Children’s Court Magistrates’ Views of Restorative Justice and Therapeutic Jurisprudence Measures for Young Offenders

Introduction

In recent decades, restorative justice (RJ) and therapeutic jurisprudence (TJ) measures have been introduced into the youth justice system in New South Wales (NSW), Australia. Two key measures introduced in this context were youth justice conferencing (YJC), introduced under the Young Offenders Act 1997 (NSW) (the YOA), and the Youth Drug and Alcohol Court (YDAC), introduced in 2000 (Hannam and Crellin, 2010; Turner, 2011). While these measures are quite distinct in their aims and practice (as described below), they can be understood as part of a broader shift towards what King (2008) has referred to as ‘more emotionally intelligent and less adversarial approaches to resolving legal disputes’ (p. 1096).

A number of individual Children’s Court magistrates in Australia have expressed general support for RJ and/or TJ measures (Grant, 2008; Hannam, 2009; cf. Potter, 2010). However, little prior research has been undertaken on the views of Children’s Court magistrates in relation to these measures. The research reported in this article begins to address this significant gap in the literature. The research was part of a national study of Children’s Courts in Australia about a wide range of topics (Borowski, 2013a, 2013b; Sheehan and Borowski, 2013). The NSW component of the study included semi-structured qualitative interviews with all 12 Children’s Court magistrates in NSW. The present article builds on other findings from the NSW component of the national study (see Bartels et al., in press; Fernandez et al., 2013, 2014), and presents the findings of interviews with magistrates in the NSW Children’s Court (the NSWCC or Court) in relation to RJ and TJ in general, and YJCs and the YDAC in particular.

This article is presented in five main parts. Section ‘Overview of the NSW Youth Justice System’ provides an overview of the NSW youth justice system, as well as an introduction to RJ and TJ principles and the YJC and YDAC initiatives. Section ‘Judicial Officers’ Views on RJ and TJ Measures for Young Offenders’ presents the extant literature on judicial officers’ perceptions of RJ and TJ. Section ‘Methodology’ outlines the methodology for the national study of Australian children’s courts, as well as the methodology for the NSW component of the study, from which this article stems. Section ‘Findings’ presents the key findings from the thematic analysis of interviews with magistrates in the NSWCC. Finally, Section ‘Discussion’ considers the implications of these findings for youth justice policy in NSW. The article concludes that the scope of offences eligible for YJCs should be expanded and the YDAC (which was abolished in 2012) be reinstated. In addition, there should be better resourcing of, and judicial education about, these measures.

Overview of the NSW Youth Justice System

The age of criminal responsibility in NSW (as in all Australian jurisdictions) is 10 years (Children (Criminal Proceedings) Act 1987 (NSW): s 5; see discussion in Sheehan and Borowski, 2013). Like most other Australian jurisdictions, the NSWCC hears criminal matters in relation to children aged between 10 and 17 years inclusive at the time of the alleged offence. As is also the case in other Australian states and territories (see Cunneen et al., 2015), NSW emphasises the principle of diversion (for discussion, see Richards and Lee, 2013; Weatherburn et al., 2012). Specifically, section 7(c) provides that ‘criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter’. Accordingly, placing a child before the Court is clearly presented as the option of last resort, and the YOA seeks to ensure that, where possible, a system of warnings, cautions and youth justice conferences precede court appearances.

The NSWCC deals with the vast majority of offences alleged to have been committed by young people that have not been resolved under the YOA, but does not have jurisdiction over serious indictable offences (i.e. homicide and offences punishable by 25 years’ or life imprisonment). The Court sits in three designated courthouses located in Parramatta, Glebe and Broadmeadow. The Court also sits on a permanent basis at non-specialist courts in six other locations. In non-metropolitan areas outside of these locations, NSWCC hearings are conducted by non-specialist Local Court magistrates, except when specialist magistrates are on rural ‘circuit’ and available to hear matters (NSWCC, 2016).

As discussed below, two key changes to youth justice in NSW in recent decades have been the introduction of YJCs, and the introduction (and subsequent abolition) of the YDAC.

Judicial Officers’ Views on RJ and TJ Measures for Young Offenders

As stated above, little prior research has been conducted on judicial officers’ views of RJ and TJ measures or the philosophies that underpin them, particularly in relation to young offenders. This section provides a brief overview of the existing research literature on magistrates’ views of RJ and TJ measures. Following this, an overview of findings from the national study of children’s courts in Australia on judicial views of RJ and TJ is provided.

The limited existing research indicates cautious support for RJ among magistrates. For example, Stephens (2007) conducted interviews with 12 judges from Toronto, Canada, half of whom had experience in the youth court jurisdiction (as judges or lawyers). The respondents expressed support for youth diversion generally and were cautiously supportive of the use of RJ measures for young people and Indigenous people. Naudé and Prinsloo’s (2005) survey of 69 magistrates and prosecutors from six magisterial offices in South Africa found widespread support for RJ generally, with the majority of respondents agreeing that it could contribute to community building (83%), make the offender aware of the harm caused to the victim (81%), hold the offender accountable for his or her behaviour (77%), involve community members in the criminal justice process (73%) and contribute to the offender accepting responsibility to set things right (70%). There was greater support for RJ for young offenders than adults: one-quarter believed that restorative measures were suitable only for juveniles, compared with 16% who believed that such measures were only suitable for adults.

Respondents to these studies also expressed some concerns about RJ measures. Chief among these was the issue of resources. Two-thirds of respondents to Naudé and Prinsloo’s (2005) study agreed with the statement that ‘restorative justice can be problematic because inadequate community resources could render it ineffective’. Judges interviewed for Stephens’ (2007) Canadian study also raised resources as a key problem. In particular, they raised a lack of stable, long-term funding for restorative initiatives, and a lack of information about community resources as tempering their support for RJ. In addition, Bazemore (1998) conducted research on the views of 20 juvenile court judges in the United States about increasing victim involvement in court procedures through RJ. He found that many respondents were concerned about protecting the rights of accused young people, and ensuring fairness and uniformity across cases (see further Bazemore and Leip, 2000).

There is only limited literature seeking to systematically examine a sample of judicial officers in relation to their perspectives on TJ. Chase and Hora’s (2000) research with 194 judicial officers from drug treatment and family law courts in the United States demonstrated higher levels of job satisfaction among judges in problem-solving courts (see also Hora and Chase, 2009). In Australia, Roach Anleu and Mack have conducted extensive research with judicial officers. They found that magistrates’ experience of judging in dedicated problem-oriented courts was limited, with 42 percent of respondents indicating they had not sat in such jurisdictions in the previous year (Mack and Roach Anleu, 2011; see also Roach Anleu and Mack, 2007). Notably, none of this research specifically considered the perspectives of judicial officers about TJ in the youth justice context.

The national study of children’s courts in Australia, from which this article stems, aimed to address this gap. Findings from this study specifically concerning attitudes to RJ and TJ have been reported in relation to Victoria, Queensland, Western Australia, South Australia and the Australian Capital Territory (ACT). TJ and RJ issues were not discussed in the analyses for Tasmania (Travers et al., 2013) or the Northern Territory (West and Heath, 2013).

Overall, support for RJ and TJ in the youth justice context varied. In Victoria, the 20 magistrates interviewed (including six specialist Children’s Court magistrates) supported the idea of the Children’s Court being, in essence, a ‘therapeutic jurisprudence-informed problem-solving court’ (Borowski and Sheehan, 2013: 387) and adopting ongoing case management type approaches. In Western Australia, interviews with 74 stakeholders, including 12 magistrates, six of whom were attached to the Children’s Court, likewise indicated support for diversion and early intervention (Spiranovic et al., 2015). Similar support was found in the ACT, where the 46 stakeholders interviewed ² identified RJ as a major strength of the Children’s Court. RJ was perceived as less formal and more conducive to open communication among young people, their families and the court (Camilleri et al., 2013: 202). In the ACT, while some respondents mooted the possibility of more therapeutically oriented courts (in particular, drug courts), the consensus was that increasing resources for measures that prevented children and young people from entering the court, and for rehabilitation after court appearances, were the priority. In South Australia, 15 stakeholders (including seven members of the judiciary) noted they already had some discretion to take a TJ-type approach (e.g. through-call backs to court), although a more explicit TJ approach was discussed as a potential reform, there was agreement that, as it stood, there were insufficient resources and not enough cooperation among likely stakeholders (King et al., 2013). In Queensland, the findings (based on 47 stakeholders, including 12 judicial officers) were mixed. While there was general support for diversion, early intervention and RJ (in the form of youth conferencing), the Children’s Court was primarily conceived of as a space within which to dispense ‘justice’, rather than as a space to address the needs of young people coming before it (Tilbury and Mazerolle, 2013: 71).

The focus of this article is the findings from the NSW component of the study, the method for which will be described below.

Methodology

The national study from which this article stems was unique in gathering comparative data on all states and territories in Australia, and for its focus on the views of judicial officers, as well as other relevant stakeholders, which no prior study had done (see Borowski, 2013a, 2013b). The study aimed to address three main research questions:

The present article focuses on the findings from the interviews with NSWCC magistrates, ³ which were conducted in 2010–2011. In NSW, all practising Children’s Court magistrates agreed to be interviewed (n = 12). ⁴ Interviews were semi-structured and lasted approximately an hour, covering approximately 17 questions relating to the purpose of the court, personnel, structure, cases and ‘clients’, and directions for reform. Magistrates were specifically prompted to comment on the impact (if any) of changes and reforms they had witnessed during their involvement with the Court, including the YDAC, the Pilot Child Sexual Assault Court, warnings, cautions and YJCs under the YOA, and other specialist interventions such as the Safe Aboriginal Youth Plan. Interviews were transcribed verbatim.

Thematic analysis of the transcribed interviews was then undertaken. Thematic analysis can be understood as ‘a method for identifying, analysing and reporting patterns (themes) within data’ (Braun and Clark, cited in Vaismoradi et al., 2013: 400; see also Grbich, 2013). Following Mason (2002), the process of analysis focused on both common themes and counter themes, and on points of consensus and divergence among participants. Examples of the themes identified below include the under-utilisation of YJCs and support for the YDAC’s intensive case management model.

Findings

This section outlines the findings of the NSW component of the national study in relation to magistrates’ views about RJ and TJ measures for young offenders, especially YJCs and the YDAC respectively. It shows that, with some exceptions, magistrates expressed support for both these initiatives.

Discussion

The foregoing views of NSWCC magistrates address an important gap in the existing research, which to date has provided little insight into judicial support for RJ and TJ measures for young offenders. As the preceding section demonstrates, respondents were mostly supportive of both RJ and TJ measures, but this support was premised on different grounds. YJCs were supported as magistrates believed they can help young people develop empathy, face the consequences of their actions and take responsibility for their behaviour. In contrast, the YDAC was supported on the grounds that it provided young people with an intensive, multi-agency response to their complex offending-related needs. Although magistrates raised some concerns about both these measures, these were largely related to their implementation, rather than their aims or philosophies. As such, key criticisms of YJCs were that they had moved away from their intended aim and were not used consistently across the state, while a key criticism of the YDAC was that it was poorly understood and required the judiciary to be better informed. Magistrates considered both YJCs and the YDAC to be under-utilised and poorly resourced.

These views were in turn largely premised on the belief that the traditional Children’s Court is circumscribed in what it can achieve with young offenders. Magistrates in this study generally expressed concern and frustration that the Court is very limited in the ways in which it can respond to the young people who come before it, and suggested that early intervention programmes, and non-judicial measures that address young people’s complex needs, are needed. For example, magistrates commented on the importance of community-based education and health programmes to address issues such as substance abuse, mental health and cognitive functioning, and domestic violence: ‘Early intervention is the best thing … ADHD [Attention Deficit Hyperactivity Disorder], Aspergers, autism, there has to be a more structured approach to dealing with these problems’ (Magistrate 7).

In summary, respondents believed that early intervention measures that keep young people out of trouble in the first place were preferable to court. Furthermore, they believed that young people already in trouble require an approach that intensively addresses their offending-related needs (e.g. health, education, substance abuse) via an intensive, well-resourced, coordinated multi-agency approach.

Importantly, although this research suggests that while there is widespread support for YJCs and the YDAC among magistrates, such support does not necessarily translate into judicial officers referring high numbers of young people to these measures (see also Naudé and Prinsloo, 2005). As noted above, while magistrates make over half of all referrals to YJCs, this practice is still considered under-utilised (Noetic Solutions, 2010; Richards, 2010), particularly in relation to Indigenous young people (Allard et al., 2010; Snowball, 2008). Furthermore, the YDAC was criticised in relation to the low volume of young offenders it dealt with (see discussion above). For both practices, this under-utilisation is undoubtedly partly a result of what Blagg (2009) has referred to as ‘justice by geography’ (p. 24). The YDAC was only (previously) available in metropolitan Sydney, and although YJC is a state-wide programme, there is evidence to suggest that it is used inconsistently across NSW (Johnstone, 2015; for similar findings in Victoria and Queensland, see respectively Jordan and Farrell, 2013; Stewart and Smith, 2004).

Four preliminary recommendations stem from our analysis. First, we recommend that the eligibility criteria of YJCs be revisited, with a view to enabling YJCs to be used to respond to a wider range of offences, including more serious and violent offences, than are currently eligible. This recommendation reflects magistrates’ comments that they would like YJCs to be expanded to include more serious offences. Importantly, our proposal reflects research that suggests that YJCs are most effective in reducing recidivism when they are used in relation to violent youth offending (McCold and Wachtel, 1998; Sherman et al., 2000; Strang et al., 2013; cf. Weatherburn et al., 2012). Furthermore, relaxing the eligibility criteria of YJCs may begin to address criticisms that they often exclude Indigenous young people, who are over-represented among those who commit violent offences (Kenny and Lennings, 2007).

Second, we recommend the reinstatement of the YDAC in NSW. Magistrates interviewed for this study were overwhelmingly supportive of the programme, notwithstanding some concern that it dealt with only small numbers of young people. While the YDAC may indeed have responded to the offending of only small numbers of young offenders, it is precisely with this group of young offenders – with multiple, complex needs and entrenched patterns of offending – that interventions can be most beneficial both socially and financially. This should be seen as a priority as this small cohort of offenders is responsible for a large proportion of youth offending (Cunneen et al., 2015). Furthermore, even when TJ initiatives have not been found to reduce recidivism, they have been found to result in a range of other benefits, including increased Indigenous participation in the criminal justice process, and increased trust in the justice system (see, for example, Borowski, 2009; Morgan and Louis, 2010). The observations on procedural justice above should be noted in this context. Importantly, findings from the early evaluation of the YDAC suggested that the eligibility requirements likely affected the number of referrals and acceptances into the programme (which were both lower than expected) (Eardley et al., 2004). As such issues were not insurmountable, the abolition of the programme may have related more to its perceived political palatability (Fishwick and Bolitho, 2010).

Third, both YJCs and the YDAC (if reinstated) need to be better resourced. Adequate resourcing is a key feature of programmes that report consistent success and mainstreaming such as youth conferencing in Northern Ireland. A key concern raised by this research is whether magistrates will refer young offenders to programmes of this nature if they perceive them to be poorly resourced and implemented – even if they largely agree with the aims and philosophies of RJ and TJ measures (see also Naudé and Prinsloo, 2005; Stephens, 2007). Better resourcing could also begin to address judicial officers’ concerns that YJCs have become ‘McDonaldized’ and no longer adequately address young people’s criminogenic needs or respond to their unique circumstances in the way originally intended. Better resourcing would begin to enable more individualised responses to young people’s offending, and may in turn address the concerns of some magistrates about their limitations in this regard.

Finally, better education and training is required for magistrates on both RJ and TJ measures. Magistrates in this study identified enthusiasm for, but a lack of understanding of, such measures, which ought to be addressed via targeted information and training.

Conclusion

Understanding magistrates’ views about ‘emotionally intelligent and less adversarial’ (King, 2008: 1096) measures such as RJ and TJ is vital, as they are key gatekeepers to these measures (Bazemore, 1998). However, very little research has been undertaken on this topic. The research presented here therefore begins to address a key gap in existing knowledge.

In general, NSWCC magistrates are supportive of RJ and TJ measures for young offenders, predominantly because they view these approaches as better equipped to respond to youth offending than the traditional Children’s Court process. The few magistrates who expressed reticence about YJC and the YDAC did so not because they disagreed with the aims and underlying philosophies of these measures but due to concerns about their implementation.

A number of implications stem from these findings, including the need for more and better resourcing, training and education for judicial officers, and the broadening of eligibility criteria for YJCs. Most significantly, however, the findings presented in this article demonstrate considerable judicial support for the now-abolished YDAC. As both existing research (Eardley et al., 2004) and our findings suggest, the documented limitations of the YDAC were not insurmountable. Given the evidence base for problem-solving courts in Australia (see, for example, Borowski, 2009; KPMG, 2014; Morgan and Louis, 2010; Weatherburn et al., 2008) and the literature on drug courts from United States (see, for example, Aos et al., 2006; Koetzle Shaffer, 2006; Wilson et al., 2006), as well as Eardley et al.’s promising results from the early YDAC evaluation discussed above, the decision to close the YDAC is perplexing and problematic. In light of this evidence, and magistrates’ enthusiasm for the YDAC, a key recommendation of this article is that consideration be given to reinstating the NSW YDAC.

This recommendation has broader implications beyond NSW. In particular, the decision to abolish the YDAC was, as discussed above, motivated in large part by the perception that it was not a good use of public money. Our findings also highlighted magistrates’ concerns about inadequate resourcing of RJ and TJ measures. Accordingly, this points to an ongoing need to properly resource these interventions. Indeed, this is a problem across many jurisdictions (e.g. South Africa (Naudé and Prinsloo, 2005), Canada (Stephens, 2007) and England and Wales (O’Mahoney, 2012)) that prima facie support RJ and TJ measures, but do not allocate sufficient funding, leading to problems in the implementation and utilisation of these approaches. This is in contrast to jurisdictions such as Northern Ireland where RJ is ‘at the very core’ (O’Mahoney, 2012: 554) of the youth justice system. This has led to high levels of RJ use and positive outcomes (O’Mahoney, 2012). This may present a model for NSW and other jurisdictions to emulate.