiting their case to be called. 
    3. Each case in the Youth Court is usually heard by the same Judge throughout its life, forming a relationship over time between the young person and Judge. Youth Court judges are specially chosen for their experience, training, and understanding. 
    4. Proceedings in the Youth Court are set down with the young person’s timeframe in mind. Because young people experience the passage of time in a different way to adults, and mature faster over time, it is important for the case to be resolved quickly.
    5. Family Group Conferences are an essential part of the Youth Court system. They provide a way for whānau and the victim of the offending to be directly involved in the young person’s case. In District Court there are only limited circumstances for the involvement of whānau and those harmed.
    6. Each Youth Court case has an assigned Youth Aid police officer, trained in working and communicating with young people. That level of individualised care is often missing from adult cases.
    7. Rangatahi and Pasifika Courts, which provide interventions more culturally appropriate for Māori and Pacifica young people, are not available in the adult court system. 
    8. The Youth Court can order a wide variety of reports about the young person, from social workers, cultural experts, education specialists, and psychologists. This gives the Judge the information needed to speak to the young person appropriately, and make the appropriate orders for their individual circumstances. The Judge may also order the young person’s parent, guardian or caregiver to appear.  
    9. The Court can require the young person’s parent or guardian to be present during proceedings.   

The youth justice approach is more effective at reducing reoffending

  1. Youth Court has a wide range of sentencing responses available to it. These range from admonishing the young person, imposing a fine or reparation order upon the young person or their parents, forfeiting property, attending courses, rehabilitation, or mentoring (or requiring their parent or guardian to attend parenting courses), supervision (which may mean regularly checking in with a social worker, participating in a specified activity, or residing in a youth residence facility), or performing community work.
  2. However, imprisonment is far more likely to be given as a sentence in the adult court system. This has quantifiably negative consequences for young people and our wider communities. Young people under 20 sentenced to prison have a 91% chance of reconviction within 2 years of release. This means that almost every single time we send a young person to prison we must do it knowing that it it is not an effective response to prevent future harm.
  3. A study conducted in Florida showed that where young people were transferred into the adult justice system they were more likely to reoffend than youth who remained in the juvenile system. In particular they were more likely to reoffend violently after the age of 18 compared to young people who were not transferred to the adult system.
  4. It has also been found in a number of studies in the United States that incarcerating youth means they see less reinforcement of social norms, causing them to become “increasingly detached” from law-abiding society. Due to the exposure to older offenders they gain an increased knowledge of offending. As well as this they can be prevented from “ageing out” of their offending as would normally occur in most cases due to their time in the criminal justice system.
  5. On the other hand, North Carolina and Texas estimate annual benefits of including 17 year olds in their youth justice systems, of $123m and $89m respectively, realised over 35 years due to at least a 10% reduction in reoffending. 

The youth justice system offers more culturally-responsive and effective solutions for Māori

  1. Māori are over-represented at every stage of the criminal justice process. New Zealand’s current criminal justice system is failing Māori.
  2. Independently of offending rates, Māori are more likely to be apprehended for a criminal offence than non-Māori. Māori are also more likely to be prosecuted, convicted, remanded awaiting trial and more likely to be convicted than non-Māori. Further, there are differences in the outcomes imposed on Māori with seven times as many Māori as non-Māori given a custodial sentence. Māori are also far less likely to be granted home detention.
  3. An recent analysis of Māori and non-Māori 17 year olds in court estimates that by the time they are 27 Māori will have been 35% more likely to have been convicted and 3.2 times more likely to have been imprisoned. 
  4. There is a considerable amount of recent literature questioning whether Māori over-representation in criminal statistics is related to actually being Māori. Research shows:

When a range of measures of social and economic disadvantage are taken into account, Māori ethnicity recedes as an explanation for over-representation. The level of Māori over-representation in the criminal justice system is very much what could be predicted given the combination of individuals’ life experiences and circumstances, regardless of ethnicity.

  1. Evidence tends to suggest that Māori offending is linked to poverty, the ongoing effects of the colonial process and marginalisation. These social and economic factors are particular strong causal contributors for young Māori offenders, particularly as those in the churn of the criminal justice system are from a small and disenfranchised part of Māori communities. Therefore, some researchers state “Māori over-representation is not a ‘Māori’ problem”.
  2. The over-representation of Māori admitted to youth justice residences is stark and has been increasing markedly over the past 5 years.

 

  1. Addressing the over-representation of Māori in the youth justice system is important to ensure that the Government meets its obligations under Te Tiriti O Waitangi, and is one of the stated aims of the Bill. Including seventeen year olds within the youth justice system will further this aim of reducing over-representation of Māori in adult criminal justice statistics. 
  2. It is also recommended that targets to reduce the over-representation of Māori in youth justice residences be set with accountabilities for agencies.

Reduce reoffending by encouraging cultural links

  1. Young Māori have the choice to attend either Youth Court or Te Kooti Rangatahi, a Marae-based youth justice mechanism conducted in accordance with tikanga Māori. The Cabinet Paper supporting the passing of the Bill recognises as one of the benefits the fact that it will allow for Ngā Kooti Rangatahi to be available to a wider range of young people. Additional information about Te Kooti Rangatahi can be found in Appendix 1.
  2. Many of the rangatahi who appear in Te Kooti Rangatahi have lost touch with their sense of identity as Māori.
  3. The process in Te Kooti Rangatahi tries to remedy this, and places emphasis on rangatahi learning who they are and where they are from, and learning their connections to other Māori. Rangatahi are required to learn and recite their pepeha at the beginning of their hearing. To do so they must learn their iwi, their hapu, their maunga, their awa. The kaumātua and kuia often make connections to the rangatahi, for example by pointing out common ancestors. 
  4. Te Kooti Rangatahi, more than any other court process in New Zealand, seek to locate young offenders within their broader community. Te Kooti Rangatahi sit in a marae – the centre of a Māori community. The process introduces rangatahi to local kaumātua and kuia, and builds connections between them. The ultimate goal is to reduce reoffending, and provide rehabilitation, by allowing rangatahi to see themselves as part of a broader community – and to see their actions as having community consequences. More details about the process is contained in Appendix 1.
  5. Those who participate in the Te Kooti Rangatahi process have noticed that building connections with the marae and the surrounding community improves the behaviour of rangatahi in the marae when opposed to when they appear in Youth Court.

All rangatahi should have the opportunity to attend Te Kooti Rangatahi

  1. For the reasons discussed above, Te Kooti Rangatahi is more effective at addressing offending by young Māori than the standard Youth Court. To further the Government's objective of reducing Māori reoffending, this programme should be extended to all rangatahi. Extending the youth justice age to include 17 year olds is an important first step in this direction.

 

Seventeen year olds are neurologically different from adults and the criminal justice system should recognise this.

  1. Scientific and psychological research supports JustSpeak’s position that the jurisdiction of the Youth Court should be increased to include all 17 year olds.
  2. Longitudinal studies show that an adolescent brain is not fully developed until well into their 20s. Not only is the brain still growing when a person is 17, it is actually undertaking a massive restructure. As described by the Brainwave Trust, the adolescent brain is a work in progress, with important parts seeming to be closed for construction. The areas of the brain that is affected by this reconstruction are judgement, impulse control and self-regulation, all reasons that often see adolescents before the criminal justice system.
  3. It highlights an important issue not addressed in our current criminal justice system; how should we assess someone's culpability that has not fully developed; and is that fair?
  4. There has been some recognition of brain development research in the New Zealand criminal justice system, namely the Court of Appeal decision of Churchward v R. It recognised the difference between the youth and the adult brain in the following ways;
    1. There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure), and may be more impulsive than adults;
    2. The effect of imprisonment on young people, including the fact that long sentences may be crushing on them;
    3. Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult;
    4. Offending by a young person is frequently a phase which passes fairly rapidly, and thus a balanced reaction is required in order to avoid alienating them from society, and
    5. Criminal convictions at that stage of a person’s life may have a disproportionate impact on the ability of a young person to gain meaningful employment and play a worthwhile role in society.
  5. The US Supreme Court has also recognised the scientific evidence regarding brain development to justify a different approach to sentencing for juveniles. The Court held that the inherent immaturity of adolescents’ relative to adults mitigated teenagers’ criminal responsibility to the extent that it barred the imposition of capital punishment for crimes committed under the age of 18, regardless of their heinousness.

Raising the age of youth justice is consistent with other New Zealand legislation

  1. New Zealand legislation overwhelmingly treats anyone under the age of 18 as a child. Eighteen is the age at which we allow young adults to drink, smoke, buy fireworks, get married without the consent of their parents, join the police, serve on a jury, and play Instant Kiwi. It is the age at which their parents are no longer legally responsible for them.
  2. The Children, Young Persons, and Their Families Act 1989 itself does not consistently treat 17 year olds as adults.
  3. The Children, Young Persons, and Their Families (Advocacy, Workforce and Age Settings) Amendment Act 2016 comes into force on 1 April 2017. Once in force, there will be two different definitions for a ‘young person’. For care and protection purposes, a ‘young person will be “a person of or over the age of 14 years but under the age of 18 years”. Subject to the passing of the Bill, the definition of a ‘young person’ for youth justice purposes will remain unchanged (that is, it will remain “a boy or girl of or over the age of 14 years but under 17 years”). This means that a 17 year old will be a ‘young person’ for care and protection purposes yet not youth justice purposes, which results in inconsistency within the Act itself.
  4. It is inconsistent with the widely held view that a young person becomes an adult at the age of 18, and inconsistent with New Zealand's legislative scheme, to treat a seventeen year old as criminally responsible for their actions and subject to the same consequences as an adult.
  5. JustSpeak supports increasing the age of youth justice because this will bring our youth justice system in line with New Zealanders' intuitions about when someone becomes an adult, as reflected by the fact that most New Zealand legislation does not treat 17 year olds as adults.

Treating 17 year olds as adults in the criminal justice system undermines the reputation of our youth justice system as world-leading

  1. New Zealand likes to think of its  youth justice system as world-leading and innovative. But treating 17 year olds as adults is an “enduring stain” on the reputation of our youth justice system.
  2. New Zealand is a step behind many other states in terms of the age of a young person. The United Kingdom, Canada and 42 states within the USA all include 17 year olds within their respective youth justice systems. In November 2016, Queensland became the final jurisdiction within Australia to pass legislation to include 17 year olds within the youth justice system. New Zealand is supposed to be a leader in youth justice yet has fallen behind these other states because of the reluctance to raise the age.
  3. New Zealand has international obligations in relation to youth justice. The United Nations Convention on the Rights of the Child (UNCROC) defines a ‘child’ as a “human being below the age of eighteen years”. Under the UNCROC, every child has specific rights in relation to youth justice, meaning that everyone under the age of 18 is entitled to these rights. However, New Zealand’s definition of a ‘young person’ means that 17 year olds are not guaranteed the rights that they are entitled to under this covenant.
  4. As a signatory of UNCROC, New Zealand has faced extensive criticism from the UN for the inconsistency between domestic legislation and the UNCROC. the Committee on the Rights of the Child has repeatedly recommended that all domestic legislation be made consistent with the UNCROC. The Committee highlighted its disapproval with the maximum age of youth justice being 17, recommending that New Zealand raise the age to 18.

 

The use of police cells for children and young people once they have appeared in court should be abolished

  1. There are increasing reports of young people in solitary confinement in police cells for multiple days. This is not in keeping with the ethos of the youth justice system and is likely to have negative effects on the wellbeing of the young people held. Therefore, we recommend the abolishment of this practice in favour of placing young people within the community.

 

ALL SEVENTEEN YEAR OLDS SHOULD BE INCLUDED IN THE YOUTH JUSTICE SYSTEM

Seventeen year olds should not be automatically removed if they commit certain offences

  1. JustSpeak is opposed to the proposal to automatically remove 17 years olds who are charged with committing certain specified offences set out in Schedule 1A from the Youth Court and transferring them automatically into the District Court or High Court, depending on the offence that the 17 year old is charged with.   
  2. JustSpeak considers that there is no adequate justification for this proposal, given that the current system provides for adequate responses including that young persons can be sentenced in the District Court if need be.  All that the proposed amendments would do is to limit young persons’ engagement in the proceeding, limit the involvement of family, and limit the expertise that can be brought to bear in addressing the young persons’ offending.  

The current system

  1. Presently young persons are only automatically transferred out of the Youth Court in limited circumstances:
    1. First, young persons charged with murder or manslaughter are automatically transferred out of the Youth Court and the trials heard in the High Court by a judge and jury.   The rationale for this is that these charges are serious and so such trials must be heard by a jury, which the Youth Court does not provide for.  Importantly, however, all applicable pre-trial matters are dealt with in the Youth Court until the transfer to the High Court.
    2. Second, young persons who are charged with certain infringement offences relating to the purchase and supply of alcohol and other drugs under the Psychoactive Substances Act 2013, the Sale and Supply of Alcohol Act 2012, the Summary Offences Act 1981 or the Local Government Act, as well as those charged with traffic offences not punishable by imprisonment are dealt with in the District Court in specialist lists.   The rationale for this is that these offences are primarily dealt with by way of fines and that the District Court dealing with these types of minor offending imposes standardised sentences.   
  2. In addition to these two exceptions, young persons charged with Category 3 and 4 offences, which carry rights to trial by jury, have an election to make.  If they elect trial by jury, they will be tried in the District Court or High Court.  However, if they choose to forgo this right and elect a judge-alone trial then the young person is tried in the Youth Court.  

The proposed changes

  1. The Bill proposes to amend this system by automatically transferring 17 year olds who are charged with what are deemed to be serious offences out of the Youth Court and into the District Court.  Clauses 103, amending s 273(2) of the Act, and 104 of the Bill, inserting a new s 276A, will mean that a 17 year old who is charged with a specified offence set out in Schedule 1A must be transferred to the District Court or High Court. 
  2. The specified offences in Schedule 1A encompass a range of offences, ranging from charges of hijacking, torture and crimes against humanity, through to murder, manslaughter and kidnapping.  Schedule 1A also includes some common-place and less serious offending such as:
  1. Aiding suicide; 
  2. Aggravated robbery, a common example of which would be where two kids bail up another kid and take his or her cell phone.
  3. Supplying, administering or dealing ecstasy or possessing ecstasy for supply.  
  1. The criteria for what offences fall to be included in Schedule 1A are any offence that currently provides for a term of imprisonment of 14 years or more.  Importantly, these specified offences are wider than those that are deemed to be serious under the three-strikes legislation so there is some inconsistency in what is considered “serious” in different legislation.
  2. Despite making what would be a significant change to the jurisdiction of the Youth Court, having the effect of modifying the existing provisions around election for Category 3 and 4 offending, the Explanatory Note to the Bill provides no explanation for this change.  The Explanatory Note simply states that these offences are serious offences, as if this label automatically justifies avoiding the Youth Court system.  In doing so, these proposed changes presume that the Youth Court cannot adequately deal with such offending.  This is simply not the case. 
  3. While the Youth Court is tailored to ensure greater participation and understanding by young persons (as set out above), it is not somehow less rigorous than the District Court or High Court.  Rather than alter the evidentiary rules and burdens, the Youth Court simply brings its expertise in dealing with young offenders through the experience and specialisation of all the professional participants including, judges, police and lawyers.   
  4. In addition to its expertise, the Youth Court has a wide-range of powers and processes designed to protect the young persons appearing before, as discussed above. These protective processes and powers are not available in the District Court or High Court.  
  5. Finally, unlike the District Court and High Court, the Youth Court also has a wider-range of responses to proven offending.  These range from admonishing the young person, imposing a fine, forfeiting property, or ordering the young person to attend courses (with or without their parent or guardian), through to placing the young person under the chief executive of the Ministry, imposing community work, supervision or supervision with residence.  Further, where the offending requires a stronger response, the Youth Court is empowered to enter a conviction and transfer the sentencing of the young person to the District Court for sentencing under the Sentencing Act 2002. 
  6. In the case of young persons who have been found to have committed one or more of the specified offences, and without there being any real mitigating circumstances, it is likely that the Youth Court would exercise the power to transfer the sentencing to the District Court.  This means that there is no basis for any fear that without making the proposed amendment 17 year olds would be treated too leniently.  
  7. Instead, rather than ensure serious offences can have an appropriate response, all the proposed amendment would achieve is to limit the engagement of the young person in the proceeding, limit their understanding of what is going on, and limit family involvement.  Given that there is no positive justification put forward for this proposed amendment, it is JustSpeak’s position that this proposal is unjustified.  
  8. Additionally, this may have the unintended consequence of incentivising Police to ‘over-charge’ 17 year olds so that they are seen in the District Court rather than the Youth Court.
  9. For these reasons JustSpeak opposes the proposed clauses 103 and 104 of the Bill.  The existing machinery and discretions are more than adequate and no problems have been identified with how they currently operate.  

Transfer out of the Youth Court should not be made more likely

  1. JustSpeak also opposes the proposed clause 107 which would amend s 284 of the Act to make it more likely that the Youth Court would transfer young persons to the District Court for sentencing. 
  2. No problem has been identified with the existing mechanism with Youth Court judges transferring young persons in appropriate cases. Without any identifiable need, such an amendment is unjustified tinkering that has the potential to increase the imposition of sentencing options that are tailored to adults on young persons and put young persons into the adult criminal justice system where they are more likely to stay than if they were in the youth system. 

The proposed amendment

  1. Clause 107 will amend s 284 of the Act to specify that when the Youth Court is considering transferring the young person to the District Court for sentencing the Youth Court must “give greater weight to” four factors: 
  1. The seriousness of the offending; 
  2. The criminal history of the young person; 
  3. The interests of the victim; and 
  4. The risk posed by the young person to other people. 
  1. This amendment will elevate these four factors above the five other factors listed in s 284. 
  2. The Explanatory Note does not explain the need for this change other than vaguely stating that this amendment will “strengthen” the “existing discretion of Youth Court Judges”.  This is a contradiction in terms given that rather than reinforcing the discretion, the proposed amendments will tilt the discretion one way and make it harder for the Judges to exercise the discretion the other way.  
  3. As explained above, the Youth Court system is preferable to the adult criminal justice system for many young persons. While in a small number of appropriate cases the young person needs to be dealt with under the adult system, it is usually better for the young person and for society in general for the young person to be dealt with in the youth system where the causes of their offending can be addressed more specifically and successfully. 
  4. This proposed amendment tips the balance towards sending young persons into the adult system where they are bound to fail due to influence and because the sentencing options in the adult system are tailored for adults not for young persons.  
  5. It is JustSpeak’s position that this proposed amendment is unjustified and ultimately likely to create more people locked into the criminal justice system rather than breaking their offending early on and removing them from this cycle.  For these reasons, JustSpeak recommends deleting clause 107.

 

ALL YOUNG PERSONS WITH NEURODISABILITIES SHOULD BE ABLE TO BE TRANSFERRED INTO THE YOUTH JUSTICE SYSTEM

Many young people who come into contact with the justice system have a neurodisability

  1. Justspeak also supports greater recognition of the prevalence of neurodisabilities amongst young people and calls for the ability of not only expanding access to all 17 years but providing the District Court the ability to refer 18, 19 and 20 year olds with neurodisabilities to the Youth Court as a more appropriate response to their offending.
  2. Research shows us that not only are young people's brains still developing, a staggeringly high number of young people who come into contact with the criminal justice system have a neurodisability. Significant research undertaken by the Children's Commissioner in the UK found that there is an increased prevalence of neurological disorders amongst young people in the criminal justice system as opposed to those in the general population.
  3. Unfortunately New Zealand has not undertaken its own research on this, but it is accepted by two prominent youth court judges to be very similar in New Zealand based on their experience presiding in the Youth Court.
  4. In the UK the Children’s Commissioner research showed that whilst 24 - 31% of the general youth population were affected by a traumatic brain injury, 65-72% of youth in custody are affected.
  5. The neurological disorders are wide ranging and include general learning difficulties (low IQ), communication disorders (dyslexia), ADHD, autism, traumatic brain injuries and foetal alcohol spectrum disorder (FASD).
  6. These disorders impact on a young person’s involvement in the criminal justice scheme by affecting their ability to communicate, to comprehend, to give instructions. At every step of the criminal justice process they are disadvantaged.
  7. Also neurodisabilities often cause characteristics that increase the likelihood of offending, such as hyperactivity, impulsivity, cognitive impairment, aggressive behaviour leading directly to offending or to life choices increasing its likelihood.
  8. The Youth Court and its founding principles and process enable a more rounded response to adolescents, particularly those with a neurodisability. One of the fundamental aims of the Youth Court is to be solution focused.
  9. As outlined by Judge Becroft, former Principal Youth Court judge and current Children’s Commissioner “We know that punishment doesn’t change brain impairment.  We know that what does assist is structure, support and supervision”.
  10. “Young people should be held to account to the degree their disability (their brain development) gives them the capacity to allow.” The Youth Court is able to offer a therapeutic response (regular monitoring, continuity of judge, a multi-agency approach).
  11. It is inherently unfair and unjust to face the full weight of the criminal justice system, with someone has diminished culpability either as a result of their age (brain is still developing) or a neurodisability. 

 

THE AGE OF YOUTH JUSTICE SHOULD BE RAISED TO 21 YEARS

  1. JustSpeak further submits that the age for youth justice be raised to 21. This is supported by a petition of almost 4,000 people.
  2. Along with the signatures, hundreds of people left comments on the petition. 
  3. Edward said “being put through the adult justice system at 17 was terrifying, having never been arrested before. The weight of my sentencing really only held me back in life, and ultimately the system failed to do anything to help me move forward with life changes to help prevent reoffending.”
  4. Other people pointed to the long road that many of these young people have been on before they reach the justice system: “Under the age of 21 most young people still think like children, especially if they lack a reason for living. They need a specifically designed rehab programme to give them faith in a system that has failed them.” - Ann
  5. As well as the impact that a criminal record has in the form of “a dark shadow over their whole life” - Barbara, many people share Sharon’s view that “young offenders need guidance not prison”.
  6. This view is supported by research and experience of those working with young people, such as Dinah: “I'm a teacher, and brain-development research shows young people can change when restorative practices are used, when empathy is grown, and good consequences are given to heal the harm caused. Also, I'm a parent of a disabled child & would hate to see any disabled young person in prison.” 
  7. We note that both the United Kingdom and Connecticut are looking at raising the age of youth justice to 21. This is with a view to reducing youth offending generally, getting better outcomes for victims and ultimately reducing the cost of criminal justice.
  8. The ages between 18 and 21 have been described in a recent Harvard Study as ‘emerging adults’. This is the transition period of a person’s life where they move from being a child dependent on adults to a fully formed contributing member of society. This period is from approximately 18 to 21.
  9. Within this age group in New Zealand there is a 91% recidivism rate if they are sentenced to prison. 

International evidence supports raising the age of youth justice further

  1. A new inquiry led by MPs in the UK concluded that “there is irrefutable evidence that we should keep young people up to the age of 25 out of prison”.
  2. Harvard research has found that reoffending is increased if a young person is exposed to the adult criminal justice system. The Harvard study compared the reoffending rates of young people who were processed by the adult system with the reoffending rates of young people who went through the youth justice system. They found that, following the ‘get tough on crime’ approach in the United States in the 1990’s where juvenile offenders were processed in the adult system, there was “a 34% to 77% greater likelihood of being re-arrested for a crime. [Young people] were also more likely to be re-arrested for a more violent crime than those exiting the juvenile system”
  3. On that basis it is reasonable to assume that effect of imprisonment is a significant factor in the reoffending due to effect of exposure to adult offenders and the consequent risk of physical and sexual assault while they are incarcerated.
  4. Furthermore being processed in the adult system means that the victims of these emerging adults are not given a say in the process. This means that the risk of victims feeling disengaged or unimportant in a process that should ultimately be about them is much higher.
  5. Alternatively, when exposed to a more restorative approach, as prioritised in the youth justice system, reoffending is reduced. Recent research from the Ministry of Justice showed that a restorative approach is effective for 17 to 19 year olds, with a 17% lower rate of reoffending than those not receiving restorative justice.

  

APPENDIX 1: Te Kooti Rangatahi process

  1. Nga Kooti Rangatahi monitor the performance of Family Group Conference plans. The law that applies is the same in a normal Youth Court, but the process is very different. Each sitting of Te Kooti Rangatahi begins with a pōwhiri welcoming all participants – including rangatahi, whānau, kaumātua, judge, police and others. A whakawhanaungatanga session is then held – a round of introductions to establish relationships. The tangata whenua of the marae introduce themselves and all of the visitors introduce themselves.
  2. After the pōwhiri, all participants share morning tea in the whare kai. Each rangatahi is then called into the whare nui one by one for their hearing. 
  3. The hearing begins by the rangatahi introducing themselves by their pepeha. The Youth Court judge then leads the hearing, aided by kaumātua and kuia of the marae. The rangatahi are represented and supported by a lay advocate. 
  4. Knowing where they are from can help rangatahi figure out where they are going – and can help them figure out that a life of crime is not inevitable. Te Kooti Rangatahi are premised in the assumption that for young Māori who appear before the court to have any sense of purpose in the future, they need to start by knowing where they come from and who they are. 
  5. Too often, young Māori are told – both explicitly and implicitly – that they will amount to nothing good. Lay advocates report how rangatahi have experienced racism:  "kids have been called dumb maoris, ugly, one of them had been called a dog". One rangatahi recalled how a police woman at Youth Court had said he was "nothing but a little asshole". Ngā Kooti Rangatahi, on the other hand, emphasis that rangatahi have potential. Through learning about their culture, rangatahi learn that there is more to te ao Māori than is represented in the “crime” section of the six o'clock news. They develop a sense of pride of their heritage and of themselves, reinforced by the sense of achievement of having learnt and delivered their pepeha.
  6. The focus at Ngā Kooti Rangatahi is that the rangatahi made a bad choice, not that they are a bad individual. The kaumātua and kuia talk to the rangatahi personally and positively, pointing out the rangatahi's strengths.This avoids the rangatahi feeling like a life of crime is inevitable for them.
  7. Rangatahi report that, through Te Kooti Rangatahi, they learn something about their culture and feel better connected to their culture.
  8. Minority communities often disengage from the legal system. Alienation and cynicism give rise to opposition and resistance to the justice system, which further calls into question the system's legitimacy.
  9. The use of tikanga in Ngā Kooti Rangatahi avoids this alienation from the justice system. The use of tikanga makes the system feel relevant and legitimate, instead of just being a system that only has negative consequences for Māori. The court process is more likely to be seen as fair, and this means that rangatahi and whānau are more likely to positively engage with Ngā Kooti Rangatahi. This translates into higher levels of whānau attendance. Te Kooti Rangatahi, and in particular fathers and other male role models are more likely to attend.
  10. Rangatahi report that they better understand the process on the marae than in Youth Court, and that they felt welcome and respected. When rangatahi do not understand the court process, they revert to simply wanting to know the outcome of the process, rather than focusing on recognising their wrongdoing and the negative consequences it had for others around them. The fact that rangatahi understand the process – what is happening to them and why – at Te Kooti Rangatahi is a great strength of the programme, and allows rangatahi to more effectively engage with the restorative justice processes of the Youth Court.

Building connections between agencies

  1. Morning tea after the pōwhiri at Ngā Kooti Rangatahi is a chance for the judge, the rangatahi, kaumātua,  kuia, whanau and other agencies to come together in an informal setting. This seeds positive relationships between the rangatahi and the broader community support network. It provides opportunities for agencies to build relationships with the Māori community and whanau, and to increase their own cultural competencies.

 

JustSpeak Backgrounder

JustSpeak represents a non-partisan network of young people across Aotearoa interested in contributing to the debate on criminal justice in New Zealand. As a new generation of thinkers JustSpeak is working for change in the justice system through imagination, innovation and a belief that we can achieve a just Aotearoa.  JustSpeak was formed in early 2011 as the youth branch of the organisation Rethinking Crime and Punishment.  

The group is guided by a belief that this new generation has much to offer to the national conversation on criminal justice: an imaginative outlook; a feeling of urgency; and a sense of hope, amongst other things.  The group values an informed criminal justice debate based on evidence, experience and ongoing learning.  And within its own operations, JustSpeak has a genuine commitment to inclusion and diversity.  

The aims of the group are to empower young people to think independently about criminal justice issues, to encourage networking and the engagement of those affected by the justice system, to foster learning from others, to develop a voice for a new generation of thinking on criminal justice, and to allow this next generation to own its rightful place at the policy table in this area.  

The name “JustSpeak” reflects the group’s desire to encourage people to speak out, without fear of belittlement or ignorance, as well as the goal of the group to contribute to a culture of “speak” about what is “just” in relation to crime and punishment policy.  JustSpeak is founded on the following whakatauki:

Mā te tika o te toki o te tangere, me te tohu o te panaho, ka pai tetere o te waka i ngā momo moana katoa.

(By designing the keel of the waka to perfection, your canoe will overcome obstacles.)

The whakatauki articulates the need to design the keel of JustSpeak to perfection, so that the group can overcome obstacles, and maintain a durable voice in the criminal justice conversation.  But it also points to the need for the keel of a bigger waka – the criminal justice system as a whole – to be designed carefully, so that New Zealand’s criminal justice system can provide a sustainable platform to rehabilitate and reintegrate members of society.