A Youth Court hearing in Auckland. Photo / Brett Phibbs
Jamie is 16 and facing Youth Court charges of assault and taking cars.
He is also before the Family Court to get help from Oranga Tamariki — the Ministry for Children because of physical and sexual abuse by his father.
After pleading guilty, Jamie is assessed by the adolescent mental health team.
He is found to be dyslexic with a communication disorder, meaning he needs constant help to understand what's happening in court.
The Youth Court education officer discloses Jamie has not been in school for three years. His situation is discussed at a family group conference, and a plan drawn up to provide help.
During the conference, Jamie takes part in restorative justice and apologises to his victims. Rehabilitation and counselling for drug and alcohol issues is organised.
The court will monitor his progress for months, keeping in constant contact with Jamie and his guardians in a bid to get his life back on track.
Jamie's not real — but that's the way lots of young people are handled when they get in trouble.
Things change when they hit 17. Charges of assault and taking cars would land them before the District Court, an adult in the eyes of the law.
Jamie would still have the same disabilities and family history.
Without his own legal representation, he would be assigned a duty lawyer who might not spot his communication disorder, impeding his chance of a fair hearing.
He could be bailed to his father's address because the court wouldn't know it's unsuitable.
And if he pleaded guilty, he might be sentenced to 200 hours of community work, spending months of Saturdays with other adult criminals.
From July, young people won't go before District Court until they're 18, except in serious cases such as murder, manslaughter, sexual assaults and aggravated robbery.
Criminal lawyer Gene Tomlinson says the change will allow more interventions at a crucial point in the development of young people.
And if those interventions are successful they may not reoffend.
"Whereas if they had attended the District Court they'd be making the connections we don't want 17-year-olds to have in order to keep them away from a life of crime."
Keeping young people in Youth Court until they're 18 is down to a law change. Proposed by the former National Government in 2016, it was backed by Labour in a rare example of cross-party support.
The move brings New Zealand into line with other countries who believe adult justice systems fail youth offenders. But some are keeping young people out of adult courts for even longer and critics here argue our new rules don't go far enough.
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In Croatia and the Netherlands, youth court sanctions can apply to the age of 23. In Germany, a specialised youth court has jurisdiction between the ages of 14 and 21.
The trend is driven by research that indicates our cognitive skills and emotional intelligence are still developing into our mid-20s.
That research suggests many traits common among adolescents (susceptibility to peer pressure, risk-taking and impulsive behaviour, for example) remain prevalent in young adults and can contribute to criminal behaviour.
A report by Associate Professor Ian Lambie, chief science advisor for New Zealand's justice sector, says brain development is definitely one influence on youth behaviour.
"It is now apparent that brain pathways develop in such a way that adolescents undertake more risk-taking behaviour than older or fully mature individuals.
"This has been recognised as relevant to debates of criminal responsibility and culpability, both internationally and to some extent in New Zealand," he says.
In other words, young people can do dumb things that land them in trouble with the law.
Tomlinson believes the law change doesn't go far enough and Youth Court should handle more serious charges too.
"It is the people who commit the more serious offences that actually need the more serious intervention and they are not going to get that in jail."
Police Association president Chris Cahill was against allowing 17-year-olds to be dealt with in Youth Court. He would oppose any move to keep those aged 18 or more out of the District Court.
"It ignores the people who end up in the youth justice system at 18 who have already been in that system since the age of 10, 11 or 12 and they've had every passage of process applied to them — so nothing is going to change in that last year.
"By incorporating a lot of people between the ages of 17 and 18 — or higher if international suggestion was to be followed — it takes away from the resources that can be put into those 10, 11 or 12-year-olds that you are actually going to have the best chance of changing before they turn into more serious offenders."
However, Justice Minister Andrew Little says raising the age at which young people go before District Court to 18 is just a start.
"I think in the end if we want to have a justice system that is dispensing justice, then it has to understand the full nature of the person in front of them if what they do is going to be effective.
"I think we are at a time now where we ought to make the effort to explore what that is and tailor sentences to suit.
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Youth Court Judge John Walker and Chief District Court Judge Jan-Marie Doogue, are already looking at different ways to handle young people with neuro-disabilities.
Their work follows the release of a report by the UK's Centre for Justice Innovation about creating "procedural fairness for young adults at court".
Procedural fairness is a cost-effective and proven way to reduce reoffending, says the report.
"When people feel they have been treated fairly by an institution — when they understand what to expect and what is going on and feel listened to and respected, even when decisions go against them— they are more likely to obey its decisions.
"In the context of offending, this means less crime and fewer victims."
Walker and Doogue, who have the backing of the Human Rights Commission, are trying to avoid getting bogged down in the age debate. Their primary concern is exploring the impact of neuro-disability, mental illness, intellectual disability and brain injury on young offenders.
"We are dealing with a range of ages, developmental issues and neuro-disabilities," says Walker. "Aren't we better to adapt processes to take account of that regardless of whether they are in the Youth Court or the District Court?"
Disabilities affecting young people include foetal alcohol spectrum disorder, autism, communication disorder and dyslexia.
"When this is added to the increasing identification of mental illness and intellectual disability and the delayed brain developments that affect all young adults — the scale of the issue becomes apparent.
"These disabilities are fixed and do not stop when a young person reaches 17 and enters the District Court."
Doogue believes Youth Court processes can offer lessons for the District Court.
"It just needs us as judges to appreciate that we cannot treat all young adults like they are fully developed adults."
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This debate isn't just about where young people appear, but how they are punished.
In Germany, priority is given to diversion and educational, rehabilitative or disciplinary measures. Only 2 per cent of young people go to jail.
In the Netherlands, the number of youth detention facilities is down from 15 in 2007, to seven. Authorities focus on putting offenders in small centres near their homes.
In Croatia, imprisonment is seen as an extraordinary sanction, with authorities prioritising counselling, community service, probation and group homes.
In New Zealand, only about 100 people end up in Oranga Tamariki youth justice residences each year.
That's a small portion of the 1776 people aged 10-16 who ended up in the Youth Court last year, and the 165 who ended up in the District or High Courts.
And an even smaller portion of the thousands of teenagers dealt with by police who never make it to court.
"Seventy to 75 per cent of all apprehensions are dealt with by alternative actions; by police, family group conferences, etc — it's only the other 25 per cent that come to the Youth Court," says Walker.
He says diversion is an underlying principle of youth justice.
"We know that bringing young people into contact with the court can increase recidivism so everything that can be done is done to keep them away."
New Zealand wants to focus on community options such as smaller remand homes and engaging with iwi, says general manager of youth justice residences Ben Hannifin.
"Going to prison actually just makes you worse or links you up to a different peer group, so when you come out you just reoffend.
"That is not what we want.
"The more normal and rehabilitative the environment can be, the more likely the kid is to succeed."
There are four remand homes — two in Rotorua, one each in Palmerston North and Dunedin — with others being developed.
"The kids aren't free to come and go as they please but it's a much more home like space in the community they are from," Hannifin says.
Even our four youth prisons are being made more homelike.
"They are being painted, there are murals, better furniture, and it is nicer — but it is still concrete and still has a 5m-high fence and steel doors," says Hannifin.
"Those kinds of things we can't change, but what we are doing is changing the experience throughout the course of the day — so the kids' day is still wrapped around school, but there is more programming around transitioning out."
Specialist programmes exist to tackle the significant and persistent over-representation of Māori and Pasifika in youth offender stats.
Initiatives such as Rangatahi and Pasifika Courts operate in the same way as Youth Court with the same consequences, but have a stronger cultural focus. Held on marae, in Pasifika churches or community centres, they are designed to better involve Māori and Pasifika families.
There are 15 Rangatahi Courts around the country, and two Pasifika Courts in Auckland.
"The figures show where young people either appear in the Rangatahi or Pasifika Court, they end up committing 14 per cent fewer offences and are 11 per cent less likely to reoffend," says Associate Minister for Justice and Courts Aupito William Sio.
Lambie says the problems facing young people in the justice system are complex and need far-reaching solutions.
"We need to think about what sort of New Zealand we want to create for future generations. Is it one with a rising prison population, at ever-higher costs, without corresponding community or offender benefits? Is it one where children are increasingly both victims and offenders?
"The evidence says it does not have to be so, and it will require strong and courageous leadership to commit to and implement a change programme that produces sustained positive change across the justice system."
Hannifin wants more investment in programmes that address behaviour that leads to offending.
"I think if there is an appetite to move this way, then the big thing is how you convince the community at large that we are not condoning offending, we are just managing it in a way that will prevent further offending.
"That is ultimately what we all want, but that is the big conversation to be had."
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