Speaker by Various Artists

Breaking the Mould

by Jehan Casinader

Jehan Casinader is a freelance journalist in Wellington. In the week that Bailey Junior Kurariki was denied parole, this piece explores new directions for youth justice in New Zealand in the next political term. Now that the election circus has well and truly wound down, Casinader goes back and re-examines his interviews with Helen Clark and Don Brash during the campaign.

Taxes, health, education and immigration dominated election year politicking, but significant changes to our youth justice infrastructure, proposed by the right, slipped under the carpet. Labour is now back in power and looking to extend its focus on youth justice in the next political term.

It was one of the most polarising cases the New Zealand justice system had ever seen, framed by the image of the country’s youngest convicted killer, Bailey Junior Kurariki, awaiting sentencing in a dock for his part in the death of pizza delivery worker Michael Choy. Kurariki has since been labelled a poster boy for youth crime; a symbol for young offenders, and a product of a system that failed the community. Prime Minister Helen Clark reflects on an event that was something of a realisation for New Zealand. “That case was just so horrific. People find it very hard to understand how a 12-year-old can kill. It brings home to people that horrible crimes, which in the past have been associated with adults, are now being committed by children.”

While the societal view of youth justice has been ineradicably tainted by large-scale youth offending incidences, youth crime has remained relatively static over the past decade, at almost a quarter of total offending. Does this suggest that there has been little progress in proportionately decreasing youth crime in New Zealand? Clark refuses to comment on trends in youth offending due to its periodic stability. “The good news is that it hasn’t been going up. With youth unemployment having come down dramatically, we can expect to see better results in youth justice over time. As we get more young people on good transitions from school to training or work, we will be able to knock the youth justice rate back further.”

In its first two terms in office, the current Labour Government has worked to further New Zealand’s youth justice infrastructure to be equipped to resolve youth crime without issuing criminal convictions. Ninety percent of young offenders are now kept out of the court channels, and it is looking to extend this, coupled with an increased focus on early intervention and domestic violence.

The National Party’s revised youth justice policy, slammed for being punitive to beneficiary parents, was released to both fanfare and cynicism in March last year. It promised to tackle the age-old objectives of such legislation: combat youth reoffending; prevent youth offenders from becoming career criminals; turn off the power switch for what Brash dubbed ‘the conveyor belt to crime’. The intentions certainly were not new; rather, they are fundamental to any effective approach to youth justice. Within hours of the release, New Zealand First leader Winston Peters claimed that parts of the policy had been taken straight off New Zealand First’s website. Peters’ explicit concern for the integrity of National’s policy was echoed by other parties, a response that resulted in the notion that National’s policy, reportedly compiled just days prior to release, was simply a generic, right-wing outlook on a complex social issue, hastily tabled as the election approached. A number of months down the track, Brash was still unsure if his youth justice policy was distinct. “I haven’t looked sufficiently carefully at New Zealand First’s youth justice policy to know where the differences are, I’m afraid. [But] we’ve got the most elaborate policy laid out. [It is] supportive, but firm enough to ensure that young offenders don’t get the impression that they can easily damage the community.”

While National ultimately wasn’t granted the mandate to execute that aim, it formed the basis of proposals by a number of parties to lower the age of criminal responsibility from 14 to 12 years old, to act as “a major deterrent” for youth crime. Brash claimed that while this would cover all offences, young offenders will be placed in youth facilities rather than jail. Helen Clark: “They [children] don’t consider the impact of their behaviour in terms of the law, at all,” says Clark. “I don’t think a 12-year-old has much comprehension of the law. I’ve got an open mind on whether it should be 12 or 14, but you catch very few cases between 12 and 14. Very, very few cases.” I asked Brash whether a 12-year-old, when presented with opportunistic crime, would consider the potential implications and consequences of his actions; criminal or otherwise. “I don’t know the answer to that question,” says Brash,” but it is unacceptable for a 13-year-old to commit a really serious criminal offence such as murder.” He pauses. “Well, murder, of course, is caught anyway. [Look at] the case of Tuariki – er, Kurariki. Had Mr. [Michael] Choy been left in a vegetative state, and hadn’t died, Kurariki could have effectively escaped criminal sanction. That’s unacceptable.” The New Zealand Police confirms that this assertion is correct, but the Prime Minister, charged with making traction over the next three years, is still adamant that a lower age of criminal responsibility will not be instrumental in preventing youth offences.

Over 70 percent of hardcore youth offenders are not enrolled at school, so in many cases it is a matter of non-enrolment rather than truancy. Gabrielle Maxwell of Victoria University, who is currently working to document options for change in this area, says this statistic needs to be treated with care. “A large proportion of young people who appear on relatively serious matters before the Youth Court are no longer attending school regularly for a variety of reasons, including truancy. Finding ways of meeting these children's educational needs is a challenge and one which a number of recent initiatives have been endeavouring to respond to. It is no easy matter - it takes time to develop good alternative programmes, time to test them and time and resources to make them more widely available. If you criminalise young people by bringing them into the justice system early and dealing with them harshly, you will increase the chances of later offending. We need effective programmes that support parents and schools, without labeling and blaming [children] for offences they have not committed.”

The Family Group Conference model has come under broad attack for ineffectiveness. The Conference is a meeting between relevant parties to decide how a young offender can best be held accountable for his or her behaviour. Family Group Conferences can extend to involve an array of consequences including reparation, community work, curfew and non-association orders.

Recent statistics show that after Family Group Conferences, two-thirds reoffend and one in five ends up behind bars in five years. Clark says reoffending doesn’t mean that these youth have failed the system. “Some people are in a very bad headspace,” she says. “Sometimes they grow out of it in their 20s, but they’ve put the whole community to a great deal of worry, anxiety and expense in the meantime. We just have to do the best we can, but sometimes the very best efforts won’t make a difference.” Most young people who have a Family Group Conference do not require any further meetings. National claims that up to 12 Family Group Conferences have been held in some instances, while former ACT MP Muriel Newman told Parliament that there were 16 Family Group Conferences on one occasion. Child, Youth and Family’s Senior Communications Advisor, Rhiannon Symmons, disputes both assertions. “There have been a few isolated instances – we're talking two or three young people in the whole country here – of up to 11 Family Group Conferences. This includes reconvened and reviewed conferences, when further information or assessments are sought and/or to monitor a young person’s progress against the agreed plan. [This is] not indicative of a breakdown in the process. Nor does it necessarily mean that there were 11 separate incidents of offending by the young person concerned.”

The Prime Minister is optimistic about Child, Youth and Family’s outlook following major changes to its structure under Labour. “CYF is in a much better state today than two to three years ago,” says Clark. “It has got new management, and you won’t see it as much in the headlines. They really have worked very, very hard – and we’ve given them a great deal more funding – to get on top of the issues.”

National hooked onto justice specialist Celia Lashlie’s claim that teachers are capable of picking the children in their class who are most likely to become criminal justice statistics. If we are so good at identifying risk, it asked during the election campaign, why do we fail in preventing that risk from becoming a reality? “We actually know from the kids at the early childhood centre which ones are going to be a problem,” says Clark. ”That’s why our government has put a lot of money into early intervention, giving the teachers, the parents, the families, the support at an early stage to deal with those problems.”

A government official, who cannot be named due to contractual obligations, says that National’s youth justice policy applied punishment rather than encouragement. “It is like beating a dead horse; ‘you’re already down, and we just want to kick you some more’. The tough love approach is naive. They don’t understand the complexities of the factors that families need to be caring for their kids.”

Justice is a high-profile portfolio, and issues relating to youth and the law are becoming more pronounced on the political spectrum. While opinions are divided on how best to address the issues of this sphere, the Prime Minister’s long-term goal in youth justice echoes a sentiment across New Zealand politics. “To ensure that there’s a smaller proportion of young people who go on to cause us a lot of misery. [But] it [youth justice] is one of those areas like mental health, like probation, like parole, where you can have the best system in the world, but someone will let you down.”