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April 4, 2011 | by  | in Opinion | [ssba]

Laying Down The Law – The Kids Aren’t All Right

On 12 September 2001, Bailey Kuarariki Junior and six others beat pizza deliveryman Michael Choy to death. Michael was 40 years old; Bailey was only 12.

Bailey Kurariki remains one of the youngest convicted killers in New Zealand legal history. In September 2002, he was sentenced to seven years’ imprisonment for manslaughter (not murder, as the slothful media have often wrongly reported).

His age and that of his accomplices stunned New Zealand. Many were aghast at the brutality and senselessness of a crime committed by people so young, but this masked a more disturbing realisation: violence and crime is perpetrated by youth in New Zealand, and in rare circumstances, it can be very violent indeed.

But that realisation comes with baggage. Simplifying the issue down to the scaremongering rhetoric of ‘killer kids run amok’ is not only unhelpful, it’s dangerous. Youth Justice is a concern for New Zealand and its elected representatives, but it’s an issue often dealt to without the requisite knowledge and complexity it loudly demands. Forcefully cracking down on miscreants is often a vote-winner—perhaps because of the fact that kids can’t vote.

Most of the law that deals with youth offending is found in Part 4 of the Children, Young Persons, and Their Families Act 1989. The legislation was something of a revolution. It represented a new direction in dealing with youth offenders, bringing in the highly successful family group conference mechanism and the principles of community, redress and protection.

The Act puts children’s interests first. Kids should be dealt with outside the courts as much as possible; links with häpu, families and communities should be strengthened; age plays a major factor in mitigating any sanctions; and if any sanctions are imposed, they should take the form most likely to foster and promote the development of the child.
This all sounds extremely lovely. New Zealanders should be proud of the ostensibly liberal approach we have taken to Youth Justice. But perhaps our pride is misplaced. There is a sharp sting in the tail of our approach to youth offenders.

Section 21 of the Crimes Act sets the criminal age of responsibility at ten-years-old. In practice, children aged between 10 and 14 are protected by the common law principle of doli incapax, which requires the Crown to prove that not only did the child intend to commit the crime, but they also knew it was wrong.

However, even with that extra legal hurdle, the age is still extremely low, and New Zealand has come under sustained fire from the United Nations Committee on the Rights of the Child for refusing to change it. In most other respects, New Zealand has a good reputation as a country that complies with and respects human rights; It’s saddening that in this most crucial of areas we lag significantly behind.

And it’s wearisome that the current Government seems intent on ramping up the intensity of our current regime. The Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act was passed by the National Government with the support of ACT and United Future in 2010. The Act extends the jurisdiction of the Act to 12- and 13-year-olds, meaning that for certain offences less than murder they will be liable for criminal penalties. The Youth Court has called this the most “fundamental change to our system since its inception in 1989.” And it’s a change likely to do more harm than good.

This is because it proposes a misguided solution to a misunderstood problem. The extension of jurisdiction was justified as a move to control our worst youth offenders. But it is these very children who are most in need of care and protection. It doesn’t take a lawyer to figure out that in 99 percent of cases child offending is caused by broken homes and families; not by adolescent criminal masterminds. When Bailey Kurariki was hauled in for questioning, his parents were not present—not because they refused to go, but because the police could not find them.

Youth Justice cannot be treated as a discrete problem. Political decisions about wider societal issues are going to have the most lasting impact on youth crime in New Zealand. The Government’s touted changes to welfare will almost certainly have an effect on the ability of the family unit to act as a barrier against youth crime.

Youth Justice is an issue that lawyers and voters should be seized with. It’s a heady mix of both the legal and the political. And it’s a system we still need to perfect, if we are ever going to come close to commanding and guiding some of our most confused, scared and vulnerable.


About the Author ()

Conrad is a very grumpy boy. When he was little he had a curl in the middle of his forehead. When he was good, he was moderately good, but when he was mean he was HORRID. He likes guns, bombs and shooting doves. He can often be found reading books about Mussolini and tank warfare. His greatest dream is to invent an eighteen foot high mechanical spider, which has an antimatter lazer attached to its back.

Comments (1)

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  1. Matthew Proctor says:

    It would seem to me that enabling family group conferences to occur when the offenders are 12-13 would be a GOOD thing. Care to elaborate on why it isn’t?

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