Most young people break the law at some point. On the whole they commit minor crimes (which often go undetected) and they stop misbehaving as they leave adolescence. A large majority of those apprehended and sent to court only appear there once. A small number of young people commit a large proportion of offences.
For the purposes of the law, young people are defined as those aged 14–16. They can be charged and prosecuted for an offence and dealt with by the youth justice system. Those aged 17 and over are treated as adults in the general court system. 12-13 year olds may be charged in the Youth Court at the police's discretion when they have allegedly committed very serious offences or are serious repeat offenders.
Children aged 10–11 can only be prosecuted for murder, manslaughter or minor traffic offences. Children under 10 are not held responsible for their actions in the justice system and cannot be prosecuted for any offence.
From 2019 low risk youth offenders under 18 will be dealt with by the Youth Court. Seventeen year olds who are charged with serious and violent offences will be treated as adult offenders. The raising of the youth justice age is consistent with the UN Convention on the Rights of the Child 1989 which defines a child as anyone under 18 years.
Most youth offenders are male – they comprised 76% of youth apprehensions in 2014. (An apprehension means that a person is dealt with by police, but does not always involve an arrest.) 10- to 13-year-olds made up 23% of apprehensions, while 14–16-year-olds made up the remaining 77%. In 2014, 31% of these offenders were European and 56% Māori.
Changes in data collection methods and definitions of crime make it difficult to tell how youth offending has changed over time. However, community perceptions often conflict with official statistics. Moral panics about young people and criminal activity occur periodically in response to particular offences, but statistics rarely show dramatic changes. Apprehensions of young offenders declined in the 1980s and early 1990s. They increased until 1996, They increased until 1996, but in the early 21st century declined to 1980s levels. Further significant declines occurred in the 2010s. Those under 16 years old were only 3% of those charged in the High Court, the Youth Court or in district courts in 2015. Most of young people charged were 15 – 16 years old.
In 1960 the float parade of the Hastings Blossom Festival was cancelled because of wet weather. An influx of youths, over-crowded hotels and the use of fire hoses to control the crowds was a bad combination. The press described the resulting conflict between youths and authorities as a riot, and nationwide moral panic over the state of young people ensued. In reality, only a handful of youths were actually fighting (most on the scene were bystanders) and only 12 people were charged with disorderly behaviour.
Most offences by young people are not very serious and are less likely to involve violence than those committed by adults. Most young people are apprehended for offences against property – 59% in 2014. Violent offences made up 17% of apprehensions.
The minor nature of most youth offences is reflected in the way they are handled. In 2014, 43% of offenders were dealt with through alternative action by Police Youth Aid (for example, written apologies, community work, reparation and counselling) and 21% were given a formal caution or warning. Others were referred for a family group conference where a young person meets with family members, victims and other people like social workers and youth advocates to talk about learning from their mistakes and strategies for acting differently in the future. Only 31% were prosecuted in court.
Negative early life experiences contribute to the reasons for involvement in serious offending at a young age. These include many changes of caregivers, being severely punished or abused, and early involvement in drugs and alcohol. These factors also contribute to learning difficulties at school, which is another factor related to youth offending.
In 2009 Christchurch Youth Court judge Jane McMeeken told the Law Commission, ‘I often comment when I am sitting in Youth Court that if I only had to deal with young offenders who offended whilst sober, I would have very, very little work to do. That is a chilling statement to make when most of the young people I see are 14 or 15 years of age.’1
Reoffending is more likely among boys, those who fail to obtain school qualifications, and those involved with the police or child welfare early in life. Young people who do not have good support and effective plans for their future put in place when they have a family group conference or go to court are more likely to re-offend.
Young Māori are over-represented among offenders. Commentators explain this by the fact that young Māori offenders often come from relatively disadvantaged families – a key indicator for early offending. Those under 20 are also a higher proportion of the Māori population. Māori youth are more likely than young Pākehā offenders to come to the attention of police when they offend. Some commentators have concluded that police and the community are more likely to suspect them of being ‘up to no good’. Once in the system, they are more likely to be apprehended again. For this reason a range of new strategies were used in the 21st century to address Māori youth offending.
Since European settlement there has been ongoing debate in New Zealand about the best way to respond to young people who break the law. At times, punishment and institutionalisation has been emphasised. At others, the education and skills development of offenders, combined with family support, has been preferred.
The Treaty of Waitangi brought English criminal law to New Zealand. Māori resolved matters within the whānau, which was seen as collectively responsible. English law disregarded Māori practices and set up courts which determined guilt and prescribed punishments. Children were tried in the same courts as adults and were given the same penalties: most commonly imprisonment and flogging (beating with a whip or stick).
From the early years of settlement, concern was expressed about delinquent children. Some saw them as innately vicious and deserving punishment. Others blamed inadequate parenting and thought they could be reformed.
In 1872 Inspector Bonham of Auckland wrote in his annual report about drunken and vagrant people: ‘[U]nfortunately, the vices of these persons descend to their children, and most of the juvenile crime of the place is committed by them. A number of these gamins have been brought before the Bench from time to time for petty thefts, but owing to the absence of a reformatory, or any suitable place in the Gaol where they could be kept apart from the ordinary criminals, they have mostly been discharged, although such a course is most certain to confirm their criminal career for life.’1
From 1867 institutions were established to educate, train and punish both neglected and delinquent children. The two groups were supposed to be kept separate, but in reality were confined together. These institutions were characterised by excessive punishment, unpleasant conditions, and frightened and unhappy children.
From 1893 children under seven years of age could not be imprisoned. Charges against those under 14 could be dismissed if the offenders did not understand the nature and meaning of their actions. However, flogging and imprisonment remained sentencing options for some children – boys were routinely flogged until the 1920s.
In the 1900s child offenders were increasingly separated from neglected children and adult offenders. In 1900 the first reformatories for delinquent and criminal children opened. From 1906 cases involving young people under 16 could be heard in separate courts from adult cases.
In 1930 young Ōamaru woman Ethel Crouch was charged with ‘being illegally in a shed belonging to the mayor of Oamaru, Mr. Frank Crawshaw, and with being an idle and disorderly person’. She was sentenced to two years detention at the Point Halswell Borstal Institute. Ethel’s male companion was sent to prison for three months. Their trespassing was compounded by their indiscretions within the shed – the presiding magistrate said ‘[C]onsidering the disgraceful and bestial nature of the circumstances in which the accused was found, it was in her own interests to be placed under restraint.’ 2
In 1925 the first Children’s Court was established to emphasise care rather than severe punishment of young people under 16. A similar intent was behind the introduction of the borstals sentence in 1924, which allowed slightly older offenders (between 15, later 16, and 21) to be detained for one to five years with the goal of reform. Borstals were based on a graduated rewards system and provided occupational training. However, they often failed to prevent further offending.
In 1958 police established a Juvenile Crime Prevention division (later Youth Aid) to educate young people and to engage them in activities likely to reduce youth offending. But a stricter approach was also adopted in 1961 when youth offenders aged 16–21 were sentenced to detention centres for a three months of boot-camp style activities.
In the 1960s and 1970s the justice system sought more effective ways to help young people engage in constructive activities likely to reduce re-offending. In 1961 the age of criminal responsibility was raised from 7 to 10.
Youth justice and care and protection matters were heard in separate courts from 1974. Minor offenders came before the Children’s Board instead of court. Probation services were expanded and new sentencing options developed. Borstals were closed in 1981.
The detention of youth was further questioned in the 1980s. Residential centres were unable to replace families as primary caregivers, and education programmes were not successful. Some young people were abused by staff, and many re-offended once they left. Māori questioned they way they were treated by the justice system, which placed large numbers of Māori children in state care for minor misdemeanours. Internationally, children’s and youth rights became a prominent issue – detention practices conflicted with a growing concern for human rights. A major report on Māori in the social welfare system in 1988 led to new approaches.
These social movements and changes culminated in the Children, Young Persons, and Their Families Act 1989, which represented a new philosophy and way of dealing with young offenders.
The Children, Young Persons, and Their Families Act 1989 (renamed the Oranga Tamariki Act in 2017) has governed responses to child and youth offending since it was enacted. The Youth Court and the family group conference system was established under this act.
Children and young people are involved in decisions about how to deal with their offending along with their family and the victims, whose interests are also taken into account. Offenders are held accountable for their behaviour and encouraged to accept responsibility without necessarily being criminalised. Formal court proceedings and sanctions such as residential care are avoided wherever possible. Most children and young people remain within their family or family group. Support is given to help families deal with the offending.
There are several different options for responding to young offenders.
Most young offenders expressed remorse for their actions as part of a family group conference. One said ‘[M]eeting the victim affected me. What we thought was such a little thing did so much harm.’ Another said ‘[T]he victim never turned up [to the conference] and I was disappointed by that. I wanted to do a verbal apology but they wouldn’t let me. I was genuinely sorry.’1
When the offending is relatively minor, police give a warning to the young person and their family, pointing out the harm that has resulted and the likely consequences of future offending. In 2014 a fifth of young offenders were dealt with in this way.
A police Youth Aid officer meets with the young person and their family (and sometimes the victim) to work out a plan that will make the young person accountable and prevent further offending. In 2014, 43% of young offenders were dealt with in this way.
Some victims of youth offending find family group conferences a helpful part of the healing process. One victim said ‘[I]t was a chance to express how you feel and this gives you a certain amount of relief. Now I understand why he did it and where it came from – especially after meeting the family. I don’t feel so angry now. That doesn’t excuse what happened but I can see it might change.’2
The family group conference (FGC) is at the heart of the youth justice system. The young person, their family or whānau and the victims come together with a coordinator and a representative of the police. Young people are referred there either directly or by the Youth Court. The group discusses what has happened and tries to reach an agreement about a recommended plan for repairing harm, and preventing future re-offending. When plans are completed this is the end of the matter.
The Youth Court deals with young people aged 14–16 who have been arrested or sent there after a FGC. Some 12-13 year olds may also come before the court if they have allegedly committed very serious offences, or are serious repeat offenders. In 2014 less than a third (31%) of young offenders were prosecuted in the Youth Court.
If the charges are not denied, the Youth Court refers matters to a family group conference and is guided by its recommendations. Once plans are completed, the court usually dismisses or discharges the case, though it can make orders such as supervision or reparation.
In the Youth Court charges against a young person who has denied them are ‘proved’ if the presiding judge decides the prosecution has shown the offence was committed beyond reasonable doubt. This is the equivalent of an adult being found guilty, but the word ‘proved’ does not have the same kind of stigma attached to it as ‘guilty’.
If charges are denied, the case is heard in the Youth Court. In the most serious cases (6% in 2014) a conviction is entered and sentencing is carried out by the District Court or High Court. Murder or manslaughter cases are heard in the High Court, and other serious charges can be heard in the District Court.
Rangatahi Courts operate like the Youth Court but are held on marae and follow Māori cultural processes. Pasifika Courts are held in Pasifika churches or community centres and draw on Pasifika cultural values. The first Rangatahi Court was held in Gisbourne in 2008. By 2015 there were 12 Rangatahi Courts and 2 Pasifika Courts.
Both these specific versions of the Youth Court address offending by young people in ways that connect them to their families, their communities and the culture of their people. They are designed to involve the wider community in supporting offenders to find new directions in their lives and cutting rates of reoffending.
Young offenders using the Rangatahi Courts and the Pasifika Courts must first admit to the charges they are facing in the Youth Court. Often family group conferences are held to work out a plan for the young offender and this plan is monitored by a Rangatahi or Pasifika Court. While Māori and Pasifika cultural practices inform the work of these courts, they are open to non- Māori and non-Pasifika youth.
Rangatahi and Pasifika court processes involve a judge, a representative of the NZ Police, elders, a social worker, court staff, whānau, a youth advocate (usually a lawyer), a lay advocate and the victim if they choose to attend. Rangitahi courts begin with powhiri and Pasifika courts often start with a prayer. Elders have an important role the court process.
Evaluation of the operation of Rangatahi Courts in 2012 indicated that it was important for Ministry of Education, Ministry of Health, and Child, Youth and Family Services to work together to explore options for young offenders before they appear in court and a rehabilitation plan is developed.
When being questioned by the police, children and young people may make a statement but are not required to do so. A parent or adult supporter must be present during interviews. Lawyers can represent young people without cost. Youths must be fully informed of their rights and the legal processes in language and in a manner that they can understand at all stages, including within a court.
The New Zealand system of youth justice has been recognised around the world as an effective and humane way of responding to offending by children and young people, and the families, victims and communities affected by their offending. Conferences with families are used in Africa, Asia, Europe, Latin America, North America and around the Pacific. It has been a model for legislative change in many countries including several Australian states, Canada, Northern Ireland, South Africa, and Norway. However, there are still some young people who continue to reoffend and new programmes developed to support changes in their behaviour.
In 2009 principal Youth Court judge Andrew Becroft said in relation to the youth justice system, ‘A diversionary approach is the key focus and one of its biggest successes,’ but ‘[w]e can do better for adolescents with alcohol and drug abuse issues, or with mental health problems … We can also do better at keeping all young people engaged in education.’1
Research shows that police actions and family group conferences are almost universally successful in making young people accountable for their offending. Almost all offenders (95% according to one study) make some amends for the harm that they have done.
From 1989 the numbers of young people going to court or receiving custodial sentences markedly declined. However, studies conducted in the early 21st century show that many of these young people still fail to get the help they need to continue their education and to deal with mental health, drug and alcohol problems. There were not enough programmes available to support the children, young people and families that needed them.
Fresh Start programmes for young offenders annnounced in 2009, and implemented by the Ministry for Social Development included parenting programmes, mentoring and drug and alcohol programmes as well as educational, vocational and social problem-solving programmes for young offenders. Young offenders could also access a supported bail programme and avoid residential programmes by opting for supervision on a range of activity programmes. Government agencies were expected to work closely with community providers offering specialised programmes suitable to young people in their communities. The need for education, employment, health and youth services to collaborate in supporting changes in the lives of young offenders was recognised. Interventions aimed at those involved in serious crimes and reoffending included controversial military-style activity camps or “boot camps”.
In 2009 the government introduced military-style activity camps (MACs) run by the New Zealand Defence Force for 40 of the most serious, recidivist youth offenders. Prime Minister John Key said, ‘Yes, they'll involve some marching exercises. Yes, they'll involve military facilities, but they'll also include long-term mentoring, drug and alcohol rehabilitation, education and an assisted move back into the community.’2 The New Zealand Families Commission (later called Superu) said that military camps and other measures such as curfews with electronic monitoring could not reduce offending by themselves, and that the most successful programmes involved offenders’ families or whānau.
Youth offending experts have focused on the causes of offending as well as programmes for young offenders. Research emphasises the importance of a loving, supportive family environment and good education in producing law-abiding children and young people. New programmes directed at preventing youth offending include Break-Away school holiday programmes and Youth Development programmes offered by a range of providers under contract to the Ministry for Social Development. These programmes are targetted at children and young people from disadvantaged backgrounds and aim at increasing their confidence and making them aware of educational and vocational opportunities.
Programmes directed at reducing youth offending have included early intervention for children with behaviour problems and support for disadvantaged families, more effective educational plans for young people failing at school, and higher-quality programmes to deal with mental health, drug and alcohol problems. Life-skills programmes were also important.
People working with young Māori offenders have argued that programmes built around Māori tikanga (protocol), which keep youth in their communities, are most effective in reducing youth offending. The Ministry of Social Development and Youth Justice have recognised that advice from Iwi and Māori service providers is necessary in the development of programmes for Māori youth.
Some commentators argued that tougher responses and harsher penalties for youth offenders were required. Critics said that these measures would not result in reduced offending rate or give young people the skills they need to live productive lives.
Beecroft, Andrew. ‘Are there lessons to be learned from the youth justice system?’ In Addressing the causes of offending: what is the evidence?, edited by Gabrielle Maxwell, 25–36. Wellington: Institute of Policy Studies, 2008.
Dalley, Bronwyn. Family matters: child welfare in twentieth-century New Zealand. Auckland: Auckland University Press in association with the Historical Branch, Department of Internal Affairs, 1998.
Maxwell, Gabrielle. ‘The youth justice system in New Zealand: restorative justice delivered through the family group conference.’ In Restorative justice and practices in New Zealand: towards a restorative society, edited by Gabrielle Maxwell and James H. Liu, 45–67. Wellington: Institute of Policy Studies, Victoria University of Wellington, 2007.
Maxwell, Gabrielle, and others. Achieving effective outcomes in youth justice: final report. Wellington: Ministry of Social Development, 2004.
Seymour, J. A. Dealing with young offenders in New Zealand – the system in evolution. Auckland: Legal Research Foundation, 1976