How the legal system deals with youth offending and what you and your child can do to deal with the situation.
Case study: David
It's New Year's Eve and there's a knock at the door. It's your 15-year-old son, David, accompanied by two police officers.
David isn't real, but his story is common enough. We explain what to do next ...
David is drunk. His mate's barbecue started at midday and ended early when neighbours complained of drunken youths throwing bottles into the street. The police have just brought him home.
Ask your son to wait in a different room while you talk to the officers. Write down their names and contact phone numbers and briefly record their version of events. Ask whether David has been arrested, and if so whether and when he is due to appear in court.
David is only 15, so police may not have charged him with an offence, choosing instead to report the matter to Youth Aid for follow-up.
You might want to wait until morning to get David's side of the story. But when he does tell you, take notes of this as well - they can be invaluable to a solicitor or to David at a later date.
When talking to the police and to David, try to establish exactly what happened. What did David do? How did the police respond? Who else was there?
If David faces charges or is unhappy with the way he has been treated, he should seek legal advice. It's not always obvious when the law has been broken, and by whom. For example, if he got into a stolen car, it is an offence if he knew it was stolen, but not if he didn't.
Sometimes it's legal for police to make an arrest, and sometimes it's not. A lawyer can advise.
You can choose to consult a criminal lawyer on David's behalf, but be prepared to pay an hourly rate of anything from $150 to $500, plus GST. Free legal advice is available through community law centres for those unable to afford their own lawyer.
If David is heading for Youth Court, he will be assigned a state-funded lawyer called a "youth advocate". He will appear in Youth Court as soon as practicable following his arrest. Youth Court is closed to the public.
The law defines a "child" as anyone aged up to 13 years. At ages 14, 15 and 16, they are defined as a "young person".
Most of the time, young people who break the law are dealt with by way of a police warning or "alternative action", where the offender will carry out a set of agreed tasks as a way to put things right with the victims and/or the community.
For more serious offences and/or persistent offenders, referral to a Family Group Conference (FGC) is likely.
Family group conference
An FGC is organised by a youth justice coordinator employed by the Department of Child Youth and Family Services (CYFS). People at the FGC may include the victim and supporters, the young person and parents, family/whanau, a police youth aid officer and a youth advocate (if the matter has already been sent to Youth Court).
They will discuss the offending and try to come up with a plan to address the young person's behaviour.
An FGC can be held before the police lay a charge in Youth Court. If a plan is agreed to at such an FGC, the police may decide not to lay a charge. There is a policy to try and keep young people away from the court system.
Before the police can arrest someone they must have good cause to suspect that person has committed an offence punishable by imprisonment, or has committed some other offence and failed to provide their details, or is breaching the peace.
If the suspected offender is under 17, the police must also believe on reasonable grounds that arrest is necessary to stop them committing further offences, or to ensure they go to court, or to prevent them from interfering with witnesses or evidence.
The police can also take into custody people under 17 who appear to be "at risk". If they found your teenager wandering drunkenly along the road at 2am, say, custody is the likely consequence.
But this is not an arrest. The young person will be taken home, or if they don't want to go home, or their parents aren't willing to have them back home, to a Social Welfare safe house. As a last resort, a youth can be taken to a police station while accommodation is sorted out.
If David (see case study above) was arrested and charged, but wishes to deny the allegations, he will appear in the Youth Court, where the police will attempt to prove the charges against him.
In addition to his youth advocate, acting on his behalf, he can be accompanied by parents and other close members of his whanau/family and, if the judge consents, even by a friend his own age.
If the judge finds the case has not been proved beyond reasonable doubt, the charges will be dismissed and David will walk free from the court.
If the judge finds the charges have been proved, they will usually order an FGC to be held so the family can come up with a plan to address the offending. Once this is done and the judge has considered the plan, David will be ordered to pay a fine, carry out community work, pay reparation, and/or follow any other order the judge believes is appropriate.
Successful completion of this plan will usually result in a discharge without conviction from court (this is entered onto the police database and will be brought to the notice of a judge should David appear in court again).
Some young people don't complete their plans or mess around so much they are deemed not to have completed them, and a court order (equivalent to a conviction) is made.
If David (see case study above]) is 17 or older, he will be classed as an adult and things will go rather differently.
He may wish to seek free legal advice from a community law centre (CLC). When he appears in adult court, he will be represented either by a duty solicitor (paid for by the state) whom he consults on the day he attends court, or by a lawyer he arranges beforehand.
If it is his first offence in adult court, it's a minor charge and he accepts the charges against him, he may be eligible for "diversion". This will allow him to avoid a conviction.
Circumstances under which diversion is offered differ among police districts, and the police have broad discretion as to whom and when it is offered.
If diversion is recommended, the case will be remanded for enough time for David to complete diversion - usually around 6 weeks. He will be interviewed by the diversion sergeant, who will decide what David must do to avoid conviction.
The sergeant may, for example, order him to write a letter of apology to the victim, a police officer or to a member of the public. He may have to make a donation to a charity of his choice. And he will probably have to put something right - for example, clean the graffiti off the wall he sprayed, or help fix the fence he damaged.
Once David has completed his tasks, the case will be dismissed when next called. He will not have to appear in court for this.
Diversions are logged on a national database, and are usually offered only once.
If David is not eligible for diversion, and he pleads guilty, the duty solicitor can enter a plea in mitigation on his behalf.
After hearing the plea, the judge may discharge David without conviction (if it was his first offence and the matter was very minor), or convict and discharge him without further penalty, or convict and sentence him.
Not guilty plea
Of course, if David denies the charges, he is entitled to his day in court. To mount a successful defended hearing, a thorough understanding of the facts surrounding the incident and the applicable law is necessary. To obtain this, David will need sound legal advice.
Community law centres
CLCs offer free legal advice to the community.
The level of service differs from area to area - some CLCs operate entirely on a volunteer basis and provide advice, but no advocacy services. Others have full-time paid staff and are able to offer a full range of advocacy and advice.
Irrespective, a CLC solicitor will have more time to help David than a duty solicitor will.
Duty solicitors are available to advise people who are appearing in court and do not have legal representation.
They deal with high volumes of criminal cases, so should be able to give you a good idea of what penalty to expect if you plead guilty on the day. But they usually have only a few minutes to see each client, so may well give only the briefest of advice on possible defences.
If David is 17 or older and is convicted of an offence, he will have a permanent criminal record. This may affect his employment prospects and his ability to travel.
If David is acquitted, diverted or discharged, or if the police withdraw the charges, he will not have a conviction. This means he will have nothing to declare when applying for jobs or visas to visit other countries.
If the charges are proved against him in the Youth Court he will have had a "Youth Court order", which is similar - but not identical - to a conviction. The circumstances of his case will determine whether he has to declare anything.
Dealing with the police
If you are stopped by the police
Ask why you were stopped, and whether you are under arrest. If you are not, and you do not wish to speak to the police, you have the right to walk away. But ...
If you are driving a car, or carrying a firearm, or suspected of having committed an offence, you have to give the police your name, address and date of birth. If you refuse, you can be arrested.
Plain-clothes officers must show police identification on request.
If you are arrested
Don't struggle. If they have made a mistake, get a lawyer to sort it out later. Resisting arrest is an offence and can lead to a violent confrontation and serious consequences in court.
As soon as the police arrest you, they must inform you:
- That you are not obliged to say anything, and anything you do say may be given in evidence.
- That you have the right to consult a lawyer in private and without delay.
- The reason for your arrest.
If you are under 17, the police are required to take you home, or contact your parents/caregiver to advise them of your situation. Obviously the circumstances may dictate what happens next. For example, if both parents are working, it may make more sense for one of them to come to the police station.
If you don't want to go home, the police will contact Child, Youth and Family Services (CYFS). If it's the middle of the night, they may have to take you to a police station while they make arrangements with CYFS.
When you get to the station
The police must supply a contact list of experienced lawyers (paid for by the state) who are available 24 hours a day, and a telephone where you can talk to one of those lawyers in private and without delay.
If you are under 17, the police cannot interview you on your own. A parent or other adult support person (in addition to a lawyer, if you want one) must be present.
It is standard practice for police to search people they arrest, to discover if they have concealed weapons or evidence (such as drugs) on them.
If you haven't been arrested, they usually need your consent or a search warrant. But some laws, including the Misuse of Drugs Act, give police the right to search you if they have reasonable grounds to believe you have committed an offence under that Act.
Fingerprints and photographs
These will be taken after you're arrested. If you are later convicted of the offence, or diverted, these will be kept on file forever. If you are acquitted, or the charges are withdrawn, they must be destroyed.
When the police have finished with you
After this you may be allowed to leave the station (bailed), and will be given a piece of paper with the date on which you must appear in court. You will not have to pay money or "post bail" as in the US.
Making a complaint
If you want to complain about the way you have been treated, try to note the relevant officer's number (on their shoulders) and ask (politely) for their name.
If you were injured, get photographs taken and see a doctor, and ask for a copy of their report.
You can ask for advice on how to complain from a community law centre or the Independent Police Conduct Authority.