Young peoples punishment should fit their needs

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Being "Tough on Crime" has been one of the continuously fashionable slogans recited by politicians and police to the public throughout time. The slogan creates connotations and inflames debate throughout the justice system. The result for the criminal justice system is as predictable as it is inevitable.

Everything in the world has a context. This assignment, using the youth justice system as evidence, takes its departure from colonisation. A journey is presented that pragmatically considers how when determining punishment the focus has been adjusted from the crime to the young person's characteristics and circumstances. The analysis considers how criminal liability for young people has been defined and the effect this has on current policy. The impact of the crime control, welfare, justice and restorative models in dealing with the punishment of young people is chronicled. Finally consideration is given to the current statistics and determines they are supportive of the thesis that 'effective punishment should fit the needs not the deeds of a young person'.

Punishment should be in keeping with a young person's age because of their "vulnerability to harm, their more limited understanding of the world and their greater susceptibility." [1] It is this principle that makes it imperative that punishment should fit the young person's needs not their deeds.

What is a child / youth offender?

In 1840 New Zealand received the common law from the UK which had developed a doctrine that the conduct of those who did not appreciate the wrongfulness of their actions should be excused. Young people less than 7 years old, as a conclusive presumption, were held to be incapable of committing crime (doli incapax).Until a person reached the age of 14 years old there remained a rebuttable presumption that they lacked criminal capacity.

The first NZ legislation set 7 as the age of criminal responsibility [2] and it remained at that level until 1961. [3] In 1974 the NZ legislature defined the age below which there is no criminal responsibility to be 10 years old. The age a youth can be prosecuted was maintained at 14 years. [4] 

140 signatories representing 193 parties make the United Nations Convention on the Rights of The Child (UNCROC) the most ratified UN treaty ever. [5] As of January 2011, all countries of the UN except Somalia and the US have ratified the Convention which promotes the idea of special protection for children. [6] 

The convention defines a person as a child until they reach 18 years old. [7] In NZ at 17 years old people are treated as adults in the criminal legal system. In 2003 the UN committee on the rights of the child recommended that NZ raise the minimum age of criminal responsibility to an internationally acceptable level. [8] However in October 2010 Parliament widened the jurisdiction of the Youth Court to allow prosecution to include 12 and 13 year olds who commit serious offences. [9] The majority of the Select Committee in their report to Parliament considered the CYPF Act

with its specified principles and objectives, diversionary nature, and family based decision making processes, would still ensure that 12 and 13 year olds would be dealt with appropriately to their age. [10] 

However the Human Rights Commission submission to the committee considered that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ('Beijing Rules') required that "a child can live up to the moral and psychological components of criminal responsibility". [11] It remains however that no person aged between 10 and 13 can be convicted of an offence unless they knew it was contrary to the law. [12] 

The Children, Young Persons and Their Families Act ("CYPFA") outlines situations where a child aged below 14 is in need of care and protection to include when they commit offenses "the number, nature and magnitude of which is such as to give serious concern for the well-being of the child". [13] The purpose of intervention for these children is to ensure the child's welfare as opposed to their accountability. However an application to the Family Court may be made to place the child in the state's care if other options have failed.

In conclusion it can be seen that NZ has long considered the status of young offenders in determining punishment. However NZ has recently moved further away from international best practice by lowering the age when a young person can be prosecuted.

Pre-colonial principles

In pre colonisation times, Maori justice would look to an offender's whanau for the reasons and responsibility for their offending. [14] In this model offending was not based on the crime or the offender individually but rather looked to the balance of the relationship between the communities. [15] A holistic approach required the punishment to be determined by the community. However it is unclear that children offenders were treated differently from adults. [16] These values and practices were oppressed as part of the Maori assimilation into the coloniser's legal system for 150 years until the enactment of the CYPFA in 1989. This legislation revolutionised the judicial response to youth offending by reintroducing a mediation-restorative justice model.

Crime Control Model

In the early years of colonisation the NZ justice system focused on the crime through the implementation of a punishment system based on a crime control model. Packer described the crime control model having "repression of criminal conduct [i]as by far the most important function". [17] To do this there was a focus on the crime committed rather than the personal circumstances of the offender. The theory is informed by the belief that if crime is not dealt with then a general disregard of laws will develop which will lead to a diminishing of the security of freedom and property rights. [18] This model was based on Becarria's writing detailing classicism which believed that crime is a free willed choice that occurs when the benefits outweigh the costs of offending. [19] In this context the crime control model was tasked with providing society an assurance of personal and property liberty. [20] 

In conclusion it can be seen that NZ's early colonial era justice system did not consider the situation of offenders rather it focused on the offending when determining punishment.

Welfare Model

The next phase of the evolution of the NZ justice system embraced the "welfare model" for young offenders. The welfare model considers that youth offending is a "product of factors outside the control of the offender". [21] The model was to inform the thinking of the justice system until the late 1970's.

The 'child savers' in the UK promoted the welfare of child offenders by channelling them away from the crime suppression focus of the adult criminal courts with their harsh and oppressive objectives. The reformers also believed by indoctrinating 'correct' religious morals they could divert young offenders from a career of crime. [22] 

The 19th century saw the creation of a 'welfare model' that separated the court and penal facilities of youth and adult offenders. These developments saw an evolution in the view of how to deal with young people's offending. The appropriate intervention was seen to be treatment of the factors causing the offending not punishment for the crime. These reforms were believed to provide more effective control of the child whilst at the same time improving their welfare. This positivist approach was to form the basis of the 'welfare model' of youth justice. [23] 

South Australia had established a separate youth court system with the State Children's Act in 1895 however it was not until 1925 that NZ created a separate Children and Young Persons Court. [24] 

In NZ the creation of "industrial schools" provided training so the young person could be removed from the adult criminal world. [25] 

The NZ implementation of the welfare model was less enthusiastically embraced than in the US however it was still the pinnacle of the system's punishment focus on the needs, not the deeds of the offender.

The Children and Young Persons Act 1974 was a continuation of NZ's journey down the welfare model's response to young people's offending. An innovative feature of the legislation was the establishment of 'Children's Boards' as a means of dealing with young people outside the formal court system. This development was in response to theories that had found that labelling and stigmatising an offender would increase the chances of subsequent offending. [26] The function of the newly established Children's and Young Persons Court was premised on the welfare models belief that young people's offending is caused by "family difficulties which can be treated by social work assistance and therapy" which traditional punishment would not solve. [27] 

However by the late 1970's the enthusiasm of the public had waned and the welfare model was being questioned not just in NZ but worldwide. The effectiveness of the characteristics which the welfare model embraced, "informal, non-legalistic, personal … conducted away from the public eye" [28] was being questioned. It was considered the discretionary powers of the welfare focus were allowing the system to discriminate on the grounds of class or race. [29] 

Concern was expressed that the ability to institute 'indeterminate' sentences in the name of rehabilitation was open to abuse. In these cases there was no consideration given to the nature or severity of the act, the length of the sentence was effectively 'until rehabilitation'. [30] The myopic focus on the punishment fitting the need not the deed arguably led to unjust outcomes.

Moral Panic

Around this time there was an outbreak of public concern regarding what was described as a 'juvenile crime wave". [31] Politicians were sensitive to the public perception that the welfare model was having little effect on lowering offending. Concern was being expressed about the increase in 'street kids' and that the model was ineffective against those young people who were chronic offenders. [32] Politicians were acutely aware of the 'moral panic' and looked for measures to satisfy the voter's desire for crime control through punishment.

In conclusion the intersection of the conservative moral panic caused by the media's depiction of street kids and the liberal perception that there was abuse of the system leading to unjust outcomes culminated in a further evaluation of the appropriateness of punishment fitting the needs of the young person not their deeds.

Justice Model

The response to these concerns with the welfare model in the US and to a lesser extent the UK was to move to a model that focused more on the rights of young people whilst at the same time extending the punishments available. There were moves to sure up the protection of 'due process' for young offenders. In NZ there were amendments to strengthen the police and courts ability to deal with the 'street kid' problem. [33] 

Hirschi described a social bond theory to describe how social bonds control young people through attachment to others focusing on why they control offending. [34] However it was Thornberry's interactional theory of delinquency which added social learning to explain why not all people in a group offend. The principle is that it is the young person's interaction with their environment that influences any deviance. Unlike control theory he argues that the lack of control is not directly causative of delinquency. [35] These theories will be seen as informing the mediation model.

Mediation, Diversion and the Restorative Model

It was a combination of economic, political and cultural change that eventually culminated in a revolutionary change to youth justice with the introduction a 'restorative model' in the form of the Children, Young Persons and Their Families Act in 1989. [36] 

The Act incorporated a return to the traditional Maori justice conventions that emphasised the family and community of youth offenders in devising a plan to restore balance and rehabilitate through "family group conferencing." Restorative justice brings "the individuals who have been affected by an offense together to agree on how to repair the harm caused by the crime." [37] 

The Act has a goal of diverting as many young people away from the formal trappings of the justice system as possible whilst "restricting the use of residential or penal establishments for young people." [38] The vast majority of young people's offending is dealt with by the Police Youth Aid section however there has been a noticeable decline in Police Youth Aid alternative action outcomes. [39] 

Research supports the proposition that young people's offending is a relatively 'normal' part of the teenage years and criminal system intervention is not desirable. [40] Diversion and supervision are effective alternatives to jail which will improve the rehabilitation effects by not associating young people with other offenders. [41] 

The restorative justice system attempts to provide a positive balance to the negative effects on victims and the relationships of those affected by the actions. In contrast to the US justice systems function of determining guilt and exacting a fitting punishment the purpose of the NZ system is firstly to provide accountability for the offender's actions. This accountability should be imposed swiftly so the young person can move forward with their lives positively. Subsequently an attempt is made to establish an understanding of the causes and effects. Finally the system attempts to develop a method to restore balance in the relationships affected. [42] 

The court cannot give a punishment merely because it considers that the young person is in need of care or protection. [43] When determining a punishment the court must not impose an outcome unless satisfied that a less restrictive outcome would be clearly inadequate. [44] The responses range from a discharge without penalty to entering a conviction and ordering that the young person be brought before a District Court for sentence. [45] These principles should result in avoidance of labelling and shaming unless it is not in public interest.

Factors to be taken into account on sentencing include:

the nature and circumstances and the involvement of the young person. [46] 

the personal history, social circumstances, and personal characteristics of the young person. [47] 

the response of the family to the causes underlying the young person's offending. [48] 

any measures taken by the young person to make reparation or apologise to any victim. [49] 

the effect of the offence on any victim. [50] 

any recommendation made by a family group conference. [51] 

In conclusion the purpose and function of the CYPF Act is to ensure the least restrictive outcome which reflects the welfare of the young person and the interest of the victim whilst developing the engagement of families. In recognition of the vulnerability of young people it is a goal of the system to divert offenders out of the justice system unless it is not in public interest. These principles should ensure that the focus of punishment is the young person's needs not their deeds.

Youth Court

The role of the youth court is very different from that of the conventional adult courts. The youth court is a division of the district court which deals only with youth offenders and children who are in need of care because of neglect. [52] The courts procedures are similar to the adult criminal court except that it is not open to the public.

Judges are unable to sentence young people without referring them to a family group conference and are expected to sanction the recommendations if at all possible. Orders of the court are used only when there is no other alternative. These principles should ensure that the Court's focus when considering punishment is the young person's needs not their deeds.

These principles are reflected in R v Hayes. [53] The Youth Court dealt with offending that had occurred shortly before Hayes 17th birthday by admonishing and discharging him. However on similar offending that occurred when 18 the same judge in the District Court sentenced him to 2 years 11 months in prison and ordered reparations of $16271.81 at a rate of $25 a week. [54] 

What do the statistics tell us?

There are multiple myths that have led to hysteria regarding the state of young people's offending. The media and other vested interests portray the uncontrolled escalation of violent young people's offending. [55] This leads to the public having what is described as moral panic. [56] 

The official statistics of young people's offending in NZ provide an opportunity to evaluate trends of offending and punishment. The current series represents an analysis over the period 1992 to 2008. The statistic series breaks down the data into a child group (10 to 13 year olds) and a youth group (14 to 16 year olds). [57] 

Whilst the accuracy of the data is the best available it is subject to the normal criticism of official statistics. [58] Police implement diversion strategies that will distort child apprehension data which means it is not possible to use the official figures to determine levels or trends in offending in the child group. [59] The official figures cannot contain the 'dark figure of crime'. [60] The dark figure represents the unrecorded, improperly recorded or unreported crimes which NZ research has been estimated to represent 5 times the official figure. [61] Official data can be useful in providing insights into trends however they are of dubious value as indicators of children and young people's engagement in crime for use in punishment policy decisions. Self-reporting surveys of involvement in offending are a useful tool in determining the extent of offending behaviour. It remains questionable whether those who chose to report are markedly different from those who did not making the actual situation elusive. However the 'rough estimation' of those affected is nevertheless worth consideration in punishment policy decisions.

Longitudinal methods allow researchers to look at changes over time so they are particularly useful when studying development and life course issues. [62] In NZ there are 2 contemporary longitudinal studies. The Dunedin study consists of 1037 people whilst the Christchurch study has 1265 born in the mid 1970's. Results from these studies should be used as further data in punishment policy decisions.

In the official statistics, an apprehension represents an offence not an offender. [63] The apprehension rate for youth has declined since 1995, at an accelerated rate since 2005.However the increasing rate of apprehension for violent crime for adults over the period is mirrored by the increase in the youth apprehension rate. The conventional wisdom explains the increase in the adult population rate is an increase in apprehensions for domestic violence. [64] 

The youth rates show an increasing trend since 2004, but not across all categories of violent offending. Apprehension for violent sexual and minor assault has remained static. The large increase is in the grievous/serious assault category. [65] These trends are concerning however they do not appear to announce an imminent failure of the system.

There is a perception that the worst youth offenders are recidivist offenders. The Sensible Sentencing Trust states that rehabilitation does not work for youth violent offenders as the recidivism rate is 97%. [66] This does not appear to be supported by the official statistics. In 2008 of the 689 16 year olds that had proved outcomes in the Youth Court only 1.5% (10) had a previous proved outcome in 2005. [67] In 2008 43 people had over 20 charges laid against them. [68] However except for serious crime the vast majority of young people apprehended are not prosecuted because of the diversionary goals of the youth justice process making analysis against total offending unreliable.

In conclusion, this assignment reviewed the historical effect of the change in focus away from the young person's deeds to their characteristics and circumstances when considering appropriate punishment. It is argued that lowering the age of criminal liability, and hence an increase in punishment, will not decrease the rate of youth offending. NZ should consider increasing the age of criminal liability to international best practice and increase jurisdiction of the Youth Court to the age of 18.

This assignment provides evidence in support of the thesis that punishment should be in keeping with a young person's circumstances because of their "vulnerability to harm, their more limited understanding of the world and their greater susceptibility." [69] 

The evaluation of the impact of the crime control, welfare, justice and restorative models of dealing with punishment supports the current restorative model's principle that young people should be held accountable whilst 'effective punishment should fit the needs not the deeds of a young person'. The criticism of the restorative system that rehabilitation does not work for youth violent offenders does not appear to be supported by the official statistics evaluated. Diversion and supervision are effective alternatives to jail which will improve the rehabilitation effects by not associating young people with other offenders. Whilst acknowledging their limitations in informing policy, the evaluation of the current offending statistics found them broadly supportive of the restorative models effectiveness.



R v Hayes (2006) 23 CRNZ 547.