Adult Justice for 17 Year Old Offenders

Background

Youth crime has become more common and more brazen in recent years. Over the past week, we’ve seen two different instances where armed youth offenders forced their way onto the roof of youth facilities and created chaos. The most recent event lasted forty hours and the offenders only came down after being bribed with free KFC and McDonald’s. In the first event, the offenders broke someone’s wrist and were also bribed with KFC.

It is clear that the youth justice system is not doing enough to deter young offenders. Although the aim of the youth justice system to rehabilitate young offenders and ensure they can turn around their lives is a laudable goal, it is now time to step back and realise some young offenders see the system as a joke. Rather than being exposed to the principles of justice, young people are learning that the more you act out, the more you can demand in KFC as a bribe to behave.

To make things worse, the scope of the youth justice system continues to widen. In 2016, the National Government widened the jurisdiction of the youth justice system to include 17 year olds, rather than having them sentenced as adults. The public were promised that this would result in less crime and fewer victims. The public were told that 17 year olds who committed more serious offences (like murder, manslaughter, sexual assaults, aggravated robbery, arson, or serious assaults) would continue to be dealt with in the adult courts.

The changes to the youth justice jurisdiction came into force in 2019. Has New Zealand seen a reduction in crime and fewer victims of crime? Can New Zealanders be safe in the knowledge that at least serious offenders will continue to receive adult sentences for their crimes? The evidence coming through suggests that lowering the threshold for the youth justice jurisdiction has not had its intended effect.

At 17, you’re old enough to know better

17 year olds are old enough to face adult justice. It is the age where young people should be well aware that there are consequences to breaking the law and that they need to be held personally accountable. By raising the age of youth justice in 2016, all that has ended up happening is that these important life lessons have been deferred by a year. Which means it’s another year of an offender’s life where they can vicitimise the community without actually taking some personal responsibility.

A vast majority (73 percent) of Police Association members opposed the change to the age of youth justice. At the time the changes were made, the Police Association raised significant concern that “Youth Aid officers will be tied up dealing with youth at the older end of the spectrum to the potential detriment of effective preventative work with younger offenders in the 11 to 13 age bracket. At this age, Youth Aid officers have real opportunity to prevent a pattern of offending through the teen years.” The Police Association pointed out that raising the age would seriously increase the workload of police, and would not reduce overall offending. It also pointed out that young offenders were already well aware of the fact that accountability starts at 17.

Why is the youth justice system seen as the softer option?

Unlike adult sentencing, the youth justice system is set against principles that set a clear bias in favour of community sentences. Unlike adult sentencing, the youth justice system is not based on the principle of promoting in the offender a sense of responsibility for, and an acknowledgment of, the harm caused.

In its submission against raising the youth justice age, the Police Association pointed out that the Youth Court only covers the top 20 percent of youth offending. The vast majority of youth offenders are dealt with outside of the court system by way of warnings and alternative actions, all of which need to be managed and monitored by Police Youth Aid. What this means is that not only are most 17 year old youth offenders now able to avoid Youth Court altogether, the range of alternative warnings and penalties consumes significant police resources.

By design, the point of the youth justice system is to keep young people out of court and to minimise the use of harsh penalties and consequences. Offenders who go through the youth justice system are able to be discharged without a conviction if they comply with their family group conference plan. Even offenders who don’t comply with their family group conference plan can discharge the young person from the proceedings without further order or penalty.

Although some offenders in the youth justice system will eventually receive an adult sentence, the process is long-winded as every other option for rehabilitation needs to be exhausted first. As a result, it means that there are a lot of young offenders being released into the community, given chance after chance, meanwhile the rest of the community is being terrorised. It should be of no surprise that the young people committing ram raids are not first time offenders, they are simply testing how much leeway the youth justice system can give.

In 2022, 37% of charges finalised for 17 year olds in any court resulted in an absolute discharge, while only 8% resulted in being convicted and sentenced in adult court.

Serious offenders are being treated lightly

There are a range of serious offences that, if committed by a 17 year old, should mean they receive adult sentences. To be clear, these are the worst offences such as murder, arson and aggravated robbery. However, a number of serious 17 year old offenders are still being treated lightly:

• A 17 year old had a history of around 48 charges proved in youth court before his most recent case. The most recent case involved multiple burglaries, and he was known to breach his community detention orders. The judge was concerned that a high level of incapacitation was required given the cycle of reoffending the offender was currently in. The 17 year old therefore received a supervision with residence order, as an alternative custodial sentence.
• Two youths (aged 16 and 17 at the time of the offence) avoided prison after violently beating a 78 year old man in his own home and leaving him for dead. One of the youths, when asked how he could attack an innocent old man, claimed ‘it’s Mongrel Mob’. Both youths had their hearings and sentences heard in the Youth Court, even though the Crown lawyer noted that the older youth would soon turn 19 and that a Youth Court sentence would not be appropriate given the seriousness of the offending. The Judge acknowledged how the attack had negatively affected the victim’s family and had sent a ripple through the community.

“She said a prison sentence was a realistic outcome whenever someone offended the way they had, but she had to also consider Youth Court principles, particularly the need to keep young people in the community provided the community’s safety was not at risk.”

Nevertheless, the older youth was not sent to prison and instead was ordered to attend drug and alcohol counselling, to make an emotional harm reparation payment of $2000 to the victim’s family, and complete 200 hours community work.

• In a different case in 2020, a young woman stabbed her victim in the throat multiple times because the victim was accused of ‘narking’ on the offender’s boyfriend to the police. The victim suffered multiple stab wounds to her head, a stab wound to her right forearm, her left hand and her right thigh. Prior to this the offender had six notations of previous offending in the youth court, including aggravated robbery. Nevertheless, the youth court judge believed it was more appropriate to sentence the offender in the Youth Court rather than the district court, despite the seriousness of the offence. Under the District Court, the offence would have led to prison time. However, under the youth court the offender was sentenced to a supervision with residence order for 6 months, followed later by a supervision order for 12 month.                    

What ACT will do

ACT will reverse the changes introduced by the National Government in 2016 which came into place on 1 July 2019 whereby 17 year olds will no longer be included within the jurisdiction of the youth justice system. Thereby the youth justice age will be lowered from 18 to 17. The relevant parts of the Oranga Tamariki Act 1989 will be amended. The Sentencing Act would be amended so that the limitation on sentences of home detention and imprisonment apply to persons under 17, rather than the current age of 18.

17 year olds who commit any offence (rather than just serious offences) will have their cases heard in the District or High Courts and will be subject to the Sentencing Act. It would not mean that all 17 year olds who commit minor sentences end up in jail, as the courts still have a range of sentencing options available to them. And if young people under the age of 18 are sent to prison, they will be within a youth unit (or a segregated adult unit if a youth unit is not available), rather than housed within the general prison population.

What the policy will achieve

17 year olds do not lack the same kind of self-control, logic and judgement that 14 year olds do. Yet they are sentenced in the same system. By the age of 17, offenders should be sent a stronger message that they need to be held responsible for their crimes and acknowledge the damage that their crimes cause their victims. Facing more credible and serious consequences for crime will help break the cycle of re-offending and deter would-be criminals from the choice of offending.