Case law and legislation makes clear the primacy of rehabilitation in. A focus on rehabilitation makes individualised justice essential.

Transcription

1 Australasian Youth Justice Conference: Changing trajectories of offending and reoffending Restorative justice as a better practice for managing the need for rehabilitation in response to youth offending Tony Foley 1 Rehabilitation is the overriding need to address in response to juvenile criminal wrongdoing. It overshadows the other primary needs of retribution and restoration. Much has been written about the capacity of diversionary programs to restore those affected by wrongdoing, including juvenile offenders and juvenile victims. But little regard has been given to the capacity of restorative practices to also promote rehabilitation. This paper argues that restorative processes (such as conferencing, circles and restorative panels) can address many of the consequential aims of responses to criminal wrongdoing such as deterrence, rehabilitation and protection. It argues the need for deterrence can more directly be met through censure from those affected by the wrongdoing and by negotiated and agreed changes and restrictions to behaviour. Similarly, greater community safety can be more effectively assured through contextual crime prevention. Most relevantly the need for rehabilitation can be better met through tailored, selective and voluntarily agreed participation in treatment and education programs. The paper reports on original work in Australia with restorative programs and also examines the latest evidence as to the efficacy of restorative juvenile programs in the EU, in particular programs in Northern Ireland and Norway. The paper argues that the rehabilitative scope of conferencing is undervalued and suggests a strategy for addressing this. Rehabilitation Case law and legislation makes clear the primacy of rehabilitation in dealing with young people. A focus on rehabilitation makes individualised justice essential. Section 133C(2) of the Crimes (Sentencing) Act 2005 (ACT) provides, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice: 2 1 Dr Tony Foley is an associate professor at the ANU College of Law, The Australian National University 2 See Refshauge J in the ACT Supreme Court in TM v Karapanos (2011) 250 FLR 366 at The review of the law provided here draws heavily on Justice Refshauge s sentencing remarks for which I am very grateful.

2 The principle of individualised justice requires the court to impose a sentence that is just and appropriate in all the circumstances of the particular case. Courts have consistently recognised the importance of this sentencing principle. For example, in Kable v DPP, Mahoney ACJ stated that if justice is not individual, it is nothing. (Kable v DPP (1995) 36 NSWLR 374 at 394). 3 As regards young people what was said by the New South Wales Court of Criminal Appeal in R v AEM Snr; KEM; MM [2002] NSWCCA 58 (at [97]) makes clear that individualised justice means: [G]eneral deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA The Explanatory Statement of the Act refers to the Report of the Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (ALRC: Sydney, 2006), Report No 103 at [5.21].

3 A well-known passage from a UK Court of Appeal decision in R v Smith [1964] Crim L R 70 that: In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task of the Court is to determine what treatment gives the best chance of realizing that objective. The rationale can be discerned from comments of Judge Newman of the South Australian Children s Court Juveniles are less mature less able to form moral judgments, less capable of controlling impulses, less aware of the consequences of acts, in short they are less responsible and therefore less blameworthy, than adults 4 4 Quoted in Fox R and Frieberg A, Sentencing State and Federal Law in Victoria (Oxford University Press: Melbourne, 1999) 2nd ed (at 827).

4 Three principles come from this 5 : (1) Considerations of general deterrence and principles of retribution are, in most cases, of less significance when sentencing a young person. (2) Young people, in recognition of their capacity to reform and mould their character to conform with society s norms, require considerable emphasis to be placed on the need to provide an opportunity for rehabilitation. (3) The law recognises that the cognitive, emotional and psychological immaturity of a young person contributes to their breaching of the law and so allowance is made for youth and not just their biological age. 5 As set out by McClellan CJ at CL in KT v the Queen (2008) 182 A Crim R 571 at 577-8; [22]-[26].

5 Rehabilitation and restorative justice How does restorative justice serve this purpose? Restorative processes are not structured around punishment. Restorative justice is not primarily about the punishment of the perpetrator, but rather about the vindication of the victim. What follows is that the justice business of a restorative process is not about the inflicting of pain. Making up for what has happened should include reintegrative programs that require an effort on behalf of the offender. Most programs do this through a resolution plan which can be potentially onerous given that the offender may agree [to do certain things] to make amends. But these obligations are not strictly viewed as punishment but more as burdensome amends as they may be well be difficult for young offenders.

6 The restorative process can be the focus of deterrence talk aimed at establishing measures that may support rehabilitation and nonoffending patterns. The conference can look for conditions that may help offenders and their supporters to self-police through curfews or non-associations, or abiding by house rules. These can be tough to monitor externally but can work to prevent reoffending if monitored in house. Such measures can equip the young person so that they have excuses they can offer to mates or potentially fellow offenders for staying away from them. Some examples of programs that do this. ACT Restorative Justice Unit The ACT RJU provides conferencing for young people either as a diversion or as a sentencing step since Its outcome agreements consistently disclose a trend towards victims demonstrating that they want young people to undertake

7 some type of program that will assist them to address their offending behaviour (ACT Department of Justice and Community Safety 2006:46). What are seen as beneficial are things such as encouraging attendance at residential rehabilitation programs, drug and alcohol counselling, and anger management course attendance or sport and recreation programs. A very high compliance rate (98 per cent reported in the first year review) is reported because of the strict monitoring by the RJU and parental and community support (ACT Department of Justice and Community Safety 2006:21). Northern Ireland Youth Conference Service Similarly the Northern Ireland youth conferencing service became operational in 2003 as part of the renewal of justice responses post the troubles especially for juvenile offending. 6 Youth conferencing is now the means through which most youth offending is dealt with. 6

8 Approximately 1,800 referrals (which amount to about 15 per cent of all young offenders) are made to conferencing each year. Drawn from the New Zealand model, the Northern Ireland adaptation places more direct emphasis on victims as well as the families of offenders (Campbell et al (2005, 2006). Conferencing operates either as a diversion or through a court referral requirement to participate in a conference (Youth Justice Agency, , ). The standard outcome of a conference is a negotiated agreement which includes negotiated and agreed commitments such as an apology, reimbursement, community work and attendance at therapeutic or educational programs which parents or community agree to support and monitor. Norway National Mediation Services Lastly, interest in restoratives practice in Norway can be traced back at least to the 1970s. Mediation and conferencing are provided by

9 the National Mediation Services (Hydle & Kemény 2010). It is seen as a service offered to citizens rather than a program imposed on. The stated aim is for at least 250 conferences to be conducted annually, with victim Offender Mediation much more widely used with figures of up to 9000 mediations per year (Vanfraechem and Walgrave 2005). Once again the usual form of outcome from a conference is an agreement which provides for payment of compensation, completion of work, apology or some form of reconciliation or attendance at appropriate rehabilitation programs (Hydle & Kemény 2010). The rehabilitative scope of restorative justice So rehabilitation is very much part of RJ but its rehabilitative scope is undervalued.

10 Restorative practice s strength (and secret) is that rehabilitation can be better tailored and selected and is voluntarily agreed. Restorative practice s skill is its ability to artificially create communities which are nurturing and supportive (Pavlich 2001:59). Convenors can build a community around each offender (or victim) by drawing widely from any conceivable base of support (Bottoms 2003:109). Many individuals with preventative capabilities can be rendered responsible for mobilizing those capabilities. Braithwaite (2002a:111) talks about the Uncle Harry in an extended family who can act as a strong influential and effective restraint on potential reoccurrence of offending. There is strong empirical evidence of this occurring. The evaluation of the adult restorative justice pilot scheme in New Zealand showed that giving such his community responsibility for an offender s behaviour can significantly reduce reoffending (NZ Ministry of Justice 2005:para 7.5.2). This can be RJ s key contribution.