Criminal justice and the community

One of New Zealand’s longest serving youth advocates believes the marae-based Youth Court, Te Kooti Rangatahi, has been very successful in turning around the lives of many young offenders.

Criminal Justice

Auckland barrister Robyn Fendall, who has worked with Māori youth since 1983, says the fourteen Rangatahi Courts operating around the country have done a great job and she would like to see more, especially in areas like Northland where there are none.

“They have had a very beneficial effect on many young Māori who respond positively to the cultural environment they provide,” she told Law News. “In my view, they should be extended to other areas such as the north but it’s not an easy task as you have to find a marae that’s willing to participate and get everyone on board.”

Her ringing endorsement of Rangatahi Courts, which were first established in Gisborne in 2008, follows hard on the heels of international recognition of the work performed by judges of the District Court and Māori elders in developing them.

The Australasian Institute of Judicial Administration (AIJA) recently awarded the Court, including the newly established Pasifika Court, its 2015 Award for Excellence in Judicial Administration. In a ceremony held at the Orakei Marae, AIJA Director Professor Gregory Reinhardt presented the award to all eight judges who established and lead the Courts.

They were: National Rangatahi Court Liaison Judge Heemi Taumaunu, Judge Louis Bidois, Judge Denise Clark, Judge Francis Eivers, Judge Greg Hikaka, Judge Alayne Wills, Judge Eddie Paul and Judge Ida Malosi.

The judges were nominated for the awards by Chief District Court Judge, her Honour Judge Jan-Marie Doogue, and Principal Youth Court Judge (now the Children’s Commissioner), his Honour Judge Andrew Becroft. In a joint statement, Chief Judge Doogue and Judge Becroft said it was an honour that warranted celebration.

“We can all feel proud that those who developed this uniquely New Zealand way of delivering justice into the heart of our communities have been honoured.

“These Judges have taken courageous and significant steps on behalf of their own people to develop this innovative and culturally appropriate response to Māori and Pasifika youth offending.

“To pioneer these Courts, at times they have placed their individual mana and standing within their own communities on the line.

“They have been challenged by both the legal community and their own communities and have been accountable to both. We are delighted their commitment has been recognised in this way.”

For his part, Professor Reinhardt told Law News that the Rangatahi and Pasifika Courts show “great strength of leadership and vision” by the New Zealand Youth Court judiciary, particularly Judge Andrew Becroft.

“These courts are successful because they in fact demonstrate the success of community involvement in the criminal justice process. They provide a cultural dimension to criminal justice for Māori and Pacific Islander youth which is not available in traditional courts.

“This initiative will gather strength as Māori and Pacific Islander communities accept the Courts as an important part of the delivery of justice for them, as something which they can own and as a means of helping young people in their communities.”

Professor Reinhardt says indigenous youth courts also operate in Australia and Canada but are different in many respects from the New Zealand model.

“In Australia, the principal example is the Koori Courts in the state of Victoria. The Koori Courts deal not just with indigenous youth but with indigenous people generally, although there is a separate Children’s Koori Court. Unlike New Zealand, the Court sits in a courtroom rather than in a cultural setting.

“There have been attempts at indigenous courts in other jurisdictions, particularly New South Wales and Queensland, but the Victorian example is the most prominent and long-lasting.”

Asked whether the Children’s Koori Court, which was established in 2005, has resulted in a decrease in recidivism, he said: “In Australia I have heard it said that such research as exists does not support a diminution in recidivism.

“What can be said is that those appearing before indigenous courts are more likely to respect the process, to engage positively in it and to respect the involvement of their elders and the recognition of their culture.”

According to a 2011 report by the Australian Institute of Public Health & Welfare, indigenous young people are over-represented in the juvenile justice system, particularly “in the most serious processes.”

“Although only about 5 per cent of young Australians are indigenous, in 2010-11, almost two in five (39 per cent) of those under juvenile justice supervision on an average day were indigenous.

“Indigenous young people aged ten to 17 were four to six times as likely as non-indigenous young people to be proceeded against by police and eight to 11 times as likely to be proved guilty in the Children’s Court.”

The report went on to say that among the cohorts of young people for whom a complete juvenile justice supervision history was available, 14-16 per cent of indigenous young people experienced supervision at some time when they were aged 10-17 – this compared to just over 1 per cent of non-indigenous young people.

The report noted that in the five years to 2010- 11, there has been a slight drop in the level of indigenous over-representation in supervision.

“Indigenous young people were 15 times as likely as non-indigenous young people to be under supervision on an average day in 2010-11, down from 16 times as likely in 2006-07.”

Like indigenous young people in Australia, Māori in New Zealand are disproportionately represented at every stage of the youth justice process.

Although 24 per cent of the ten to 16 year-old population is Māori, they make up 58 per cent of apprehensions of 14 to 16 year-olds and 61 per cent of Youth Court appearances. In fact, in 2014, they made up 100 per cent of all appearances in four Youth Courts while in a further twenty they constituted more than 70 per cent of all appearances.

Māori are also given 65 per cent of supervision with residence orders (youth prison), which is the highest custodial Youth Court order before conviction and transfer to the District Court.

Furthermore, the disproportion of Māori representation in the Youth Court is getting worse and not better, increasing from 45 per cent in 2005 to 62 per cent in 2015. During the same period, the proportion of European youth appearing in the court declined from 35 per cent to 23 percent, while Pacific peoples rose from 9 per cent to 11 per cent. The good news is that the total number of all children (ten to 13 year-olds) and all young people (14 to 16 year-olds) charged in court is now the lowest in more than 20 years.

Justice Minister Amy Adams says the increasing disproportion of Māori involved in youth crime is a complex issue with no simple solution but it has become a priority for the government.

“For example, in October 2013 we launched the Youth Crime Action Plan, also known as YCAP. It is a ten-year plan to reduce crime by children and young people and help those who offend to turn their lives around. YCAP recognises the need to do better to reduce the over-representation of Māori in the criminal justice system.”

Ms Adams says a key feature of YCAP is encouraging government agencies to work together more closely and partner with Māori, communities, parents, schools and others to tackle youth crime and the factors that lead to offending. The Rangatahi Courts are one of many initiatives addressing offending by young Māori.

“For many young people, appearing in court can be a foreign place and because of that fundamental disconnect, it is all too easy for some to dismiss the process.

“The Rangatahi Court does things differently by placing young offenders in an environment they can connect with. It is an environment that helps them reconnect with their culture. It is a process that sees them dealt with, rather than dealt to.”

Ms Adams says the court attempts to create a different environment for young offenders by taking their cases away from the hostile environment that may be experienced in the traditional court setting and create one where, with the support of whanau, kuia and kaumatua, they can take ownership of their offending.

“This is no soft option. While the setting is different, the same legal rules apply. Requiring young people to stand up on their marae, in front of their family and elders, and account for what they have done and how they are putting it right is a powerful, daunting and hopefully life-changing experience.

“That view is borne out by the evaluation of the Rangatahi Court conducted in 2012 that showed that young people find the Court a much more positive experience. They felt less threatened and more engaged. We were told that their behaviour improves by being on the marae, under the watchful eye of their kaumatua and in the shadow of their ancestors, their tipuna.”

Ms Adams says it’s important to have local kaumatua and kuia involved in the Rangatahi Court process.

“Elders perform certain roles and duties within the hapu and iwi community and often have information on other people that may have expertise in other fields to help the troubled teenager.”

Barrister and youth advocate Robyn Fendall says many young Māori offenders come from impoverished socio-economic backgrounds, raised in large, often dysfunctional blended or solo parent families. Typically, there is little money or food to go round with the families living in overcrowded and unhealthy rented accommodation.

“Some of these kids and their families are subsisting partially on food parcels, it’s that bad,” she says. “Today I’m taking a third boot-load of fruit, vegetables and dog food to a family who’ve got 16 in the house, including nine children.”

Ms Fendall says some troubled youngsters have been emotionally, physically or sexually abused, often by relatives, step-parents or caregivers and are psychologically scarred.

“There are few boundaries in their lives and typically they have a history of not going to school or even alternative education courses for months or sometimes years, so literacy can be a big problem.

“A significant number have undiagnosed cognitive disabilities caused by foetal alcohol syndrome while others have issues with drugs and alcohol, dyslexia or anger management. Some parents or caregivers are desperate for help and it’s only when the child gets into trouble that they can access the help and services they need.”

However, Ms Fendall says there are not enough resources to help such young people and this is a major problem.

“The social workers we have do their best but are terribly overloaded with cases and always have been. As a result, many suffer from stress and may go on stress leave for up to five weeks, and although their caseload is managed in their absence it gives even more work to other staff who are already working to capacity.

“So we definitely need more social workers, more semi-residential and custodial residences, more residential treatment centres and far more supervised programmes in the community in order to effectively address the multiple, challenging and deep-set issues in the lives of these young people.”

Despite this, she says an encouraging number of youngsters are managing to turn over a new leaf thanks to the Rangatahi Courts.

“I had a teenage girl who was glue-sniffing, involved in petty crime and moving into a bigger scene involving stand-over tactics and I could just see her life heading nowhere. Well, she ended up doing community work at the local marae on Sundays and not only got involved with her culture but developed a real affinity with it. She just loved going to the marae and despite some setbacks has given up glue-sniffing, has become close to her mum, and is now about to enroll for a course at AUT.”

However, the uncomfortable fact remains that while the total number of all children and all young people charged in court is now the lowest in more than 20 years, the disproportion of Māori representation in the Youth Court is getting worse and not better.

Robyn Fendall, for one, is perplexed about this.

“It may be because more young people are now identifying as Māori, it could be as simple as that. All I can say is there are many young Māori who don’t reoffend and I think they get overlooked in all the statistics.”

Ms Fendall believes that Rangatahi Courts are working very well and have gone from strength to strength in the seven years since her local court at Waitakere was established.

“The introduction of lay advocates has been vitally important, they really work closely with the young people, especially in helping them research and learn their pepeha (Māori introduction).

“The only thing I would like to see are more kaumatua involved in them. At the moment, at least in our Rangatahi Court, we tend to have more kuia than kaumatua on the panel. This isn’t necessarily at all negative, but I think having more men adds more gravitas to the situation for male offenders. Many of the males haven’t had a father figure in their lives, a role model if you like, so having kaumatua in court is a really important thing.”

Perhaps the final words in this story should come from Judge Becroft. Speaking at the AIJA award ceremony at the Orakei Marae, he said: “This is the first step towards a new way of delivering justice. The challenge to go further is now with us. A transformative process of justice for the whole community, not just for Māoridom, is before us.

“There is no turning back. You could not turn back this many people. The encouragement we receive from this occasion is to keep on taking those steps. And in a decade or two decades’ time, I hope we see real transformative community justice before us.” 

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