Maori youth offending

Paper Addressing Some Introductory Issues By
His Honour Judge A J Becroft
Principal Youth Court Judge
Te Kaiwhakawa Matua o Te Kooti Taiohi

8-10 November 2005, Nelson

I. Introduction ¹

Maori youth offenders make up around 50% of all youth offenders but in some Youth Courts the figure is as high as 80% or 90% - despite Maori encompassing only about a quarter of the New Zealand population under 17 years of age.² This situation is deeply concerning to everyone involved in youth justice.

Of further concern is problematic research into the experiences of young Maori within the criminal justice system. This research published by the Ministry of Social Development reveals that young Maori are more likely than other racial groups to receive severe outcomes such as orders for supervision either in the community or a youth justice residence. Researchers concluded these more severe outcomes were due to "increased vigilance" by the public and the police with regard to Maori youth. Further, Maori youth are more likely to be dealt with in the Youth Court, where more severe sentences are meted out, than by Family Group Conference.³ These more severe outcomes may result from Maori being brought to the attention of the youth justice system more frequently.

This raises the question of whether our legal system demonstrates a "systemic bias" against Maori young people. Weatherburn, Fitzgerald and Hua (2003) argue, in relation to Australia, that although systemic bias has existed historically in the Australian criminal justice system, the fact that a high percentage of Aboriginal people are in custody is simply due to the fact that relatively more Aboriginal people commit crime, especially more serious crime.⁴ Weatherburn et al argue that responses to the 1991 Royal Commission into Aboriginal Deaths in Custody have tended to focus on changing Police and Court processes rather than attacking underlying societal and economic causes of crime. Weatherburn is particularly critical of the rise in the use of diversionary sentencing schemes which "just insert another step in the ladder of non-custodial sanctions a person ascends before eventually landing in prison."⁵ The authors consider this "extra step" of non-custodial sentences is particularly dangerous in domestic violence cases. Weatherburn considers that the focus should be on reducing Aboriginal crime - not on changing Police and criminal justice processes to respond to that crime. The authors suggest that programs to reduce substance abuse, family violence and unemployment are the key to reducing Aboriginal crime.

However, Cunneen has mounted a withering attack on Weatherburn’s thesis in his paper Racism, Discrimination and the Over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues.⁶ He criticises Weatherburn’s proposition that the primary cause of the over-representation of Aboriginal peoples in the criminal justice system is due to their widespread criminality, rather than a "systemic bias" in the criminal justice system. He stresses the need for a multifaceted conceptualisation of Aboriginal over-representation that looks beyond simple causal explanations such as poverty and racism and instead analyses interconnecting issues including historical and structural conditions of colonisation, social and economic marginalisation, and institutional racism, while at the same time considering the impact of specific practices of criminal justice and related agencies.⁷

Cunneen argues in support of diversion pointing out that some practices described as "diversionary" by non-Indigenous orthodox criminologists such as night patrols, circle sentencing or community justice groups, may actually be viewed as community control and an opportunity for actualising self-determination by members of an Indigenous group.⁸ Such measures that promote self-determination may be welcomed by Maori, given the calls for a separate Maori justice system.

In his presentation on Maori, Crime and Criminal Justice: Over-representation or Under-representation?⁹, Philip Stenning notes that few explanations for high levels of Maori offending have been the object of rigorous research in New Zealand - although many have been the subject of "rigorous assertion".¹⁰ Stenning argues that the majority of programmes designed to reduce offending have been based on a questionable assumption that it is primarily cultural factors that cause the problem of over-representation.¹¹ Further, many of these programmes have been inadequately evaluated - or if evaluated at all results show precious little effect in actually reducing, or significantly altering patterns of Maori offending or recidivism. Stenning puts this situation in context by noting that the current criminal justice system does not work particularly well for anyone, Pakeha or Maori. Clearly there is a need to explore the causes of Maori over-representation in the New Zealand criminal justice system.

II. What do we know about Youth Offenders?

Researchers argue there is evidence of an ethnic bias in the New Zealand arrest-conviction process whereby Maori with a given history of offending are more likely to be convicted than non-Maori with the same offending history and social background.¹² Research by Te Puni Kokiri posits that this is not limited to adult offenders. Their report, Whanake Rangatahi, revealed that Maori youth are three times more likely to be apprehended, prosecuted and convicted than non-Maori youth.¹³ These findings are controversial but certainly support Stenning’s call for more research and responsiveness to rehabilitative programming in ascertaining the true causes of Maori over-representation and achieving effective responses. The Whanake Rangatahi report also found that:

Property-related offences are the most common offence for both Maori and non-Maori youth.

Violent offending has steadily increased since 1990 among both Maori and non-Maori youth.

Patterns of offending for young Maori females are similar to those for young Maori males, although female rates are much lower.

There has been a noticeable increase in the imprisonment of Maori females aged 17 to 19 since 1996.

The state of youth justice in New Zealand is further illuminated by recent Ministry of Justice statistics that show the apprehension rate for Maori youth aged 14 to 16 is more than twice as high as the rate for all young people and more than three times the rate for young people of other ethnicities.¹⁴ Figures also reveal that the Maori youth apprehension rate varies around New Zealand but that the highest rates are found in centres with relatively small Maori populations such as Tasman and Canterbury. In these centres, the rates were 52.7% higher than the national rate. Other regions with high Maori youth apprehension rates are Bay of Plenty, Wellington and Waikato.¹⁵

III. How does the New Zealand youth justice system accommodate the needs of Maori youth?

The New Zealand youth justice system attempts to accommodate the needs of Maori young people in two ways. Firstly, the system has a heavy emphasis on diverting young people away from the formal criminal justice system and on dealing with offending through community-based solutions. Around 76% of youth offending is dealt with by Police-supervised community diversionary programmes; a further 8% of cases are resolved by pre-charge Family Group Conference and most of these cases result in no charges being laid in the Youth Court. This means that less than 20% of youth offending is dealt with in Youth Court and the vast majority of young people are kept away from the formal criminal justice system wherever possible.

Community involvement and support is vital to this diversionary system. Police set the diversionary process in operation but community groups are needed to provide venues for community service, mentors and supervision. This is particularly important because more than three quarters of young offenders are dealt with in this way and consequently considerable resources are required to provide meaningful responses to youth offending.

Secondly, the groundbreaking Family Group Conference system is employed to allow whanau, hapu and iwi to take part in addressing crimes committed by their young people. While this is certainly not a wholesale adoption of indigenous methods of dispute resolution, it does build upon the Maori practice of consensual decision-making to resolve disputes. The legislation allowing this response, the Children Young Persons and Their Families Act 1989, came partly in response to recommendations in Puao-te-ata-tu (Daybreak), the Ministerial Advisory Committee report into Social Welfare in 1988. However, the FGC process certainly does not adopt all the recommendations of Puao-te-ata-tu and contains elements that are foreign to the traditional Maori system of whanau decision-making, such as the presence of representatives of the State. It also modifies elements of the traditional system, such as the roles played by the family and victims. The FGC system has not been entirely successful in linking Maori communities to the youth justice process. More time and resources should be invested to allow greater involvement by Maori whanau, iwi and hapu in decision-making about young Maori offenders.

The FGC process is flexible enough to allow the incorporation of cultural or religious practices within the conferencing process. Researchers who have studied the CYPF Act and FGCs acknowledge that there is considerable potential for cultural and ethnic accommodation in the system.¹⁶ Yet some research suggests the New Zealand youth justice system, in some respects, remains "largely unresponsive to cultural differences".¹⁷ However, the cultural and ethnic responsiveness of FGCs is a subtle process to manage - research showed that while some Maori were comfortable with the inclusion of tikanga (protocol), mihi and karakia in the FGC process, others were uncomfortable that these aspects had been included and they had not been consulted.¹⁸

IV. Is this system sufficient to address the needs of Maori youth offenders?

This raises the question of whether this partly restorative system is effective for Maori youth offenders or whether changes are required.

Research shows that programmes that are effective for Maori youth generally:¹⁹

1. take a holistic approach, involve whanau, and incorporate tikanga and whanaungatanga (relationships within the extended family, or family type relationships).
2. are tailored to the needs of individuals and their whanau.
3. enhance cultural pride and knowledge of ancestry.²⁰

It may be that, although diversion and FGC procedures are an important step in the right direction, this system could be improved to enhance the inclusion of these factors in the youth justice system. Research suggests that improvements could be made to the system in that:

It seems that in some circumstances insufficient efforts are made to include members of the wider hapu and iwi groups.

Maori offenders have criticised FGCs saying they feel the process is focussed on blaming them rather than on addressing the offending.²¹

Research shows that Maori offenders often find interactions with police, at FGC, in courts and prisons alienating and intimidating, or at least ineffective in addressing their problems.²²

There are criticisms that there is insufficient follow-up after FGC.²³

Prisons and youth justice residences are sometimes failing to address the causes of offending.²⁴

There are few youth offending programmes and services designed specifically by Maori for Maori. Effective programmes should be staffed by Maori people with similar life experiences to their young charges.²⁵

How tikanga, whanaungatanga and whanau could be more appropriately incorporated into the process, and whether they should be, is a question for Maori to answer. Given the deeply concerning Maori youth offending statistics, it is vital that improvements are made to deal more effectively with this group.

V. Conclusion

This background paper can do no more than raise some key issues regarding our youth justice system and Maori youth offending. These issues are of fundamental importance to the operation of our youth justice system. They cannot be avoided. As we have indicated, some issues, such as the causes of young Maori over-representation in the youth justice system, will require much more detailed and rigorous research. The inquiry will not be assisted by simplistic assertions and in some areas better practice will be required. However, one thing is clear. The over-representation of Maori in the youth justice system is probably the most pressing issue confronting all of those who are involved daily in our youth justice system in Aotearoa.

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Footnotes

1. Paper compiled and written by His Honour Judge A J Becroft, Principal Youth Court Judge of New Zealand and Rhonda Thompson (BBS, LLB(Hons)), Research Counsel to the Principal Youth Court Judge.
2. Youth Offending Strategy, Preventing and reducing offending and re-offending by children and young people, Te Haonga, Ministry of Justice & Ministry of Social Development, Wellington, 2002, 11.
3. Maxwell, Robertson, Kingi, Morris & Cunningham, Achieving Effective Outcomes in Youth Justice, An Overview of Findings, Ministry of Social Development, February 2004, 18.
4. Weatherburn, Fitzgerald & Hua, Reducing Aboriginal Over-representation in Prison, Australian Journal of Public Administration, 62(3), 65-73, September 2003.
5. Weatherburn, Fitzgerald & Hua, Reducing Aboriginal Over-representation in Prison, 70.
6. C Cunneen, Racism, Discrimination and the Over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues, Institute of Criminology, University of Sydney Law Faculty, Paper presented to the ANZSOC Conference, Wellington, New Zealand, 9 February 2005.
7. Ferguson 2003: 362 quoted in C Cunneen, Racism, Discrimination and the Over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues, 17.
8. C Cunneen, Racism, Discrimination and the Over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues, 28.
9. Philip Stenning, Maori, Crime and Criminal Justice: Over-representation or Under-representation?, FHSS Seminar, 18 March 2005.
10. Philip Stenning, Maori, Crime and Criminal Justice: Over-representation or Under-representation?, 4.
11. Philip Stenning, Maori, Crime and Criminal Justice: Over-representation or Under-representation?, 6.
12. Ferguson 2003: 362 quoted in C Cunneen, Racism, Discrimination and the Over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues, 11.
13. Te Puni Kokiri, Ministry of Maori Development, Whanake Rangatahi: Programmes and Services to Address Maori Youth Offending, A report prepared by the Monitoring and Evaluation Social Development Directorate, October 2000, 24.
14. Ministry of Justice, Youth Apprehension Rates by Ethnicity, 2004.
15. Ministry of Justice, Youth Apprehension Rates by Ethnicity, 2004.
16. See for example Olsen, Maxwell and Morris Maori and Youth Justice in New Zealand in KM Hazlehurst (ed) Popular Justice and Community Regeneration: Pathways of Indigenous Reform (Praeger, Westport, 1995) quoted in D J Schmid (2003), Restorative Justice: A New Paradigm for Criminal Justice Policy, (2003) 34 VUWLR 91, available at www.austlii.educ.au/nz/journals/VUWLRev/2003/4.html (last accessed 17 September 2005).
17. Maxwell and Morris (1996: 96) quoted in K Haines, Some Principled Objections to a Restorative Justice Approach to Working with Juvenile Offenders in L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems. A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, 105.
18. Maxwell, Robertson, Kingi, Morris & Cunningham, Achieving Effective Outcomes in Youth Justice, An Overview of Findings, Ministry of Social Development, February 2004, 19.
19. Te Puni Kokiri, Ministry of Maori Development, Whanake Rangatahi: Programmes and Services to Address Maori Youth Offending, 52.
20. Maxwell and Morris, Understanding Re-offending: Full Report. Institute of Criminology, Victoria University of Wellington, Wellington 1999 quoted in Te Puni Kokiri, Ministry of Maori Development, Whanake Rangatahi: Programmes and Services to Address Maori Youth Offending.
21. Te Puni Kokiri, Ministry of Maori Development, Whanake Rangatahi: Programmes and Services to Address Maori Youth Offending, 37.
22. Te Puni Kokiri, Ministry of Maori Development, Whanake Rangatahi: Programmes and Services to Address Maori Youth Offending, 36.
23. Te Puni Kokiri, Ministry of Maori Development, Whanake Rangatahi: Programmes and Services to Address Maori Youth Offending, 37.
24. Te Puni Kokiri, Ministry of Maori Development, Whanake Rangatahi: Programmes and Services to Address Maori Youth Offending, 38.
25. Te Puni Kokiri, Ministry of Maori Development, Whanake Rangatahi: Programmes and Services to Address Maori Youth Offending, 57.