Restorative Justice in Youth Courts: New Zealand – A case study

One night, walking home in a small remote town in the South of New Zealand, Keira and her friend, became victims in a frenzied unprovoked attack. The attack left her shaken and bruised, while her friend sustained more serious injuries to her left eye and needed hospital treatment. In court, the young girl who had attacked them was unable to explain her behaviour; which had been impulsive, violent and appeared to be entirely without reason or provocation. In fact she had been chatting away to the girls in a bar earlier, where they had all been drinking. The judge rejected her excuse of intoxication in the youth court and, after some time, she admitted that this was not the reason behind the attack.

Like the majority of youth crimes in New Zealand (NZ), this case went through the restorative justice (RJ) system. Due to the nature of the RJ system, the families of the two victims, as well as that of the attacker were deeply involved. The offender’s family are able to speak to the offender publicly and communicate with the victim and their family. This process is often very powerful, especially for the offender and all those closely involved as they are required to deal directly with the crime and it’s effect on the victim.

Restorative Justice in New Zealand
NZ is one of the pioneers in the implementation of restorative justice, especially in relation to young people, and has applied restorative justice (RJ) in it’s youth courts for decades. Restorative justice is certainly not the easy option, it forces the perpetrator to come face to face with what they have done. For young people I can imagine this is particularly powerful, as it appears that many offenders don’t consider the consequences of their actions. It is important to convey the ripple effect crime can have, not only on the victim and their family, but also the effect on the family of the perpetrator, who are left ashamed and often offered little support or sympathy from the community. Restorative justice can be used to allow the victim and the families on both sides to share their stories and to make the offender understand the wider picture, as well as the consequences of their actions on their own life and all those the crime has affected.

Family Group Conferences
The majority of cases are transferred to and handled by Family Group Conferences (FGCs), in which offenders, victims, the police, Child Youth and Family Services, youth advocates and community representatives get together. FGCs are an integral part of the RJ system in the NZ youth justice system. FGCs are lead by a Youth Justice co-ordinator from the NZ Department of Child Youth and Family (CYF). These conferences take place away the formal setting of a courtroom and are ideally also culturally relevant, e.g. a marae (a Māori court). Under the legislation, they are responsible for making decisions concerning the future of the young offender, or making recommendations to the Court. Before attending an FGC, the NZ Youth Court asks the young person whether the charge is “not denied”, rather than taking a guilty/not guilty plea. When a charge is “not denied” it is transferred to the FGC where the young person may nevertheless choose to deny the charge, although in most cases the charge is admitted. The “not denied” mechanism allows the parties to meet and discuss the charge(s) before the offender commits themselves to making a plea. After the offender makes an admission and the facts are clarified and submitted to the court. The court then moves the offender towards reconciliation and gives him/her access to the RJ process.

The Marae
The offender in this case was a Māori girl and the FGC convened in a marae accordingly (this is usually the case when one of the parties is Māori). The marae is a structured setting where both sides are represented along with their families. In 2009, speaking to the New Zealand Herald newspaper, the Māori Affairs Minister Pita Sharples explained the intensity and the efffect the setting of the marae can have on young defendants both culturally emotionally.

“To stand in a court at your marae with your ancestors and your aunties, uncles and cousins – it’s scary. Some will think it’s soft but this is the hard option … This is how we reconnect them. A lot of children are going to court and finding their Maori side…”

After the facts are presented to the marae, the victim, offender and each family member on both sides are entitled to speak. Kiera chose not to speak, however her friend wanted to explain how this attack had left her deeply troubled and depressed even after her injuries had healed.

The victim’s testimony and explanation of the lasting psychological damage that so often follows violence, makes it more difficult for the offender to distance themselves from their crime. Due to the unusual clarity of the facts which showed that this attack was entirely unprovoked, it was difficult for the young girl to justify or explain her actions. Throughout the process the offender was crying, as she was unable to distance herself from the gravity of the situation. Her family, one by one, spoke to her about the crime and each member told her they were ashamed of her actions. This made it clear that her family were not only deeply affected, but were also hurt and disappointed. In this case the girl was unable to explain why she had acted in the way she did, and was deeply shaken by the process. Her family’s response undoubtedly added to the intensity of her remorse.

Direct Approach
Recognising the pain and humiliation caused to those who are close to the offender is arguably much more punishing than removing yourself and being placed behind bars. The distance towards the victim and minimal contact with their own families which is a consequence of incarceration fails to address the problem head on. However punishment is not the purpose of the RJ system, it is rather reconciliation and rehabilitation as well as opening a dialogue between victim and offender. Many offenders want to apologise and contact the victim, while many victims want to emphasise the impact the crime has had on their lives. Naturally the victim is not always willing to participate and without the victim’s involvement there can be no restorative justice process of this kind. RJ can also be mistaken/misused as means for taking revenge and seeking out the perpetrator, or as a way of avoiding a prison or community sentence. These risks do exist and are considered on a case by case basis, as each case is examined individually to assess the suitability of RJ. The aim of RJ is to minimise crime and thus facilitate building and strengthening safe communities.

After the RJ process
Restorative justice processes focus on the victims and perpetrators of a crime and are expected to change/limit re-offending behaviour. Reducing re-offending behaviour is often generally achieved in RJ and conventional criminal justice responses by the referral of offenders to appropriate treatment programmes.
Through RJ, offenders can be active participants in making decisions on what the reparative and rehabilitative outcomes should be. It has been shown, that people who take part in this process are more likely to comply with the outcomes. Therefore it is vital, that the defendant is also heard at the FGC level to ensure he/she is granted some input and the process is more effectively “restorative”.

For victims, RJ has three primary objectives; the restoration of a sense of security, self-respect and dignity, as well as the restoration of a sense of control. Facing the perpetrator can help the victim to overcome the trauma, anger or fear in relation to the offence. However it works in different ways for different people. Kiera’s friend suffered from depression for a number of years after the attack and it’s unclear whether her experience of the RJ process exacerbated or lessened these problems.

Conclusion
Although restorative justice may not heal all wounds, it can be used as a healthy and more direct response to dealing with crime. The application in youth courts appears to be particularly appropriate and largely effective in most cases. Young people are likely to respond positively to the set up of RJ and to the dialogue it creates between the all the parties involved. Juvenile offenders also have a better chance of being rehabilitated than adults, therefore a RJ system focused on rehabilitation and reconciliation is extremely favourable. RJ can allow a flexible, effective and inclusive approach to the needs of young people who have broken the law, their victims and, indirectly, to the interests of the community as a whole.

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