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RESTORATIVE JUSTICE IN CAIRNS AND CAPE YORK:

COMMUNITY-BASED JUSTICE IN URBAN AND REMOTE COMMUNITIES

A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy

By Yolie Brigitte JONGEN-SWINKELS For

Royal Melbourne Institute of Technology Department of Justice and Youth Studies

December 2003

DEDICATION

This thesis is dedicated to the memory of my beloved maternal grandparents Jan Schotte and Koosje van Schoonhoven.

Sampal bertemu lagi.

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DECLARATION

I, Yolie Brigitte Swinkels declare:

Except where due acknowledgement has been made this work is mine alone; This work has not been submitted previously, in whole or in part, to qualify for any other academic award;

The content of this thesis is the result of work which has been carried out since the official commencement date of the approved research program; and, any editorial work, paid or unpaid, carried out by a third party is acknowledged.

Yolie Brigitte Jong' -Swinkels

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ACKNOWLEDGEMENTS

Many special thanks to Dr. Nerina Caltabiano (JCU, Cairns) for your patience, time and efforts. All this without any complaints! Thank you, Associate Professor Scott Phillips and Associate Professor Peter Kell for your support, time and encouragement- it helped me greatly when I needed it most.

Very special gratitude goes to Martin Benson, without whom this project would have been near impossible to accomplish. How you could put up with me during this research period is beyond rational comprehension. Many thanks to `mijn jongens', Kalim and Rudy, for putting up with my somewhat erratic behaviour particularly towards the end of the research. Sorry I did not get to spend more time with you, piggy, but what matters is quality, not quantity! I promise I will make up for it, big time.

Many thanks too, for my long lost cousins in Victoria, Leo and Els van Soestfor your hospitality, humour and support! (.... you sure we are related?!)

This research would not have been possible without the cooperation and assistance of various professionals connected with the Queensland Community Conferencing Program, in particular professionals connected to the Cairns Office of Department of Families, Youth and Community Care, Queensland.

My grateful appreciation to the level of co-operation, expertise and support from recently appointed professionals to the program and to officers associated with the Juvenile Aid Bureau (JAB). These professionals displayed a high level of professionalism and were a valuable source of information and support. Thanks to Dr. Greaves for editing and Dr. Asher for his assistance and comments.

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DISCLAIMER

The views expressed in this research are solely those of the researcher. As such, this research constitutes a completely neutral and independent assessment of the implementation of the Community Conferencing Program in Cairns. Therefore, readers should not attribute the view and interpretations described in this research to any agencies or professionals contacted in connection with this research.

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TABLE OF CONTENTS

Page Title Page Dedication Declaration Acknowledgement Disclaimer Table of Contents Definitions Summary INTRODUCTION AND OVERVIEW CHAPTER 1 1.0 JUVENILE JUSTICE AND COMMUNITY CONFERENCING IN QUEENSLAND: AN HISTORICAL PERSPECTIVE Developing approaches to Juvenile Justice The Welfare Model The Justice Model The Juvenile Justice Act, 1992 Old) Community Conferencing Aims and Objectives Potential Benefits The Role of the Victim Victim Offender Mediation Relating Juvenile Justice to Remote Indigenous Communities in Queensland The Bases of Community Conferencing Restorative Justice Indigenous People and the Restorative Approach Historical Context Community Justice Groups Kowanyama Palm Island Hopevale Concluding Remarks COMMUNITY CONFERENCING : THEORIES AND CONCEPTS Conflict Theory Labelling Subcultures Theory iv vi-xi xii 1 3 11

Part A 1.1 1.2 1.3 1.4 1.4.1 1.4.2 1.4.3 1.4.3.1 Part B 1.5 1.5.1 1.6 1.6.1 1.6.2 1.6.2.1 1.6.2.2 1.6.2.3 1.6.3 CHAPTER 2 2.0 2.1 2.2 2.3

14 16 18 20 20 21 23 27 28 28 30 33 37 42 45 48 52 53 55 55 59 61

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2.3.1 2.4 2.5 2.6 2.7 2.8 2.9 2.9.1 2.9.2 2.9.3 2.10 2.10.1 2.10.2 2.11 2.11.1 2.12 2.13 CHAPTER 3 3.0 3.1 3.2 3.3 3.4 3.4.1 3.5 3.5.1 3.5.2 3.5.2.1 3.5.3 3.5.4 3.6 3.6.1 3.6.2 3.6.3 3.6.4 3.6.6 CHAPTER 4 4.0 4.1 4.1.1 4.1.2 4.1.3 4.1.4

Culture -- Conflict Theory Deviant Behaviour Perspective Social Control Theories Indigenous Critiques Discussion Neutralization Re-integrative Shaming ACT: Re-integrative Shaming Experiment ACT: The Responsible Citizenship Program New Zealand: Family Group Conference Affect Theory The Wagga Model Qld Education South Australian Research S.A: Juvenile Justice - SAJJ Queensland Pilots Additional Research Findings RESEARCH METHODS AND

66 66 68 70 74 76 79 81 84 85 88 90 93 94 94 97 100 103

METHODOLOGICAL ISSUES Subjects 103 Definition of the Region in which conferences 105 were conducted Data Sources Comparative analysis of the data Recidivism Rates Implementation of Measures Evaluation Methodology Qualitative and Quantitative data Measurements Court Data Evaluation Conferencing Data Evaluation Methodological Problems encountered The Gatekeepers Staff Turnover Low Referral Rates Internal politics in the Cairns Justice System Summary THE CAIRNS COMMUNITY CONFERENCING PROGRAM Community Conferencing Offenders by Ethnicity Victims by Ethnicity Support People Recidivism and Conferencing

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106 109 111 111 111 112 113 115 115 115 116 117 117 118 119 120 120 122 123 124 126

4.1.5 4.1.6 4.1.6.1 4.1.7 4.1.8 4.1.9 4.2 4.2.1 4.2.1.1 4.2.2 4.3 4.3.1 4.3.1.1 4.4 4.4.1 4.4.2 4.4.3 4.4.4 4.4.5 4.4.6 CHAPTER 5 5.0

Offences Conferenced Community Conference Outcomes Compliance with Conference Outcomes Outcomes by Ethnicity Cost Involved Summary of Comparative Findings Cairns Children's Court Community Based Orders Compliance with Court Orders Non - Community Based Orders. Questionnaire Results: Participants Participants' Satisfaction Summary of Findings Questionnaire results: Key Stakeholders Source of Referrals Police JAB Judges and Magistrates Solicitors Summary of Findings MAKING SENSE OF THE CAIRNS COMMUNITY CONFERENCES I: Comparisons with traditional responses to juvenile offending

130 132 134 135 135 137 138 140 141 142 145 146 153 156 157 159 163 167 169 173 175

5.1 5.1,1 5.1.2 5.2 5.3 5.4 5.5 5.6 5.7 5.7.1 5.7.2 5.7.3 5.7.4 CHAPTER 6 6.0

Recidivism Rates Status Prior to Court Recidivism and Ethnicity Orders by Ethnicity Court Appearances and Conference Attendance by Ethnicity Ethnicity and the Juvenile Justice System Compliance Rate Costs Queensland Pilots Ipswich Logan Referrals and Actual Conferences Held Costs Compared MAKING SENSE OF THE CAIRNS COMMUNITY CONFERENCES II: An evaluation perspective Measuring Success Referral Rate Reparation Recidivism

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175 178 179 181 183 183 184 185 186 186 187 187 188 192

6.1 6.1.1 6.1.2 6.1.3

192 193 196 197

6.1.4 6.1.5 6.1.6 6.1.6.1 6.1.7 6.1.8 6.1.8.1 6.1.9 6.1.10 6.2 6.2.1 6.2.1.1 6.2.1.2 6.2.2 6.2.2.1 6.2.2.2 6.2.2.3 6.2.2.4 6.3 6.3.1 6.3.2 CHAPTER 7 7.0 7.1 7.1.1 7.1.2 7.2 7.2.1 7.2.2 7.3 7,3.1 7.3.2

Participants' Satisfaction Family Responsibility Victim Participation Indigenous Victims Community Involvement Diversion Cautions Cultural Appropriateness Cost Effectiveness Bias in the Juvenile Justice System: Discussion Direct Discrimination Cautions by Ethnicity Referrals Indirect Discrimination Sentencing Disparities Detention Court Support for Indigenous Juveniles Agencies Bias in the Juvenile Justice System: Results Results of Direct Discrimination Results of indirect Discrimination FINDINGS Community Conferencing: Key Findings Community Conferencing: Recommendations Community Conferencing: Concluding Remarks Other Major Findings Recommendations Discussion Concluding Remarks Recommendations Future Directions

200 201 201 203 205 206 206 208 208 209 209 210 210 210 211 212 213 215 215 216 217 218 218 219 222 225 227 229 230 231 237

APPENDICES REFERENCES

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LIST OF TABLES AND FIGURES

Figure 1 Map of Cairns Region Figure 2 Map of Cape York Figure 3 Cycle of prejudice and discrimination Figure 4 Population pie Figure 5 Number of Community Conferencing referrals in Cairns Figure 6 Number of conferences held in Cairns Figure 7 Offenders by Ethnicity Table 1 Comparison of Court appearances

4 44 61 104

120 122 122 123 124 125 125 126 129 131 133 135 139 141 144 145 148 148 148 148 149 149 150 151 151 151

Figure 8 Victims by Ethnicity Figure 9 Offender support Figure 10 Victim Support Table 2 Table 3 Table 4 Table 5 Table 6 Status of offender pre-conferencing Rate of re-offending post conferencing Offences conferenced Conference outcomes Cost for Cairns

Figure 11 Court appearances by ethnicity Table 7 Table 8 Table 9 Community based orders by ethnicity Non community based orders by ethnicity FTA and Remands by ethnicity

Table 10 Degree of fairness Table 11 Degree of understanding Table 12 Ability to communicate Table 13 Respectful Treatment Table 14 Level of satisfaction with outcome Table 15 Degree of wanting to work things out Table 16 Level of sorting things out Table 17 Degree of victim coercion Table 18 Degree of understanding by others

Table 19 Level of understanding participants

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Table 20 Ability to make a fresh start Table 21 Level of support Table 22 How do you feel now? Table 23 Source of referrals Figure 12 Proportion of recidivists in Courts Table 24 Court outcomes by ethnicity Table 25 Conference outcomes by ethnicity Table 26 Characteristics of juvenile offenders Table 27 Participation in the YJS by ethnicity Figure 13 Map of Queensland Pilots sites Figure 14 Number of referrals compared Table 28 Cost for Logan Table 29 Cost for Ipswich Table 30 Cost for Cairns Table 31 Does the program work?

152 152 153 159 178 181 181 183 184 186 188 189 189 190 223

DEFINITIONS

The Department

During the course of the research, the Department of Families, Youth

and Community Care changed its name three times. In this thesis the Department of Families will therefore be referred to as "The Department" only. Indigenous Indigenous people are those people who have a Torres Strait Islander or

Aboriginal background, and are accepted by their respective communities as belonging to that community. Non-Indigenous includes non-indigenous young people and those whose indigenous status is unknown or not stated. Juvenile A person over ten years of age and who has not turned 17 years of age.

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SUMMARY A community conference involves a meeting between an offender and his or her victim, which normally lasts from 60 to 90 minutes and includes an introduction and a discussion of the offence and its impact, as well as a discussion of the agreement. In addition to the person who has admitted to an offence and his or her victim, those present include support people, a police officer and a conference convenor. The conference allows the juvenile offender to 'make amends', and participation not only gives the victim empowerment (a 'say' in the outcome), but also has the potential to restore the place of the victim in the justice process. Apart from an apology from the offender to the victim, outcomes may include: payment of compensation, the undertaking of unpaid work for the victim or the community, or counselling of the perpetrator. Outcomes are agreed upon by all parties and are legally binding. Referrals to conferencing can be made by the courts or by the police, or can be included as a sentencing option in a pre-sentence report ordered by the court and submitted by an officer of the Department of Families of Queensland.

Community conferencing offers an opportunity for young offenders to take responsibility for their actions. It provides a mechanism for the victims to be involved in the justice process and it has the potential to heal hurt inflicted by the offenders upon their victims. Conferences bring people face-to-face with the reality of the offence, highlight personal responsibility and clarify harm caused. The most direct damage has been done to the victim and, therefore, the victim has the highest stake in negotiating a settlement. The victim is no longer a 'faceless' member of society, and is less likely to categorise the offender as 'one of those young criminals' when faced with a small and somewhat pathetic juvenile. Both parties are encouraged to have support people with them. Skilled convenors and co-ordinators conduct the conferences (Unpublished, DFYCC, 1999: 1-5),

A Community Conferencing Program commenced in June 1999 in the Cairns region of North Queensland. This research is a longitudinal study, which traces the criminal careers of a group of juveniles over a period of two years. The two year time frame makes it possible to estimate the impact of an alternative sentencing option and its relation to the level of recidivism. Although community conferencing deals with both adults and juveniles, this thesis examines the implementation of a Community Conferencing Program for

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juvenile offenders, aged between 10 and 17, only, No previous research of this kind has been conducted in the Cairns region.

Due to the over-representation of indigenous youth in the criminal justice system, the thesis pays particular attention to indigenous issues and describes community-based justice and the restorative approach in Aboriginal communities in Far North Queensland. For comparative reasons, the thesis identifies juvenile offenders as indigenous or nonindigenous in both the Community Conferencing Program and the Cairns Children's Court.

The research makes recommendations for the possible future development of conferencing and argues the case for it as part of an integrated justice system, which satisfies the community as a whole, is culturally appropriate, and fits within the guidelines of the judicial system.

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INTRODUCTION AND OVERVIEW The introduction of community conferencing in Queensland is consistent with Australian trends in youth justice. All eight Australian States and Territories have used the conferencing model. Although there is considerable variability between Australian jurisdictions in the implementation of restorative justice programs, in all States the introduction of community conferencing involved major reform of juvenile justice practices, as well as a limited eligibility criterion (Juvenile Justice Program, Community Conferencing: Preliminary Evaluation Report, 1998: 2). Western Australia began to use the conferences regularly in 1993 and South Australia in 1994, the Australian Capital Territory in 1995 and New South Wales in 1998. In Victoria, a community organisation working in State agencies uses the conference model in selected cases as a pre-sentence option (Strang, 2001: 2). During 1992 and 1995, police-run conferences were tried as pilots in Western Australia, the Northern Territory, Queensland : .?icl Tasmania, as well as in schools and workplaces in New South Wales and Queensland. In Tasmania and the Northern Territory, conferencing has only just begun under statutory-based schemes. The Northern Territory's 1999 legislation includes conferences as one of several court- ordered diversion programs and, unlike any other statutory schemes, conferencing in the Northern Territory is used as a diversion from mandatory detention, not court. However, since September 2000, the Northern Territory has focused attention on diverting juveniles' cases from court for 10 to 17 year-olds (Daly and Hayes, 2001). Community conferencing was introduced to Queensland as a new diversionary response for dealing with juvenile offending as part of the 1996 amendments to the Juvenile Justice Act 1992. Based on the success of the Queensland pilots in Ipswich and Logan, it was recommended that conferencing services be made available statewide. In November 1998, the Minister for Families, Youth and Community Care announced that conferencing would be available in Cairns the following year. Consequently, a fourth project was established in Far North Queensland in June 1999 for young offenders aged between 10 and 17. The region covered by this research includes seven shires with a total population of 204,877 as at 30th June 2000 (Calculated from 30 June 1996 census results and projected population growth rates, ABS). ( See Figure 1 )

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Figure 1: Map of the Cairns region

Previous research of the other three Queensland pilots indicates that the evaluation period of these pilots - from April 1997 until June 1998 - was such that it was not possible to make any conclusive findings regarding the effectiveness of conferencing with respect to recidivism. This research endeavours to address issues which were not addressed in the previous evaluation conducted by Griffith University and published in 1998, These issues include a comparative analysis of conferencing with other juvenile justice interventions, with respect to costs and recidivism; analysis of the low rate of referrals; the underrepresentation of indigenous referrals to the program and how conferencing might address the over-representation of this group in the justice system.

This is an evaluation of efforts to reduce juvenile recidivism. The time period chosen is two years and includes the recidivism rates post-conferencing and therefore should be a reasonable indicator of the program's effectiveness in terms of recidivism. The research will contribute to the ongoing debate regarding the high incidence of juvenile recidivism in general and increase knowledge of juvenile offending and its consequences. The results of

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this study will also add to and complement pilot programs already operating in Ipswich, Logan City and Palm Island since 1997. All knowledge gained by this research can be used to modify, develop and meet the specific needs and expectations of the Community Conferencing Program.

Generally, offenders are not made to personally face the hurt they have caused, and victims do not experience healing or recognition of their suffering. Community Conferencing, by contrast, is intended to address these aspects of the way people experience justice.

By decreasing social distance between victim and offender, the offender faces the

human consequences of the offending behaviour. It is argued that this in turn improves the offender's social behaviour. In the case of Aboriginal offenders, breaking this barrier allows for deep effects. Past generations of Aborigines suffered greatly under racism. Fortunately, it appears that today's generation tries to break away from passive acceptance and publicly challenges its perpetrators. Racism forms barriers to social integration, which Aboriginal juveniles find hard to cross (Beresford and Om* 1996: 130).

Participation allows for an increase in self-esteem and a sense of self-worth in both

victims and offenders. For indigenous offenders and victims in particular, the experience of racism renders its victims vulnerable to the development of low self-esteem, and feelings of helplessness can culminate in hostility. Conferencing allows the offender and victim to express their feelings. If shame and guilt are consciously acknowledged, indignation can be transformed into something positive. The expression of shame, followed by the ritual of apology and forgiveness, offers an alternative to anger (Strang and Braithwaite, 2001: 135).

Through confrontation with the perpetrator, the victim's chances of healing will be

greatly improved and for accelerated, When people suffer from loss or a setback and are unprepared to cope with this, their situation can cause stress and anxiety. An anxious person becomes tense and uneasy (Meyers, 1986: 415). It is hoped that participation in the program and facing the offender, will release the stress and anxiety.

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The effectiveness of the program is compared with the more conventional method of dealing with juvenile offenders, namely through appearances and sentencing in the Children's Courts. Comparisons are made along a number of dimensions, including ethnicity, outcomes, criminal histories, recidivism and costs. Due to the high number of indigenous residents in the research region, the research distinguishes between indigenous and non-indigenous offenders, Effectiveness is defined as the program's ability to meet its stated aims and objectives, and the research examines this effectiveness according to a variety of relevant outcome criteria. The following key questions guide the research:

Has the program met its stated aims ?

Are the participants satisfied with the process and outcomes?

What are the opinions and attitudes of the key stakeholders towards the program?

Is the program a viable alternative to the present system of dealing with juvenile offenders?

How does restorative justice apply to indigenous people?

Is there a racial bias in the program or in the court system?

How does the program compare with the Children's Court in terms of recidivism, ethnicity and outcomes?

How does the program compare with other Queensland Pilots in terms of referrals and costs?

The introduction of the Cairns program was of particular interest to the researcher. As an employee of the Department in Cairns for five years, (including Court Officer and acting

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Team Leader in the Juvenile Justice section), the researcher accumulated a thorough knowledge of the justice system and professionals involved. This position allowed for research in the implementation and progress of the program using participant observation techniques, particularly as acting Court Coordinator dealing with juvenile court appearances. Consequently, the researcher developed a professional knowledge of the histories of the juveniles involved.

The evaluation of the program is the first of its kind in Cairns and the subsequent findings will extend knowledge in the field, especially given that community conferencing has not been previously tried in this particular mix of indigenous and non-indigenous cultures. The results of this research will hopefully inform the development of more culturally appropriate strategies to reduce juvenile recidivism.

The first chapter is divided in two parts and provides an historical overview of the Juvenile Justice System in Queensland and includes a description of The Juvenile Justice Act 1992 (Queensland), which constitutes the legislative framework of community conferencing. This is followed by a statement of the aims and objectives of community conferencing

The first chapter also shows how the inadequacies of the Juvenile Justice System led to the historical beginnings of community conferencing, from the restorative justice approach to the subsequent development and establishment of community conferencing, Particular attention is paid to restorative justice and the implementation of this approach with indigenous people. This chapter provides examples of Community Justice Groups in some remote indigenous communities in Queensland's far northern region.

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The second chapter reviews the theories and concepts on which Community Conferencing is based and discusses previous research and findings, both within Australia and internationally.

The third chapter describes the methods used to collect, compare arid analyse data on criminal histories, conferencing experiences and recidivism. This chapter describes obstacles encountered and provides a summary. It also notes that ethical clearances of the RMIT Ethics Committee were sought and granted, and additional questionnaires were sent by the researcher to key stakeholders including two judges, three magistrates, eight solicitors, officers of the Juvenile Aid Bureau, and officers of the Police Prosecutions. Prior to sending the questionnaires to police, ethical clearance had to be granted by the Queensland Police Department,

The results of this empirical work are presented in Chapter Four and are based on file information, data collection, and interviews with conferencing participants as well as the results of interviews with key stakeholders. In order to establish levels of satisfaction with the process and the outcomes, a standard questionnaire, for all conferencing participants, structured by the Department of Families, was distributed immediately following each conference. Included in this section is an analysis of the questionnaires returned by the key stakeholders, who were interviewed by questionnaire approximately 18 months after the commencement of the pilot program and were thus in a position to have reflected on its effects.

Chapter Five discusses comparisons between the children's court and conferences in terms of recidivism, ethnicity, compliance, and outcomes. In addition to the research in Cairns, this chapter provides comparisons with two other pilot programs in Queensland, namely Logan and Ipswich in the metropolitan South-East, in relation to referrals, conferences held and costs involved.

Chapter Six measures success of the Cairns program and describes the implications and conclusions drawn from the implementation of community conferencing in Cairns, In addition, this chapter discusses bias in the criminal justice system in relation to the research.

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The final chapter summarises the major findings of this research, and makes recommendations for future directions. In making these recommendations, reference is made to the most recent amendments to the Juvenile Justice Act, implemented on 1t July 2003.

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1.0 JUVENILE JUSTICE AND COMMUNITY CONFERENCING IN QUEENSLAND: AN HISTORICAL PERSPECTIVE

PART A: DEVELOPING APPROACHES TO JUVENILE JUSTICE

The systems developed for dealing with juvenile delinquency and crime are created in a particular historical context (Cunneen and White, 1995: 8). The history of juvenile justice in Australia has been one of constant amendment and reform to legislation, policy and practice (Alder and Wundersitz, 1994: 2).

Contemporary systems dealing with children in State care in Queensland had their foundations in the 1860s and 1870s, when legislation was enacted in the Industrial and Reformatory Schools Act 1865 and the Orphanages Act 1879. These Acts formed the basis of today's child and family welfare and juvenile justice systems (Forde Inquiry Report, 1999: 31).

Until the latter part of the 19th century, there was no legal differentiation between children and adults and the same courts dealt with all accused persons in the same way, regardless of age. The child welfare system in Queensland has run parallel to the juvenile justice system from the 1860s and, as in the juvenile justice arena, children committed into the State welfare system have been drawn from the communities of the urban poor (Forde Inquiry Report, 1999: 31). In 1866, the Offenders Probation Act and the Juvenile Justice Act were passed in Queensland. Both Acts contained separate sections relevant to sentencing juvenile offenders (Forde Inquiry Report, 1999: 43) and reveal a softening of the approach to juvenile offending. Separate juvenile courts were established by the end of the 1 gth century.

With the emergence of towns like Brisbane, Rockhampton and Townsville in the late 1800s, juvenile crime and delinquents had become a priority for the social reform agenda. The `child saving' policy introduced alternative methods of dealing with neglected and criminal children appearing before the lower courts, resulting in the passing of the

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Children's Court Act 1907 (Forde Inquiry Report, 1999: 43). With this Act came an acknowledgment of the need to have special courts for children. Consequently, a separate Children's Court was established which used the law to ensure that parents' responsibilities were met and that neglected children in particular were not exposed to the atmosphere of the adult court.

State care was mainly attributed to poverty, and in 1911 the State Children Act (SCA) allowed for children to be committed to an orphanage or to foster families. These children were not so much abandoned as victims of poverty. Between 1906 and 1930, monetary assistance for the poor resulted in state-assisted families becoming the largest clients within the Orphanage Department. However, the 1930 depression resulted in an unwillingness of many women to take on the responsibilities of a foster child, In addition, following the Second World War, a number of British children migrants became part of the Empire-wide social experiment designed to bolster the population (Ford Inquiry Report, 1999:31). The introduction of widow's pensions and child endowment payments to families in 1942, resulted in a much stronger capacity of needy families to maintain their children at home (Forde Inquiry Report, 1999: 38).

In its provisions dealing with the administration of juvenile justice, the Children Services Act 1965, was the legislative enforcement of the welfare model and this welfare mod& became popular in Queensland in the late nineteenth century and dominated theory and practice until the 1970s and 1980s (Forde Inquiry Report, 1999: 45). However, in the 1960s, this approach came under attack from both civil libertarians and the law-and-order lobby because it failed to hold the young offender accountable and because it also denied the young offender access to legal protection, There was also an increasing concern about the well-being of those children left in the care of welfare bureaucracies. In this model, issues of neglect and offending behaviour were often intertwined without proportionality between the offence and the sentence. This approach allowed for indeterminate sentencing and there was excessive administrative discretion (Cunneen and White, 1995:192).

At present, youth justice seems to be at a cross-road, particularly as victims of crime in the community feel that youth justice is just a 'slap on the wrist'. Every second week there is a

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sitting of the Children's Court in Cairns and, outside the courtroom, comments made by parents can be heard, similar to: ' How is my son going to learn not to do drugs? All he got was a Good Behaviour Bond! Look at him now, he's laughing.'

Comments along these lines are also featured in press coverage juvenile crime and examples of such coverage are described on pages 25 and 32 of this thesis.

( Sunday Mail of 29 August, 1999:33 and Cairns Post, 31 July, 1999: 8 respectively).

In the application of juvenile justice, models are used to describe a general approach to justice, which encompasses a number of related ideas, The system working with young offenders has often been seen as alternating between the model of justice and a model of welfare. In practice the juvenile justice system represents aspects of both models. Both models have been justified by theories about the deterrent effect of various treatments (Atkinson and Gerull, 1993: 203). Alternatively there is the option to further develop the restorative justice approach, which has taken some aspects of each model as well as adding new ideas.

In order to understand the influences of the models on restorative justice, a brief description of them is provided in the next sections.

1.1 THE WELFARE MODEL

The welfare model was the legislative and administrative expression of the reform efforts of the nineteenth century humanitarian concerns about the treatment of children in the adult penal system. A changing understanding of the causes of crime and the emergence of a positivist school of criminology helped shape and develop this model. In Australia, during the late 1950s to late 1970s the welfare model found its fullest expression in sentencing. The most desired outcome was reform, and it was believed that the longer the reform process, the greater the chance of a successful outcome (Practice Framework Manual, 1997:1-2)

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The welfare model tends to see the behaviour of young offenders as a social problem.

Its main philosophical underpinnings include:

A preference for treatment rather than punishment; the aim being to cure the social

causes underlying offending behaviour;

Rehabilitation as the primary goal; A belief that behaviour is outside the control of the individual; A focus on providing treatment through appropriate interventions; An emphasis on an individual's needs rather than on their deeds; Provision of treatment outside the justice process and involving professional health

care workers (Forde Inquiry Report, 1999: 43-4).

By the 1970s and particularly in the 1980s, there began a swing away from the welfare model. Criticism became more general and more multi- faceted, Three sets of concerns were dominant. One set of concerns concentrated upon the extent and nature of intervention on people's lives that was allowed, unchallenged, in the name of rehabilitation (Hudson, 1987: 2). This group was particularly critical of the prison system and social workers, criminologists and social control theorists and politicians were concerned about the power of the state over the powerless and over the underprivileged class ( Hudson, 1987: 22). Such a perspective is critical of indeterminate sentences and with community based schemes, particularly in relation to juvenile justice (Hudson, 1987: 25).

A second set of concerns principally were focussed on to the disrepute into which courts and other aspects of the administrative justice had fallen during the rehabilitative era, This critique was concerned with disparity in sentencing which resulted from a system which looked at the offender rather that the offence. The concern centred around abuse of discretion by allowing whims and tempers of judges to influence sentences (Hudson, 1987: 26-7).

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The third set of concerns focussed on perceptions that sentences were not adequately commensurate with the gravity of offences. This perspective is often associated with a 'get tough' approach and its critique centred on the treatment approach which it is felt, was ineffective in reducing the amount of crime and encouraged immoral and predatory people to think that they could get away with crime ( Hudson, 1987: 28).

By the mid 1970s the chorus of these criticisms had reached a crescendo. The disparate voices, speaking from a diversity of perspectives, formed a litany of demands for reform (Hudson, 1987: 29). This resulted in an emerging model, which took into account the child's characteristics and circumstances of the offence committed, in order to seek an appropriate treatment (Forde Inquiry Report, 1999: 46). This new model is called the justice model and is discussed in the following section.

1.2 THE JUSTICE MODEL The belief in rehabilitation wavered, while other sections of the community were demanding sterner punishments, and there was the belief that that social workers, psychiatrists and therapists softened the criminal justice process. Together these critiques amounted to a formidable attack and they facilitated the emergence of the justice model.

The main philosophical ideas associated with the justice model are:

A view of juvenile delinquency as a psychological problem whereby young

offenders have exercised their free will inappropriately;

That the young offender accountable is a rational human being, and that

punishment accords with the seriousness of the crime (in line with the 'just desert' theory);

Rehabilitation as a secondary goal in sentencing; Protection of the offender's rights through due process; Emphasis on the offence, not on the offender (Hudson, 1987: 38).

Initially, the success of this model was due largely to the way in which it appears to offer all things to all people. To the liberal lawyers it promised a restoration of the legitimacy and

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respect accorded to the legal system by reducing too wide discretion and consequent disparity in sentencing (Hudson, 1987: 37-8). To the right wing law and order lobby the model appeared to guarantee 'swift and sure punishment' by ending leniency and soft sentencing. To radical academics, social workers and campaigners against the excessive use of punishment, the model promised to take away judicial prejudice by the protection of the rights by due process (Hudson, 1987: 38)

Although this model was widely accepted and adopted as a significant, progressive reform of the juvenile justice system, the justice model has been subject to criticism for its failings in regard to due process in the Children's Courts and its tendency to ignore or to minimise factors that may genuinely have contributed to the offending behaviour (Forde Inquiry, 1999: 47). In line with State governments across Australia, by the mid 1990s the Queensland State Government expressed its commitment to justice-based models of dealing with juvenile offenders. Consequently, the welfare- based Children's Services Act 1965 gave way to the justice-based Juvenile Justice Act 1992 (Forde Inquiry, 1999: 47).

As inadequacies within the justice system, and within the two models, became more and more evident, restorative justice became a much sought-after alternative to the limitations of the rehabilitation and retribution models. In an acknowledgment of the criticisms of systems based upon the justice model, the Juvenile Justice Act 1992 incorporates a number of important welfare provisions. These include measures to encourage the diversion of young people from the criminal justice system where possible (Forde Inquiry, 1999: 47).

1.3 THE JUVENILE JUSTICE ACT, 1992 (QUEENSLAND) The juvenile justice system is a framework of laws, policies, institutions and practices providing for the processing of children who have committed, or are suspected of having committed an offence. The legal basis for dealing with these offenders in Queensland is primarily set down in The Juvenile Justice Act, 1992 (The Act). In 1996, changes were made to the then Queensland Juvenile Justice Act 1992, to provide for the introduction of community conferencing for young offenders.

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The juvenile justice system in Queensland is administered through the co-operative workings of a number of government departments. The majority of offences committed by juveniles are dealt with in the Children's Court; this Court provides a specific environment in which matters involving juveniles may be heard. In a distinct move towards the justice model, the Act provides a comprehensive framework for dealing with juvenile offenders whilst being aware of their vulnerability. The Department of Justice has responsibilities for the provision of, access to, and administration of, community conferencing under this Act (Unpublished paper, DFYCC, Juvenile Justice in Queensland, 1997: 1). According to the Act, children under the age of ten are not criminally responsible and therefore cannot be found guilty of a criminal offence. In cases where children are aged between 10 and 17, it is assumed that the child has the capacity to know that what he or she was doing was wrong and therefore can be held criminally responsible. Children aged between 10 and 17 years of age may be held legally accountable for any offence they commit and they may be apprehended and dealt with for any offence they commit.

The major differences between the processing of children and adults in the justice system is that in the case of a child, an adult has to be present if the matter is heard in court, the police have the discretion to caution the child rather than proceeding with the matter to court and there is a separate sentencing code for children (Unpublished paper, DFYCC, 1998: 180). The Juvenile Justice Act, 1992 (Section 18H(1)) requires that the following conditions are met prior to proceeding with a referral to a community conference: The juvenile offender must admit guilt A caution is inappropriate, and the matter would otherwise have been sent to

court if a referral to a conference was not made. The police consider that a referral is more appropriate than starting court

proceedings. An approved community conference convenor is available. Victim consent is required before a conference can be held, regardless of

whether or not a victim will be attending the conference.

In addition, the Juvenile Justice Act 1992 states (18A5): In deciding whether or not it is appropriate to refer an offence to a community conference, the police officer or the court must have regard to-

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1. 2. 3.

The offence's nature; and The harm suffered by anyone because of the offence; and Whether the interest of the community and the offender would be served by

having the offence considered or dealt with in an informal way.

A community conference is an opportunity for everyone affected by a crime committed, to participate, discuss and to address the consequences of the offending behaviour. The process commences with a police officer or a court referring the offender to a conference.

1.4 COMMUNITY CONFERENCING This section describes the aims and objectives of Community Conferencing, and discusses potential benefits of the program. The section also provides an overview of the role of the victim in the justice system, and particular attention is paid to the victim in restorative justice.

1.4.1 AIMS AND OBJECTIVES The court may refer a matter to community conferencing when the principles of the Juvenile Justice Act are being met. Each aim of a community conference is in accordance with the principles of the Act and include:

Accountability: To ensure that the young person is held accountable for their offending behaviour, by giving them the opportunity to: accept responsibility (admit the offence(s) understand the consequences (hear the harm caused) make amends (apology, restitution, other action)

Reparation: To provide an opportunity for both the victim and offender to determine a mutually acceptable response to repairing the material, psychological and social damage caused by the crime.

Reintegration: To strengthen the social and personal connections the young person has with their family or community of care and with the wider community. Also to provide an opportunity for healing and reintegration for the victim.

Reduce Recidivism: To reduce re-offending by clearly denouncing wrongful actions and encouraging victim empathy.

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Family responsibility: To enable the family of the young person to participate in the process of deciding an appropriate response to offending behaviour and supporting them in the implementation of that response.

Victim participation: To provide the victim of criminal offences with an opportunity to be part of the process of dealing with those offences, Community involvement: To encourage greater community participation in providing support for young people and victims of crime. Diversion: To divert young people from further involvement in the criminal justice system. Cultural appropriateness: To provide a process for dealing with offending behaviour which is appropriate for the young person's age, maturity and cultural background."

(The Community Conferencing Guideline for Area Office Staff and Court Services Staff May 1999: 1).

1.4.2 POTENTIAL BENEFITS Juvenile crime costs the community dearly: victims not only suffer the immediate effects of the criminal behaviour, but they can be left with a fear that the crime against them may be repeated. The rest of the community pays the price in terms of costs associated with police time, courts and legal assistance. The young offenders lose too: the justice process can leave them feeling isolated from the community in which they have offended. As a result, the offenders may be more inclined to commit further offences and set a pattern of crime and subsequent punishment. Community conferencing attempts to break this cycle of crime and punishment, and to reduce pain and cost to the community, particularly to the victims.

The potential benefits of Community Conferencing are many and, for a variety of reasons, positive effects may be felt in different groups within the community. People and groups who could benefit from conferencing include the offender, the offender's family, the victim and the community. The young offender has a key role as an active participant, and the family is a support group only (Unpublished pamphlet: Community Conferencing April,

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1999:1-3). Theoretically, conferencing has the potential to strengthen ties between communities and their young people. Participation in a conference may increase respect for the law, and the potential of the conference as an effective early intervention tool would show in fewer offences being committed. Less crime would mean less cost to the community and, in its way, the community contributes to problem solving without legal proceedings or government intervention. Ideally, through conferencing, a community gains by being taught a new way to solve problems collectively (Community Conferencing Preliminary Evaluation Report, 1998: 24-32). Sarre and Tomaino (2000: 40-9) regard this restorative justice approach as encouraging greater flexibility in policing, therefore allowing greater levels of community involvement and input. Offenders are provided a forum wherein they have the chance to admit their wrongful actions and to understand their consequences for the victim.

The restorative justice approach features compensation, victim support, and the opportunity for offenders to take responsibility for harm inflicted (Wright, 1991: 117). The result of this ought to be an apology, which could be accompanied by an offer of compensation (Cragg, 1992: 171). The offender is empowered by taking an active role in a process which is non-stigmatising and is re-integrative. Conferencing provides the opportunity to have a constructive discussion with the young offender, encourages involvement and sharpens family responsibility.

According to Tomaino and Sarre, around 1917 a number of theorists highlighted the inadequacies of the punitive system of justice (2000: 39) and consequently a major shift in thinking allowed for rehabilitation to be incorporated into punishment. Although crimes traditionally have been related to punishments, the traditional justice system does not take into account the psychological reactions of offenders to punishment, or the social origins of crime. Victims, in particular, have been excluded from the crime-punishment equation when administration of the law was taken away from communities and conferred on official governments. The victim became disempowered and no provision was made for the repair of social injury and the possibility of repentance and forgiveness (Tomaino and Sarre, 2000: 41). Indeed, the role of the very term "victim" is not in the lexicon of the police or the legal system, instead "witness" and "complainant" are used. These words alone effectively distance the crime victim from a process that actually involves victims and perpetrators in equal measure (Neiderbach, 1986: 9). In an era of increasing crime and decreasing

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respect for the criminal justice system that seems to protect criminals and ignore victims, community conferencing places the victim in a central role. Therefore, the role of the victim in community conferencing is discussed in the following section.

1.4.3 THE ROLE OF THE VICTIM Many victims are obstructed by the court system to obtain what they want. According to Strang (2001), research both internationally and in Australia indicates that restorative justice, at least in the form of community conferencing, may address most of the issues related to the victim's place in the justice system. A key feature of the conferencing model is that the victims are brought back into the justice process.

A growing dissatisfaction with the almost exclusive focus of modern systems of criminal justice on the offender, resulted in victims' rights groups calling for procedural justice. Although it was widely accepted that the State should compensate victims of crime, victims remained alienated from the state-centred justice system ( AIC: Alcohol and Crime, 1995: 3). They had no opportunity to express their hurt and this lack of opportunity slowed the healing process. Victims are not always kept informed of the progress of their cases and in court the victim is often revictimised. Fear of punishment may spur the offender to blame the victim, for example in alleging provocation, This may increase the victim's reluctance to report the offender. Subsequently, victim support specialist groups have been established for victims of particular crimes, e.g. the Rape Crisis Centre, women's refuges and Help Lines for children. After the murder of Japanese tourist Michiko Okayama in Cairns in 1997, a public outcry about the rights of victims dominated the Cairns Post (11 October, 1997:9). An increasing discontent with the lack of rights of victims and the leniency of the law was expressed by a citizen who stated: ' It does not matter that a victim's parents would suffer for the rest of their lives, the law sees to it that a lawyer would defend the accused' (Cairns Post, 11 October 1997:9).

Gary and Grace Lynch, parents of Anita Cobby, who was brutally murdered in New South Wales in 1986, took an active interest in a number of support groups, set up to help the families of serious crime victims (Sheppard, 1991:207). However, it was the New South Wales murder of Ebony Simpson in 1992 that brought about formation of the Homicide Victim Support Groups (HVSG) throughout Australia. After the murder of this 9 year-old

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school girl, her parents were angry about the lack of structured support from the community and welfare groups. They had a need to be in touch with families who had experienced a similar loss of a loved one. School friends needed help in coping with grief but there was no support group among relatives of crime victims, which left families to fend for themselves. The head grief counsellor at the New South Wales Institute for Medicine heard about the plight of families of homicide victims and formed an organisation to provide mutual support. This was the beginning of Homicide Victim Support Groups in New South Wales. HVSG are now funded by the government and have been directly responsible for Victim Impact Statements in Court. The families of victims now have the right to submit a written statement to the court telling of the hardship suffered by losing a loved one through homicide. Since the establishment of these groups, an increase in compensation and a charter of victims' rights have been put in place (Kidd, 1999; 110 112).

Community conferencing was criticized by the Victims of Crime Association Queensland in an article in the Sunday Mail (29 August, 1999:33). A representative of the Crime Association stated that saying "sorry" by itself was not good enough: "The remorse is honest for some kids but for others, they just agree to say it and then walk away." This article quoted results from an independent evaluation by Griffith University academics: "It appears conference outcomes...are not overly harsh. Some might view this as supporting the claim that community conferencing is a 'soft option' to traditional court processing." The article stated that the Department of Families, Youth and Community Care data showed that only 28 out of 132 conferences resulted in restitution, and fewer than half of the outcomes (60) required voluntary work by the offender.

In conferencing, the victim's participation on a voluntary basis is essential to the program. According to the Community Conferencing Preliminary Report compiled by the Juvenile Justice Branch of the Department of Justice Queensland, the needs of the victims are of primary concern (1998: 32-3). Consequently, for the program to be successful, the victim must understand the primary aims of the program and its purpose. If a victim appears to be too upset or aggressive, admittance to the program should be refused and the victim referred to appropriate agencies. Queensland legislation requires victim consent for referral to a community conference, whether or not they wish to attend. A victim may consent to a referral but choose not to attend the conference. However, if the victim does

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not wish to attend and does not give consent to the police, the latter are required to proceed in a different way, as the conference cannot proceed without the consent of the victim.

Obtaining victims' consent can cause some administrative problems. Many referrals to conferencing involve multiple offences against multiple victims. Even if one victim does not consent, the matter cannot be dealt with in conferencing. The police, if they still wish to take the matter to a conference, must then break up the charges. Obviously, this involves more work and results in a more complex option for police. Consequently, the legislative provision requiring victim consent for community conferencing is not consistent with the other rights and responsibilities of the victim within the criminal justice system. Within this system victims normally do not have a role in decision-making, rather this is left to the police and courts. It could be argued that, in terms of inclusive justice, all victims of crime should have a right to apply to access a community conference if they choose, and to be informed regarding the outcome of a conference. The victim is the person who experiences physical and emotional hurt, apart from the material loss; therefore a victim should play a central role in a conference, without pressure to participate.

The plight of the victims of crime was recognised in the first so-called Victim Offender Mediations (VOM programs). These programs, also referred to as " Victim Offender Reconciliation Programs" (VORP), were developed in the United States and Canada in the mid 1970s, and have both theoretical and philosophical connections with community conferencing (Juvenile Justice Program: Preliminary Evaluation Report, 1998:4), As a result of the actions of VOMs around the world, the status of the victim has greatly improved (Ala Alcohol and Crime, 1995:3).

The following section provides a brief overview of VOMs.

1.4.3.1 VICTIM OFFENDER MEDIATION (VOM) With victim-offender mediation there is an imbalance of power because both parties are not seen as contributing equally to the 'conflict'. One of the individuals has been violated; therefore, special sensitivities must be shown to the victim to ensure that further victimization does not occur. Victims are given the chance to be involved in the outcome of

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conferences and the conference is victim-centred. International reviews of a variety of victim-offender mediation programs (VOMs) have generally shown positive results with high rates of fulfilment of agreements (Galaway and Hudson, 1990), There are approximately 300 VOMs in the United States and 900 in Europe. According to Ellis and Sowers (2001: 209), VOMs typically involve the victim and perpetrator of property offences and minor assaults. Ellis and Sowers (2001: 209) also note that research .by Umbreit et al (1994), and McCold and Wachtel (1998) indicates a very high level of victim-satisfaction, including a high level of satisfaction about the fairness and respect given to them during the process. Umbreit's research indicates a 90% compliance and completion rate by offenders within a year of attending the conference. Umbreit examined results for victim and offender participants for four states in the United States and concluded that, after one year, 18.1% re-offended, compared with 26.9% for non-participants and the majority of victims typically express high levels of satisfaction with the process and outcome. Ellis and Sowers, (2001: 209) research revealed a similar finding by Nugent and Paddock (1996) that VOM participants had re-of-fended at a 37.5% lower rate than had non-participants after one year. Ellis and Sowers also noted that participants who re-offended committed less severe offences than those who did not participate in VOM,

PART B: RELATING JUVENILE JUSTICE TO REMOTE INDIGENOUS COMMUNITIES IN QUEENSLAND Community conferencing, with its roots in indigenous peoples' approaches to justice, has been developed in Queensland as an approach to juvenile justice that is appropriate to addressing the needs of young offenders from Aboriginal backgrounds. This part of the chapter looks at how this has happened.

1.5 THE BASES OF COMMUNITY CONFERENCING The origins of community conferencing are in the Family Group Conferencing (FGC) that New Zealand incorporated into its Juvenile Justice System. Conferencing is not a new concept; many indigenous cultures have traditionally dealt with deviant behaviour within their communities in a similar fashion. Maori justice processes were based on notions that responsibility was collective rather than individual and that redress was due not just to the victim but also to the victim's family. The understanding of why a person committed an offence was linked to this notion of collective responsibility (Tauri and Morris, 1996: 150).

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Maori justice regarded the reason for offending to be related to an imbalance in the offender's social and family life, and attempted to address the causes of these imbalances. Colonialism all but destroyed indigenous systems of justice in all parts of the British Empire and, although some Maori justice practice continued, the laws of the coloniser have prevailed (Tauri and Morris, 1996;151).

The Polynesian ancestors of the Maori migrated to New Zealand over 1000 years ago and settlers in the late eighteenth century predominantly were British and Irish. In 1840 the Treaty of Waitangi established British sovereignty over New Zealand and chiefs were promised equal citizenship (Brownlee, 1992:9), By 1866, however, it was obvious that the ambition of the incoming settlers was to obtain land (Spoonley, 1989: 578)_ Evidence of aggression in early colonisation by Europeans resulted in wars and in an overriding 'Pakeha' or European law and policy (Sharp, 1991: 3-4). It was a growing sense of Maori injustice that fuelled demands for justice for past wrongs and inequalities. The sense of injustice gave rise to Maori activist groups, i.e. the Maori Organ of Human Rights (MOOHR) and the renaissance of Maori culture and language. The late 1970s in particular were a period of ethnic activism as they sought to politicise the issues of Maori sovereignty and self-determination (Sharp, 1991, 7). In 1989 legislation of the indigenous process into a national common law justice system was a highly significant event in New Zealand and spread quickly to Australia (Juvenile Justice Program, Community Conferencing: Preliminary Evaluation Report, 1998: 4).

Family Group Conferencing originated in New Zealand, where it was established under the Children, Young Persons and The Family Act (1989) as a diversionary process. A reassertion of traditional justice processes as a way to address the overrepresentation of the Maori population in the criminal justice system brought about the establishment of Family Group Conferencing in New Zealand.

A Family Group Conference is convened when a child is charged with an offence. When a child has been arrested, the court will refer the matter to a FGC, unless the child pleads not guilty on legal advice. The task of the FGC is to explore alternative ways of resolving the matter rather than prosecution. Family conferencing encapsulates the paradigm of

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restorative justice, the ultimate aim of which is `healing'. The New Zealand model emphasises diversion away from the formal court system, but explicitly recognizes the needs of the victim (Criminal Justice Commission, 1992: 52). It shares certain features with Maori justice, notably the involvement of the families of victims and young offender's in decision-making. FGC is used to ensure cultural appropriateness regarding the needs of the Maori community, and the program is administered by the Department of Social Welfare (Alder and Wundersitz, 1994: 11). FGC involves a meeting not only between young offenders and their victims but also of the wider' community and acknowledges consequences to the wider community.

1.5.1 RESTORATIVE JUSTICE `Restorative justice' approaches emerged during the late 1980s (Practice Framework Manual, 1997: 3). Community conferencing is based on the concept and theory of restorative justice. According to Borowski and O'Connor (1997: 218), community conferencing encapsulates the paradigm of restorative justice, which entails the idea that criminal behaviour involves a conflict between individuals and that the victim is harmed, not the state. A restorative approach provides offenders with an opportunity to make up for the wrong that they have done. Restorative justice places the victim and the offender at the centre of the justice process.

Increasingly, there is acknowledgment that the formal criminal justice system, centred on the court process, has not been effective in the rehabilitation of juvenile offenders, and in fact has a stigmatising effect on young people who become involved in it. For example, in July 1999, the Cairns Post expressed strong discontent with the current system by printing an article stating that few people in Cairns would fail to be appalled by the lenient treatment handed down to a teenager who raped and sodomised a three-year-old boy. The punishment the juvenile received was two years' probation and no conviction was recorded against him. The article continued with the following statement: The blatant lack of consideration of the victims and their families by those courts must raise serious questions as to just who the justice system is serving' (Cairns Post, 31 July, 1999: 8).

The primary focus of the current criminal justice system is the establishment of guilt, the imposition of punishment and some level of rehabilitation for the offender. It tends to

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depersonalise crime and does not consider the effect of crime on victims. Offenders are not being made to face the consequences of their criminal actions; once the offender is punished, the debt to society is paid. However, in many cases, disproportionate punishment of the offender by the system intensifies the conflict rather than resolve it and widens the gap that separates the victim and the offender, as is clearly expressed in the following statement of the same article in the Cairns Post of 31 July, 1999: 'There is no feeling that some level of justice has been done and this increases people's alienation from the current justice system. As the unfortunate grandmother of the victim in this previous case remarked, "the courts seem more concerned with the rights and sensitivities of the criminal than the victims".

Restorative justice is a conceptual approach to the definition of crime and a subsequent change in criminal justice policy, which places emphasis not on punishment, but on reparation, mediation and conciliation, It is about considering ways to repair an injury rather than to punish the offender. This approach is a fundamentally different way of understanding what 'justice' is and how it is achieved. Restorative justice is a response to a widely-held community view that traditional systems have failed to reduce crime, failed to meet the needs of the victim and failed to hold the offenders accountable. Restorative justice as a new way of dispensing 'justice, ' would not add to harm caused, but would attempt to improve the situation by 'healing' and reconciliation rather than by deterrence and coercion.

A restorative approach provides offenders with the opportunity to make up for what they have done and its principles refer to the mending process. The use of mediation differs from conventional western ideas of justice in recognizing that the process is not just a formal means of arriving at a decision consistent with a complex, ever- growing body of law and precedent, but has a reconciliatory function. Ideas of reparation and mediation have brought about the victim-offender programs and in the 1980s and 1990s discontent with legal systems led to an interest in 'restorative' justice and 'reintegrative shaming' (Wright, 1991: 9).

The restorative justice movement has attracted considerable attention, both nationally and internationally. The concept of restorative justice is not easily defined because it encompasses a variety of practices at different stages of the criminal process, including

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diversion from court prosecution, actions taken in parallel with court decisions and meetings between victim and offenders (Daly and Hayes, 2001: 1). The informal approach focuses on the way crime interrupts relationships between people within a community, and seeks to repair the damage done, by seeking to restore broken relationships associated with the offending behaviour. According to Alder and Wundersitz (1992: 63), one of the aims of conferencing is to encourage social reintegration rather than stigmatisation. The restorative approach attempts to hold offenders accountable through shaming and, through reintegration, to strengthen community ties and to provide victims with the opportunity to regain their power.

1.6 INDIGENOUS PEOPLE AND THE RESTORATIVE APPROACH It is not possible to consider juvenile justice in Australia, and in North Queensland in particular, without realizing the extent to which young indigenous people are involved in the justice system. The problem of over-representation and the high number of deaths in custody in police and prison cells, led to the establishment in 1987 of the Royal Commission Into Aboriginal Deaths In Custody (RCIADIC). According to Harding at al (1995:4), Aboriginal juveniles are even more over represented in juvenile detention centres on a rate of 24:1 than adult Aboriginal offenders, The overrepresentation of indigenous youth in the youth justice system is a cause of major concern to indigenous people, governments and juvenile justice administrators (Forde Inquiry Report, 1999: 188),

New Zealand style family group conferences have been adopted as the preferred method for dealing with juvenile offenders and this re-focusing on Aboriginal youth and the appropriation of Maori cultural traditions highlights the shift in crime control priorities as well as a degree of recognition of the importance of culturally appropriate means and approaches to crime control ( Harding et al, 1995: 4). Hence, this section provides examples of the effects of the restorative approach on indigenous people, particularly indigenous juveniles. The section aims to clarify the problems faced by policy makers in their efforts to apply the restorative justice principles to a culturally, economically and socially disadvantaged group. Considering that restorative justice emerged in response to a wider crisis in the control of delinquency, and drew inspiration from pre-judicial forms of regulation amongst the colonised, particularly from Maori family group conferences, it would be fair to assume cultural sensitivity and a cultural awareness in relation to the

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conferencing process, that is in accordance with pre-colonial justice. Consequently, a smooth transition in its application to indigenous Australians was expected. However, many problems with the restorative justice approach in relation to indigenous people have surfaced.

One of the problems is that, in many cases, there is a lack of a cohesive Aboriginal community. The restorative approach should not assume there is a community to integrate with, as many indigenous juveniles do not have a fixed place of abode.

Another problem concerns the capacity of restorative justice to address cultural issues concerning violence. According to Sarre and Tomaino (2000: 46), there is, within the restorative justice approach, a fear that mediation may deflect community attention away from wider institutional problems of patriarchy and the seriousness of violence within the family. In some Aboriginal communities, there is regular and reoccurrence of violence which is often related to high alcohol consumption. Once the perpetrator has appeared in court and the victim has sufficiently recovered, the cycle is repeated. Police might arrest the violent offender and ensure his victim is taken to hospital, but violence continues after the sentence is handed down and the anger remains after serving time in detention (Tomaino and Sarre, 2000: 37).

Domestic violence in many instances is socially and culturally accepted in many Aboriginal communities, and an integral part of their inner relationships. An article in the Cairns Post ( 20 July, 2002: 6-7) described the small Aboriginal community of Wujal Wujal, north of Cairns, as one of the Far North's most crime-wracked outposts. Alcohol related violence is a daily occurrence in Wujal Wujal, where the nearest police and police station are 80 km away (Cairns Post, 20 July, 2002: 6-7). In an academic paper on violence against women and children in indigenous communities (published late in 2002 ), Dr Lawrence stated that decades of turning a blind eye to violence in indigenous communities has resulted in women and children being bashed, mutilated and raped because the appropriate agencies failed to intervene. Dr Lawrence further claimed that indigenous violence is a national disgrace ( Cairns Post, 27 July, 2002: 31).

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During a personal talk with the researcher, an indigenous person explained that his sister was badly beaten up by her boyfriend and that the whole community could hear her screaming. The reason no one did anything, he said, is because it is the 'expected thing to do' (the bashing) and 'my sister knew she had it coming'. The violence is accepted as a 'personal' issue and family members are not willing to interfere as they feel 'it is none of our business'. This is also a similar feature of non- indigenous domestic violence,

Evidently, indigenous people do not always experience the positive effects of the restorative approach which, in theory, should encourage community reintegration. This may be because the restorative justice approach tends to ignore acceptance of violence as the main contributing factor of offending behaviour. Many relationships are badly damaged by the vicious cycle of poverty, unemployment, and alcoholism and violence, so that 'broken' relationships and a disintegrated community are accepted as the norm.

A third problem surrounding the introduction of Community Conferencing in Cairns is that the political atmosphere has been inimical to this approach, mainly because of the influence of some political parties in this part of Australia. An article in the Cairns Sun (3, March 1999: 3), with the heading: " Crime penalty a 'soft option", describes how the police, politicians and victims of crime agreed that the program could be quoted the Cairns Branch President of the One Nation Party which had taken a tough stance on crime. He argued that the punishment must suit the crime. Believing that offenders would get off "scot-free", he described community conferencing as "a soft approach in some ways, because while the trauma of facing the victim may be great for some, others will just go through the motions and laugh at the court system". He further stated that the community is concerned about the lack of discipline administered in schools, and does not want to see the same trend emerge in the justice system. In the same article, a representative of the Juvenile Aid Bureau (JAB) said the system would not work for every offender. He recognised that it would take time for police to adjust to the new system and be confident of its worth. The JAB officer recognised that the program has the potential to help police if it means less operational time spent in court or preparing documents for court (Cairns Sun, 3 March, 1999: 3). It was evident from similar newspaper articles and from both formal and informal conversations with professionals associated with juvenile justice, that a number of people in Cairns were somewhat sceptical of the new diversionary approach to juvenile offending.

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1.6.1 HISTORICAL CONTEXT When analysing a severely disadvantaged group in Australian society, the historical and political dispossession, colonisation and the links between welfare dependency and criminalisation are evident. From a political point of view most Aborigines would not wish to be regarded as an ethnic group in the same way as, for instance, migrant Asians. As the original habitants of the land, many indigenous people feel they have rights to a legal entitlement in recognition of their status under the law (Walters and Crook, 1993: 119120).

A history of racism along with suffering of great physical, emotional and spiritual hurt, were seen as precursors to the high rate of contact between police and indigenous people (Harding, Broadhurst, Ferrante and Loh, 1995: 3). The Royal Commission Into Aboriginal Deaths in Custody (RCIADIC) reported in 1991 that the overrepresentation of Aboriginal involvement in the criminal justice system was related to the historical and political dispossession of the Aboriginal people and their subsequent impoverishment and disenfranchisement (Harding et al 1995:2). The removal of children has been a significant factor in the overrepresentation of indigenous people in the criminal justice system, along with such other factors such as emotional and physical health problems, domestic violence, alcoholism, welfare dependency, loss of cultural and spiritual identity and loss of self-esteem (Beresford and Omaji, 1996:33-4).

According to Thomson (1989: 13), European contact in Queensland with the local Yidinyji and Gungganyji people probably began with the establishment of Cairns in 1876. By 1892 an application was made to establish an Anglican Mission on an isolated coastal strip 50 km south from Cairns, and, consequently, the area originally called 'Bellenden Ker' now known as `Yarrabah', became an Aboriginal reserve. In 1897, the Queensland Government proclaimed the Aboriginal Protection and Restriction of the Sale of Opium Act to protect and isolate Aboriginal people from the white population. Protectors were given the power to move Aborigines from their own districts to reserves. As a result, many Aboriginal people, especially children, some of whose births had not been registered, were brought to Yarrabah. These Aborigines came from different areas all over North Queensland and had no common language and very restricted English language skills (Thomson, 1989: 9-13).

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At present, people of Aboriginal and Torres Strait Islander origin in the far northern region represent 16.4 % of all indigenous people in Queensland, and 7.1 % of the region's total population. The Cairns region has only 5.8% of the State's population, so relatively, the indigenous population in this area is large (ABS, Demography of Queensland 1998). Provision of services for indigenous Australians is therefore an important issue in this region. Cairns experiences high levels of inhabitant mobility, and population changes have effectively reduced community cohesion and produced an increased demand for support services. Urban indigenous people often live in' impoverished situations on the fringes of mainstream Australian social life. In general, their situation is one of diminished access to opportunity, relative powerlessness and social stigmatisation (Waters and Crook, 1993: 120). Although many non-indigenous juveniles face problems, for indigenous juveniles these problems are exacerbated by their marginalized status. Consequently indigenous juveniles frequently become `clients' of the criminal justice system.

The over-representation of indigenous juveniles in the criminal justice system has prompted a re-focusing on indigenous juvenile offending and an appreciation of Maori cultural traditions. These relatively recent perspectives highlight a shift in crime control priorities and a recognition of the crucial importance of using culturally appropriate means of crime control (Harding et al, 1995:4). Yet, perhaps the most controversial aspect of restorative justice programs in Australia is their appropriateness and effectiveness in indigenous communities.

Cunneen (1997) identified a failure of those setting up restorative programs to consult with indigenous communities and expressed concerns about the discretionary

powers of police over access to programs and inadequate attention to cultural differences. As a result, in some Aboriginal communities, female elders have taken matters concerning juvenile offending in their own hands. For example, in Wujai Wujal, an Aboriginal community north of Cairns, six such women, all victims of alcohol-related violence at some point in their lives, patrol the streets at night because there is no police presence. During the patrols, the women would confiscate alcohol, until they were instructed by Cooktown police they had no authority to do so. These respected elderly women are trying to take some control over drinking, loud music and gambling displayed by the community's youth. The women use a beguiling combination of motherly concern and their status as elders to

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counsel drunk or violent community members (Weekend Australian, 6-7 July, 2002: 8). Women are now speaking out and are refusing to countenance the devastating effect of alcohol-related violence in indigenous communities. According to Dr Lawrence ( Cairns Post, 27 July, 2002: 31), perhaps the most important prerequisite to produce sustained improvements in the levels of violence, is the involvement of indigenous people in decision-making. In Wujal Wujal, the respected women teach traditional languages and try and keep the youth occupied by showing traditions and by discussing cultural issues. The group regards boredom as the main cause of juvenile offending, and in 2002 they reported an increase in school attendance and a decrease in fighting (Cairns Post, 20 July, 2002: 67).

Until now, community conferencing has been used mainly in urban areas and there has been considerable debate whether it is suitable and appropriate to be used in indigenous communities. The RCIADIC brought into focus the failure of the criminal justice system to deliver justice in indigenous communities. Reports on diversion programs acknowledge that the criminal justice system has limited effect in exercising control in indigenous communities (Cape York Justice Study, Vol. 2, 2001: 142). A wide range of diversionary strategies already operates in Cape York indigenous communities, and due to the diversity within the Cape York communities and their relative isolation, diversion has to be flexible. Flexibility was supported by the National Inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. That inquiry, established in 1995, aimed at achieving formal recognition of the victims' needs. The subsequent 'Bringing Them Home' report (1997) emphasises the need for self-determination and the development of indigenous community responses to deal with indigenous juveniles, consistent with RCIADIC recommendations (Human Rights and Equal Opportunity Commission, "Bringing them Home", 1997: Chapter 24: 1-2).

According to the Cape York Justice Study (Fitzgerald, 2001, Vol. 2: 148), Blagg and Cunneen have been highly critical of community conferencing programs for indigenous people in Australia. Cunneen argues that community conferencing ignores the right to selfdetermination, and produces harsher outcomes for indigenous offenders. In addition, Blagg argues that conferencing has the potential of intensifying police control over indigenous people. Sarre and Tomaino, (2000: 48) noted that in her review of conferencing in 1996, Wundersitz (1996: 125) presented the view that conferencing can be culturally

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sensitive, but that the process was capable of improvement. Wundersitz recommended increasing the level of both indigenous participation and community awareness of the program. She also suggested widening of networking within the community to ensure that appropriate support people are available. As well, she identified a need to seek feedback from the community regarding the development of more culturally appropriate conferencing processes (Sarre and Tomaino, 2000: 48).

Such a culturally appropriate program was designed in 2001 by an officer of the Department in Cairns, This program, 'Boys from the Bush', addresses and services the needs of indigenous juveniles in the Cairns region. It involves a target group of indigenous juvenile males on community-based youth justice orders in local business enterprises. This involvement provides the participants with income, work, interest, education and social integration. It recognises problems and disadvantages experienced by indigenous juveniles in a pre-dominantly non-indigenous society, and it adjusts relevant components to specific needs of individual participants. The program is partly funded by the Department, and is auspiced by the Cape York Land Council, It is run by Cape York Partnerships, and due to its apparent success in the Cairns area, it was extended to remote indigenous communities on Cape York at the beginning of 2002. Local Community Justice Groups are encouraged to become involved in decision making and these groups are consulted in order to achieve high success levels in relation to juveniles participating in the remote communities.

At present, a review is in progress to determine the level of success of the program, with a possible further widening of service delivery to remote communities. A letter dated July 2002 from police in remote communities, indicates that the program is perceived as an effective alternative to detention and that great gains have been made with the virtual elimination of juvenile crime and other social problems like petrol sniffing. The letter indicates that 'many of the offenders are now active in contributing to the community, which is in direct contrast to young offenders who have been through the detention process and simply return to the community to re- offend'. In addition the letter states that 'this particular remote community has benefited enormously from the Program'. In the remote areas, the Program facilitators sought advice, guidance, approval and at times participation, of the Community Justice Groups, (CJGs) which are community-based justice mechanisms. Based on indigenous culture and customary law, the CJGs

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demonstrate the potential of local justice mechanisms and are built on traditional cultural values and approaches to conflict resolution.

Because of their importance in restorative justice, CJGs in Cape York and in the remote Aboriginal communities of in Kowanyama, Palm Island and Hopevale are described in the following sections.

16.2 COMMUNITY JUSTICE GROUPS (CJGs) The development and implementation of Community Justice Groups (CJG), in 1994, in Hopevale, Palm Island and Kowanyama, a remote Aboriginal community in Far North Queensland, was a response to the unacceptably high levels of crime and an attempt to divert people away from the criminal justice system (NC Research and Public Policy: 44).

The CJGs are a tool for enabling indigenous people to respond to issues of law and order within their communities and they have the support of the Queensland Corrective Services Commission. Anti-social behaviour is regulated through the use of traditional practices for sanction, discipline and conflict resolution (Mugford and Nelson, 1996: 34). CJGs are funded under the Local Justice Initiatives Program (LJIP) of the Department of Aboriginal and Torres Strait Islander Policy and Development (Hamel and Teague, 2000:6). The LJIP was the direct result of the Royal Commission into Aboriginal Deaths in Custody (1991) and aims to empower local indigenous communities by encouraging them to address their own justice issues (Hamel and Teague, 2000:7). Ilders and other respected community members play an informal role in the sentencing and consequent punishment of offenders, Some of the outcomes include the periodic banishment to "outstations", apologies to victims, repair of damages caused and also incorporate night patrols to break up disputes and monitor young people as is the case in Wujal Wujal, By applying their own rules from their own cultural and traditional settings, CJGs have, in many cases, successfully addressed family problems and regulated and prevented anti-social behaviour. In some cases, underlying factors contributing to offending, like boredom and the lack of recreational and employment opportunities, have been addressed by running youth camps and developing employment opportunities.

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The Cape York Justice Study (Fitzgerald, November, 2001) confirms that the difficulties identified by the RCA= are still a reality for Cape York indigenous communities today (Fitzgerald, Vol. 2, 2001; 110), The Queensland Government has released an interim report and one of its recommendations concerns strategies to reduce crime, protect families from violence and prevent juveniles from offending (Fitzgerald, 2001: 5).

Cape York is the tropical far northern part of Queensland and the area covers 137, 200 sq, km of North Queensland (See figure 2). Traditional ownership exists for the whole Cape and more than 60% of the regional population is of Aboriginal or Torres Strait Islander descent, The Cape has a relative youthful age profile with an average age of 23, compared to 35 in predominantly non-indigenous communities. Thirty three per cent of the population is under the age of 15, compared with 18% for non- indigenous communities, and the mortality rates for indigenous people are estimated to be 2-3 times higher than that of the general Queensland population (Fitzgerald, Vo1,1 , 2001: 6-13).

Figure 2: Map of Cape York

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School truancy is a major problem in Cape York communities. Lack of air conditioning and the paucity of recreational programs not only makes the school a non-appealing place, but also places a high demand on teachers, who are expected to fulfil a multitude of nonteaching roles due to a lack of suitably qualified staff (Fitzgerald, Vol, 3, 2001:146). Many children form the remote communities attend indigenous boarding schools in Cairns, and they return to the Cape for the holidays. On many occasions, these juveniles behave well whilst at boarding school, however as soon as they return to the communities, boredom takes place and offending behaviour is the result. The Cape York Justice Study confirms that juveniles consistently note boredom as their major reason for offending. In particular youth crime is known to rise during school holidays, especially in the wet season when movement outside the community is restricted In addition, juveniles are deeply socialised into hostile aggressive behaviour, and juveniles also attributed serious offending to alcohol abuse by parents and extended family (Fitzgerald, 2001, Vol. 3: 122). Pfohl (1985) explains domestic violence as follows: In cases where power is denied, a person may resort to violence. The use of violence becomes a power play, an attempt to control a world over which the person has no control. Power and powerlessness give a meaning to violence in a world where power is unevenly distributed. Experiencing little control over their destinies, people may concentrate their search for power in the private sphere, which may result in higher rates of interpersonal and family violence (Pfohl, 1985: 332-334). In remote indigenous communities, the combination of frustration, helplessness, boredom, truancy and easy access to alcohol appears to be a trigger for the high rates of juvenile violence.

In some Cape communities police have exercised their discretion and referred offenders to the CJG rather than charging the offenders. This enables the CJG to use traditional methods of social control such as 'growling' or shaming (Fitzgerald, Vol. 2, 2001: 145). Although youth crime has decreased in key Cape communities, it is not proven to what extent the Justice Groups are responsible, but community conferencing could be a great opportunity for a community to be involved with juvenile offending and offenders. It is an opportunity to implement traditional justice methods in a framework which is recognised by the formal justice system.

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At present there are more than thirty CJGs around the State of Queensland and the following sections describes CJGs in Kowanyama, Palm Island and Hopevale. The success of the Kowanyama and Palm Island CJGs resulted in the establishment of many more CJGs, including the one at Hopevale.

1.6.2.1 KOWANYAMA In 1994, a CJG was established in Kowanyama. According to Chantrill (1997:12) the practice of the CJG in Kowanyama was guided by the simple assumption that social problems and unacceptable behaviour were not separable from community life, so that any positive and rehabilitative response should come from the community. Antisocial behaviour is regulated through the cultural and community use of discipline and conflict mediation. The absence of juvenile crime during the first nine months of the group's establishment, and the consistently low rate for 13 subsequent months set the pattern of positive behaviour amongst the Kowanyama juveniles.

The Kowanyama CJG has made a significant contribution to the effective management of law and order issues, in particular in relation to young people. Its strength lies in its commitment to the community, and community workshops identified the problem areas and clarified the aims and objectives of the group. In 1995, a report commissioned by the Minister of Police and Correctional Services, and prepared by Cavan Palk, Ministerial Liaison Officer to the Queensland Minister of Police Corrective Services, showed that, in 1995, indigenous Queenslanders were 14 times more likely to be incarcerated than others (Palk, 1995:3-5). According to Chantrill (1997) in 1996, Atkinson and Dagger compiled figures for the Australian Institute of Criminology, in relation to young indigenous people in detention centres, These figures revealed that these juveniles are 40 times more likely than non- indigenous juveniles to be institutionalised in detention centres in Queensland.

The high levels of juvenile detention in Queensland have resulted in local diversionary strategies for young people as a firm agenda item at the Kowanyama community. Drawing on available court and police records, it is apparent that there has been a reduction in crime and recidivism in Kowanyama since the commencement of the CJG. Prior to its establishment, juveniles committed 40 to 50 offences every month, Two years after its

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establishment, this number has been reduced to barely ten per month (Chantrill, 1997: 17), In the same year, 1997, an article in the Cairns Post (29 March, 1997: 8), reported that the crime rates were falling in Kowanyama because tribal elders dealt with juvenile offenders. The then Minister Key Lingard was quoted in the same article as saying that 'the Kowanyama Justice Group can proudly report that there is virtually no crime, and that school attendance has increased'

By 2001, it appeared that this success was continuing, particularly in terms of juvenile offending. Discussions with professionals directly and indirectly associated with the Kowanyama CJG in 2002, confirmed this. For instance, one of the professionals involved with the group observed: ' There are no problems with juvenile offenders in Kowanyama; there is no petrol sniffing and the group jumps on them straightaway.' These professionals, who have had dealings with the CJG since 1997, explained that every so often they receive a list from the school. This list contains names of juveniles who have not attended school without a plausible and acceptable reason for their absence. The CJG responds by inviting the juveniles involved as well as their parents or caregivers, to a meeting. During this meeting the absence is discussed and solutions are found to encourage juveniles to return to school.

According to a close associate of the Justice Group, the CJG believes in preventative measures particularly where juveniles are involved, and during the last few years only four children committed offences and appeared before the CJG. Two of these children had mental problems and did not have an adequate level of comprehension for the CJG to discuss offending issues with them The CJG is also responsible for submitting reports to the courts in which sentencing options and penalties are discussed. These reports provide background for the magistrates and are intended to keep people, particularly juveniles, out of detention, The preferred option is to send the juvenile to outstations, rather than to a detention centre. The professionals stated that this was in line with the recommendations of the Royal Commission into Aboriginal Deaths in Custody and that they (the professionals) would continue their work with the CJG to ensure that juveniles were not being sent to detention or to watch houses.

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Section 14 of the Juvenile Justice Act 1993 contains a power for police to have an elder deliver a formal caution to an indigenous juvenile. Although this power is rarely used in remote communities, the Kowanyama Justice Group frequently cautions juveniles referred to them by police and they report this to be very effective (Fitzgerald, Vol. 2, 2001; 146),

1.6.2.2 PALM ISLAND Palm Island is a small island 65 kilometres offshore from Townsville in North Queensland and its population of 3,500 is almost entirely indigenous. Compared with most other Aboriginal communities, Palm Island is relatively accessible, The Palm Island CJG is a response to the 1993 report of the Royal Commission into Aboriginal Deaths in Custody, but the group does not have statutory authority. The CJG operates in collaboration with the criminal justice and juvenile justice infrastructures. Since the group was established it has developed an active role in responding to juvenile offending on the island (Preliminary report, 1998:60).

Palm Island was identified as a possible location for a pilot of the community conferencing program because the CJG was stable, well recognised, had good working relationships with key criminal justice agencies and expressed an interest in community conferencing. The group recognised that the community conferencing legislation provided a possible mechanism through which it could have more formal authority as well as become approved as convenors. CJG meetings could then be constituted as community conferences to deal with juvenile offenders. Conference outcomes could be culturally appropriate, and where possible, take into account Aboriginal Customary Law (Preliminary report, 1998: 61), The CJG therefore agreed to participate in the pilot in April 1997 and an officer of the department visited Palm Island weekly to deal with juvenile justice matters.

In 1998 the Juvenile Justice Branch evaluated the Palm Island pilot. During that year there had been ten referrals to conferencing. Considering the Palm Island population of 3500, this number of referrals was considered satisfactory. The majority of offences conferenced concerned property, and victims were present at every conference. Apart from one outcome, which resulted in community work, all outcomes consisted of a stern warning to the juvenile not to re-offend (Juvenile Justice Program, Community Conferencing: Preliminary Evaluation Report, 1998: 61- 2).

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Approximately six months after the program began, a meeting was held on Palm Island to review the initial period. There was a general concern about lack of monitoring provisions, and the group wanted authority to make parents attend a conference, since it recognised that offending behaviour was often associated with inadequate parenting skills, The group expressed a wish to send serious juvenile offenders away to established outstations, preferably in Kowanyama. It was further argued that a more suitable meeting place for conferencing needed to be found, as the courthouse could be potentially stigmatising for the juvenile offender (Preliminary Report, 1998: 63), Recommendations were made with respect to parental attendance and the monitoring of outcomes, and legislative amendments were considered in terms of resource implications.

The pilot program at Ipswich was conducted by the Alternative Dispute Resolution (ADR), which is a government operated mediation service. The Logan pilot was conducted by Youth and Family Services (YFS), a community agency. A very effective information management system operated in these pilots, and full time coordinators were employed to supervise the programs. The Department of Justice approached the predominantly indigenous Palm Island pilot in a different way from the other two pilots at Logan and Ipswich. For instance, the Palm Island pilot was not required to operate within similar guidelines; instead an important aim was the provision of authoritative support for the group when it dealt with juvenile offenders within its own cultural framework. Data collection system on Palm Island was not as effective as the system put in place at Ipswich and Logan and Palm Island received a limited number -- 19 - of referrals, compared to 65 and 67 in Ipswich and Logan. An additional aim was to determine if a similar model could be adapted for use in other Aboriginal communities ( Community Conferencing in Queensland, 1998: 4).

The community has been reported as proposing the "traditionally oriented" punishment of banishing juvenile recidivists to other Aboriginal communities (Townsville Bulletin, 14 August 1997:1), Recidivists are identified in matters of wilful damage and bullying and are held accountable for their offending behaviour. One month later, in September 1997, the Palm Island community launched an outstation facility to support its juvenile offenders. Improvement is shown in the relationship between the CJG and judiciary processes in

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relation to pre-sentencing reports for juveniles These are now delivered by its justice group and have become a regular part of court procedures (Chantrill, 2000: 21).

Information recieved in 2002 by professionals directly and indirectly associated with the Palm Island CJG indicates that the CJG is performing extremely well in terms of reducing juvenile offending. The pilot is no longer in existence as it was known and operated before; instead, the program has been taken over by the CJG and the basis for dealing with juvenile offending predominantly involves a stern reprimand.

Data received in 2002 from professionals associated with the CJG reveal that, from 1997 until the current period, there were 35 juveniles on 65 community based orders in Palm Island and three juveniles were detained in Cleveland Youth Detention Centre in Townsville. In 2000, there were only two juveniles on orders, and none in Cleveland Detention Centre and only three juveniles re-offended. In 2001 the number of recidivists was brought down to two and currently there are eight juveniles on eleven communitybased orders in Palm Island, and none in Cleveland Detention Centre.

Since the beginning of 2001, the Justice Group has been part of an independent agency and members of the CJG visit Torres Strait Islands to help set up similar justice groups. The parents of the younger juveniles, aged under 15, are involved with the sentencing at the justice group. The community-based orders involve work in the community, but mostly the juveniles' offending behaviour is addressed by the Justice Group to the extent that very few juveniles re-offend. Although Palm Island has not kept statistics on recidivism rates, the latest data received by a professional associated with this pilot, indicate a drop in offending and a drop in juveniles appearing before the CJG.

In Palm Island more people were successfully completing community-based orders and the CJG intervention in the matter of breaches for community-based orders resulted in a saving of $ 90,000 in imprisonment costs to society (Mugford and Nelson, 1996:34). Over the course of 1996-1997, several other communities, including Yarrabah, Hopevale and Thursday Island, submitted applications for funding to establish similar groups based on the Kowanyama model (Chantrill, 1997: 4).

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The success of the Kowanyama and Palm Island pilots has led to the development of the Local Justice Initiatives Program, a Queensland Government program that offers funding and assists in establishing similar crime prevention projects in the Aboriginal communities. Hopevale is one of the communities that benefits from a CJG. The following section briefly describes the Hopevale CJG.

1.6.2.3 HOPEVALE Hopevale is a very small indigenous community of 668 residents (Fitzgerald, 2001, Vol 1: 9), situated just north of Cairns. According to the Hopevale Community Justice group Coordinator, Mrs Glenys Woibo, the CJG works successfully with minor juvenile offenders. After a first offence, the juvenile receives a warning by a detective. If the juvenile reoffends, the CJG involves the parents and issues a strict warning to the juvenile involved. On occasions, elders provide a pre sentence report on how to handle community-based orders. Hopevale is a Lutheran community and if the offence is a first offence, the Church pastor is asked to work with the juvenile by means of providing counselling (Hamel and Teague, 2000: 8-9).

1.6.3 CONCLUDING REMARKS The overall success of the CJGs has been partly responsible for an innovative project to train and deploy Aboriginal and Torres Strait Islander Justices of the Peace in North Queensland. Magistrate's courts constituted by two indigenous Justices of the Peace are now held in various indigenous communities, including Kowanyama. Training in preparation for courts is being conducted at Wujal Wujal and Hopevale. The courts aim to provide more culturally appropriate access to justice in remote areas, and the Department of Families plans to establish community conferencing programs in remote communities. It is envisaged that members of established CJGs will take on the role of convenor (Fitzgerald, Vol. 2, 2001: 112).

However, despite its overall success, there remains the question of the legal basis and powers underpinning the activities of the CJGs. Wherever these are unclear the CJG cannot enforce its recommended punishments in relation to juveniles (Fitzgerald, Vol. I, 2001: 118). The police and CJGs need to work together to establish an agreed model

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which includes cautioning by elders as an acceptable punishment. Referrals by police would encourage the establishment of a formal legislative basis. An appropriate model would allow flexibility to reflect the diversity of the indigenous communities on Cape York. Empowerment of indigenous elders in remote Cape York indigenous communities, was a primary focus of the 2002 Cape York summit, held in late August. According to an article in the Cairns Post (17 August, 2002: 18), Cape York executive director Noel Pearson stated that the summit was expected to provide an opportunity for leaders to advance the CJG, In the article, Mr Pearson stated that traditional rule had been broken down and that many of these communities were working to reintroduce law and order.

According to Fitzgerald (2001, Vol. 2: 116) the effectiveness of CJGs in remote communities is supported by a number of government reports. An Interim Assessment of CJGs found that for Kowanyama and Palm Island CJGs the outcomes had improved significantly and that in these communities the number of juvenile appearances in the local courts had on average been reduced to one third of the level prior to the establishment of the CJGs (Fitzgerald, 2001, Vol. 2: 116). According to Fitzgerald, further findings in the research in CJGs include the 1996 Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner which commented favourably on Queensland justice groups. In addition, the Bingham Review of the Queensland Police Service noted significant successes in the Palm Island CJG. According to Fitzgerald (Vol. 2, 2001: 116), the support for the concept of CJGs from the Government and other official sources has been reinforced by the research of academics, including Chantrill on the Kowanyama and Palm Island CJG and research on CJGs by Bimrose and Adams in 1995. These studies have revealed significant improvements in juvenile crime since the CJGs were established.

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2.0 COMMUNITY CONFERENCING: THEORIES AND CONCEPTS For a long time punishment remained the basic principle of sentencing and although crime is primarily a conflict between people, it was treated as a matter between the state and the offender (Tomaino and Sarre, 2000: 38). Traditionally, both retributive and utilitarian theories have highlighted the educative function of punishment. More recently, however, a widespread loss of confidence in the efficacy of punishment as a deterrent and a reappraisal of the value of rehabilitation have stimulated new thinking about the purpose of punishment. Many theories have emphasised the need for rehabilitation in response to crime, and the need to assist offenders to learn how to live within the law (Cragg, 1992: 170). This chapter explores these various theories of punishment to help explain the relationship between indigenous juveniles and offending on the one hand, and the wider community on the other hand. In addition, it provides a brief overview of previous research on community conferencing outside Australia, particularly research conducted in New Zealand. A more in-depth review of the findings of community conferencing research within the Australian States is also provided.

2.1 CONFLICT THEORY To explain the predicament -- especially the racial discrimination- experienced by Aboriginal youth, conflict theorists argue that society consists of competing social groups, who, because they do not have equal chances, can experience antagonistic relations (Beresford and Omaji, 1996:17). That is, over time, the oppression suffered by a minority or minorities, gives rise to anger and hostility towards the dominant social group, A range of international studies conducted by Reiner (whose writing is informed by conflict theory) highlighted a tendency among police to target and stereotype certain minority groups, noting that young black males are at greater risk of being stopped, searched and charged by police (Reiner, 1992: 478).

Relations between police and Aboriginal youth reflect the historical role police have played in the dispossession and marginalisation of Aboriginal communities. Research conducted by Beresford and Omaji in 1996 confirmed that there has never been a time when Aborigines did not feel discriminated against by police, and many Aboriginal juveniles feel

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that they are a continual target for police harassment. Hatred towards police is a learned behaviour and fear of police is transmitted to children (Beresford and Omaji, 1996: 73-74). Consequently, these juveniles' relationships to society are often exhibited in retaliatory crimes, as many Aboriginal youths have internalised anger which stems from historical racism and oppression. This anger widens the gap between them and the wider society (Beresford and Omaji, 1996: 1718). While Beresford and Omaji's research focused on Aboriginal youth in Western Australia, similar situations are apparent in the Cairns region. In the Cairns courts, trained and appointed indigenous liaison officers who deal with indigenous juveniles are present at both court and conferencing sittings. For police this situation is difficult; on the one hand, they know they are feared or even hated; on the other, they have to be friendly and address welfare issues when necessary.

Vold's conflict theory (Void and Bernard, 1986: 270-7) supports the statement made by one of the speakers at the Ngaarra forum, namely that it is always the poor, the marginalized, who suffer from involvement with the justice system (Ngaarra legal forum, 2001: 5), Although, of course, not all people who are incarcerated or are spending time in detention are indigenous, trends in indigenous adult imprisonment over the previous two decades show a 65% increase; for indigenous juveniles, the increase in detention is 55%, These increases have outstripped any increase among non-indigenous people (RCADIC, Cunneen: 1991: 1).

Vold's group conflict theory describes a delinquent boy's gang as being almost always a minority power group; it explains that these gangs are in direct opposition to the rules and regulations of the adult world (Vold, 1986: 274), Members of such groups do not accept the definition of themselves, or of their behaviour, as criminal. Looking at their own group of like-thinking friends, they believe that their actions are acceptable and entirely honourable (Vold, 1986: 275).

Vold's theory can be applied to an analysis of the behaviour of Aboriginal youth gangs in Cairns. Gang members often lack schooling, their parents are alcoholics or in jail and they are excluded from the labour market. These marginalized indigenous juveniles find strength in gangs. As they have no parental support or control, the only people who provide meaning for their lives are members of their offending peer group. Their urban

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context is characterised by high crime rates, predominantly government housing and a large number of residents who are dependent on welfare. It is in this context of poverty that they express a sense of hostility to their society. By committing crimes, they feel they are in control, and they have learned the moral rationalizations necessary to consider themselves 'guiltless' (Matza, 1986: 241).

Such an interpretation is supported by the following example from Cairns. A spate of attacks on tourists by indigenous juveniles occurred in the Cairns inner city. Colleagues associated with the Childrens' Court in Cairns, advised the author that a couple of indigenous juveniles who had been arrested in relation to these attacks showed no remorse. They justified their behaviour by stating they felt like attacking the tourists and that they 'needed the money'. This interpretation supports Void's theory that delinquents , particularly members of a minority group, believe that their offending actions are fully justified, and honourable.

Conflicts between police and indigenous people can also be partially explained in terms of 'value conflict'. In this theoretic framework social problems are seen as social conditions that are incompatible with the dominant values. The root causes of social problems are conflicts of values and interests (Rubington and Weinberg, 1989: 89 -93).

Many juveniles display a lack of respect for the law, their parents and elders. Nonindigenous juveniles in the Cairns Northern Beaches area are involved in petty crime and drunkenness and residents feel helpless in fighting the problem, according to a discussion with a local Neighbourhood Watch group member in November 2000. He said that the problem was getting out of hand and that juveniles were getting away with petty crime, The juveniles "brag" to their friends and to younger children who look up to older groups.

In some predominantly indigenous suburbs, this lack of respect for parents and for the law is even more evident. Unfortunately, in many cases for the juveniles residing in these suburbs, there is no other place for them to turn in the hostile wider environment. Despite government and Departmental efforts, many indigenous juveniles' feelings of hostility and

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exclusion are expressed by participating in the criminal sub-culture, in which the selffulfilling prophecy of labelling plays a significant role, as will be illustrated in the subsequent sections.

2.2 LABELLING Social reactions to alleged deviance are the central concerns of labelling theory (Rubington and Weinberg, 1988: 184). Social groups create deviance by making the rules whose infraction constitutes deviance and by applying those rules to particular people and labelling them as 'outsiders' (Rubington and Weinberg, 1989: 187). The concept of 'labelling' was first used by Becker (1963). He showed how labelling is often done by people whose job it is to apply labels, such as journalists. Labelling theory deals primarily with what happens to people after they have been singled out, identified and labelled as delinquents. Such a theory is applicable to the relationships that exist between police and indigenous youth in Cairns. Laws are created by the dominant group, and the historic assault on indigenous cultures and values helps to explain in part the high proportion of indigenous juvenile crime.

Often, members of the minority group become stereotyped, which means that the image is simplistic, over-generalized and negative. The connection between discrimination and stereotyping is obvious: discrimination will tend to confine members of a minority group to particular sectors of society and allow simplistic generalizations to be made about the ethnic group in question. Discrimination is often analysed as being a consequence of prejudice and at times, reinforced by the mass media. This is illustrated by the following example, which expresses the view of the majority of indigenous juvenile offenders. During informal talks with juveniles whilst waiting for their court appearances, many indigenous juveniles indicated to the researcher and other Departmental representatives, that they felt 'picked on' by police. Even though non-indigenous juveniles claimed 'harassment' by police, these instances were rare.

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The over-representation of indigenous youth in the juvenile justice system was highlighted by the Royal Commission into Aboriginal Deaths in Custody, as a major social problem (Forde Inquiry Report, 1999: 188). The Commission concluded that young indigenous people are unnecessarily, or deliberately, made the subject of trivial charges or multiple charges. In a conversation with a former indigenous youth worker, it was stated by the youth worker that whilst driving he always felt targeted by police simply because of the colour of his skin. Time after time he was pulled over, his vehicle was checked and his licensed double-checked. Informal conversations with various police officers over the past few years revealed that police are familiar with the names of offending juveniles and many indigenous families have multiple offenders, all well known to the police. Therefore, when police see a group of indigenous juveniles on the streets, they tend to stop and 'check' them out.

Labelling a juvenile has the potential to lock the juvenile into a deviant role and the expectations for the juvenile are to continue bad behaviour, which reinforces the deviant role. Consequently, in many instances, the indigenous juvenile is regarded as a juvenile delinquent, rather than a young person of indigenous descent. Moreover, labelling could have a negative influence on a person's self-concept (Traub and Little, 1994: 289-90). The offender cannot be a 'good' person, since he/she was labelled as tad' from an early age. Consequently, he/she suffers the stigmatising effect of being 'bad all over'. A deviant is attracted to a criminal subculture because in many ways its members reject the labellers. Once a young person becomes a member of a sub-culture, they become more and more isolated from family and instead learns a new criminal code of conduct supplied by the sub-cultural group.

Figure 3 demonstrates the cycle of prejudice and discrimination.

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Figure 3: Cycle of prejudice and discrimination

2.3 SUB CULTURES THEORY

According to Erikson (1962: 307-14), removing offenders from their place in the community could cause them to become stigmatised and take on the self-fulfilling prophecy of a deviant role. Subsequently, the offenders could become marginalized and attracted to criminal sub-cultures where they are accepted. As a philosophy of restorative justice, social integration could be problematic in these sub-cultures. Restorative justice encourages social integration rather than stigmatisation. How does one reintegrate if one is stigmatised? According to Erikson (1962: 18), many indigenous juveniles live in subcultures, and feel victimised by agents of control. Offenders experience a sense of injustice, which leads them further into the criminal world until being a deviant becomes a way of life. Research conducted by Lander in the 1950s, led to the conclusion that social instability and socio-economic status were related to delinquency (Lander: 1954: 59). The lack of social cohesion in many cases led to parents losing control over their children (Lander: 1954: 64). Although these findings are dated from the 1950s and centred in Baltimore, USA, similar situations could be applied to most of Australia, particularly in the larger cities. These findings are supported by Giallombardo (1976: 110), who concluded

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that the absence of the community pressures and concerted action for the repression of delinquency, facilitates delinquent tendencies,

Urban Aborigines in Cairns are concentrated in a couple of suburbs close to the inner city. Informal conversations with Aboriginal juveniles prior to their court appearances and during home visits, revealed peer-group pressure and boredom as the main cause for their offending behaviour, In the predominantly indigenous neighbourhoods, most indigenous juveniles have appeared before the courts, and committing offences becomes part of a negative and offending lifestyle. The most startling comment a 16-year-old juvenile made was his firm belief that only white people work". So entrenched in their beliefs are these indigenous youngsters, that they do not associate work and employment as a choice in their lives. This comment is a reflection of the way of thinking which is acceptable within their community group. In cases of suburban crime, especially incidents of youth gang crime in Cairns suburbs such as Manoora and Mooroobool, many residents are fearful of calling the police because the perpetrators live in their midst (Cairns Post, 12 February, 1997: 8). Neither the police nor the Courts are capable of forestalling revenge attacks because they are only dealing with the aftermath, and can do little to prevent the crime from taking place.

Torres Strait Islanders also reside in these sub-cultures, and their sub-cultural lives are characterised by the dislocation from their traditional customs. Many Torres Trait Islander juveniles come to Cairns for a family visit and have problems returning, due to lack of funds to cover the travel expenses. Without adequate supervision, these youngsters become involved with juvenile delinquents and when caught they often fail to appear in Court; rather they re-appear many months later on one of the Torres Strait Islands. Some Islander families remain in Cairns or in Townsville when one of their children is in a detention centre. Spending time away from the relative isolation of the Islands, these children are tempted by the city life and commit crimes such as shoplifting. Fathers are predominantly employed in the trochus diving industry and have little contact with their children. Court Orders are particularly difficult to follow through in the case of Torres Strait Islander juveniles as they return to the Islands often without seeking appropriate permission from agencies supervising community based orders.

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This criminal sub-cultural existence is shaped also by high rates of Aboriginal youth unemployment, in many cases a direct result of dropping out of school at a very young age. In addition, indigenous juveniles appearing in court and returning to remote or rural areas, where counselling and other services are scarce, are disadvantaged and juveniles may be sent to detention hundreds of kilometres away from their home (Fitzgerald, Vol. 2, 2001: 166).

A major feature of the sub-cultural lifestyle experienced by many Aboriginal youths is the abuse of both legal and illegal substances. Unfortunately, the Cairns region is no exception. Petrol and glue sniffing are rampant in many northern Aboriginal communities, and alcoholism is prevalent amongst most young adults, Children as young as nine have been known to drink alcohol in copious amounts. The onset of abuse begins early in life for many Aboriginal youths, and is a reaction to boredom, negative school experiences and unemployment (Beresford and Omaji, 1996: 134-6).

In many cases the parents are too preoccupied with their own problems to actively help their children in stopping, or even in preventing, this abuse. Although indigenous youths appear to be in trouble with the law more frequently than non-indigenous youth, research commissioned by the Queensland State Government and conducted by Queensland academics Lennings and Pritchard in 1999, found "high and problematic use of alcohol, nicotine and marijuana" by most young offenders when they were not locked up. The survey of almost 120 juvenile offenders aged between 11 and 18 showed the use of tobacco at age 10, and alcohol and cannabis at age 11. A large majority of these juveniles came from a low socio-economic background, and once they got into the crime cycle, it was very hard to get out. Dr Lennings said the results of the study revealed no major difference between Aboriginal and non- Aboriginal offenders, but the Aboriginal population remained disproportionately high at about 40% of juvenile detainees in Queensland's detention centres (Sunday Mail, 21 November, 1999).

Many indigenous juveniles do not seek access to the social services system, or they have special needs that are not addressed by the system. An example, which was observed by the researcher, is of an indigenous juvenile who spent time in detention, whilst his mother collected and spent his family payments. On his release, the child was penniless and within days committed further offences in order to meet his daily dietary needs. His

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mother, an alcoholic of no fixed abode, was a park dweller in the inner city of Cairns and unaware of her child's circumstances. The child re-appeared before the Cairns Children's Court charged with stealing food items including boxes of Weetbix. Beresford and Omaji confirmed that life at the margins of society shapes both involvement in criminal activity and the way in which much crime is committed by indigenous youngsters. The crimes committed are more than delinquent behaviour; some crime is born out of economic necessity, but many crimes are committed as a means of gaining peer approval and as a way to enhance self- esteem ( Beresford and Omaji, 1996: 139).

The more affluent suburbs of Cairns suffer also from gangs who are involved in petty crime and public drunkenness. Members of these gangs are predominantly non- indigenous and they cause enormous social problems. Beach parties involving 100 or more juveniles are a common occurrence and have an enormous impact on police officers' time. A Northern Beaches Neighbourhood Watch spokesperson stated that `the way the system operates it actually encourages kids to become criminals because all they can get is a caution'( McKillop, 1997: 3).

In Cairns there are programs in place to promote the well being of juveniles in order to reduce the need for legal intervention. Programs like Youth and Community Combined Action (YACCA) aim to reduce the level of juvenile offending in these high crime areas by targeting young people at risk of becoming involved in the criminal justice system. YACCA tackles issues such as boredom, truancy, unemployment, family problems homelessness and drug and alcohol abuse (Youth Justice Practice and Procedures Manual, 2001: 2-2). Although YACCA reports some success, the real need for the high crime communities is to address the issues within their own communities, similar to the principles of a CJG. An attempt to tackle juvenile crime in Manoora was made in 1999, when a Manoora elders' meeting rated juvenile crime their highest priority. The chairwoman of the Manoora Elders Advisory Group, Ms Whiteley, stated in an article in the Cairns Post, 'Many juveniles between the age of 12 and 18 do not go to school or work. They have nothing to do and all day to do it and it's asking for trouble. Police do what they can but it's really up to us to care for ourselves' (Williams, 1999: 3). The Advisory Group expressed concern about the lack of respect youths had for their own culture, and the Group expressed the need for juveniles in the Manoora suburb to raise their self-esteem and self-respect in an effort to

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curb criminal activities in the suburb. Up to date, the relatively high juvenile crime rates in this suburb as a matter of grave concern for all parties involved.

2.3.1 CULTURE-CONFLICT THEORY Culture-conflict theory explains why juveniles are attracted to sub cultures. According to this theory, areas of high mobility lack cultural unity. The standards of these areas are in conflict with, or inconsistent with schools and official representatives of the wider community. In a conflicting culture the young person is confused and consequently develops no respect for the law because it represents a culture for which there is no support in his social world. Juveniles in this area are denied status in the 'respectable society' of the wider community. The delinquent subculture deals with these problems by providing criteria of status which the juveniles can meet (Giallombardo, 1976:112). The juvenile living in the subculture has limited or no skills to facilitate upward mobility. In addition, the experience of long-standing family unemployment has created a widespread attitude of non-work among urban Aborigines (Beresford and Omaji, 1996: 131-2), and Aborigines in Cairns are no exception.

2.4 DEVIANT BEHAVIOUR PERSPECTIVE In the 1950s sociologists developed the deviant behaviour perspective to explain why some people follow a dysfunctional developmental path while others do not (Rubington and Weinberg, 989: 131). The theoretical roots of this perspective are in Durkheim 's theory of Anomie, which relates to his study of suicide. Durkheim formulated a typology of suicide which occurs in response to sudden changes (Rubington and Weinberg, 1989:132). The theory of anomie posits that access to conventional means is differentially distributed, and that some people because of their social class, enjoy certain advantages that are denied to those elsewhere in the class structure (Giallombardo, 1976: 121-2). The anomie theory was further developed by Merton who explained higher rates of deviance because the goals are held for all to strive for, but the legitimate means of attaining them are not available to everyone. Consequently, if a disadvantaged juvenile wants something, stealing may be the only way to get it (Rubington and Weinberg, 1989:133). This theory was followed on by and complemented by Sutherland's differential association theory. Sutherland tried to explain why some people, but not others, commit deviant acts.

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According to Giallombardo (1976: 122-3), Sutherland's theory of differential association describes the processes by which criminal values are taken over by the juvenile as learned behaviour. Sutherland further asserts that this behaviour is learned in interaction with others who have already incorporated criminal values. In addition, blocked opportunities and deviant role models increase the opportunity to learn deviant ways (Rubington and Weinberg, 1989: 136-7).

An example of indigenous group-cohesion and of learned criminal behaviour is in cases of crimes committed by groups, in particular breaking and entering. Disclosed in a Cairns Children's Court appearance, in the presence of the researcher, the following example illustrates the meaning of group-cohesiveness in a Cairns suburb. The smallest child of the group is pushed through an open bathroom widow, walks to the front door and lets the older children in. Being in the same situation fuels this group cohesiveness and the older children in the group know that the younger ones are too small to appear in court. Younger group members hang around the leader to seek approval and acceptance and thereby learn criminal behaviour. Crimes committed by group members enhance their self-esteem and make the group feel more cohesive. Some Aboriginal juveniles are actually proud of their crimes as the younger group members look up to them. This kind of social integration is familiar to juveniles in the sub-cultures, but it is not the social integration promoted and encouraged by the restorative approach.

The next section describes the connection between social bonding and delinquency control in terms of juvenile offending behaviour. The so-called social control theories attempt to explain why people do not commit crimes, rather than why they do.

2.5 SOCIAL CONTROL THEORIES Social Control theories start with the assumption that all people would commit crimes if left to their own devices and therefore theorists focus on the restraining forces imposed on individuals. When these forces of control break down, people are no longer restrained from committing offences (Vold and Bernard, 1986: 232). Evidence of this can be found in most juvenile courts where lack of guidance or parental control, combined with peer group pressures, results in many juveniles committing crimes and being taken before the courts,

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Control theory has a distinguished lineage, but Hirschi's version is the most influential (Braithwaite, 1989: 27). Hirschi saw social bonding as the key to delinquency control. Without social bonds the chances that many people will choose to become delinquent, would increase. Some attention has been focused on the reason why most people do not commit offences, rather than on why they do. Once there is an understanding of why most people abide by the law, and why they respect others, possible causes of criminal behaviour can be explained.

Hirschi sought to explain why people do not engage in deviant behaviour (Palmers and Humphrey, 1990: 35). He found that the stronger the bonds, the less likely the person would engage in deviant behaviour, The stronger the persons' attachment, commitment, involvement and beliefs are, the less likely are the chances of deviant behaviour. Hirschi's control theory assumes that all people in a society are morally obliged to adhere to a common value system ( Palmers and Humphrey, 1990: 36).

In the related theory on 'delinquency and drift platza, 1986: 240), Matza argues that the vast majority of juvenile offenders are drifters, who do not reject conventional moral values per se, but 'neutralize' them in a wide variety of circumstances so that they are able to commit offences without feeling the guilt associated with criminal behaviour. According to Matza, this sense of irresponsibility is reinforced by the ideology of the juvenile court, which declares that juveniles are not responsible for their actions.

However, court protocol and sentencing observations prior to and during this research period indicate that in Cairns, although magistrates are aware that they are dealing with juveniles, these juveniles are held accountable for their actions. At the commencement of the sentencing, the magistrate will point out to the offenders that they are indeed responsible. Depending on the age of the juvenile (a magistrate is significantly 'milder' with a 10 year-old child than with a 16 year-old child) the sentencing magistrate makes it very clear that the juvenile is responsible for the damage caused. The outcomes are not always soft, but social and economic circumstances, and in particular a previous criminal history, are taken into account, In the case of children aged between 10 and 14 years, Section 29 of the Criminal Code Act 1899 provides that the child is not criminally responsible for any act or omission. For a child in this age group to be held responsible, the prosecution has to

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prove that at the time of the incident the child knew that what he or she was doing was wrong. Young people aged 15 and over are held criminally responsible and can receive the punishment an adult would receive for a similar crime.

According to Matza, drift occurs in social structures in which control has been loosened or lost (1986: 240). This 'freedom' allows juveniles to become delinquents; they are not so much committed to the delinquent values, but rather they feel guiltless. Juveniles feel that they exercise no control over the circumstances of their lives and they are unable to see a positive future. This loosening of social ties and subsequent control is evident in the Cairns region where there are a few 'subcultures' whose members have their own rules. These rules are not in accordance with the views of the wider community.

Perhaps the most controversial aspect of the restorative approach concerns the appropriateness and effectiveness of the restorative justice programs in remote aboriginal communities. The following section reflects some of the criticisms along these lines articulated by indigenous researchers.

2.6 INDIGENOUS CRITIQUE Two indigenous researchers, Kelly and Oxley (1999: 4-7) have commented on conferencing in New South Wales. They maintain that many aspects of the conferencing model, as based on Maori principles, cannot be simply translated to indigenous Australians. Kelly and Oxley argue that the differences between Aboriginal communities are not being taken into consideration. The Young Offenders Act 1997 (NSW) has a 'one size fits all' approach, which reflects a lack of understanding of the workings of indigenous communities. Kelly and Oxley further argue that, where it is not possible to be culturally appropriate, the convenors of the conference may then think that it is acceptable to be culturally inappropriate: They note that a common scenario in conferences is that an indigenous juvenile offender is faced with a non-indigenous convenor. Although research for this thesis supports some of these concerns, the coordinator of the Cairns conferencing program, for the two-year research period, was indigenous, and that more non-indigenous juveniles participated in the program than did indigenous juveniles. Hence, the situation in Cairns at least in terms of cultural appropriateness, is quite the opposite of the findings of Kelly and Oxley.

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Wundersitz (1996: 117-8), in her South Australian evaluation, also observed that conferences appeared to be working less well for indigenous people then for nonindigenous people, with around 12% of indigenous juveniles failing to appear for conferences, which was much higher than the percentage for non-indigenous juveniles. Some steps had been taken to address the special needs of the indigenous juveniles, including the appointment of an indigenous convenor, and by making home visits rather than telephone conversations, By going out to the communities, the co-ordinator has an opportunity to identify the perpetrator's closest network of kinship and invite those people to the meeting. In Cairns, the co-ordinator conducts pre-conference meetings with both the victim and the offender. The aim of this meeting is to assess the suitability of their participation in the program, and to confirm community support.

Western Australian evidence suggests that a fundamental reorientation close to the New Zealand experience is still a long way off for that State. Beresford & Omaji (1996: 173) raised several issues in relation to whether or not a true New Zealand based model could be successfully transplanted to Aboriginal Australia. Following are some of the concerns expressed by Beresford and Omaji, with added comments in relation to the current situation in the Cairns region. For instance, they queried whether or not the extended family situation as described in FOC, namely the clan, tribe and respect for authority still exist in Aboriginal Australia (Beresford & Omaji, 1996: 173).

As previously illustrated, urban Aborigines have lost their cultural awareness to the extent that respect for parents and elders is virtually non-existent. The extended family is often widespread, living either in parks, on the streets, or residing with family members on a temporary basis. Mostly, their often-nomadic lifestyle results in the disintegration of family cohesion and the appropriate respect and parental supervision is lacking,

To an extent, cohesiveness and extended family are still in evidence in the remote Aboriginal communities, When the communities are not trapped in the vicious cycle of violence and alcohol, members rarely leave their territory; therefore the Aborigines involved in the justice system are predominantly urbanised Aborigines who frequently live in criminal sub-cultures. Many of the juveniles have relatives in remote communities, and although ensuring funding for the relatives to visit the juvenile in the detention centre

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facilitates family integration, it neither acknowledges nor addresses the underlying and wider issues of the criminal behaviour that has resulted in a period of detention.

The second question raised by Beresford and Omaji, concerns the extent for which largely dysfunctional families, such as those of many Aboriginal juvenile offenders, are able to participate in decision-making to produce suitable outcomes. The Cairns research found that every conference involving Aborigines and their support people resulted in a suitable agreement, which was deemed appropriate by all parties. It must be added, that each offender had support people and that a lot of work had been conducted prior to the conference, including conversations and discussions with extended family members to assess whether or not they would be suitable to be present as support people. It is therefore expected that only those people were present who showed an interest in the welfare of their child. Besides, the number of Aboriginal offenders referred to conferencing was far too small to come to firm conclusions about the capacities of their families to produce suitable outcomes at the end of a conference. The third issue raised by Beresford and Omaji is whether or not the dominant culture shows sufficient understanding and respect for Aboriginal ways of resolving conflict to make it a pillar of the reform system as has happened in New Zealand. The Cairns community conferencing program appears to be culturally aware of the consideration of indigenous juveniles. The program is conducted by an indigenous co-ordinator and there are indigenous convenors who ensure cultural sensitivity and respect. In CJGs, respected indigenous elders conduct the program and the dominant Anglo-Saxon culture plays a very small part. However, the sample of indigenous participants in Cairns was too small to draw conclusions as to the effectiveness of the program, and is therefore only an indication of the level of cultural awareness. Moreover, underlying causes of the offending behaviour, including domestic violence, alcoholism, lack of respect, community disintegration, and economic necessity, are not addressed during the conference.

To address some of the issues raised by Berseford and Omaji, Western Australia established four Juvenile Justice Teams in 1991 in consultation with Aboriginal communities, and in doing so this State became the second in Australia to incorporate a version of conferencing into its juvenile laws. According to Alder and Wundersitz, (1992:

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105), Aboriginal juvenile offending is linked to fundamental problems in Aboriginal communities, i.e. lack of Aboriginal cultural advancement and understanding and feelings of disenfranchisement experienced by Aborigines.

The aim of the Juvenile Justice Teams was to involve the victim, ensure victim awareness, and emphasise involvement of Aboriginal communities through cultural awareness. Based on the New Zealand FGC, the underlying philosophy was to reintegrate young offenders back into the community and in-house evaluations reveal an overall success. Although the Juvenile Justice Teams were modelled on the New Zealand FGC, they differ greatly in the notion of reintegrative shaming, which is not emphasised in the Western Australian models. The use of culturally sensitive procedures, reintegration of offenders into the community, and achievement of effective healing for the community, including victims, are not priorities (Beresford and Omaji, 1996: 171-2). No difference is made between first offenders and recidivists, the latter situation needing more intense treatment and support.

2.7 DISCUSSION

Many indigenous parents accept the fact that their children are involved in the justice system as a normal occurrence. The social environment experienced by many of these parents has involved cultural dispossession and enforced institutionalisation. As a consequence, difficulties in parenting skills, a pattern of domestic violence and a life style of material disadvantage have resulted in their children's involvement with crime (Sarre and Tomaino, 1999. 3334). Lack of preparation for life outside the missions, and lack of employment skills, loss of culture and family, and early pregnancies have added to emotional trauma. In particular a lack of bonding between the parents and their children has resulted in a disproportionately large number of indigenous youngsters embarking on a life of crime. As observed by and disclosed to the researcher by juveniles, many are without fixed place of abode, moving from relative to relative. Without inadequate supervision, a disturbingly large number of indigenous juveniles admitted to the researcher that they prefer life in detention to life on the streets.

The researcher has come across two separate cases of indigenous juveniles not wanting to leave the detention centre. In the course of informal talks with a couple of juveniles who

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have spent many months in detention, their gratitude for being in detention was expressed with the words "We have education, very nice teachers, we get to do art a lot, we have a proper bed with a blanket and we get food at least three times a day",

The theories on which community conferencing is based, are a combination of both the neutralisation and reintegration theories and these are described in the following two sections.

2.8 NEUTRALISATION THEORY Neutralisation enables an offender to overcome moral impediments to offending behaviour. This 'process' involves denial of harm, denial of responsibility, denial of victim and condemnation of condemners. Irrespective of whether neutralisation occurs before or after the crime, it prevents offenders from taking a realistic view of the consequences of their behaviour, and so avoid any personal experience of guilt. According to Sykes and Matza (1989: 104-9) some offenders use justifications in order to rationalise and protect themselves from self-blame and the blame of others after committing an offensive act. Justification also makes offending behaviour possible. These justifications of offending behaviour are called techniques of neutralisation and, by learning these techniques, the juvenile opens up the possibility of becoming delinquent.

The insights of Matza's theoretical approach are highly relevant to explaining offending behaviour, and the way in which conferencing operates to counter these techniques of self justification among offenders.

Justification techniques consist of the following five major types:

Firstly there is the denial of responsibility, where the juvenile blames outer forces for the offending behaviour. The outer forces could include bad parental behaviour or living in

a bad neighbourhood. The offender does not feel accountable for the offending behaviour but views himself as a victim of circumstances. In community, conferencing there is no chance of denial of responsibility. Indeed, one of the primary aims of community conferencing is to address the accountability of the offenders'

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behaviour. This is achieved through the acceptance of responsibility and by understanding the consequences of the offending behaviour on others. Accountability commences when the offender admits guilt; when the offender refuses to admit guilt for whatever reason, the offender might have to be taken to court instead. Not only must the offender 'own up' to the offence, apologise to the victim (s), and take responsibility for the offending behaviour, but the offender must also make amends.

The second justification technique is the denial of injury. In this case the offending behaviour is open to various interpretations, i.e. the theft of a vehicle becomes the 'borrowing' of a vehicle and the gang-fighting becomes an agreed-upon confrontation. In the case of vandalism, no visible victim is present, therefore the offender does not recognise the hurt and damage caused by the offending behaviour. In community conferencing, the offender is often confronted with the hurt caused to the victim. The victim explains the painful consequences the offending behaviour has caused and, in the case of vandalism, representatives of damaged buildings or Council property explain to the offender the damage caused in human terms. In conferencing, when confronted with real human victirris, there is no opportunity for the offender to deny the hurt or injury caused.

Thirdly, denial of the victim takes place when the offender becomes the avenger and the victim becomes the wrongdoer who deserves to receive this injury. Assaults on homosexuals or on members of minority groups are evidence of the third justification technique. Community conferencing challenges the defensive excuse-making and 'moral

neutralization' strategies adopted by many offenders. During a community conference, the victim, when he is not someone who fits the stereotype, will confront the offender and therefore the neutralisation mechanisms of the offender will be challenged. Stereotypes held by victims might also be challenged when meeting face to face with the offender, who might be a very young, nervous and immature child, as opposed to the 'hardened' juvenile offender they have had in mind (Juvenile Justice Program, Community Conferencing: Preliminary Evaluation Report, 1998: 12).

A fourth justification technique is the condemnation of the condemners. By shifting attention away from their own offending behaviour to the behaviour of those who disapprove of the offending behaviour, perpetrators cause the wrongfulness of the offending behaviour to become overshadowed. This technique is evident in cases where

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the police are accused of being corrupt, and where teachers are accused of showing favouritism. In a community conference, the offender is not only confronted with the victim of the offending, but also with the facts surrounding the offending behaviour. The juvenile offender is expected to take on the responsibility of his offending behaviour and by pleading guilty he is encouraged to make amends rather than to blame others involved.

The last justification technique is the appeal to higher loyalties. The offender's internal and external social controls may be neutralised by sacrificing the demands of the larger society for the demands of the smaller society or group of which the offender is a member. This manner of justification does not necessarily reject the societal norms, but others' norms (usually those of a sibling or a close friend) are perceived to be more important. This justification gives meaning to dilemma and role conflict, as in the case when a juvenile hits a person who is believed to have hurt the juvenile's sibling or close friend (Sykes and Matza, 1989: 104-9). In conferencing, the offender is encouraged to discuss the circumstances surrounding the offence and, theoretically, a discussion offers an opportunity for the offender to understand not in that two wrongs do not make a right.

Despite the techniques of neutralisation, some juveniles might still feel guilty about their offending behaviour. On the one hand they might be ashamed when confronted with the consequences of their behaviour; on the other hand, some juveniles might be so far removed from society's norms, that neutralisation techniques do not play an active part.

2.9 REINTEGRATIVE SHAMING The community conferencing framework is based on Braithwaite's reintegrative shaming theory. This theory regards the conference as a ceremony of reintegration. By condemning the behaviour rather than the individual, by involving the juvenile's family and peer group during the resolution process, and by providing an opportunity to make meaningful amends, reintegration will be facilitated. This process is intended to heal the hurt or damage caused to the victim (Borowski and O'Connor, 1997: 85).

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The CJGs main aims, (to improve community life and formulate strategies to encourage community cohesion), conform to Braithwaite's understanding of reintegrative shaming, namely the shifting of responsibility for monitoring illegality back into the community along with responsibility for dealing with the illegality by informal processes of social control and conscience building (Braithwaite, 1989: 150).

Braithwaite's shame and reintegration theory (1989) was developed in response to the perceived inadequacies of classical criminology, which assumed that people were essentially rational and perceived that breaking the law would bring more pleasure than pain. The theory is that, because young people are more vulnerable to shaming, they would be deterred from committing crime by 'informal' controls, and reintegration is seen as the key to re-engaging the family with the young person. This shame and reintegration approach presents models of alternative dispute resolution which have their roots in restorative justice.

John Braithwaite wrote 'Crime, Shame and Reintegration' in 1989, arguing for the development of criminal justice processes that increase the likelihood of reintegrative shaming rather than for the stigmatic shaming of offenders. The theory, further developed by Strang and Braithwaite ( 2001:185), suggests that, where there is an emphasis on reintegrating offenders back into their communities by attempts to disapprove of their behaviour within a continuum of respect and support, there will be lower rates of reoffending, as social disapproval would put pressure on the juvenile offender to conform.

This theory of reintegrative shaming suggests two dynamics which stop most people from offending. Firstly, people do not offend because they have developed their own sense of right and wrong. Due to their consciences, individuals would be personally ashamed of committing offences; this form of shaming is referred to as 'internal shaming'. Secondly, people do not offend because they are shamed externally, by experiencing shame and disgrace in the eyes of significant others. The theory of reintegrative shaming argues that an effective response to criminal behaviour is to shame the actions of the perpetrator and, in doing so, also strengthen the ties within his or her community. However, in some 'subcultures' there is no feeling of shame or stigmatisation; indeed a period in a detention centre is like a rite of passage.

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According to Braithwaite, the intention of assembling around offenders the people who care for and respect them most is to foster reintegration, particularly when all parties involved agree upon the punishment (Braithwaite, 1993: 37). The theory would work where family and community ties, mutual help and trust are firmly intertwined within a community. However, reintegrative shaming does not really work in areas of high residential mobility, or in cases where the communal ties are not strong and where there is nothing to reintegrate.

Extensive research in the workings of restorative justice have been conducted in Canberra (ACT), in the so-called Reintegrative Shaming Experiment (RISE), which is discussed in the following section.

2.9.1 A.C.T: RE- INTEGRATIVE SHAMING EXPERIMENT (RISE) RISE is empirical research that evaluates the effectiveness of restorative justice and is conducted by a research team from the Centre for Restorative Justice at the Australian National University in Canberra. The RISE project has been running in the Australian Capital Territory since 1995 and is based on the Wagga model of police- run conferences.

RISE set out to measure the impact of restorative policing on offenders' and victims' perceptions of procedural justice and on offenders' post-conference behaviour (Daly and Hayes, 2001), and compares the effectiveness of conferences with that of court processes on the following four outcome criteria: reoffending patterns, victim satisfaction, perceptions of procedural fairness and relative costs. RISE has data on the feelings of both victims and offenders about the way in which their cases were handled (Strang, 2001: 3). The project is important for its research design of randomly assigning RISE eligible cases to court or conference. Assuming a sufficient number of cases, random assignment ensures that the two groups are equivalent on both known and unknown variables. At present, there are only two other randomised experiments in the world comparing conference and court processes (McCold and Wachtel 1998) or conference and court diversion programs (McGarrell 2001). When this design is used, differences between the groups can be attributed to the treatment rather than to individual characteristics. The RISE compares the

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effects of standard court processing with the effects of a diversionary conference for certain kinds of offences and offenders, namely drink driving at any age, juvenile property offending, juvenile shoplifting and youth violent crimes.

Preliminary results yield encouraging findings for conferencing, regarding comparative levels of victim satisfaction with the conferencing processes. According to Chappell and Wilson, (2000: 26), the victim and offender see conferencing as more procedurally fair; they have a better understanding of what is going on; they are able to express their views and they report being treated with respect. The RISE asked the following comparative question: "What do we know about whether conferencing delivers what victims want better than court does?" It was found that 4% of victims whose cases were assigned to court attended, compared with 80% of victims whose cases were assigned to conference. 15% of court victims were awarded money, compared with 14% of conference victims. Only 17% of court victims, compared with 71% of conference victims, received an apology from their offenders. Only 7% of conference victims, compared with 18% of court victims, felt that the offender would commit an offence against them again. Only 6% of conference victims wanted to harm their offender; for court victims this was 21%. Finally, 26% of court victims, compared with 38% of conference victims, said that, as a result of the way their cases were dealt with, their respect for the justice system improved (Strang, 2001: 5).

According to Strang (2001: 6), the research so far concluded that around two-thirds of conference victims said that they attended a conference because they wanted to express their feelings, have a say in how the matter was resolved and have a chance to talk directly to the offender. Before the conference 16% of offenders were afraid of the victim; this was halved after the conference. Prior to the conference, 65% of victims were angry; afterwards only 27% felt anger. After the conference, half the victims felt sympathetic towards the offender; prior to attending this percentage was 18. Victims felt that conferences treated them better than did the court in terms of being able and encouraged to be present and to partake in discussions, to receive apologies, and to be notified of the meeting in good time. The victims also appreciated the emotional and material reparation offered to them. Overall, the RISE research indicates a 90% satisfaction rate of victims and offenders.

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The findings lead to the conclusion that, for victims attending conferences, the sense of both procedural justice and restorative justice was higher than for those attending court, and that reduction of emotional harm was greater for those attending conferences. For offenders, attending conferences also led to a greater sense of procedural justice and restorative justice than for those offenders attending court (Strang, 2001: 4).

These findings are supported by Fitzgerald (2001, Vol. 2: 147-8) who found that RISE has revealed a number of advantages of conferencing over courts in terms of offenders' and victims' perceptions of justice. In addition, offenders who participated in conferencing tended to have greater empathy with their victims. However, the research also found that offenders found conferences more stressful than court, even though the offenders also found that conferences were fairer than the court (Strang, 2001: 4).

Results of recidivism patterns concluded that restorative justice can work in the case of violent offenders, but there is no guarantee that it will work for all offenders and offence types (RISE Report, 2001: 1). As long as re-offending is no worse, it is legitimate to consider the other potential benefits of restorative justice programs to victims, offenders and their communities.

Although the research may provide many answers and add to information, according to Chappell and Wilson (2000: 25) many questions will not be answered by RISE. So far RISE does not have information on re-offending behaviour nor on the costs involved. In additional research conducted by Hayes (2002), the RISE findings are of the effects of referral to court or conference, not of the effect of the court or the conference itself (Hayes, 2002: 10).

2.9.2 ACT: THE RESPONSIBLE CITIZENSHIP PROGRAM Further research conducted in the ACT includes a restorative approach in bullying and victimisation in schools, and consisted of a conflict resolution based program, called the Responsible Citizenship Program. This Program was piloted in a Primary School in the ACT in 2001 and was established because of the stress and long-term effect of bullying on many children and their families. The program is guided by the following five principles:

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repair harm done, expect the best from others, acknowledge feelings of harm done, care for others and take responsibility for own actions and feelings. Thirty Year 5 students participated in the program and the evaluation used a number of quantitative and qualitative methods, including questionnaires. Two particular measures were of importance, namely the students' feeling of safety within the school community and the students' use of adaptive and maladaptive shame management strategies (Morrison, 2002:4).

Results showed an encouraging shift in the students' feelings of safety, but with only pre and post measures, it was not certain what caused the change. The shame management measured students' use of shame management strategies. Students were presented with four different scenarios perpetrating harm and students indicated what they would do (Morrison, 2002:4).

While initially 33% of students reported that they would feel rejected by others following wrongdoing, only 20% indicated they felt this way after the program. Further results indicated that 27% of participating students reported used shame displacement strategies before the program, only 13% did so after the program. In conclusion, these results are encouraging and indicate that students put in practice the program's emphasis on building respect, consideration and participation (Morris, 2002:5).

2.9.3. NEW ZEALAND: FAMILY GROUP CONFERENCES (FGC) Family Group Conferencing (FGC) in New Zealand came close to the reintegrative shaming theory advocated by Braithwaite in 1989. Braithwaite maintains that societies, which practice reintegrative shaming rather than 'labelling', have a lower crime rate. The experiment of FGC, as a variation on the theme of Braithwaite's 1989 `shame and reintegration', has been warmly embraced in Australia and New Zealand and has been the subject of much research in its implementation; the most significant findings include those of Morris and Maxwell, 1993, and Alder and Wundersitz, 1994, (Sarre and Tomaino, 2000: 46).

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An evaluation of New Zealand's FGC by Maxwell and Morris (1993) found that active participation by young people in the conference was low and that the process was dominated by professionals. From 1990 to 1992 the research sample included almost 700 young persons, 200 of whom attended FGCs. Lack of welfare support meant there was more shaming than reintegration and healing. However, about two-thirds of the young persons' family members were involved, but no data on recidivism was published

This research reported about one quarter of victims actually felt worse after the conference, as they were exposed to further emotional harm when facing the perpetrator. This 1993 study of conferencing in New Zealand shows that victims tend to be less enthusiastic than other participants in the process, but on average still express quite a high level of satisfaction.

Further research conducted by Maxwell and Morris on FGC in New Zealand found that the 'victim satisfaction' factor was least often reported in a sample of young participants in FGC. The sample group had become persistent recidivists and regression analysis suggested that those young people who failed to apologize to their victims were three times more likely to be reconvicted than those who had apologised (Maxwell and Morris, 1996: 164).

According to Daly (1999), significant findings from Maxwell and Morris' 1993 research, as well as more recent studies, include the following: most families and their children felt involved in decision making and were satisfied with the process; almost all conferences had an agreed outcome, but victim participation was substantially less in comparison with that of young people and their families, and their level of satisfaction was not as high. Moreover, the research found that conferences failed to respond to the cultural needs of Maori participants.

According to Alder and Wundersitz (1994), New Zealand national data and research data confirm that by far the majority of outcomes reflect responses to the young persons' offending rather than to their welfare needs. The most common outcomes were apologies (70%) and community based work (58%). This research further concluded that less than 25% of offenders worked directly for their victim (Alder and Wundersitz, 1994: 29).

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According to Hayes and Daly (2001: 11) in New Zealand, Maxwell and Morris's (2001) model of re-offending includes an offender's early life experiences, elements of the conference and life experience post-conference. They interviewed 108 juveniles and their parents 6.5 years after the conference, and focused on childhood experiences in schools and families, and the offenders' and their parents' recollection of what happened in the conference. Maxwell and Morris concluded that both early life experiences and events after the family conference had a significant relationship to re-offending. They also found several conference factors that were related to reductions in recidivism rates, including the offender's level of remorse, his or her not being made to feel like a bad person, feeling involved in decision making, agreeing with the outcome and meeting the victim and apologising to him or her (Maxwell and Morris, 2001: 253).

It would have been interesting to compare the findings of Maxwell and Morris with the researcher's questionnaire as the key questions address similar issues to those described by Maxwell and Morris. Unfortunately circumstances, briefly outlined in chapter four, prevented the questionnaires from being distributed to the participants.

2.10 AFFECT THEORY Braithwaite's theory of reintegrative shaming is supported by 'Affect Theory', as developed by Tomkins and elaborated by Nathanson. According to Nathanson (1995:2), crimes are becoming more and more violent and are viewed by their perpetrators as matters of pride rather than of shame and guilt. The result of this is that the juvenile sees 'imprisonment as a badge of courage, a place from which to learn networking in the graduate school of the streets' (Nathanson, 1995:2).

This is supported by the researchers' informal conversations with juveniles, which revealed that by having been physically set apart through removal from a community or the streets to a youth detention centre, a juvenile becomes accepted by peers. In many cases these juveniles are ring leaders and boast within their peer-group about how many times they have been in detention. In these personal discussions with juveniles after their release, they not only have boasted about the number of times they have been sent to detention, but they have expressed a desire to return. Nathanson suggests that, if this is the result of separating reason and emotion, we are forced to look at emotion (Nathanson, 1995: 2).

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Nathanson argues that people have two emotions that feel good, namely interestexcitement and enjoyment-joy. Emotions that feel awful include fear-terror, distressanguish, anger-rage, disgust, shame, and humiliation. According to Nathanson (1995:3), for a community to be healthy, certain conditions need to be met, and include the following:

A group of people who agree to maximise positive affects by sharing happy events and excitements;

The group must be willing to mutualise and minimise negative affects; The group must be willing to share and express emotions.

The group must favour the three abovementioned goals in order to bring cohesiveness to the community. Any interference with these goals disrupts a community (Nathanson, 1995:4). This is evident in Cairns, where community cohesion is disrupted by the transience of the population. Many people in Cairns are from remote Aboriginal communities, have limited support systems outside their community and regard breaking and entering houses as a way of support and survival. This affirms Braithwaite's model, where high crime rates can be related to the breakdown of traditional authority structures and the consequent, diminishing sense of cohesion and social responsibility. Examples of this can be found in remote Aboriginal communities of the Cairns region where there are alcohol related problems and kinship relations are undermined.

According to Nathanson (2000:5), shame can lead to either avoidance or withdrawal. Since the biology of the adolescent is characterised by an increase in sexuality and since but a small fraction of wishes can be granted, this period of development experiences more shame than any other (Nathanson, 2000:6). Youth violence is based on shame, which is expressed by attack on the other (i.e. bullying) or on avoidance (drugs and alcohol). Elements of the Affect Theory are found in the Wagga model, in which the Maori version of conferencing, based on the New Zealand Group Conferences, was tried successfully. Consequently, the Wagga Model will be discussed in the following section.

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2.10.1 THE WAGGA MODEL Adaptations of the FGC have been implemented in Wagga Wagga (NSW), where conferences have been part of a police cautionary program since 1991 (Alder and Wundersitz, 1994: 1). Wagga Wagga, a rural city in New South Wales, was the first place in Australia to experiment with family conferencing. A survey of police conducted in Wagga Wagga in 1991 revealed that local officers generally lacked faith in the juvenile justice system because the needs of the victim were ignored, sentences were too lenient in many cases, and the damage done to the wider community was not acknowledged. In an attempt to change these perceptions, family conferencing was introduced as the key element in a restructured police cautionary diversion program (Borowski and O'Connor, 1997: 285).

The essential features of the Wagga model are that FGCs are convened by police and are convened with the same legal and administrative framework that allows for the formal cautioning of juveniles (Moore and Forsythe 1995: 2). In this program, family conferencing is regarded as a successful reintegration ceremony, but is limited to certain categories of offences (Alder and Wundersitz, 1992: 63). According to Moore and Forsythe (1995) the most fundamental difference between this model and the FGC is that local police convene the conferences and the Wagga program was developed under existing provisions for use of police discretion.

The Wagga model is based on the shame and reintegration approach, and another key feature of this mode! is the application of the Affect Theory as developed by Tomkins and Nathanson. The police officers and academics involved in setting up the Wagga pilot reflected on the dynamics they observed as part of a cycle of emotion experienced by participants. Some observers had already attributed the effectiveness of conferencing to reintegrative shaming, but professionals involved with the Wagga model explained this shaming in terms of Affect Theory by encouraging participants to share their emotions and thus refined the conferencing process to enhance its reintegrative shaming dynamics (Juvenile Justice Program, Community Conferencing Preliminary Report, 1998: 9). The juveniles involved expressed genuine remorse and shame. Where, before the conference, there had been no connections among people involved, now there was a sense of commitment to a shared community (Nathanson, 1995: 5). These findings support

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Nathanson's theory of the conditions needed to provide community commitment and cohesiveness. The rationales of the Wagga Model include a desire to reduce the number of young people being sent to court, to extend to victims the right to participate in the process, and to find a process which ultimately reduces juvenile recidivism. Extensive analyses conducted by Lubicia Forsyth of all official police interventions (New South Wales) from 1990 to 1993 revealed a significant reduction in the rate of subsequent apprehension of those who would have been sent to court, but who, instead, attended a family conference. The most likely explanation is that the conferencing meets the procedural, psychological and material needs of participants more fully than court proceedings are able to do. This suggests that the conference process is able to send a strong message condemning the behaviour whilst providing support for both victim and offender. This further suggests that the findings are consistent with the theory of reintegrative shaming. Conferencing appears to have had a significant effect on the nature of policing in Wagga Wagga.

The introduction of the Wagga Model is associated with a substantial decrease in the total numbers of police interventions involving juveniles. According to Moore and Forsythe (1995) police are intervening less, but they are ensuring that more is done when they do intervene. Moore and Forsythe's detailed data analysis has provided evidence suggesting that the rates of re-offending are reduced significantly by attending conferencing. The rate of re-apprehension for the offenders who attended conferencing was approximately half that of juveniles who appeared in court.

The model produces better subjective outcomes insofar as participants feel better about the entire process, and objective outcomes are positive in terms of recidivism rates and high rates of material reparation. Adding to the positive findings of this model, police practices on the streets also have improved, as have the relationships between juveniles and the police.

Both groups suggested this improved relationship correlated with the involvement of both parties in conferencing. In summary, this research suggests that the Wagga model has proved to be a better deal for all participants and adds a greater understanding to the

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conferencing process. It has proved to be influential in the development of similar approaches elsewhere in Australia, including Queensland.

2.10.2 QUEENSLAND EDUCATION The introduction of community conferencing into Queensland schools was the first significant variation in Australia of the police-based justice conference program in Wagga Wagga (NSW), which in turn had been adapted from the New Zealand model of group conferencing. This Wagga Model was so successful, that a high school teacher, Ms Thorsborn, became very interested. Frustrated by the problems of truancy, misbehaviour in general and the lack of respect between teachers and students, Ms Thorsborn introduced the concept of conferencing to Queensland schools (Nathanson, 1995:6). The schools' demand for a facilitator indicated some urgent needs within the schools for an entirely different approach for dealing with harmful acts committed by juveniles.

In 1996 and 1997, Education Queensland conducted two separate studies over a two-year period involving the introduction of restorative justice in the form of community conferencing into schools to deal with incidents of serious harm. In April 1994, the first school-based community conference in Queensland was conducted at Maroochydoore State High School. The first research study was completed in 1996, the second in 1997 and a total of 119 schools were involved. The results of the first study indicate a very high level of participants' satisfaction regarding the outcome, a compliance with the task of 84%. The research further concluded that 83% of juvenile participants did not re-offend and high levels of reintegration were noted. The second study confirmed community conferencing as a highly effective tool for dealing with incidents involving school children. However, a significant number of incidents were not conferenced, but dealt with in a traditional manner, for instance by suspension (Strang and Braithwaite, 2001: 182).

2.11 SOUTH AUSTRALIAN RESEARCH South Australia was the first State in Australia to introduce the notion of deterrence as a sentencing principle for juvenile offenders (Alder and Wundersitz, 1992: 89). In 1994, a new legislation was established in the Young Offenders Act 1993, Youth Court Act and the

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Child Protection Act. In these Acts a young person was held accountable for offences committed. The Acts increased the severity and range of punishment, enhanced the role of the police, empowered families, protected victims and allowed victims to confront the young offenders. The Acts also introduced conferencing based on the New Zealand model of FGC. South Australia has no specific offences which are not deemed suitable for conferencing; it also conferences serious offences including sex offences. Consequently, South Australian conferences receive a high volume of referrals.

The South Australian research on conferencing studied the ways in which conferencing varies in "restorative" and "democratic" processes for participants. The following section elaborates on this study and it findings.

2.11.1 SOUTH AUSTRALIA JUVENILE JUSTICE (SAJJ) The project commenced in 1998 (Strang, 2001: 2) and its focus was on ways of measuring restorative justice practices and variability in the conference process and participants' understanding of it. Results have been based on two waves of data collection, namely in 1998 and 1999. In 1998 the research observed 89 conferences and 172 victims and offenders, focusing on personal crimes of violence and property offences that involved personal victims or community victims including schools, houses, etc.

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restorativeness. However, it is not clear what was compared, nor what that means. Further, SAJJ findings include that the offenders' willingness to repair damage has limits, as has the victims' capacity to see offenders in a positive light. However it is not clear how the damage-repair is accomplished in the first place, nor what the limits are.

Conferences have been found to reduce victims' fear and anger. However, once again, it is not clear how exactly this has been measured or assessed. Victims who attended conferences are said to feel more positive toward the offenders over time. No indication is given about the exact amount of time- could this be one week, a year, a decade? Despite the fact that similar proportions of victims felt negative or positive toward the offenders, one year after the conference the majority said that the conference was worthwhile, that they were satisfied with the procedures during the conference and that they had fully recovered from the impact of the offending behaviour (Daly and Hayes, 2001).

Additional research in SAJJ by Hayes in 2002, resulted in the finding that the members of all five parties, namely the SAJJ observer, police officer, coordinator, offender and victim, reported very high levels of observed and procedural justice (Hayes, 2002: 13). In his 2002 study, Hayes also attempted to relate measures of what occurred in a conference to reoffending by using the SAJJ sample. He found a significant relationship between reoffending and Aboriginality, social marginality and the existence of a previous criminal record. Some 64 % of indigenous juveniles re- offended, whereas 37 % of non-indigenous juveniles did. Residentially stable juveniles are more likely to re-offend than unstable juveniles (72 % compared to 28 %); and 55% of those who offended pre-conference reoffended, compared with 21 who had no prior record. Additional findings by Hayes include that re-offending was highest for indigenous juveniles and that there was little or no relationship between the type of offences committed and recidivism patterns. However, those who committed an offence against someone they knew were less likely to re-offend (Hayes, 2002: 13). These findings support Braithwaite's theory of reintegrative shaming in that family and community ties are of paramount importance for reintegration of the offending juvenile into the community to which he belongs.

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The SAJJ research found no association between re-offending and the presence of a victim and the expressions of emotions during a conference. The research failed to find a strong relationship between re-offending and the level of mutual understanding between a victim and the offender. However, genuine remorse expressed by the offender was a predictor in future non-offending behaviour, as were the level of offenders' involvement in the conference, and the level of responsibility taken by the offender (Hayes, 2002: 16-17). This outcome is consistent with Maxwell and Morris' findings from New Zealand, which indicated that previous records and negative life experiences are the most reliable indicators to predict future offending behaviour and that the genuine expression of remorse is a sound indicator of a non offending behavioural pattern.

2.12 QUEENSLAND PILOT PROGRAMS In Queensland, the Youth Justice Branch of the Department of Justice established three separate community conferencing pilot projects, which commenced in April 1997. Responsibility for the three pilots was transferred to Families, Youth & Community Care Queensland in 1998 and the programs are located at the following sites: Ipswich and Inala Logan City (Including Beenleigh, Holland Park, Cleveland and Wynnum) Palm Island where conferences are conducted by the Aboriginal Community Justice Groups.

During the first 12 months of operation (1997-1998), there were 111 conferences. Palm Island conducted ten conferences, Ipswich 49 and Logan 52. In the second year the programs received around 200 referrals, half of which related to property offences. The Queensland Community Conferencing pilots were subject to an internal and external evaluation process by an independent team from Griffith University (Hayes et al, 1998). Owing to the small number of referrals, the research team excluded the Palm Island site. The Juvenile Justice Branch in Queensland was unable to provide meaningful indications of recidivism rates, as the time frame of the research was too limited.

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In general the two pilots in Logan and Ipswich performed well. During the pilot period a total of 201 offenders were referred to conference. One hundred and fifty-one offenders were conferenced, namely: 65 in Ipswich, 67 in Logan and 19 at Palm Island. The majority of juveniles were referred by police. A total of 148 juveniles were referred to the Ipswich and Logan pilots and 11.5% of offenders referred to the Ipswich and Logan pilots were identified as indigenous Australians. No clear data were available for Palm Island.

The Preliminary Evaluation Report on Community Conferencing of January 1998, conducted by the Juvenile Justice Branch in Queensland, concluded that in Ipswich and Logan most participants in conferencing expressed a high level of satisfaction with the conference process and outcomes. Participants were interviewed two months after the conference and the interviews found that 88.2% of victims, and all offenders, said that the conference was fair. Seventy-six percent of victims felt that the conference helped the young offenders "make up" for their offences and 82.4% of the victims believed the conference helped the young offenders understand the consequences of their offending behaviour (Preliminary Report, 1998: p.1).

Data for the study were derived from interviews with key stakeholders, and official court and police data were analysed. The study concluded that 'community conferencing has been highly successful in regard to the core goal of victim-offender reparation' and that 'participation satisfaction levels were consistently high across a range of conferencing issues' (Hayes et al, 1998: 6).The low referral rates were attributed to the trial nature of the program.

According to Hayes and Prenzler (1998: 7), the research barely touched on recidivism and data should be expanded to address a wider set of questions about the comparative benefit of conferencing. Data covered the first 13 months of the pilot operation and included surveys and follow-up surveys as well as police data and court data.

The evaluation concluded that, although key stakeholders were supportive of the pilots, they were very cautious. Of the 351 offenders, parents and victims interviewed, 98 -100% said that the process was fair, and 97 -99% said that they were satisfied with the outcome of the conference. To statements such as "I was treated with respect", "I got to have my

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say" and "The conference was just what I needed to sort things out", 96 - 99% of participants agreed (Hayes and Prenzler, 1998: 145-6). The evaluation period was such that researchers were not able to make any conclusive findings regarding the efficacy of conferencing with respect to recidivism. The aim was to determine the degree of reoffending among the participating juvenile offenders after conferencing. Data were obtained on 101 young offenders after the date of a community conference and 7% reoffended after attending a conference. However, there was not sufficient time to conduct a thorough follow-up; therefore those who were conferenced towards the end of the evaluation period did not have the same opportunity to re-offend as those who were conferenced at the commencement of the evaluation (Hayes and Prenzler, 1998: 40). The evaluation report supported a restorative framework for responding to juvenile crime. Further recommendations included the following:

An ongoing evaluation process should be put in place to assess the comparative efficacy of cautioning, conferencing and the Children's Courts, with respect to recidivism and participant satisfaction levels;

The Juvenile Justice Act 1992 should be amended to provide victims with greater access to conferencing; Adequate funding should be provided in any expansion to maintain the same levels of service delivery provided in the pilot programs; Consideration should be given to support conferencing in Aboriginal communities (Final Evaluation Report, 1998:67-75).

2.13 ADDITIONAL RESEARCH FINDINGS Conferencing programs have been previously evaluated in all states, but mostly in New South Wales and Canberra. Extensive research has been conducted in New Zealand where the focus is on Family Group Conferences (FGC). Australian evaluations show police as being supportive when they experience a conference in person. Tyler (1990) found that offenders are more likely to respond positively to their justice experience when they perceive it to be just. There is an abundance of evidence to show positive offender response to perceived 'procedural fairness' in restorative justice programs.

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Cant and Downie (1998: 58) conducted an evaluation of family meetings and, during 1996 and 1997, 265 offenders, caregivers and victims were interviewed. The vast majority (90 95%) felt they were treated fairly, and 90 -92% were satisfied that the justice teams handled the cases adequately, but fewer victims agreed with this, as they were less satisfied.

During a small 1995-1997 project in Victoria, court-referred conferencing was used. This project targeted young people who had been before the court on previous occasions and who were therefore deemed eligible for an alternative form of probation. Markiewicz (1997: p.vii) reports that "victims found the process helpful and healing"; "young people (said) that the conference had a beneficial impact on them" and that it was " preferable to probation".

In New South Wales, Trimboli (2000: 36-40) gathered data from 969 victims, offenders and supports across the state during 1999. Of all participants, 92 -98 % perceived the conference as "somewhat" or "very" fair and they were satisfied that the conference respected their rights and also that they were treated with respect. Recent research conducted in New South Wales revealed that the so-called "soft option" for dealing with juvenile offenders has proven effective in reducing juvenile crime (Pollard, 2000:1). The NSW Bureau of Crime Statistics and Research study of youth justice conferencing compared nearly 600 juveniles involved in a conference with 10.000 juveniles dealt with by Children's Courts. According to Dr Weatherburn, kids sent to a youth justice conference were nearly 30% less likely to re offend than kids sent to a Children's Court (Pollard, 2000:1). In response to the report, the NSW government said it would amend the Young Offenders Act to divert more juvenile offenders into conferencing by limiting the number of police cautions a juvenile could receive, to three. It would further allow the arresting officer's view to be taken into account when considering referral to conferencing and would provide explicit roles in the conferencing process for both educational, police and youth club representatives (Pollard, 2002: 1).

In additional New South Wales research, Luke and Lind (2002) compared the effects of conferencing to the juvenile court, by gathering data only for first time offenders. The results showed that the conference group had a predicted risk of re-offending

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approximately 15 to 20 % lower than the court groups involved. Luke and Lind concluded that the conference experience helped to reduce offending.

In conclusion, the most consistent finding of all research to date is that conferences are perceived to be fair and participants are satisfied with both the process and the outcome.

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3.0 RESEARCH METHODS AND METHODOLOGICAL

ISSUES

This chapter describes the research procedures and instruments used to study the establishment of community conferencing in Cairns. Characteristics of the participating subjects, the venue of conferences, data collection procedures and analytical methods are described and explained. In addition, a brief overview is provided in which obstacles to the research are discussed. 3.1 SUBJECTS This research was conducted by using a sampling methodology, to facilitate analysis of young people involved with community conferencing compared with young people involved with the court system.

The samples are divided into two groups, both of which consist of juveniles who are drawn from the Cairns region, from 01 June 1999 until 31 May, 2001. The region has a total of 22,167 young people aged between 10 and 17. The total of the indigenous age group 10 to 17 is 1,583, which is based on the indigenous proportion of the population (7.1%). The total of the non-indigenous age group 10 to 17 is 20,584.

In the region there are 13 times as many non-indigenous juveniles as there are indigenous (See Figure 4). (Ref: ABS 1996 census data with projected forecast populations at 01 June 2000, being the median date of the 2 year research period).

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Figure 4: Juvenile population by ethnicity at June 2000.

JUVENILE POPULATION (10-17 YRS) BY ETHNICITY

NON-IND IND The first group consists of 74 juvenile offenders and their victims, as well as the offenders' and victims' support people. All members of this group have participated in the Cairnsbased Community Conferencing Project from 1 June 1999 until 31 May 2001. The second group consists of juvenile offenders who, during the same period, attended Cairns Children's Court. For the purpose of this research, the following definition has been applied to describe a is a child aged between 10 and 17 years. It also includes people who are 17 years of age or older who committed an offence as a child and were dealt with by courts as a child for that offence (DFYCC, Juvenile Offending and Recidivism, Queensland, 1998: 2). In analysing these two samples of young offenders the researcher also drew upon information provided by a range of professionals associated with either community conferencing or the courts or both. The informants comprised representatives of the legal system:

1. 2.

Five magistrates and justices, Four Legal Aid solicitors

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3. 4.

Three private solicitors, Representatives of the police including police prosecutors and Juvenile Aid Bureau officers.

A letter of introduction was sent to the magistrate in charge at the Cairns Court House, one letter of introduction was sent to the Assistant Police Commissioner in Cairns, who, after approving the questionnaire, forwarded the relevant paperwork to the officers in charge. A letter of introduction was also sent to private solicitors as well as to Legal Aid solicitors whose offices deal with the Cairns Children's Court regularly. The letter introduced the researcher as a PhD student and briefly described the nature of the research and the purpose of the questionnaire. An additional statement ensuring confidentiality was included and sent to all parties.

3.2 DEFINITION OF THE REGION IN WHICH CONFERENCES WERE CONDUCTED The region on which this research is focused, Far North Queensland, lies wholly within the tropics. The city of Cairns is the most northerly city in Queensland and has the fastest growing population rate. The Far North Queensland region covers an area of over 378,000 square kilometres, from Cardwell in the south, east to the Gulf of Carpentaria and north through the Peninsula and Torres Straits Islands to the Papua New Guinea border. Covering an area the same size as Victoria, the region comprises 13 local government areas. Shires in the first stage of Community Conferencing include Atherton, Mareeba, Cardwell, Eacham, Johnston, Cairns, Douglas and Herberton. The regional population grew at an average of 2.5% per annum between 1986 and 1999, but with significant yearto-year variation. Cairns in particular, is closely linked to tourism. Indigenous people have had a long and continuing presence in this region and they make a significant contribution to its multicultural identity.

The majority of conferences took place at the Cairns Community Conferencing venue, located on the third level of an inner-city government building. Attempts are made to hold conferences within the community in which the offence occurred. In theory, this also addresses reintegration, particularly when the offence is considered to have been perpetrated against the community.

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In practice, both victims and police are assisted by avoiding the cost and inconvenience of travel. Therefore, seven conferences were held in Innisfail, five in Tully, and two conferences were held in Babinda, Torres Strait and Silkwood. Mareeba, Ravenshoe, Cardwell and Mission Beach each held one conference :- a total of 22 conferences held outside of Cairns.

3.3 DATA SOURCES Data for this research were collected from official sources and by questionnaires and an information management system was established at the commencement of the study.

Some data from official sources were extracted from the Department of Families' Client Information System (CIS), a computer based criminal record system, which records details of each finalised court appearance in Cairns. This information is obtained from forms completed by the Departmental Court Officers attending the Cairns Children's Courts. All information was separated into court clients and community conferencing clients and stored in the researcher's personal computer. The data collected included demographic data, referral outcomes, court outcomes, participant evaluation data and key stakeholders' questionnaire outcomes.

Further data from official sources used for this research were derived from the following:

Court data held by the Youth Justice section of the Department of Families. Data held by the Statistical Services Unit of the Department in Brisbane. Police data on cautions held by the Queensland Police Service, Statistical Services Section, Brisbane.

Data received from the Australian Bureau of Statistics.

Data from official sources specific to Cairns includes conferencing data held by the Cairns Pilot Program, Ipswich Community Conferencing and Logan Community Conferencing. Data from Logan and Ipswich community conferencing venues were compiled by their

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respective co-ordinators and retrieved for this research from the central database in Brisbane twice yearly, for the periods January to July and July to December.

The costs of conferencing are compared to the average cost of a finalised court appearance. Program costs have been compared with two other Pilots in Queensland, namely Logan and Ipswich. Program cost data were obtained from the Department of Justice and from the Department of Families' Statistical Services Unit in Brisbane. The amounts are direct costs and do not include indirect costs such as the social costs of crime. Quite clearly, one would expect the social cost to be greater than the monetary cost.

Data have been used to measure the rate of re-offending at regular intervals. Results are expressed as a percentile and visual representations highlight the patterns in the data. Figures include court patterns related to community based outcomes and rates of recidivism in court and conferencing. Offender responses were collated and analysed to show possible trends in relation to recidivism,

Criminal history checks on all participating offenders were carried out prior to the conference attendance and further checks were carried out at regular intervals, post conferencing. Criminal histories were checked on the data base system at the Cairns area office of the Department of Families.

Data collected for the purpose of this research by other sources include:

Formal and informal meetings and interviews held with key stakeholders during the research period

Formal and informal conversations with professionals associated with the program before, during and after the research period

Action research:- i.e reflections on the researcher's own professional practice and knowledge of the Youth Justice System (YJS)

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Informal conversations / interviews with offender-clients of the YJS Informal conversations / interviews with people associated with the YJS, including colleagues, police officers and solicitors.

The collected data from the range of sources include case referrals and additional data form police referrals and questionnaires. Conversations with program professionals, offender / clients and their parents associated with the juvenile justice system were recorded in note book form, All data collected for information and derived from conversations, were recorded in the researcher's field note book and dated. These then were stored and coded for retrieval purposes.

3.4 COMPARATIVE ANALYSIS OF THE DATA Several comparisons will be made drawing upon the various data sources available . Qualitative and quantitative methods of source material interpretation coupled with triangulation principles have been employed to reach subsequent conclusions. These are reported in detail in Chapter 5. The main comparisons undertaken will include: -

Comparison between all juveniles attending court and those attending conferencing in terms of their criminal status prior to attending court and conferencing.

Comparisons in terms of their status post conferencing to assess recidivism rates. By noting post-conferencing offences committed by participants, this research will determine if there is a discernible change in recidivism amongst the study group over a period of 24 months and if conferencing has a positive or a negative effect on both victim and offender. Comparative analysis to measure recidivism rates preand post-conferencing was used to gauge the effect of conferencing on reoffending. The recidivism rate of offenders who participated in conferencing is compared with those who attended court. Comparative analysis indicates the effectiveness of conferencing compared to Court.

Given the high indigenous presence in the area, court and conference outcomes (agreements) have been compared between indigenous and non- indigenous offenders.

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A comparative analysis of the Queensland pilots is limited to Logan and Ipswich. Due to a lack of referrals to the Palm Island Program, comparisons with this pilot are impractical. Three comparisons were possible, namely between Ipswich and Logan and Cairns Community Conferencing on the number of juveniles attending, by conferences referred and actually held, per head of population. Unfortunately, no previous or current research has been conducted on the other three pilots in terms of post-conferencing recidivism. In essence, further comparisons cannot be made.

The information provided in this thesis includes statistical analyses of court outcomes and conferencing outcomes. Factors such as police practices, cultural, economic and social backgrounds of the young offenders have been considered in the analysis, particularly in relation to Aborigines. However, this thesis does not provide an in- depth analysis of contributing factors. Accordingly, care should be exercised when drawing firm conclusions from the data provided, particularly data regarding recidivism.

3.52 QUALITATIVE AND QUANTITATIVE DATA The evaluation has required the collection of both qualitative and quantitative data. Most of these data are associated with actual case referrals to the conference, i.e. demographic data about the participants, including age, sex, ethnicity, criminal history and level of satisfaction with conferencing. Additional data include the type of offence committed, the offender's status, and the referral outcomes. Most of these data are quantitative in nature. There is, however, also considerable qualitative information associated with the general implementation of the project in Cairns, including difficulties faced by police in referring young people to the project.

It is recognised and acknowledged that this is a very small sample size for undertaking quantitative analysis. However, in the context of the data available, this thesis has drawn upon methods described to make an assessment. The limited number of conferences and the limited number of juveniles referred, precluded the possibility of making a more extensive assessment and research for future evaluation. Moreover, this thesis recommends that more research is needed to expand the current findings of restorative justice.

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Structured, departmentally approved and designed questionnaires were used to evaluate the program and additional questionnaires were sent to key stakeholders to obtain background information for analysis of the referral rate and to obtain relevant detail regarding the opinions and attitudes of these key stakeholders to conferencing. All departmentally approved and structured questionnaires were distributed by the community conferencing co-ordinator to all conferencing participants. Responses were coded, analysed and recorded on the Central database of the Department of Families Youth and Community Care Queensland in Brisbane. The data were analysed to determine the extent to which community conferencing would be beneficial for participants. This was achieved by assessing the level of satisfaction of all participants after participating in a conference.

3.5.2.1 MEASUREMENTS The answers to the departmental questionnaires for conferencing participants were put on a four - point scale ranging from Agree a Lot (4) to Disagree a Lot. (1) A blank space was also provided so that respondents could add their comments if they felt strongly about the issue involved. Most of the intended benefits of conferencing are related to the experience of all participants and the questionnaire seeks to gauge the level of satisfaction of all participants. The questions were simply stated and covered a range of issues relating to the objectives of community conferencing. These issues included levels of satisfaction with the outcome, reparation, accountability and victim contributions to the process (See Appendix A).

An open-ended response format was used for the four groups of key stakeholders. Each group received a purpose-designed questionnaire (Appendices B, C and D), accompanied by a letter of introduction and a Plain Language Statement, confirming that responses to the questionnaires are fully confidential and anonymous. The questionnaires were short and deliberately followed a straightforward, uncomplicated format to enhance the expected rate of completion and returns. The key stakeholders are busy and committed professionals and the researcher did not wish to burden any participants with a time consuming questionnaire. Even though the questionnaire responses are only a small part of the overall thesis, the key stakeholders' views are an important and crucial component

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in assessing the value of community conferencing, particularly since these representatives are in touch with the realities of the world.

The questionnaires for the key stakeholders were similar in the general content, with slight differences in questions for the different target groups. The objective of the key stakeholder questionnaires was to provide an opportunity to assess the operational impact of community conferencing in their respective field, and each questionnaire endeavours to address the following issues:

Operational impact on key stakeholders Knowledge of community conferencing, and how this was gained Satisfaction with the referral course Whether or not the interviewee is in favour of conferencing Provision of an opportunity to evaluate common concerns and criticism about community conferencing, as well as provision of an opportunity to assess positive factors of the program.

Each group has a different role in the justice and referral process, and each group's answers are itemised in separate tables. For the participants (young offenders, victims and their supporters) in the Community Conference Program, a departmentally approved, structured questionnaire was distributed by the coordinator and filled in by each participant immediately after the conference. Participation was voluntary and all information remained confidential. Data collection protocols established by the Department of Families are quantitative in nature, with questionnaire respondents providing answers to a list of closedended questions. A total of 245 conference participants during the period 1 June 1999 to 30 April 2001 completed the questionnaire. No follow-up questionnaires were distributed.

3.5.3 COURT DATA EVALUATION

Court data were analysed and the following sub-groups established and evaluated:

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Number of appearances by ethnicity compared to respective population base Number of juveniles with previous records Number of community based orders by ethnicity Number of non-community based orders by ethnicity Number of juveniles who had no previous record but who re-offended after their first appearance during the period June 1999 to May 2001.

3.5.4 CONFERENCE DATA EVALUATION

The number of conferences held was compared with the number of referrals actually made. The number of offenders was categorized by ethnicity and gender. A search for a criminal history grouped the offenders in 'no previous appearances', 'reprimand only' and 'recidivist'. Outcomes (agreements) of conferencing are compared with outcomes from community based orders given by the courts. Outcomes are categorized against ethnicity, criminal status and nature of the offence committed. In this way, it is possible to observe the trends present in the data. 3.5 METHODOLOGICAL PROBLEMS ENCOUNTERED

During the course of the research, a number of obstacles had to be overcome. These are briefly described here.

3.5.1 THE GATEKEEPERS Employees at the Department of Families have access to most data dealing with youth justice. For the purpose of this research, additional permission for accessing data was sought from and granted by the manager of the Youth Justice Programs in Brisbane at the commencement of this research. In addition, permission was granted, in writing at the commencement of the research, by the program's coordinator and by the Youth Justice Team Leader of the Cairns area office (Available on request).

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During initial discussions with the co-ordinator, it was agreed that the co-ordinator should distribute questionnaires, designed by the researcher, to each participant immediately following a conference. The agreed-upon plan was for the co-ordinator to interview offenders at the commencement of the program and again at three monthly intervals. However, no questionnaires were distributed at any time to the participants. Due to the thesis timeline this issue was not pursued further. Consequently, the research was unable to address in-depth questions about self- esteem in relation to both victim and offender.

About one month into the research, the co-ordinator was asked for a list of names of offender participants so that a criminal history check could be conducted. The coordinator refused to assist, stating these data were confidential. A superior was then contacted, who once again explained the procedures to the coordinator. From that point onwards, difficulties were encountered locating the co-ordinator. Most appointments were not kept and when a superior in Brisbane was contacted, he confirmed that he had experienced similar difficulties. Moreover, the co-ordinator did not attend or respond to invitations to meetings with a special services group, to further discuss community conferencing. The most disturbing aspect for the researcher in terms of research access was a distinct feeling of apprehension by key conferencing staff in terms of accessing data.

Questionnaires for police prosecutions and officers of the Juvenile Aid Bureau were sent to the Assistant Commissioner of Police for approval. After two months, the commissioner replied that the questionnaires would have to be approved by the Police Ethics Committee. This caused a major delay in finalising the research and, despite efforts to speed the Ethics Committee process, the wait for clearance took five months longer than anticipated. Additional access to police data and JAB data was sought and granted ( Relevant documentation available on request).

3.5.2 STAFF TURNOVER During the course of this research, the Department changed its name three times. There were two different Directors General, two different Regional Directors, three different Senior Resource Officers, four different Team Leaders, five managers, and two coordinators of the Community Conferencing Program. The Brisbane based supervisor left

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the position in 2000. In late April 2001, the co-ordinator's contract was not renewed and the co-ordinating position was vacant as of the next day. Consequently, for approximately one month the program was without a co-ordinator. The constant change of positions, and the coming and going of people in key positions, made access quite a challenge for this research on many occasions.

3.5.3 LOW REFERRAL RATES Soon after the commencement of the Cairns pilot project it became obvious that referral numbers were very small. A total of 89 referrals were made in the research period.

However, only 50 referrals resulted in a conference. Typically, conference coordinators have to spend a great deal of time on public relations (PR) work to win over gatekeepers. In the course of this research, informal discussions with gatekeepers disclosed a lack of information, a lack of trust and a lack of informative updates.

3.5.4 INTERNAL POLITICS IN THE CAIRNS JUSTICE SYSTEM The limited number of referrals was the subject of discussion in a meeting in April 2000 with the co-ordinator, two of the programs convenors, and key departmental staff (including the researcher) directly involved in youth justice. During this meeting it was decided that the co-ordinator would ensure that a representative of community conferencing would be present during the Cairns Children's Court hearings, as the coordinator suggested that the main reason for the lack of referrals was due to limited knowledge of community conferencing by Police Prosecutions.

Unfortunately, no representative of conferencing has been visible in Cairns Children's Court, before or since this meeting. Furthermore, in an informal discussion in 2000, it was revealed that Cairns' legal representatives were becoming disillusioned with the nonappearance of a community conferencing representative at specially designed meetings to target youth justice issues in Cairns. A very low return of questionnaires, sent to legal representatives during the course of the research, could be explained by this loss of trust, lack of respect and a consequent lack of interest in the program.

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Questionnaires for officers of the Police (Prosecution and JAB) had to be approved by the police ethics committee before being distributed via the commissioner to the relevant police stations. The process took almost 10 months, and even then not all stations were informed. The late responses and the delay at the ethics committee caused major delays in data collection.

3.5.6 SUMMARY A wide spectrum of material from independent sources was available and utilised. Consequently, the interpretation of the information gathered should realistically reflect a true picture.

This chapter has outlined the methodological basis for this investigation of community conferencing in Cairns. It is to the findings arising from that investigation that we next turn.

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4.0 THE CAIRNS COMMUNITY CONFERENCING PROGRAM This chapter describes the results of the research in relation to Community Conferencing and the Cairns Children's Court. Included in this chapter are the results of the questionnaires sent to the community conferencing participants and to the key stakeholders.

4.1 COMMUNITY CONFERENCING The Community Conferencing Program in Cairns commenced in June 1999 and data collected covers the first two years of the project, namely from 1 June 1999 to 31 May 2001. There was a total of 89 referrals in Cairns during this period, which is an average of 3.7 referrals per month. There was a total of 50 completed conferences, and the average age of offenders was 14.3 years. Figure 5: Number of referrals 01 June 99 until 31 May 01

CAIRNS COMMUNITY CONFERENCING REFERRALS - 01 JUNE 1999 TO 31 MAY 2001

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A total of 34 indigenous offenders and 40 non-indigenous offenders attended conferencing, committing 139 offences between them. Fifty-one of the offenders were male and 23 were female.

A total of 273 people, comprising victims, offenders and their respective support people, participated in community conferencing during the first two years of the program. None of the offenders who participated in a conference during the research period did so on more than one occasion. The instances of termination of referrals include ten cases in which the reasons for withdrawal were not stated and five cases in which the victim withdrew consent. In three cases the referral was deemed inappropriate, and on two occasions offenders were taken back to court for cautioning. Two cases were withdrawn because the main offender had left Queensland. In one case the withdrawal was due to the offender's ill health and in one case the offender was too young (under ten years of age).

Some offences were committed by groups of juveniles and who were subsequently group conferenced for the common offence. There were 2.1 conferences per month with an average of 1.5 participating offenders per conference.

Figure 6 shows the distribution of actual conferences held in Cairns during the research period.

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Figure 6: Number of conferences 01 June 99 until May 01

ACTUAL CONFERENCES HELD 01 JUNE 1999 TO 31 MAY 2001

4.1.1 OFFENDERS ANALYSED BY ETHNICITY.

Figure 7: Offenders by ethnicity. No. OF OFFENDERS BY ETHNICITY - 01 JUNE 1999 TO 31 MAY 2001

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The total number of court appearances by indigenous juveniles aged between 10 and 17 years, over the two-year research period was equivalent to 88% of the indigenous juvenile population. One would expect similarly high numbers being referred to conferencing. The offender ratio of indigenous / non-indigenous on a population basis is 24 to 1.

Table 1: Comparison of court appearances

Indigenous Non-Indigenous Non- Indigenous Total 10-17 years old (N) 2-year Court Appearances (N) Court Appearances as % of respective population 1583 1394 88.1 20,584 751 3.6 22,167 2145 9.7

Relating to the above ration (24:1) of court appearances by ethnic grouping to conferencing referrals during the research period, 71 indigenous and 3 non- indigenous referrals to conferencing could have been expected. Previous research conducted by Morris and Maxwell (1993) indicates that conferencing seems to be particularly well suited for young offenders and for more minor offences. Thus, in the case where the offender is young and has no previous dealings with the justice system, success is more likely. Given the fact that the equivalent of 88% of the indigenous juvenile population has appeared in court, this could explain the limited number of referrals of indigenous juveniles, as very few would meet the criteria deeming them suitable for conferencing.

4.1.2 VICTIMS ANALYSED BY ETHNICITY Figure 8 indicates the total number of victims categorised by ethnicity who attended conferencing.

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Figure 8: Victims by ethnicity.

No. OF VICTIMS BY ETHNICITY - 01 JUNE 1999 TO 31 MAY 2001

Of the 70 victims who attended conferencing, 63 people (90%) stated their ethnicity as non-indigenous. Only two victims, or 2.9% were identified as indigenous and in the case of five victims (7.1%) the ethnicity was unknown.

4.1.3 SUPPORT PEOPLE Many people are involved in a conference namely a convenor, the co-ordinator, a police officer or an officer of the Department of Families, victims and offenders and their support people. A total of 273 people participated in community conferencing between the commencement of the program in June 1999, and the end of the research on 31 May 2001. Figures 9 and 10 indicate the number of support people for both victims and offenders by ethnicity, and indicate a total of 85 support persons for the 74 offenders, with 44 persons supporting a total of 70 victims. Offenders had 115% support people, victims 63%. On average, an offender had 1.8 times more support than a victim. Mostly the

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victims ages are unknown, however the files indicate that the majority of the victims attending conferencing were adults. Figure 9: Offender's support No. OF OFFENDERS & OFFENDER SUPPORT - 01 JUNE 1999 TO 31 MAY 2001

No. OF VICTIMS & SUPPORTERS - 01 JUNE 1999 TO 31 MAY 2001

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4.1.4 RECIDIVISM AND CONFERENCING To ascertain the likelihood of recidivism, the status of the offenders prior to conferencing was checked and divided into the following three categories:

Those who had no previous records, Those who received on a prior occasion a reprimand only, and Those who had appeared previously in front of a Children's Court.

At the end of the research period, further criminal history checks were conducted on all offenders.

Table 2: Status of offender pre-conferencing. Non-Indigenous Indigenous Non-Indigenous (N) (N) No Previous Reprimand Recidivist Reprimand and Recidivist TOTAL 24 1 7 2 34 32 2 6 0 40 Total (N) 56 3 13 2 74

Chi-square = 3.09 df = 3

p > 0.1 (no significant finding)

Table 2 indicates that, of the 74 juvenile offenders, 13 had a previous criminal history. Only 3 offenders had previously received a reprimand only. Criminal history checks conducted pre-conferencing revealed that 70.6% of indigenous offenders and 80% of non-indigenous offenders had no criminal record prior to conferencing. Could this explain why the number of referrals for indigenous offenders is so low? Are police officers are reluctant to send an indigenous offender to conferencing when the offender has a criminal record; in all likelihood the existence of a prior record will have an influence on the decision whether or

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not to divert the juvenile from the court. Indigenous juveniles often have longer criminal histories than do non-indigenous juveniles and are therefore at risk of not having the opportunity to be diverted away from the Children's Court.

Perhaps the police perceive referrals in these cases as a waste of time and prefer to concentrate on relatively 'new' offenders, hoping the conference will be a deterrent for the 'new' offender, whilst time spent on an offender who is already entrenched in the criminal justice system will be wasted.

Possible explanations can be found in Minutes taken in February 2000, when the Marlin Coast Consultative Committee (a suburban region north of Cairns) conducted an open forum for those community members interested in community conferencing. Approximately 20 people (including the researcher) at least 5 of whom were professionally involved with the program, attended the meeting at which the concept of community conferencing was explained. After a police representative stated that the program was not used a great deal at this time, further comments made by a police representative included:

Recent legislation -- Police Powers and Responsibilities Act (2000) - means that police can not question disadvantaged groups i.e. Aboriginal / Torres Strait Islanders without a support person present;

The legal fraternity has sent a clear message that juveniles do not have to answer questions from police and their advice is to not admit to the offence;

Conferencing can only be advised if a caution is not an appropriate option.

Further difficulties perceived by police and stated during this meeting included:

The geographical area covered by only 10 Juvenile Aid officers is huge, stretching form Babinda to the Torres Strait. Five officers are tied up with matters of juvenile and child abuse, which leaves five to attend to other offences - mostly minor matters to do with property.

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Community Conferencing requires an officer to attend and this takes a minimum of 2 hours. The Juvenile Aid Bureau (JAB) does not have these resources available.

A caution takes far less time and has been found to be effective: 86% of those cautioned do not re-offend.

Suggestions made during this forum by participants, included that there should be an option for either a caution or a conference, an option for JAB officers not to attend a conference, and that more resources should be available with special officers attached to the conferencing program. This explains why the police representatives present, although theoretically in favour of the program, were reluctant to make referrals. This attitude confirms the statements expressed by a JAB officer in the Cairns Post article of April 1999 (and discussed in Chapter 2) in relation to community conferencing taking up time and although the potential of the program was valued, the officer expressed concern that the program would not work for all offenders.

Hayes's research (2002) based on the SAJJ sample, attempted to answer the question 'who predicts re-offending best?', and concluded that police were the best predictors, making accurate predictions for about 75 % of offenders, followed by coordinators. This could mean that police officers in general have a more accurate view of a juvenile's future offending pattern, and could explain some of the reasons why police referred some juveniles to conferencing and not others. Records indicate that the re-offending rate post-conferencing is similar for all participating offenders regardless of their ethnicity: almost 30% of participating offenders committed further offences. These findings are different from Hayes, who reported that -based on the SAJJ sample- the highest re-offending group consisted of indigenous males, followed by indigenous females. Non-indigenous males were less likely to re-offend than indigenous juveniles, and non-indigenous female juveniles were least likely to re-offend (Hayes, 2002: 16).

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Table 3: Rate of re-offending post conference % of respective No of re Non-Indigenous ethnic group offenders Indigenous Non-Indigenous TOTAL 10 12 22 29.4 30.0 29.7

% of total

Caution must be exercised before drawing firm conclusions about the ability of community conferencing to reduce recidivism, as this proportion is probably higher than indicated, since those who were conferenced towards the end of the research period did not have the same opportunities to re-offend as those who were conferenced earlier on in the research. It must be recognised that some juvenile crime goes undetected and therefore all numbers and percentages are indicative. Without reliable self-report data it is difficult to estimate the number of re-offences and re-offenders.

4.1.5 OFFENCES CONFERENCED A range of offences can be dealt with through community conferencing. Offences include assaults, armed robbery, unlawful use of a motor vehicle, stealing, house breaking, wilful damage and drug offences. Section 5 of the Juvenile Justice Act, 1992 defines a 'sevenyear offence' as 'a life offence or an offence of a type, that if committed by an adult, would make the adult liable to imprisonment for 7 years or more'. If a juvenile commits a 'sevenyear offence', and is consequently referred to community conferencing by the police or the court, the fact that the young person participated in conferencing can be disclosed at court at a later time.

As results indicate, the types of offences committed by juveniles in Queensland conform broadly to those found by other researchers into juvenile crime. Research conducted by

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Mukherjee (1986), Broadhurst and Ferrante (1993), and Salmelainen (1995) found most notably that the predominant tendency is for young people to engage in property-crime and theft. The offences for which juveniles are most overrepresented compared with adults, are those offences which have a high reporting rate because of insurance requirements, for instance motor vehicle theft, and break and enter (Cunneen and White, 1995: 97). This research supports these findings.

It could be expected, because the Program is new to Cairns, that at the commencement of the program, some matters would proceed to conferencing, even though a caution would have been more appropriate. Table 4 represents a summary of offences referred to conferencing and gives some indication that quite minor matters were sometimes referred to conference. For example, there were a number of minor shoplifting charges and schoolyard assaults dealt with by the conference. However, as the pilot program progressed, one would expect the co-ordinator to `gate-keep', i.e. to identify an inappropriate referral, and not to allow these referrals to proceed to conference. Of the total of 139 offences conferenced, 85.6%, or the majority of offences being conferenced, were property crimes. The term 'property offences' is used as defined in the Queensland Criminal Code Act 1899, Part 6).

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Table 4: Offences conferenced N Wilful Damage Break Enter with Intent Enter Dwelling and commit Shop Stealing Stealing Enter Premises Enter premises with Intent Burglary Setting fire to crops Attempt. Break and Enter Receiving Tainted property Assault occ. Bodily Harm Poss. Dangerous Drug Common Assault Invasion Privacy Poss. Of graffiti instrument Fraud Forgery Leave litter in public place TOTAL 32 21 20 12 9 8 8 7 1 1 1 6 4 3 2 1 1 1 1 139 % 23.0 15.1 14.4 8.6 6.5 5.8 5.8 5.0 0.7 0.7 0.7 4.3 2.9 2.2 1.4 0.7 0.7 0.7 0.7 100 Prop. Offence Prop. Offence Prop. Offence Prop. Offence Prop. Offence Prop. Offence Prop. Offence Prop. Offence Prop. Offence Prop. Offence Prop. Offence

4.1.6 COMMUNITY CONFERENCE OUTCOMES

Generally, the formal outcome of a conference is a written agreement signed by the young offender, the victim, police officer and convenors. An agreement is made only when all participants agree on what needs to be done to resolve the matter. The agreement might include any of the following:

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The offender might make a formal apology to the victim The offender might agree to act in a way which will help the victim to feel more secure

The offender might replace property or pay for damages done The offender might agree to attend counselling in order to prevent future offending behaviour

The offender might perform voluntary work, either for the victim or for the community at an organisation of the victim's choice.

The signing of the agreement gives the ceremony an official and legal closure and it symbolises the community's forgiveness. It is also a legal document as there are legal consequences for failure to comply. If an agreement is not reached in the conference, or if the young offender does not attend, the matter is likely to go to court. If the offender does not fulfil the requirements of the agreement, the police or a court officer will decide what should happen. Another conference might be held, or it might be more appropriate to refer the matter to court (Unpublished DFY & CC, 1998).

The most frequent outcome (agreement) of community conferencing is a verbal apology, followed by community work. In the 50 conferences held 90.6 % of the outcomes involved a verbal apology. For reasons of comparison, the conference outcomes were divided in the following three groups: Non-paid community work, including working at school and at the victim's property to make up for damage caused by the offender. Restitution. Mental commitment or attitude which can include a verbal apology, a written apology, a commitment to non-offending, a commitment to work harder at school, to attend special programs and to adhere to a curfew.

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The majority of offenders received multiple outcomes, such as a verbal apology as well as community work, or a verbal apology as well as a commitment to a non- offending future, etc. A total of 74 offenders (34 indigenous and 40 non-indigenous) had a total of 143 outcomes. Although some offenders have multiple outcomes, the vast majority (92%), apart from 4 indigenous offenders and 2 non-indigenous offenders, gave a verbal apology. Almost 25% of all offenders made a commitment to refrain from future offending. A small percentage agreed to attend specific programs or to work at school premises - these are the least likely outcomes.

The outcomes of the conferences held in Cairns during the research period are shown in Table 5. Table 5: Conference Outcomes

Outcome Verbal Apology Community Work To attend specific programs Commit to refrain from re offending Written apology Restitution Agreement (no further details) Work at school premises Curfew TOTAL

Ind. (N)

Ind. %

Non. Ind (N) 41 17 1

Non Ind.

Total

Proportion of total offenders % 92 31.1 4.0

27 6 2

48.1 10.7 3.6

47.2 19.6 1.1

68 23 3

11 2 2 1

19.6 3.6 3.6 1.8

7 6 11 0

8.0 6,9 12.6 0.0

18 8 13 1

24.3 10.8 17.6 1.3

2 3 56

3.6 5.4 100

1 3 87

1.1 3.5 100

3 6 143

4.0 8.1

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4.1.6.1 COMPLIANCE WITH CONFERENCE AGREEMENTS An indicator of the program's success is the fulfilment and completion of tasks. According to the records available, it appears that no agreements have been broken, supporting a non-compliance rate of 0%. It should be noted, however, that little reliable data are available on compliance. In some cases the victims acted as supervisors, in other cases police did, and in some cases the parents of the offender took on the supervisory role. To date the co-ordinator of community conferencing has received no evidence of noncompliance with agreed-upon outcomes.

It could be argued that compliance is so high because all parties have been able to discuss the outcomes and agree upon the punishments, for instance: the nature of the community work is the victim's choice, the victim nominates the venue and the victim supervises the offender. This work often involves repairing damage caused by the offender to the victim's property. Close monitoring of the tasks and of the successful completion of these tasks should have been put in place prior to the agreements being made. This finding of poor monitoring is supported by previous findings by Maxwell and Morris (1993: 123-4), who conducted research in New Zealand's FGCs, and concluded that monitoring of conference outcomes was generally very poor, which contributed to victim dissatisfaction with the process because they were unaware of whether the offender had completed the agreement.

4.1.7 OUTCOMES ANALYSED BY ETHNICITY As indicated by Table 5, the majority of conferencing outcomes involve a 'mental attitude or commitment', i.e. a verbal apology, a commitment to work harder at school, a commitment to non-offending behaviour.

Numbers indicate that the outcomes resulting in community based work and the making of a mental commitment are very similar for all juveniles. However, non- indigenous offenders

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are 3.5 times more likely to pay restitution as an agreement of the conference. This outcome is probably due to discussions about the financial circumstances of the young offender, his or her ability to pay restitution and the support of the offender's parents.

4.1.8 COST INVOLVED The current emphasis on cost cutting, accountability and pressure for system change makes cost-benefit studies important. However, cost-effectiveness questions have been fraught with difficulties in this research. Obtaining data about common measures such as recidivism is very difficult because various agencies differing in criteria for measuring recidivism. In addition, clerical errors in some cases are responsible for inaccurate figures. However, due to the researcher's familiarisation with the system, the data used is considered to be reasonably accurate after various cross checks were made.

Conferencing expenditure data were obtained via the Senior Resource Officer at the DFYCC, and data show the expenditure levels for one 12-month period and break down in the costs involved. Table 6 shows the allocated budget for conferencing for one financial year, and the expenditure is based on the 2000-2001 budget allocation as shown below. Table 6: Costs for the Cairns Program

Employee expenses (inc. Admin) Supplies and Services Building lease Equity return TOTAL

Cost ($) 224,175 46,357 45,404 8,267 $324,203

Considering that a total of 50 conferences was attended by 74 offenders, the average cost of one conference is $12,968 dollars. The cost per offender is approximately $8,760 dollars (These figures are based on a similar budget for the second year). For comparison with the average Childrens' Court appearance, please refer to section 5.6. For comparison to the average cost of a Logan and Ipswich conference, please refer to section 5.7.4.

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Although cost-effectiveness is important, it is not the sole criterion of the successfulness of conferencing. The cost of crime is almost impossible to accurately assess, since, for one thing, the justice system does not maintain full and accurate records of the cost of crime and justice. This is an excusable failure, as the task would involve an incredible amount of paperwork and unwelcome intrusions into various government and private agencies connected with crime and justice. Therefore, the costs of crime are reflected in `credible' estimates only. Costs include those of preventative efforts made to reduce the chances of future occurrence of such crimes and also the costs of the justice system itself. Costs involve the installation of crime prevention barriers such as locks and bars on windows, security screens, lighting and security patrols.

Not only the property losses and medical costs involved as a consequence of a crime need to be mentioned, but also the social costs. The long-term and wide- ranging consequences of the offence are often particularly difficult to define. For example, it would not be uncommon for serious victimisation to cause severe emotional distress, which could affect work performance and, in turn, have an influence on career opportunities.

The victim's family, relatives and friends are all affected by a home burglary. The victim is often traumatised, and does not feel safe in his or her own home. The loss of self-esteem experienced by some crime victims as a direct consequence of crime, leads to visits to counsellors and psychologists. Many victims, over a long period of time, suffer the longterm social costs of a crime and they may never fully recover emotionally from the offences committed against them.

4.1.9 SUMMARY OF COMPARATIVE FINDINGS The findings of the research in to the Cairns Program include the following:

There has been an extremely low number of referrals for indigenous offenders compared to the total juvenile population who are in regular contact with the criminal justice system.

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90% of the victims were non-indigenous, and on average they had less conferencing support than did the offender.

There has been a low referral rate, given the high number of court appearances compared to the region's total population aged between 10-17.

70.6% of indigenous offenders and 80% of non-indigenous offenders who participated in conferencing had no criminal record at the time of the conference.

30% of all offenders committed further offences post-conferencing, however, 70% did not.

The compliance rate with conditions of the agreement is 100%, but this figure is based on unreliable monitoring.

4.2 CAIRNS CHILDREN'S COURTS A detailed analysis has been made based on Cairns court appearances and a more generalized one of the whole region, because less complete data were available for the other two courts at Atherton and Innisfail. Finalised court appearances are defined as any appearance at which one or more criminal matters is finalised in the Children's Court. Following is a brief description of a Children's Court: Young people under the age of 17 who appear in court charged with an offence will do so, at the first instance, in a Children's Court. Most juveniles will have their matters settled in these courts. All juveniles appearing should be legally represented and a court usually adjourns matters if the juvenile does not have legal representation. The Childrens Court is a closed court, which means that access to the general public and the media is restricted (The Childrens Court, information pamphlet of the Department of Families, 2001: 1-2). The outcomes of the appearances will be one of the following possibilities:

An acquittal A sentence A referral to a Higher Court.

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Though every case is different, courts use a set of principles when sentencing juveniles. These principles include that a juvenile should be detained in custody only as a last resort and that the juvenile should be given the opportunity to understand what is happening. In addition, the level of maturity, age and cultural background are relevant considerations in any decision made in relation to juveniles (Department of Families: information pamphlet: Sentence Orders, 2001: 1). In recent years, Judges and Magistrates have become more aware of the difficulties courts face in their legitimacy and relevance to the community. The initiative of the District Court in Cairns to conduct circuits to indigenous communities demonstrates the growing recognition of the need for the courts to become less remote and more relevant to community life (Fitzgerald, Vol. 2, 2001: 143).

The total number of indigenous court outcomes in the Cairns Children's Court during the two-year research period (912) is equivalent to 57.6% of the total 10 to 17 year- old indigenous Cairns juvenile population. By comparison, 4.0% of non-indigenous juveniles in Cairns city have had court outcomes in the same period.

Figure 11: Court appearance by ethnicity. CAIRNS CHILDREN'S COURT APPEARANCES BY ETHNICITY

In the Far North Queensland Region, during this research period, there was a total of 1,197 finalized court appearances; 717 or 59.9% of these were appearances by

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indigenous juveniles. The total number of juvenile offenders over the 24-month research period is equivalent to 54% of the total juvenile population.

4.2.1 COMMUNITY-BASED ORDERS Community-based orders are Court Orders whereby Departmental supervision is required and which can be breached for non-compliance. For community based orders the following sentencing options are in place: A Community Service Order (C50). The conditions of this order include that the offender must perform a specified number of hours of unpaid community work. The offender has one full year to complete a CSO. Departmental records indicate that the average CSO is of 100 hours duration. A Probation Order (PO). This is a court order whereby the recipient needs to report to an officer of the Department on a regular basis. The court may put conditions on the order, such as a curfew; compulsory counselling attendance or other conditions may be ordered as the court may deem fit. Conditions on a PO are made to prevent a repetition of the offence in relation to which the order was made or the commission of further offences. The requirement must relate to the offence for which the probation is made, and it must be supported by the court's written reasons. The most common length of time for a PO is twelve months. An Immediate Release Order (IRO), which is an intensive court order. This order is really a suspended sentence and the duration is usually for a 3-month period even though much shorter orders may be given. If the Order is breached, the offender will be sent for a pre-determined time to detention, unless special circumstances prevent the offender from participating. The IRO includes community service and educational components, as well as various other tasks. Because of the orders' intensity and the nature of the crimes committed, these orders are not frequently handed down by the courts.

in addition, courts can also combine orders so that a juvenile could, for example, be sentenced to a Probation Order and a Community Service Order for the same offence.

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Table 7 represents a breakdown of the court appearances and community-based court outcomes by ethnicity. Table 7: Community-Based Orders by Ethnicity.

Court Appearances Indigenous (N) % of Ind. appearances Non-Indigenous (N) % of Non-Ind. Appearances Ratio: Indigenous / Non-Ind. Total Chi-square. = 2.48 df = 2 1.9 2145 p > 0.1 751 1394

PO 117 8.4 93 12.4 0.7 210

IRO 26 1.9 15 2.0 0.9 41

CSO 113 8.1 66 8.8 0.9 179

Total 256 18.4 174 23.2 0.8 430

Analysis of the Table shows that non-indigenous offenders are 1.3 times more likely than indigenous offenders to receive a community based order. Of the total number of indigenous juveniles appearing before the courts, only 18.4% received a community-based order; for the non-indigenous offenders this is 23.2%.

The chi-square test shows that there is no significant bias of sentences handed down in terms of ethnicity.

4.2.1.1 COMPLIANCE WITH COURT ORDERS When a child does not comply with the conditions of a community based order given by the children's courts, this order is at risk of being breached. Departmental records indicate that approximately 10% of all community based orders were breached at some stage during the duration of the order and that offenders were taken back to court for noncompliance. However this is an estimate, as no accurate figures are available. The nature

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of actions against non-compliance with community based orders varies from case to case and is directly related to the philosophies practised by the departmental case manager.

4.2.2 NON COMMUNITY-BASED ORDERS Non community-based outcomes include fines, reprimands, Good Behaviour Order and Detention Orders. Possible outcomes include the following non-community based orders:

A reprimand: This can also be given for offences ranging from shoplifting to assault or break, enter and steal, etc. A reprimand is usually handed down on a first offence and on a non-serious charge. The court cannot record a conviction on a reprimand.

A fine or restitution. A fine may be given to an offender if the court is satisfied that the offender is able and willing to pay. Fines can be given for many offences, but they are normally reserved for traffic offences, being drunk and disorderly, and a whole range of charges both indictable and simple. Restitution and compensation are described in Section 192 of the Juvenile Justice Act 1992, as offence affected property, and state either property in relation to which the offence was committed, or property affected in the course of, or in connection with, the commission of the offences, for example, property of a victim of an offence committed against the victim's person. The same section makes provision for compensation for injury suffered by another person because of the commission of the offence. The maximum amount for a child is currently 20 penalty units totalling $1,500.00. One penalty unit is currently $75.00. The court is allowed to record a conviction in the instance of a monetary repayment.

A Good Behaviour Order. This is usually handed down when the offence is minor, and the child makes a commitment to lead a non-offending lifestyle, particularly for the duration of the Good Behaviour Order. Departmental records indicate that the length of the order is, on average, 6 months. A conviction cannot be recorded on this order.

A Detention Order. By this order an offender is send to detention for a period. This order is only made when all other sentencing options have been exhausted. It is

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usually given in the case of serious repeat offences or when the seriousness of the crime warrants the removal of the offender from the community. In some cases a child will be kept on remand in the watch house or in a detention centre whilst awaiting the preparation of a pre-sentence report. In Queensland, all magistrates or judges are required to order a pre- sentence report, prepared by an officer of the Department, prior to sentencing a juvenile to detention. A pre-sentence report is sometimes ordered when a child fails to comply with previous community based orders, and always in the case of a serious offence. Juveniles sent to detention are required to spend between 50 and 70 per cent of their detention order in a detention centre and the remainder back in the community under supervision of a Fixed Release Order. The majority of juveniles sentenced to detention spend 70 per cent of their order in detention and 30 per cent subject to a Fixed Release Order (Department of Families: information pamphlet: Sentence Orders, 2001: 3).

A Fixed Release Order (FRO), although really a community based order, is comparable with parole in the adult system. This order is automatically put in place on every detention order for juveniles and therefore, cannot be handed down by a court as a separate order. Usually the only requirement of this order is to report to the departmental caseworker once weekly. As with parole, a breach of the FRO means an automatic return to detention. At no stage is the court involved in the FRO. Due to the usually short duration of this order, and because it is a part of a detention order, it is of little or no relevance to this research.

Table 8 reflects the distribution of non-community based orders by ethnicity.

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Table 8: Non-community-based orders by ethnicity Reprimand (N) Indigenous Non-Indigenous Ratio: Indigenous / Non-Ind. Total Chi-square = 16.39 174 68 1.4 242 df = 2 % 12.5 9.1 Detention (N) 28 5 3.0 33 P < .005 % 2.0 0.7 Fines (N) 24 27 0.5 51 % 1.7 3.6 Total (N) 226 100 1.2 326 % 16.2 13.3

The chi-square test highlights two features of significance. Firstly, that a relatively high number of fines are imposed on non-indigenous offenders, which most likely reflects their ability to pay and secondly a relatively high number of detention orders are handed down to indigenous offenders, which is a consequence of repeat offending and a reflection of the seriousness of their crimes. The large number of reprimands suggest that many of these young people should not have been sent to court in the first place, but rather should have been given a diversionary option.

Caution must be exercised in interpreting these findings. Ironically, what may appear to be a lenient court outcome still contributes to the overall process of criminalisation. The remaining number of appearances resulted from Remands and Failures to Appear.

Table 9 indicates the number of Failures to Appear (FTA), remands, or adjournments, categorised by ethnicity.

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Table 9: FTA and Reprimands by ethnicity Remand & FTA No. Indigenous Non-Indigenous Total 430 203 633 % of Relative Ethnic Group 30.8 27.0

Based on Table 9, the ratio of indigenous / non-indigenous on a relative ethnic group basis is 1.1 / 1. The difference is hardly significant, however the increased number of indigenous juveniles could be attributed to a cultural propensity to not recognise the non -- indigenous values of time.

4.3 QUESTIONNAIRE RESULTS: PARTICIPANTS Initially it was agreed with the co-ordinator of the conferencing program that the researcher's own purpose-designed questionnaire should be distributed to conferencing participants. These questionnaires were designed to explore and retrieve the levels of selfesteem of the offenders and victims after the conference. It was further hoped that the questionnaires would establish whether or not a decrease in social distance influenced the offender's offending behaviour, and questions were aimed at assessing levels of depression and anxiety, in particular for victims. The questions also explored the current circumstances of the juvenile and endeavoured to link the findings with recidivism rates. These findings then would be compared with the previous findings of research conducted by Maxwell and Morris in 2001.

The researcher's questionnaires were hand-delivered to the community conferencing venue, but unfortunately, they were never distributed to participants. Despite repeated

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efforts by the researcher, no clear reason for this inaction was ever given. Consequently, the following section is based on the outcomes of departmentally structured questionnaires.

It must be noted that the researcher at no time had access to raw data associated with these participants' questionnaires. Despite various strenuous efforts to view the original questionnaires' outcomes, the data discussed here are based on a summary given to the researcher by the co-ordinator. The following data are therefore a summary of computerised data compiled by the program, and the researcher is not responsible for any mistakes in the data outcome, nor is the responsibility for accuracy in the hands of the researcher,

4.3.1 PARTICIPANTS' SATISFACTION The experience of conference participants is one of the important measures of success. To ascertain the experience of the participants, a standard questionnaire was developed by the Youth Justice Branch and distributed by the community conferencing co-ordinator at the completion of each conference. Participants include the offender(s) and his or her support person(s), the victim and his or her support person(s), and an attending police officer where applicable. Of the 265 participants, a total of 248 (or 93.6%) completed in the questionnaire. This section shows the results of the questionnaire and considers the outcomes in relation to the stated aims of the program.

Results indicate that the Cairns conferencing program was well received by participants, and that it achieved most of its stated objectives. As respondents are anonymous the outcomes did not allow for various demographic and other characteristics to be taken into consideration. Therefore, potential associations between the groups such as gender, age, sex and ethnicity could not be examined.

The stated aim of accountability is to make offenders accountable for their actions by giving them the opportunity to accept responsibility, to understand the harm caused and to make amends by mutually acceptable reparation to the victim. Tables 16-19 indicate that the vast majority of participants thought the conferences were fair; they understood what

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was happening; and they felt they were able to communicate and to express their point of view, whilst being treated with respect.

Of the entire sample, 92.2% thought that the conference was fair. All offenders, prior to participating in the program, had to admit to their offence. Juveniles who admit to an offence, take some, if not all, responsibility for their behaviour. It would seem reasonable to expect that these offenders would be prepared to say 'sorry' to their victims, as opposed to juveniles who do not admit to the offence, or who deny all responsibility.

The overall degree of fairness and levels of accountability then are not surprising.

Table 10: Degree of fairness Overall, I thought that the conference was fair Agree Disagree Unknown Total Table 11: Degree of understanding I understood what was going on in the conference Agree Disagree Unknown Total (N) 243 0 5 248 % 98 0.0 2.0 100 (N) 246 0 2 248 % 99.2 0.0 0.8 100

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Table 12: Ability to communicate I got to have my say at the conference Agree Disagree Unknown Total (N) 244 2 52 248 % 98.4 0.8 0.8 100

Table 13: Respectful treatment I was treated with respect in the conference Agree Disagree Unknown Total (N) 239 2 7 248 % 96.4 0.8 0.8 100

A further 91.5% of participants indicated that they would recommend the process to a friend in the same position.

An indicator of the programs' success is the assessment of the satisfaction with the conference outcome in terms of reparation by the offenders. This assessment is based on the proportion of conferences which have come to an agreement. In all conferences held during the research period, agreements were made. Participant (particularly victim) satisfaction with the conference agreement is another indicator of success. In working out reparation, the victim and the offender determine a mutually acceptable outcome to make up for the damage the crime has caused. This damage does not necessarily have to be materialistic; it can also be psychological or social. Levels of satisfaction with community conferencing agreements were extremely high.

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Table 14 indicates that 94.4% of participants reported being satisfied with the agreements made as a result of the conference.

Table 14: Level of satisfaction with agreement I was satisfied with the agreement made in the conference Agree Disagree Unknown Total (N) 234 42 107 248 % 94.4 1.6 4.0 100

Community conferencing provides an opportunity for involving parents and caregivers in the response to juvenile crime, which is reflected in the rate of family participation. In total there were 85 support people (mostly parents and caregivers) for the 74 offenders. Each person has a say in the final outcome and involvement of families in agreements is encouraged.

Table 15 indicates the willingness to reach an agreement suitable for all, and as Table 16 indicates, the majority (88.7%) of participants felt the conference was what they needed to sort things out. Table 15: Degree of wanting to work things out

Everyone at the conference seemed to want to work things out Agree Disagree Unknown Total

(N) 237 9 2 248

% 95.6 3.6 0.8 100

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Table 16: Sorting things out The conference was just what I needed to sort things out Agree Disagree Unknown Total (N) 220 12 16 248 % 88.7 4.8 6.5 100

Community conferencing provides the victim with an opportunity to be part of the process of dealing with the offender and the offence. Queensland legislation, which requires that the victim consent prior to referral to conference, is probably a significant factor influencing the high rate of victim participation. Prior to the conference, the intake process focuses on ensuring informed consent and voluntary participation, discussing both the offence and its impact as well as informing the victim about the community conferencing process.

An indicator of success is the rate of victim participation and is reflected by the number of conferences which could not proceed because victims did not consent. A total of 24 referrals did not proceed to conferencing. Of these withdrawals, five were due to the victim's withdrawing consent. Note that in ten cases no reason was stated, so perhaps the rate of victim withdrawal is somewhat higher. In total there were 70 victims who had 44 support people.

Compared with the offenders, the victims had a lower number of support people. Despite the relatively low number of support people, there is no evidence of re- victimisation. After participating in a conference, 93.1% of participants reported that they were not pushed into attending the conference.

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Table 17; Degree of victim coercion I was not pushed into being at the conference Agree Disagree Unknown Total (N) 231 9 8 248 % 93.1 3.6 3.2 100

The theoretical framework of reintegrative shaming would suggest that achieving reintegration in a conference depends largely on a supportive environment for the offender (Community Conferencing in Queensland, 1998:7). For the offenders, a return to school, work, and reintegration into the community are ways to strengthen the ties the young person has with the community.

Tables 18 and 19 indicate that the offenders felt they had a better understanding of other involved participants after attending the conference, and Table 20 reflects the percentage of offenders who felt they needed the conference to sort things out, and who were now able to make a fresh start.

Table 18: Degree of understanding by others People seemed to understand my side of things Agree Disagree Unknown Total (N) 239 3 6 248 % 96.4 1.2 2.4 100

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Table 19: Level of understanding participants After hearing everyone talk I see things differently now Agree Disagree Unknown Total (N) 216 20 12 248 % 87.4 8.1 4.8 100

Table 20: Ability to make a fresh start doing the conference means I can now make a fresh start Agree Disagree Unknown Total (N) 196 11 41 248 % 79.0 4.4 16.5 100

Community conferencing encourages the participation of the support people for young offenders as well as for their victims. The 85 offenders had a total of 74 support people and there were 44 support people for the 70 victims who participated in conferencing during the research period.

Table 21 reflects the vast majority of participants felt supported during the conference.

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Table 21: Level of support There were people at the conference who supported me Agree Disagree Unknown Total (N) 229 5 14 248 % 92.3 2.0 5.6 100

One of the aims of conferencing is to divert young people from further involvement in the justice system and one of the benefits is that there is less chance of criminalisation and consequently less cost involved. Success is indicated by the numbers of young people cautioned, referred to conference and/or sent to court before and after the commencement of the pilot. Although a large number of juveniles were cautioned, the rate of cautioning has been very consistent throughout the last three years.

Another of the aims of conferencing is to provide a process for dealing with offending behaviour which is appropriate to the young person's age, maturity and cultural background. During the research period, 65% of court appearances involved indigenous juveniles; however, only 2% of all indigenous juveniles were referred to conferencing. Based on the population data, it was expected that the number of indigenous juveniles referred to conferencing, would be in proportion with the number of juveniles appearing in court. These findings indicate a strong reluctance of the gatekeepers to refer indigenous juveniles to conferencing, even though the program is culturally appropriate and sensitive to the needs of the participants.

Looking at the remaining question: (How did things feel at the end of the conference?) the responses were very positive, with levels of agreement ranging from 95.6 % feeling positive about the conference to 3.2 % of participants feeling negative about the experience (1.2% of the answers were unknown).

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Table 22: How do you feel now ?

Participants Friendly and helpful Polite and co-operative Confused and disorganised A bit cold and formal A bit awkward and uncomfortable Unfriendly and unpleasant Unknown Total 155 82 1 2 4 1 3 248

Percentage 62.5 33.1 0.4 0.8 1.6 0.4 1.2 100

4.3.1.1 SUMMARY OF FINDINGS Questionnaire responses indicate that victims, offenders and their parents have generally found conferences beneficial for dealing with the offences. The results clearly indicate an overall level of satisfaction across the board, with the Participation Satisfaction Index being 95.0%.

The results of these initial interviews indicate that the vast majority of participants believe that the conferences were fair and that the agreements were satisfactory, which indicates that the majority of the victims felt they were not pressured into accepting outcomes with which they did not agree. The vast majority of participants shared similar perceptions of the content and the quality of community conferences.

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The transformative experience of conferencing was confirmed by the majority of participants who indicated a good understanding of the other's point of view, their willingness to listen and their recommendations to tell others about the concept of conferencing as an alterative to a court appearance. These findings support those of the evaluation conducted by Griffith University in 1998, the report which stated (in the executive summary) that the conferencing pilot had been "highly successful in regard to the core goal of victim-offender reparation".

The preliminary SAJJ findings also suggested that participants perceive the process as being fair and that victims and offenders in general are satisfied with the outcome. According to research conducted by Hayes, (2002: 13), 80 to 95 % of victims and offenders participating in SAJJ said they were treated fairly and had a say. The findings from this Cairns study are also supported by studies conducted by Miers in 2001, which concluded that participants are largely satisfied with the process and that they judge the program practices as being fair.

Apart from early work in New Zealand by Maxwell and Morris (1993) researches indicate a generally high level of satisfaction with the process and outcome, by victims and offenders. According to Hayes ( 2002:9), Latimer et al's ( 2001: 9, 11) meta- analysis of 22 studies found significantly higher levels of satisfaction for victims and offenders who participated in restorative justice processes compared to regular justice practices.

The results in terms of recidivism show that conferencing is successful, even though most juvenile offending is not detected and official records only provide an estimate of recidivism rather than a true picture of offending patterns. Nevertheless, as far as recidivism and conferencing is concerned, it would appear from the figures, that community conferencing is an important part of the solution in combating and dealing with repeat juvenile offending.

Research conducted by Miers et al (2000) does not support these findings. These authors compared the outcomes in terms of recidivism with three schemes administrating a restorative approach to the outcomes of juveniles who were not referred to the schemes. They found that there was no strong evidence that the level of known offending was

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reduced for the juveniles who attended the schemes (Miers et al. 2000: 60). In addition, research conducted by Hayes (2001) drawing on SAJJ data, found that social marginality, gender and prior offending behaviour were the best predictors of future offending behaviour.

There were, however, some effects of the conference, particularly regarding the expression of remorse. Re-offending was less likely when genuine remorse had been expressed and where conference outcomes were agreed to by genuine consensus.

This finding is very similar to previous findings by Maxwell and Morris (2000), who observed that offender characteristics are the best predictor of future offending behaviours, and that when remorse and shame are shown in a conference, re-offending is less likely (Hayes, 2001 : 7), Additional research by Hayes (2001: 1) however, found that close to 90 % of victims recommended the government keep conferencing in the justice system, despite the fact that victims were least likely to correctly predict an offender's postconference offending.

In terms of cultural appropriateness, the data reflect a dramatic difference in treatment for indigenous offenders and non-indigenous offenders, since only 2% of indigenous offenders received a referral to the program. Whereas there have been no complaints of inappropriate or culturally unacceptable behaviour during the conferences, data indicate that the vast majority of victims were not indigenous yet the majority of participants were indigenous.

4.4 QUESTIONNAIRE RESULTS: KEY STAKEHOLDERS Questionnaires were sent to four groups of key stakeholders who are involved with the program as professionals. A total of 25 people who are connected with conferencing in a professional manner were asked to answer questions by return mail. To allow sufficient time for the professionals to be familiar with the concept of conferencing, the questionnaires were sent to the key stakeholders approximately two years after the commencement of the program.

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None of the private solicitors responded to the questionnaires, but all Legal Aid solicitors did. All judges and magistrates responded promptly; five questionnaires were returned by police officers and officers of the JAB also returned five questionnaires.

In addition to the questionnaires, a number of conversations have taken place, in particular, between the researcher and stakeholders. Conversations with officers of the JAB clarified a number of issues, specifically in relation to the difficulties experienced in referring a juvenile, particularly an indigenous juvenile, to the program.

All respondents who returned the questionnaires were, in principle and theoretically, supportive of community conferencing, but there was general disappointment that more conferences were not held during the research period.

4.4.1 SOURCE OF REFERRALS Prior to admission to conferencing, the juvenile offenders must admit their guilt and victims must be identifiable. In addition, the offender must understand and agree to participate in mediation and the victim must agree to a conference. Based on knowledge of the actual crime, the coordinator must identify that a potential point of conciliation can be achieved through mediation (Court Referrals, Draft, 1998: 5-7).

The Queensland legislation has a number of important features, which may have an impact on the referral of matters to a conference.

In Cairns, officers of the Juvenile Aid Bureau (JAB) are responsible for most detection and investigation of juvenile crime. The JAB was established in the Queensland Police Service in 1963 to deal specifically with the problems of children under the age of 17. Within the JAB section, there are officers who specialise in dealing with juvenile offenders. The overriding philosophy of the JAB is to prevent juveniles who are offenders from further offending. By providing methods of diversion such as caution or referring the juvenile to conferencing, they contribute to the implementation of this philosophy (www. QPSJAB: 1).

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Police may refer a young person who admits to an offence to a conference when the victim consents. In these cases, the police officer considers a caution inappropriate and the matter would otherwise have been sent to court if a referral to conferencing were not made. The Juvenile Justice Act, 1992 requires that a referral to a conference should not be made if a caution is an appropriate response. The following two mechanisms are provided within the Act for Courts to refer matters to community conferencing:

A court may refer a young person to a conference after the finding of guilt and instead of sentencing, which is called an 'indefinite court referral'. The victim must consent to the referral (s.119A-C of the Act). The advantage of this referral is that the responsibilities of the child are clear: there is no confusion between the requirements stated in the conference agreement and a sentence made by the court. Another advantage is that the legislation provides a definite "breach" mechanism if an agreement is not made or the offender does not complete the agreement within a specified time frame.

In a Pre-Sentence Referral a court may refer a young person to community conferencing after the finding of guilt and prior to sentencing. In this case the court can consider the conference outcome at the time of sentencing, the offender's conduct during the conference and compliance with the agreement made. In these cases the victim too must consent to the referral (s.119A and s.119D), as without a victim's consent, the conference cannot proceed. This option of referring provides the court with a final oversight and authority over the conference outcome. Where a child has agreed to an outcome, the court may choose to adjourn sentencing to allow an opportunity for the offender to complete the agreement. The offender's compliance can be considered in sentencing (Handout for Courts, Solicitors and Staff of DFY &CC, 1998:1 - 3).

Police, in particular the JAB, and the courts are the primary gatekeepers of the program and are therefore able to use their discretion to identify cases which appear suitable for conferencing. At present there is no legislative imperative which requires that police or courts refer a matter to conferencing.

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Of the 50 conferences considered in this research, the vast majority (44) were referrals from either Police or officers of JAB.

Table 23 summarises the source of referrals. Referred by Police Cairns Region JAB Cairns Region Court Cairns Region Total District No. 5 21 17 1 4 2 50 6 50 18 26 Sub Total

4.4.2 POLICE Police referrals were predominantly made by officers from outside the Cairns region. This could be due to the fact that the Cairns-based police are very busy, as they prepare for court on most days. Police outside the region would have more time to spend on the streets. The role of the police in the community conferencing process includes the following:

1. 2. 3. 4. 5. 6.

Discuss the option of a Community Conference with the victim and seek their consent, Serve the offender with a "Notice to Attend Community Conference", Whenever possible, attend the conference, In the conference, state the facts, or read out the offences related to the incident, Check the appropriateness of the agreement made in the conference, Humane and caring attitude of police officers may help reintegration and healing of the victims and may give the offender a different view of the police.

(Unpublished Handout: Community Conferencing-Information for Police, 1999: 1)

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It may be that referrals to community conferencing are comparatively low, because gatekeeping is pre-dominantly vested in police. Informal conversations with police officers on different occasions in 1999 and 2000, revealed that police prefer to refer those juveniles to conferencing who have had no previous dealings with court and who appear to have very supportive parents. In another informal conversation with representatives of police in 2001, it was stated that although police are in theory supportive of the concept of community conferencing, the practicalities of the way it is currently run in Cairns mean that the police are not over-enthusiastic about the process.

One complaint is that the conferences take too long (up to 2.5 hours) which is time away from other duties. This re-affirms statements made by two police officers in previous informal discussions during 1999 and 2000, and this attitude could explain why those juveniles without previous record are predominantly referred to the program. The statement, however, is in contrast with previous research conducted in 1998 by the Juvenile Justice Branch, which found that police regarded the making of a referral as being to their operational advantage, and involving less work for conferencing and attending conferencing as compared with sending a juvenile to court (Juvenile Justice Program, Community Conferencing: Preliminary Report, 1998: 39). The chances of these juveniles never re-offending are higher than are those for juveniles who already have a criminal record and are known to police.

Informal discussions with two police officers during the first three months of the program revealed the following:

A:

community conferencing was regarded as 'a bureaucratic burden' and that 'all the offender gets is a slap on the wrist'.

B:

police have the perception that although they are obliged to attend the conferences, they are not invited to provide any meaningful input.

However, these sentiments are contradicted by former police officers , who commented that : in regard to the comment regarding the amount of time and paperwork involved when referring a child to conferencing instead of court: in reality once a matter is

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activated by completing a form the matter is solved. Often because juveniles admit to the offence and plead guilty, the officer who investigates the matter completes the court brief and forwards this to the prosecution, which then has the paperwork task. However, when a juvenile does not plead guilty, it takes an officer a lot longer than a conferencing. The officer has to conduct interviews, get statements and the amount of paperwork involved is considerable. Going before a court really does cost the police or JAB officer a lot more than just one officer's time.

On average, eight police prosecutors are based in Cairns city; their station is situated next to the courts. A number of questionnaires were electronically forwarded to the prosecutors and five were returned. Questions included the following:

1. 2. 3. 4. 5. 6.

How do you rate your awareness level of Community Conferencing? Do you consider referrals to Community Conferencing as a viable option? Are you in favour of Community Conferencing? Would you initiate conferencing? Does a referral cause you extra work? Do you perceive community conferencing to be in favour of one party?

In line with police protocol, a letter seeking approval to distribute questionnaires to police officers was sent to the police commissioner in May 2001. This date was chosen because it coincided with the last month of the research and the officers would have had two years to reflect on the effectiveness of the program. In July 2001 this letter seeking approval was followed up with a reminder letter. In August it was revealed that the questionnaires would have to be approved by members of the police ethics committee. This committee finally approved the questionnaires and allowed distribution in October 2001.

In the intervening period the tenure of the community conferencing program had changed. The newly appointed co-ordinator commenced the position in May 2001 and a new

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approach and efforts had started to take effect. It can be argued that subsequently, as a direct result of this change-over, police prosecutions had a change of attitude to the program. This is evident in the answers to the questionnaires returned in February 2002. Therefore the completed police questionnaires do not fairly relate to the police attitudes during the research period; rather they are believed to be a reflection of their thinking during the subsequent few months.

The sharp contrast between the informal interview conducted during the research period and the questionnaires returned nine months after the research period supports the premise that police attitudes have changed dramatically since the appointment of the new co-ordinator.

Responses indicate that four police officers felt that they were very well informed about the purpose and aim of conferencing and all five respondents were in favour of conferencing. All but one officer would initiate conferencing; the same officer indicates a low level of knowledge about the program. As to the previous assumptions of police, revealed during informal interviews, the program is no longer regarded as a bureaucratic burden; three officers indicate that a referral does not cause extra work; two other officers indicate that referring a juvenile to conferencing just causes a little more extra work, To the question: "Do you perceive Community Conferencing to be in favour of one party?" Four responded with "neutral", and one officer indicated that the program was in favour of the offender. One additional comment was: " have used c.c. extensively ....including Aboriginal issues... have been most impressed with outcomes and success."

The attitude of prosecutors has a significant influence on the likelihood of the victim's agreement to attend a conference. Evidently, police attitudes and knowledge have improved significantly since the informal conversations in 1999 and 2000, and there is every indication that these attitudes have been reflected in an increase in referrals to the program since May 2001.

4.4.3 JAB

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The majority of referrals in the Cairns city region came from officers of the JAB, who are trained in dealing with juveniles. Comments made by various JAB officers during 1999, 2000 and 2001 with regard to community conferencing include: "At this stage police do not see Community Conferencing as doing any better than the cautioning system, whereas the cautioning system is a lot more efficient in terms of use of manpower and resources".

JAB officers, during interviews, pointed out that the victim was not usually interested in conferencing, and that officers perceived the process as weighted towards the offender rather than towards the victim. There was an additional problem of getting the families of offenders to the conference when transport for offenders and their families was not available. During meetings with key stakeholders in 1999 and 2000, it was suggested that community conferencing staff could arrange transport for the parties involved to streamline and to shorten the process. It was also suggested that those co-ordinating the community conferencing project do more to market the process to the general public, e.g. via the general media. However, the suggestions made in relation to transport were not followed up until May 2001. Considering the number of juveniles appearing in the Cairns Children's Court each month, the total numbers of juveniles (74) attending conferencing during the same period is low. When considering ethnicity, it can be observed that non-indigenous juvenile offenders are more likely to attend conferencing than indigenous juveniles. This is cause for concern as the success rate of conferencing appears to be directly linked to police attitude, in that a low number of referrals by police results in fewer conferences being held and consequently no decrease in court appearances. The attitude of JAB officers is particularly critical for a smooth and steady stream of referrals to the program.

In order to find some answers to these concerns, in-depth conversations were held with officers of the JAB during 2001. The outcome of these conversations, repeated here, reveal some interesting findings and explanations for the low referral rate, particularly in relation to indigenous juvenile offenders.

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Initially, JAB officers were hopeful that the program would take off, as this would alleviate some of their workload. Most officers felt let down by conferencing staff not keeping appointments and not following up with suggestions made in relation to transport of potential community conferencing participants. In addition, limitations put in place by the Police Powers and Responsibilities Act 2000 were seen as hindering JAB in making referrals to the program. In particular section 251 of this Act (2000: 159-160) is regarded as a hindrance, as this section deals with the questioning of Aboriginal people and Torres Strait Islanders. The section states that the police officer must inform the person that a representative of a legal aid organisation will be notified that the person is in custody; and as soon as reasonably practicable, notify or attempt to notify a representative of the organisation. The police officer must not question the person unless, before questioning starts, the police officer has, if practicable, allowed the person to speak to the support person in circumstances in which the conversation will not be overheard; and a support person is present while the person is being questioned.

In practice, this means that these so-called 'safeguards' cause extra limitations and, on many occasions, prevent JAB officers making a referral. Police are obliged to inform Legal Aid and they cannot question before a support person is present. An officer illustrated this with the following example: 'even if a highly qualified person like a Queens' Counsel is an indigenous person, the police are still not allowed to question the young person, as a support person needs to be present'

JAB concluded that the system put in place to help indigenous juveniles actually works against them. An informal discussion with an officer of JAB revealed that generally, legal advice is for the juvenile to plead 'not guilty'; hence a referral to a conference is no longer an option since the admission of guilt is a condition for the child to be referred to the program. In reality, JAB officers are stretched to the limit due to an overwhelming increase in child pornography and other Internet related offences. JAB officers regard a referral to community conferencing as extra work compared with the handing out of an attendance notice to the juvenile to attend court. In addition, a huge increase in child sex offences which occurred over 20 years ago, are only recently being reported and have created a enormous burden on JAB. In conclusion, the large increase in their workload, without an increase in staff, combined with difficulties in referring juveniles, in particular indigenous

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juveniles to conferencing as described in section 251 the Police Powers and Responsibilities Act 2000, explains the low referral rate. Just as distribution of the questionnaires to the other police officers was delayed, JAB officers did not receive their questionnaires until December 2001 and in January one questionnaire was returned by mail. In March 2002 a further five questionnaires were collected at JAB, so that a total of six JAB officers responded to the questionnaires. Although their investigations also include cases of child abuse and neglect, six JAB officers predominantly deal with juvenile offending; therefore the return of six questionnaires is the highest that can be expected. An interesting additional comment stated by a JAB officer on the questionnaire was: " I believe that the offenders sent to conferencing are those that would have benefited form a caution in any case." Other additional comments included: "Conferencing takes up core policing time and therefore reduces services to the public on other areas", and "The 'hard core' offenders are not sent to conferencing therefore to test its ability regarding recidivism is difficult".

The questionnaire for JAB was identical to the one for the police and responses by JAB officers indicate that they perceive conferencing as taking up too much time, and that they would have preferred to caution a juvenile. Five of the six interviewees indicated that their awareness of conferencing is high; all five are in favour of conferencing, and four of these officers considered conferencing a viable option. One officer indicated a medium level of awareness of the program, and two officers regarded conferencing as sometimes a viable option. One officer, although not in favour of conferencing, would, like the other five officers, initiate conferencing. Three interviewees stated that a referral caused a lot more work compared with attendance notices; two stated that a referral caused a bit more work and for one officer a referral caused no extra work. Three interviewees perceived the program to be in favour of the offender, and three officers perceived the program to be 'neutral' in terms of favouring one party. Interestingly, no JAB officers felt that the program was in favour of the victim.

44.4 JUDGES AND MAGISTRATES A judge or magistrate presiding in the Children's Court has the following tasks and responsibilities in the community conferencing process:

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1.

If victim consent is not available prior to court appearance a one-week adjournment may be sought.

2.

Ensure the child collects and signs the notice to attend a Community Conference at the court registry.

3.

In sentencing a Magistrate or Judge may impose a requirement on the offender under the sentence order or in addition to the sentence order.

(Court Referrals to Community Conference-DRAFT, DFYCC, 1998: 6 -10).

Cairns normally has four magistrates and all would sit in the Children's Court, but some more often than others. In Cairns there are two judges, both sitting Children's Court Judges, but usually only one deals with juveniles. One Supreme Court Judge, who visits from Brisbane when the occasion demands, usually deals with Supreme Court matters. There are, of course, more magistrates to concentrate on adult courts.

Yarrabah Court is conducted once a month with only Yarrabah juveniles appearing, or those juveniles who committed crimes in the Yarrabah community.

During the two-year research period, the court referred only six cases to the program. Within two weeks of sending the questionnaires, four completed questionnaires were returned. Questions for the judges and magistrates include:

1. 2. 3. 4. 5. 6. 7. 8. 9.

How do you rate your awareness level of Community Conferencing? How did you find out about community conferencing in Cairns? Do you normally consider referrals to Community Conferencing as a viable option? Do you consider referrals to Community Conferencing as adding to adjournments and court delays? Do you think a juvenile who attends Community Conferencing receives too little or too much punishment? Are you in favour of community conferencing? Would you prefer to be aware of the victim's consent to conferencing, prior to considering the referral? Does a referral cause you extra work? Do you perceive Community Conferencing to be in favour of one party?

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The magistrates and judges rate their understanding of conferencing as medium to high, and their awareness of the program's existence came directly from community conferencing employees. All judges thought the program a viable option and all were in favour of the program. Two magistrates found the referral added to court delays and a `bit more' to their workload, and one magistrate thought it neither added to court delays nor caused extra work. Another respondent found a referral sometimes added to court delays but caused no extra work. All four respondents considered the program neutral and not biased towards any specific party participating in the program and all agreed that they would prefer to be aware of the victims' consent prior to considering the referral. Two magistrates felt that the punishment received at a conference was about right; the two other magistrates were not sure. One added comment from one magistrate was: 'Community conferencing has been raised less than five times...' and another comment was 'on no occasion representatives of victims indicated consent. Additional comments of one magistrate: ' I do not refer unless there is an indication a victim will consent, thus far indications are 100% negative!"

Considering the number of juveniles appearing in the courts, community conferencing could have been raised more frequently. At the official opening of the program in June 1999, judicial representatives expressed their approval of the program and also expressed a keen interest in the development of the program in this diverse region.

Since the restructuring of the program and the change-over of staff, the program has experienced a 350% increase in court referrals during the first 8 months since May 2001. It can only be assumed that the magistrates and judges are more supportive of and less disappointed with the program since May 2001.

4.4.5 SOLICITORS In the Children's Court a solicitor is in a position whereby the judge or the presiding magistrate of the Children's Court will consider a recommendation to a conference. The role of the solicitor in the Conferencing process include the following tasks:

1.

The solicitor should discuss a conference as a court option with the officer of the Department, and consult with the client and the client's parents.

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2. 3.

The solicitor needs to consult with the child regarding a plea and has to discuss the possibility of a conference with the coordinator of the program. The solicitor then has to contact prosecution regarding victim consent, as any referrals to a conference, whether the referral is an indefinite referral or a presentence referral, the victim's prior consent is required for a conference to be able to proceed.

4.

In the case of a pre-sentence referral, the solicitor has to seek a six-week adjournment to organise and run the conference and to allow sufficient time for the offender to complete some of the requirements of the agreement, in accordance with section 119A(3) (b) of the Juvenile Justice Act, 1992. If the solicitor did not attend the conference, the solicitor may inquire with the conference convenor regarding the offenders' participation in the conference to assist their submission to court (Court Referrals to Community Conference- DRAFT, DFYCC, December 1998: 5-6).

A total of eight solicitors, who deal with matters in Children's Courts regularly, were approached by mail, which included a covering letter with attached questionnaires. In Cairns, one firm of solicitors deals solely with indigenous clients, and additional Legal Aid solicitors are present to deal with matters concerning non-indigenous juveniles. Although there are only a few solicitors who attend Children's Courts regularly, most other solicitors will, on occasion, deal with children appearing in Children's Courts or, on occasion, in the higher courts. There are a large number of private solicitors and barristers who would appear periodically in court for juveniles, but probably only a couple per week in the lower courts. On occasion, a parent or caregiver will engage a private solicitor for the child; however this is rare.

The solicitors approached included five Legal Aid solicitors and three private solicitors. Of the eight solicitors approached, three Legal Aid solicitors returned the completed questionnaires within two weeks, and two private solicitors who returned the questionnaire stated they felt they were not in a position to fill in the questionnaire, as they had no experience with community conferencing whatsoever, even though these solicitors appear in court in relation to children's matters frequently. The remaining three solicitors did not return the questionnaire, nor did they acknowledge receipt. Hence, of a possible eight or

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more questionnaires only three questionnaires, all filled in by solicitors of the same firm, were completed and returned.

,

The response was disappointing as each firm contacted consisted of at least two solicitors. Therefore, the five responses received are out of a possible eleven solicitors. Only one referral was made in the Children's Court. Informal conversations with two solicitors on separate occasions, in 1999 and in 2000, revealed that solicitors did not recommend community conferencing for several reasons. These included a lack of awareness of the victim's situation, i.e. whether or not the victim had given consent; their lack of time to actually spend with clients; and that most clients were known to the solicitors as they have dealt with them on previous occasions involving minor offences. Hence, most solicitors advised juveniles not to admit to anything, thus tying the hands of the police as far as recommending conferencing is concerned.

For solicitors, the main problem is that of disclosure, which means that, in the case of a seven-year offence, the criminal history of a juvenile caution or conference could be brought up in court. Solicitors therefore see these as options to be avoided.

Informal discussions with a representative of the Youth Advocacy Centre in Brisbane revealed that community conferencing attendance may become a part of the juvenile's criminal history and can influence sentencing options when revealed at court. In some cases repeat offences of minor matters can be classified as being a `seven year offence'. The disciosability compromises the diversionary value of community conferencing and creates confusion regarding the actual implications. Findings of previous research, reflected in the Preliminary Evaluation report (1998: 35) and conducted in Ipswich and Logan, indicated a concern that in the long term this disclosability will have a significant impact on referral numbers as legal representatives advise clients not to participate. Information revealed through the administration of community conferencing cannot be disclosed. This includes publishing any information which could identify the young offender. However, there are no provisions in the legislation to prevent participants other than the offender from revealing identities. The offender could also reveal information given by victims in the conference. However, disclosure is only possible when a juvenile re-offends. Arguably, legal advice opts for court appearances, which take up time for which

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the solicitors are being paid. It could be argued that the solicitors' apparent lack of interest in encouraging a juvenile to attend conferencing, is not the best option interest of the juvenile.

The questionnaire responses received from some solicitors do not reflect the view that, in general, solicitors are not impressed with the concept of conferencing. Therefore, it can reasonably be concluded that those solicitors, with whom informal discussions were held, were not the same solicitors who replied to the questionnaires. This stands to reason, as solicitors who were not in favour of the program would be less likely to respond to the questionnaire. Alternatively, the solicitors engaged in the informal discussions, could have been the same solicitors who responded to the questionnaire, but, in a short space of time, had had a change of attitude. Ten questions were asked and there was provision for additional comments.

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

How do you rate your awareness level of Community Conferencing? How did you find out about Community Conferencing? Do you normally consider referrals to Community Conferencing as a viable option? Where Community Conferencing is an option, do you discuss this with clients and their parents? If a juvenile is referred to do you think the juvenile is no longer required to attend court? Do you think a juvenile who attends Community Conferencing receives too little or too much punishment? Are you in favour of Community Conferencing? In general, for both Community Conferencing and Court, do you think sentences for juveniles are too lenient or too harsh? Does a referral cause you extra work? Do you perceive Community Conferencing in favour of one party?

The participants preferred to remain anonymous. Of the three solicitors who answered the questionnaires, two solicitors had a medium understanding of the program and one solicitor indicated a low understanding of the program. All three solicitors were in favour of community conferencing, considered community conferencing a viable option, and frequently discussed these options with their clients.

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None reported that the referral process took up too much time and none of the solicitors felt that the program was biased. Two solicitors found out about the program through their colleagues, and one found out by a direct approach from community conferencing employees. One solicitor thought that once a juvenile is referred to community conferencing, the juvenile is no longer required to attend court. Two solicitors indicated that sentences for juveniles in general were too lenient, and one solicitor thought the sentences for juveniles were about right. An additional comment made by one solicitor was: "conferencing allows for understanding, empathy, remorse and forgiveness - hopefully this is also likely to reduce the likelihood of re-offending more than does simple punishment".

4.4.6 SUMMARY OF FINDINGS

Answers to the questionnaires, show that representatives of law enforcement tend to favour conferencing, but that certain obstacles prevent referrals being made to the program. All four judges and magistrates interviewed were in favour of the program and had a medium to high awareness of the concept of community conferencing. The majority of these interviewees did not think the program to be biased, and they have a higher awareness of the program than solicitors. It was a widely held view that police felt that a referral generally caused additional paperwork. Fortunately, the attitude of police officers has greatly improved since May 2001. Their responses to the questionnaires, made after May 2001, are indicative of this attitude.

Half of the magistrates and judges interviewed, said conferencing referrals resulted in court delays, and added a bit more to the workload. All wanted to have a prior knowledge of victim consent. The comment: "Community Conferencing has only been raised a few times (less than five) whilst I have sat in Children's Court at Cairns", is reflected by the low number of referrals and of conferencing as a sentencing option. The questionnaires showed a low stakeholder acceptance of the program by solicitors. However, the solicitors who returned the questionnaires are in favour of conferencing and regard conferencing as an option they discuss with their clients. They indicated a medium to low understanding of community conferencing, which is reflected in one solicitor

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answering "yes" to the question: If a juvenile is referred to Community conferencing, do you think the juvenile is no longer required to attend court? Considering the low number of returns of solicitors' questionnaires, it would be fair to assume that these three solicitors, who are employed in the same company, were dealing with Children's Court more frequently than other solicitors. Considering that these solicitors had no problems with the program, and that they did, indeed, recommend and discuss community conferencing as an option, the research indicates that this particular group of key stakeholders was encouraging and supportive of the program. However, due to the very small sample, it is in no way meant to be reflective of the total number of solicitors dealing with juveniles in the court system.

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5.0 MAKING SENSE OF THE CAIRNS COMMUNITY CONFERENCES: COMPARISONS WITH TRADITIONAL RESPONSES TO JUVENILE OFFENDING This chapter compares the effectiveness of community conferencing with the more traditional response to juvenile offending, namely the Children's Court. The comparative analysis includes effectiveness in reducing recidivism, the likelihood of receiving community based and non-community based orders for indigenous and non-indigenous offenders and the compliance rates for both court and conference outcomes. In addition, the variable of ethnicity in the Criminal Justice System is considered through an analysis of the number of court appearances and conference attendances in terms of ethnicity. The second section of this chapter compares the costs of conferencing and courts as well as the costs of the program in Cairns and the programs in Logan and Ipswich. 5.1 RECIDIVISM RATES During the 1990s, arguments for the benefits of conferencing over court in reducing reoffending were discussed by criminologists concerned with procedural justice. Tyler (1990) argued that the legal process itself - being treated with dignity and having a say- was more important than the actual outcome. A feeling of being treated 'fair' served as an affirmation and a commitment to a non-offending future. Consequently, a feeling of having being treated as just, would see a drop in the level of recidivism rates, which in turn would indicate success in that aspect of the program.

The success of conferencing in Cairns in terms of recidivism, is measured by comparing recidivism rates of conferencing with those of court appearances. There are, however, some problems in measuring conferencing and court in relation to reoffending, including the possible bias in deciding which juveniles are going to be referred to conferencing, and which juveniles are not being caught by police, but should have appeared in Court for offences. In addition, the juveniles who participate in conferencing have already admitted to the offence and would therefore be more likely to be remorseful than offenders who plead 'not guilty' in court.

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Juveniles appearing in Court have on average a much longer waiting period, (4-6 weeks) that is from the moment they are arrested until the court appearance is finalised, allows for more time than for a referral to conferencing, which takes around 2-4 weeks to be finalised. Consequently, a juvenile appearing in Court has had more time to re-offend than a juvenile referred to a conference.

The question of recidivism is of major concern to the community and policy makers. It makes little sense to invest huge resources in courts, community corrections and institutions for dealing with first offenders if they desist from offending without formal intervention (CJC, 1992: 39).

Evidence regarding the link between diversion and recidivism is, at best, ambiguous. In Australia and New Zealand, two approaches have been taken in studying conferencing and recidivism (Hayes and Daly, 2001: 10). The first approach, developed through the RISE project, randomly assigned offenders to court and to conference. No significant court/conference differences were found in rates of re- offending for the drink driving, property and shoplifting offenders. These findings support the recidivism rates in this research whereby little difference is found in re- offending rates for court/conference.

However, a later randomised study conducted by the NSW Bureau of Crime Statistics and Research revealed that juveniles sent to conferencing are nearly 30% less likely to reoffend than juveniles sent to a Children's Court (Pollard, 2002:1). This research further revealed that juveniles who attended a conference and re-offended, turned up 24% less often in the Children's Court than juveniles who were originally dealt with by a Children's Court. In addition, the Bureau director, Dr Weatherburn, said that results of Pollard's study showed that community conferencing was an effective way of reducing juvenile crime (Pollard, 2002:1).

To establish the influence of community conferencing on recidivism, the criminal histories of juveniles who attended court and those who participated in conferencing during the research period are compared. Comparisons for indigenous offenders and for nonindigenous offenders on recidivism are discussed.

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To ascertain the level of recidivism, the status of both conferencing and court appearances was divided into the following four categories:

1. 2. 3.

Those offenders who had no previous records; Those who previously received a reprimand only; Those who were recidivists and had appeared in court on two or more occasions and received a community based outcome;

4.

Those who appeared in court and had no previous appearance but had re- offended since their first appearance.

The status prior to conferencing indicates that, of the indigenous offenders, 24 (70.6%) , had no previous criminal record and had not attended court on any occasion; 32, or 80%, of the non-indigenous offenders had no criminal record.

In order to compare more accurately the re-offending rate between community conferencing and the court system, court records were searched to identify juveniles who had no previous record prior to their court appearance, but who had appeared in court on another matter within the two-year research period.

5.1.1 STATUS PRIOR TO COURT The majority of offenders had appeared before a Children's Court in Cairns on at least one previous occasion. Figure 12 indicates that of the total number of juveniles appearing in Cairns Children's Court almost 84% were recidivist. Figure 12: Proportion of Recidivists in Court.

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5.1.2 RECIDIVISM AND ETHNICITY During the two-year research period, 172 juveniles who had no previous record appeared in Court, 77 (45%) of these re-offended during the research period (43% indigenous juveniles and 46% non-indigenous juveniles). This compares with the 30% re-offending rate in community conferencing. Post-conferencing criminal history checks indicate that 22 offenders have re-offended since participating in a conference. Thus, even though this research has been conducted over a period of 24 months, caution has to be exercised when drawing conclusions about the effect of community conferencing on recidivism.

Critical to the analysis is that 25% of conferencing participants had a previous history prior to the conferencing. In order to compare as accurately as possible, on the significant demographic dimensions, le the issue of re-offending, the two cohorts must be as similar as possible. Therefore, since the ratio for the conferencing participants is 25/75 (priors/ no priors), the same ratio must be applied to Childrens' Court participants. A total of 172 juveniles had no prior court appearance. To create a court-based cohort of 215 with a ratio of 25/75, 43 juveniles are added to the sample.

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Of these court-based juveniles, 77 re-offended. Of the total number of juveniles appearing in the Childrens' Court 84% were recidivist. Based on the 84%, it can be expected that 36 of the 43 additional juveniles added to the court cohort, will re- offend. Adding the 77 juveniles, who viAdid re-offend, and the statistical prediction of 36, the statistical prediction is that a total of 113 juveniles could re-offend in the research period. This means that the court-based cohort of 215 with the ratio of 25/75, divided by known and calculated reoffence rate of 113, yields at a recidivism rate of 53%.

However, most juvenile offending is not detected and therefore official records only provide an estimate of recidivism. It appears that recidivism data are a measure of policing practices and youth justice administration rather than a true picture of juvenile re-offending behaviours. Nevertheless, results indicate that, as far as the recidivism is concerned, 70% of both indigenous and non-indigenous participants, did not re-offend.

In addition, the group participating in conferencing is a select group in terms of previous criminal history and in terms of a willingness to take responsibility for, and to address the consequences of, their behaviour. This would indicate a less likely return to offending behaviour compared to an offender who attends court and might not admit guilt, or who attends court and receives a light sentence only.

In summary, a comparative analysis in relation to recidivism, although limited, shows the following:

The conferencing recidivism rate of 29.7% does not vary by ethnicity; The court-based cohort yields a recidivism rate of 53%. Criminal history checks pre-conferencing indicates that 73% of all offenders had not previously appeared before a Court;

The total number of court appearances by indigenous juveniles on one or more occasions during the two year research period, is equivalent to 88% of the indigenous population aged between 10 and 17.

83.9% of all offenders appearing in Court are recidivist.

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5.2 ORDERS BY ETHNICITY Analysis of the total number of court appearances shows differences in outcomes according to ethnicity. In relation to non-community based orders by ethnicity, the research concluded the following:

Table 24: Court outcomes by ethnicity Indigenous 3 times more likely to receive a detention order. Non Indigenous 1.3 times more likely to community based order. receive a

More likely to receive a reprimand. Over-represented in terms of court appearances and detention orders.

3.5 times more likely to receive a fine.

Table 25: Conferencing outcomes by ethnicity Indigenous Non Indigenous

More likely to have a non-communityHave a higher chance of having to pay a based outcome, such as verbal or written fine or restitution. apology.

The court will take the offender's background into consideration when this is presented in a pre-sentence report, which is only required when the magistrate or judge is considering sentencing the juvenile to detention. In a conference, the offender's background might or might not be explored as thoroughly as in a pre-sentence report, yet it appears that this has no effect on the potential harshness of sentencing. Conferencing outcomes are less harsh than court outcomes. Outcomes in conferencing are determined 'outside' the formal legislation. Court outcomes depend partly on the nature of the offence, partly on the

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criminal record of the offender, partly on the presiding judge or magistrate as well as on a host of other factors.

The concept of cultural appropriateness is contradictory in sentencing indigenous juveniles. To what degree, if any, should the sentencing magistrate take the social, economic background of an offender into consideration? One speaker at the Ngaarra legal forum discussed the clash of principles of equity in sentencing and the degree of proportionality in relation to their capacity to backfire. The speaker argued that to change or to adjust sentencing options by treating indigenous people in a particular way, specifically with respect to sentencing, produces a negative reaction in the general population because it clashes with the well-entrenched principle of equity in sentencing (Legal Forum, 2001:6).

In some cases an offender might receive leniency in sentencing, particularly when the magistrate is aware of the social and economic situation of the offender. For example, two juveniles charged with the same offence might be fined differently. The reason they are fined different amounts is because one is unemployed and therefore incapable of paying a large fine. In such cases the legal representatives present wonder about the 'justice', when one perpetrator appears to 'get away' with it because he is not capable of paying a fine.

5.3 COURT APPEARANCE AND CONFERENCE ATTENDANCE BY ETHNICITY

In summary, Table 26 indicates the characteristics of juvenile offenders in the Cairns region:

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Table 26: Characteristics of juvenile offenders. INDIGENOUS Represent NON INDIGENOUS 40% of all juveniles who

60% of all juveniles who Represent

appeared in court during the research appeared in court during the research period. Appear period. in court at a ratio of 24:1 Almost 4% of the region's non indigenous juvenile population appeared in court compared to non indigenous juveniles on a per capita basis. 46% of conferencing referrals are for 54% of conferencing referrals are for non indigenous juveniles. indigenous juveniles. during the research period.

There are 13 times more non-indigenous juveniles than indigenous juveniles in the Cairns region.

5.4 ETHNICITY AND THE JUVENILE JUSTICE SYSTEM In relation to ethnicity and involvement in the justice system, this research concluded that the ratio of indigenous to non-indigenous offenders in community conferencing could be increased and is linked to gatekeepers' level of knowledge and acceptance of the program as previously discussed. A significant finding is that indigenous offenders appear 24 times, on a per capita basis, more often in court but they are less likely to be referred to conferencing.

Table 27 reflects indigenous and non-indigenous participation as percentages of the total number of juveniles in the youth justice system ( YJS ) in the Cairns region between June 1999 and May 2001.

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Table 27: Participation in the YJS by ethnicity Participation Indigenous % NonIndigenous %

Police cautions Court appearances Conferencing Participations Detention Orders

Not available 717 34 28 60 46 2

Not available 480 40 5 40 54 0.7

5.5 COMPLIANCE RATE In terms of compliance, records indicate that the compliance rate for community conferencing is 100%; for court the compliance rate with community-based orders is around 90%, Conferences have the potential to impose harsher outcomes than does the court for similar offences.

Outcomes for conferences for similar offences are prone to lack consistency, as the conferencing process is careful to take the needs of the victim into consideration when exploring possible outcomes. This is not always the case with juveniles appearing in the children's court.

5.6 COSTS

According to the Department of Families Annual Report of 2000 (pp. 58-59), the average finalized court appearance costs $240 per juvenile. This cost is based on the wages and time of all persons involved in one court appearance; i.e. judges and/or magistrates, solicitors and police prosecutors and Departmental officers involved in the case. However, these costs are total salary costs only and the figure does not reflect running costs.

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As previously indicated, the 2000-2001 budgets allocated a total of $324,203 to Cairns conferencing, including the building lease and employees' wages.

When looking at the number of conferences held in Cairns, each conference costs on average almost $13,000 ($12,968). Each offender participating in a conference cost $8,645. Community Conferencing does not include police and solicitors' wages. The true total cost of one conference is difficult to calculate.

Conferencing expenditure data were obtained from the Department of Justice and reflected an indication of the costs involved in the program. This report states that these financial data include 'start-up' costs; i.e. running costs include the costs of forging and maintaining working relationships with, for instance, the courts and police The independent team from Griffith University paid close attention to the costs of the pilots, but could only conclude that they ranged from $200 to about $900 per case, on average this means that the cost of one participant is $550. For an additional comparative analysis, the following section provides a brief overview of the Queensland pilots.

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5.7 QUEENSLAND PILOT CONFERENCING PROGRAMS

Three sites were selected in 1997 to trial a program of community conferencing in Queensland. The sites selected were Palm Island, Ipswich and Logan (See figure 13).

Figure 13: Queensland pilot sites

Cairns

Brisbane Ipswich . Log

Even though Palm Island is also a pilot program, a lack of conference referrals to the Palm Island Program made comparisons impractical.

Comparisons include demographic factors, referral rates to the Program, the number of Conferences held and withdrawn and the costs involved.

5.7.1 IPSWICH Ipswich is a satellite city of Brisbane with a strong working class. There has been a decline in employment in recent years. The Alternative Dispute Resolution (ADR) Branch

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of the Department of Justice administers the Ipswich program. The ADR Branch is responsible for recruiting and training convenors. Ipswich has a total population of 126,530 :- 14,326 (11.3%) of whom are aged 10 to 17. The indigenous population is 3,319 or 2.6% of the total. There are 376 indigenous juveniles and 13,950 non-indigenous juveniles in Ipswich. (This estimate based on equal ethnic proportion of juveniles i.e. 11.3%) (ABS: Numbers are related to previous population estimates at June 2000). 5.7.2 LOGAN Logan is a rapidly growing area situated on the south side of Brisbane. For many decades its population has included a large welfare-housing sector. Youth and Family Services (YFS) manage the Logan pilot. Their usual work involves welfare work, although it provides some legal services. Convenors are recruited and supported by YFS personnel. Logan has a total population of 157,749, with 22,631 (14.3%) young people aged between 10 and 17. Indigenous people constitute 3,037 (1.9%) of Logan's population and there are 22,195 non-indigenous juveniles and 436 indigenous juveniles (estimate based on equal ethnic proportion of juveniles i.e. 14.3%) (ABS: Numbers are related to previous population estimates at June 2000).

5.7.3 REFERRALS AND ACTUAL CONFERENCES HELD Cairns received 89 referrals during the two-year research period, which resulted in 50 conferences. Ipswich received a total of 223 referrals, which led to 167 conferences. For Logan the number of referrals was 101, and 79 conferences were held. Figure 14 represents the number of referrals and the number of actual conferences held for the three pilots. Figure 14: Number of referrals compared with Ipswich and Logan for June 99- May 01.

CONFERENCES REFERRED AND HELD - 01 JUNE 1999 TO 31 MAY 2001

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Figure 14 shows that 58% of referrals in Cairns resulted in a conference. In Ipswich this

percentage was 74.9% and for Logan 78.2% of all referrals received resulted in an actual conference. Possible reasons for the relatively high number of withdrawals in Cairns, has been described in Chapter 4. In addition, conferences in Queensland routinely have separate face to face pre-conference meetings with victims and offenders, which enables the coordinator to assess the suitability of the offenders and victims to participate in a conference. The relatively high withdrawal rate is therefore somewhat surprising. 5.7.4 COSTS COMPARED Cairns was a completely different model to the programs in Ipswich and Logan. Comparative costs per service were not calculated for the 2000-2001 budget allocation. Each service has a different stage of development, and different demographic and cultural issues that needs to be addressed. In addition, regional staffing and recruitment issues, different readiness factors within the community and different costs attributable to distances involved make comparisons quite difficult. A personal email received by Dr Hayes in August 2002, one of the authors of the 1998 Final Evaluation Report, confirmed that he was never privy to any data regarding costs of the Ipswich and Logan Programs for the period 2000-2001. Moreover, Dr Hayes informed that costing data he did have for the 1998 evaluation was not easy to interpret; therefore he had to offer several caveats.

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A substantial amount was spent on maintaining these relationships with key players (Hayes and Prenzler, 1998: 45-48). Tables 28, 29 and 30 show all costs associated with running each of the three pilots. Note that the costs for Logan and Ipswich are for the 1997/1998 financial year, as later data on costs could not be sourced; therefore this is only an indication of the cost per conference. The Cairns expenditure is based on the 20002001 budget allocation, but for comparative purposes in Table 30, the building costs and equity returns for Cairns have been deducted to enable more accurate comparisons with the incomplete Ipswich and Logan costs. Table 28: Costs for Logan (97/98) Administration Training Evaluation Running Costs Total $49,020 $2,835 $26,100 $108,675 $186,630

Based on Table 28, the cost per conference in Logan is $2,362.41 Table 29: Costs for Ipswich (97/98) Administration Training Evaluation Running Costs Total $49,020 $2,835 $26,100 $99,871 $177,826

The average cost per conference for Ipswich, based on Table 29, is $1,065.00

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Table 30: Costs for Cairns Employee Expenses (Admin) Supplies and Services Total $224,175 $46,357 $270,532

The average adjusted cost per conference for Cairns is $5,410.64

On average, the cost associated with running the pilot in Logan is much greater compared with Ipswich. The cost of the pilot in Cairns is quite dramatic compared with Ipswich and Logan, namely $5,410.64 (adjusted) per conference. The cost bases produced by the Department differ from Ipswich and Logan compared to Cairns.

However, the Cairns costs appear to reflect a complete picture of all costs associated with the running of the program and therefore indicate an accurate costing per conference. The large difference in cost for the Cairns Program is due to various factors, including the amount of money spent on outsourcing and convenor training programs in remote indigenous communities. Included in the financial costs therefore, are the airfares from Cairns to Brisbane for training purposes for the Coordinator, as well as airfares from Cairns to the remote indigenous communities for convenor training.

Included in these costs are the associated accommodation costs. Overheads were also paid out of the conferencing budget. In addition, more staff are employed at the Cairns Program and at the commencement of the Program, the office was furnished with expensive computers, desks, printers, a scanner, a colour printer and stationary to supply the office for at least a couple of years.

Whereas Logan and Ipswich had similar percentages of referrals, which resulted in conferences, the Cairns pilot resulted in just over half of all referrals received leading to a conference. A possible factor contributing to the withdrawal of a referral could be the transient nature of the Cairns population, with many young people and their families

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leaving Cairns. In the case of lack of victim's consent, the reasons could be multiple, for instance, feeling uncomfortable with the program and with the concept of confrontation, fear of the offender, and a reluctance to discuss the impact of the offence.

It could be argued that one of the key stakeholders perhaps did not explain the conferencing procedures sufficiently or that the victim is too upset to participate. Cairns also had, on occasions, a relatively large number of offenders conferenced in one sitting, even though these offenders were referred individually. In terms of cost of conferencing, it is evident that the Cairns conference was significantly more expensive than were either the Logan or the Ipswich pilots.

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6.0 MAKING SENSE OF THE CAIRNS COMMUNITY CONFERENCES: AN EVALUATION PERSPECTIVE

This chapter discusses the measures of success of the community conferencing program in Cairns, for the period 01 June, 1999 -31 May, 2001. The level of success is measured according to the stated aims of the Program and includes an assessment of evidence of bias in the justice system. The measurements described are similar to the ones that have been used in formal evaluations of justice programs, for instance those used by the Juvenile Justice Branch, Department of Justice, in the Preliminary Evaluation Report, 1998, and measurements used by Hayes, Prenzler and Wrotley ( 1998) in their Final Evaluation of the Queensland Community Conferencing Pilot.

6.1 MEASURING SUCCESS It is difficult to judge the success of conferencing events since success can be measured on various processes, ie the victims' feelings and the offenders' levels of remorse. For this research, determination of the success of the program was measured by the degree of compliance with the program's objectives as described in Chapter One. In this section, the following measures, largely based on the programs' stated aims and objectives, are evaluated and discussed. Each objective is evaluated and discussed in order. Included in the assessment is the cost involved. In addition, this section provides an overview of bias in the criminal justice system, and evidence of discrimination will be discussed. The measures are: 1. 2. 3. 4. 5. 5. 6. Referral rate Reparation (Completion of agreed-upon outcomes) Re-offending (Rate of recidivism) Level of participant satisfaction Rate of family participation Rate of victim participation Community involvement

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7. 8. 9.

Percentage of juveniles diverted Cultural appropriateness. Cost effectiveness

6,1.1 REFERRAL RATE

Considering the number of juveniles attending Cairns Children's Court, the referral rate has been disproportionately low. There was only one referral for a pre-sentence from court, and nine court referrals. The police, predominantly officers of the JAB, made the remaining referrals. Davis (1992) and Markiewicz (1997) found that police discretion has often meant that indigenous juveniles tend to be screened out by police on informal criteria. Previous research conducted on the Queensland pilots in Ipswich and Logan, (Juvenile Justice Program, Community Conferencing: Preliminary Evaluation Report, 1998:43), indicated that, at times, police refer to conferencing quite minor matters, which should be cautioned. The same problems apply for court- referred matters, where magistrates' indifference or hostility greatly reduces the number of potential referrals. This research has found no evidence of this; instead this research concluded that the low number of referrals could be attributed to various factors:

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Informal discussions with police officers revealed that police prefer to refer those juveniles to conferencing who have no previous record and have not appeared before the Children's Court. The majority of indigenous offenders are recidivist offenders, i.e. the offender has appeared in court on more than one occasion. This means that, when arrested, the likelihood of a young indigenous offender being referred to conferencing is slim. Not many indigenous juveniles are without criminal records.

The Police Powers and Responsibilities Act 2000, although put in place to take the special needs of juveniles into consideration, actually works against indigenous juveniles, by placing limitations on police in their dealing with juveniles in general, but with indigenous juveniles in particular.

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From the outcome of informal discussions and meetings, it was evident that the shift from cautioning to referrals would have a major impact on the cost of policing, due to the perceived extra workload.

Newspaper articles in 1999, published prior to the opening of the program in Cairns, did not report favourably on conferencing. Political leaders, some police officers and victims of crime were sceptical of the new program and obviously, in order to be successful, the initial 12 months of the program would be critical to its long-term success.

in order to make the program work, trust needs to be developed and the cooperation of those people who are going to be referring cases established. It would appear this did not occur and, consequently, the program failed to earn credibility.

Although theoretically in favour of the program, key stakeholders are disappointed with it, and the low level of stakeholders' acceptance is reflected in the low return of questionnaires, particularly from solicitors.

Solicitors might have had an additional reason for encouraging a juvenile to enter a `non-guilty' plea, namely the matter of `disclosability'. Disclosability means that police-referred conferences, together with cautions, may form part of the offender's criminal history, which can be disclosed in court should the offender be arrested for further offences.

·

Departmental officers did not discuss a referral to community conferencing as a sentencing option in pre-sentence reports. Reasons for neglecting to address the possibility of conferencing include a lack of knowledge about conferencing on the part of departmental officers. Due to the transient nature of the Cairns population and the reluctance of the Department to employ permanent staff, the turn-over of officers is very high. In many cases, clients will have five different officers allocated to them, in a relatively short period of time. Due to the short duration of their locum positions, most officers do not receive the benefit of adequate training, and therefore they are not comfortable in discussing community conferencing as a sentencing option in a pre-sentence report.

Compared with Ipswich and Logan, the number of referrals which resulted in a conference was much lower in Cairns. Therefore, not only was the actual referral rate less than

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expected, but almost half of the referrals did not result in a conference. Clear and acceptable reasons for the loss of these referrals include the transient nature of the population and illness.

The five referrals which resulted in a withdrawal of victim consent do not indicate at what stage of the process the victims declined to participate. The majority of cancellations did not indicate a reason for the cancellation; therefore the possible causes could not be ascertained. The withdrawal of a referral due to the young age of the offender indicates a possible lack of awareness of the appropriate referring process on the part of key people, who should have been aware of the offender's age, prior to filling in all the relevant paperwork.

6.1.2 REPARATION The program's stated aim of reparation has been assessed by the number of conferences which reached an agreement, and by the rate of agreements completed. Records of the program indicate completion rates were 100%, meaning every task has been completed satisfactorily by the juveniles. It must be emphasised though, that data on conferencing agreements have been obtainable at first hand. The researcher has not been able to obtain anything definite on how compliance was dealt with in the research period, nor is it certain whether or not agreements reached are more satisfactory than a court outcome would have been. Conferencing has no set of 'rules' for outcomes for certain offences, i.e. for a similar offence the 'choice' of outcomes/options varies, as there appears to be no consistency. Disparities in outcomes might not be justified, but no rules have been put in place to minimise this likelihood. Outcomes are not consistent; rather they are based on agreements reached by all participants, and in particular the victim, during the conference. On the one hand, all aspects have been discussed in order to reach an appropriate outcome; on the other hand, this leaves a gap whereby a vindictive victim might demand harsher outcomes and would therefore jeopardise the consensus.

Despite the lack of consistent monitoring, the completion rate indicates a success in the program's stated aim of reparation, by not only providing the victim and offender with an opportunity to agree upon a suitable outcome, but also by a 100% completion rate of the outcomes. Therefore, community conferencing appears to be successful in regard to the

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core goal of victim-offender reparation, which supports the research conducted on the two other Queensland pilots by Hayes and Prenzler in 1998.

This result is, however, not surprising. Since all offenders admitted guilt prior to attending a conference, it would be fair to assume that this particular group of offenders would be willing to apologise by saying 'sorry'. Indeed, most offenders apologised to their victims and, in addition to an apology, made a monetary contribution to their victims for the damage caused. The agreements resulted in more community based work and restitution for non-indigenous offenders by comparison with indigenous offenders. In addition, compared with conferencing agreements, court outcomes tended to be strict, particularly in community based orders for non- indigenous juveniles.

6.1.3 RECIDIVISM Studies to date have mainly focused on participant satisfaction and perceived fairness of the process rather than its impact on re-offending (Hayes, 2002: 6), but a demonstrated drop in recidivism rates is often a more convincing indicator of success. The program's aim to reduce recidivism has not been met. A drop in recidivism rates would indicate that the theory of restorative justice is successful in its application, as the central hypothesis is that, through participation in community conferencing, there will be a reduced propensity to offend, and a subsequent reduction in recidivism. Theoretically, by reducing 'social distance' through participation in the program, the young offenders would change their attitude by being made aware of the impact of their offending behaviour on their victims. As a result of this changed attitude, it is expected that a different perspective would be translated into actual non-offending behaviour, thus reducing the likelihood of recidivism. In a media statement headed: "Community Conferencing- here to stay" on 16th September, 1999, the then Minister for Families, Anna Bligh, stated that conferencing helps to reduce re-offending by

Increasing the young person's understanding of the consequences of their behaviour and helping develop victim empathy; Providing support to parents and families of children who are at risk of further contact with the criminal justice system; and Supporting young people and helping reintegrate them into the community.

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Recidivism is perhaps one of the most difficult criteria to measure in criminal justice research. Basically this can be assessed in two ways, the first through self-reporting. No questions were asked of the young offenders to put them in a situation whereby there is a possibility of the offender admitting to further undetected offences being committed. The second method for assessing the recidivism rate is through analysing official records, namely those of the police and courts. Official records provide an indication of the number of juveniles caught, and court data reflect the number of appearances per month. Forsyth's 1995 research and subsequent findings reveal a significant reduction in the number of court appearances of those who attended conferences. However, other research results differ from Forsyth's. According to Hayes (2001:3), the relationship between conferencing and recidivism has been addressed in only a few studies, both controlled experiments with random assignment ( McCold and Wachtel 1998: McGarrell 2001) and comparative studies (Miers, Maguire et al. 2001).

Results of these studies show that although restorative justice initiatives have the potential to reduce re-offending, the effect is not impressive. Similarly, research conducted by the Griffith University (1998) found no meaningful data on recidivism rates in relation to conferencing. As well, Wundersitz (South Australia, 1996) concluded that conferencing had no positive effect on indigenous juveniles. Research for this thesis differ from some of the findings of Wundersitz, and found that community conferencing does in fact, reduce recidivism. However, although almost three quarters of participant offenders had no previous history prior to conferencing, 30% committed further offences within the 24-month research period. By comparison, 45% of juveniles (no previous record) who appeared in the Children's Court, re-offended within the research period.

It must be recognised that the gatekeepers selected those individuals whom they thought would most likely respond to and benefit from conferencing. Therefore, it would be expected that this particular group would be less disposed to re-offend. The fact that almost 70% of conferencing participants did not re-offend, is a positive indication nevertheless.

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Secondly, the individuals who appeared in court were rejected for a caution, whereas the conferencing candidates were selected from a borderline area cautioning/court categories. Nevertheless, comparing the post-court and post- conferencing recidivism rates, the conclusion can be drawn to show that conferencing is effective in reducing recidivism. Interestingly, discussions with officials directly involved in the CJG at Palm Island and Kowanyama revealed a significant decline in juvenile offending.

This research does support such a claim, but it could be argued that, in Aboriginal communities, the restorative approach, in the form of a CJG, would have a very good chance of success, since the approach of restorative justice is based on, or has parallels with the justice of pre-colonial indigenous communities. Interestingly, however, the Cairns based research found very little difference between recidivism rates in terms of indigenous and non-indigenous offenders.

6.1.4 PARTICIPANT SATISFACTION To ascertain the level of participants' satisfaction, the program's departmentally designed questionnaires were distributed to all participants immediately following a conference. The questions sought responses to a range of key indicators, including reintegration, fairness, victim empathy, and reparation. Responses showed that the majority (92.2%) were satisfied with the conference process and outcomes with respect to all of these indicators. However, it must be added that the questionnaires did not explore the psychological aspects of offending, such as levels of self-esteem. The results of these questionnaires were not based on raw data, nor were they compiled by the researcher.

Research conducted by Hayes and Prenzler in 1998, on Ipswich and Logan pilots, indicated a very high level of participants' satisfaction. This research supports these findings in regard to the level of satisfaction, as participants' questionnaires indicate a very high level of satisfaction with the conference process and outcomes.

Additional findings support conclusions made by Hayes and Prenzler, including the fact that the most significant outcomes of conferencing appear to be the constructive

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agreements reached by participants, the high compliance rates and the very high level of satisfaction of all participants with the program. Most participants thought the conference was fair; they had an understanding of what was happening and no one felt pushed into saying anything or felt that they were 'forced' to participate. No one felt pressured into agreements and all apologies were accepted. Participants were not coerced in the conference and did not sign agreements that they did not want to sign. Most offenders had more than one support person, either a close friend or family member and it would appear that the family members were involved in the decision-making. In reviews of the literature on conferencing, including research conducted by Cant and Downie (1998), Daly (1999), Trimboli (2000), Strang (2001) and Daly and Hayes (2001), recurring findings include a high level of satisfaction with the process and outcome. These findings are supported by the research reported in this thesis. 6.1.5 FAMILY RESPONSIBILITY The program's stated aim of encouraging family responsibility has been assessed by the rate of participation of families in conferences. Conferencing appears to have been successful as 85 support people participated and accompanied 74 juvenile offenders. On average, each offending juvenile had 1.8 support persons present.

6.1.6 VICTIM PARTICIPATION

An assessment of victim participation concluded the following: 70 victims had the support of 44 family members or friends. At 63%, the victim support rate is much lower than the offender support rate (115%). The lower victim support rate could be expected, and is probably because in many cases, the victims are adults and therefore are likely to have less support than the offenders, who are all juveniles. Five conferences could not proceed due to victims withholding consent. The reasons for withholding consent have not been stated, but possible reasons could include being ill-informed, reluctant to meet the offender, or afraid of re-victimisation.

Victims should feel empowered by having a say in the outcome, and they should feel less aggrieved, more secure and positive about having been allowed to contribute to the outcome. Victims should also feel good about knowing a bit more about the nature of the

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perpetrator; hence they would have an opportunity to develop a degree of empathy for the offender.

However, participation in the program has the potential to cause victims to be revictimised and to emerge more traumatized than before, as the evaluation of New Zealand's FGC by Maxwell and Morris (1993) - mentioned in section 2.9.3 of this thesis reported about one quarter of victims actually felt worse after the conference, as they were exposed to further emotional harm when facing the perpetrator. Participation has the potential to make the victim more fearful, especially if the perpetrator shows no remorse.

One of the coordinator's tasks is to try and determine whether offenders are genuinely remorseful, because re-victimisation, especially when faced with an unrepentant perpetrator, has to be avoided at all times. For the victim to accept an apology and to forgive the offender, the remorse expressed by the offender must be genuine.

During the research period, of the participating victims, 90% were non-indigenous. In the case of the non-indigenous victim, cultural sensitivity becomes an issue. If the nonindigenous person was a victim of an indigenous perpetrator, the victim, in a conference, will be confronted by indigenous offenders and their indigenous support as well as by an indigenous co-ordinator. Considering that the community conferencing program is meant to be culturally sensitive, and that the vast majority of victims are non-indigenous, chances of re-victimisation become real.

6.1.6.1 INDIGENOUS VICTIMS

The above raises several questions, including why there are so few (only two) indigenous victims compared to the number of non-indigenous victims. Could this perhaps mean that indigenous offenders who commit offences against indigenous people do not get reported, or that, if the police are witnesses to the event, do they prefer to ignore what they see? Could this be a disguised form of racism by police against indigenous people? Reasons for the lack of indigenous victims could include reluctance on their part to report the crime committed against them in the cases where the perpetrator is indigenous. Perhaps indigenous people do not report offences committed against them for fear of not being

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listened to. This research recommends further research in the status of the indigenous victims in order to address these questions, and many more. A report by the Human Rights and Equal Opportunity Commission (1991) found that a major part of the racist violence experienced by indigenous people, was inflicted by police officers. Allegations of rape of an indigenous woman in Far North Queensland whilst she was detained in police custody, the 1993 death of a 16 year old indigenous youth in the back of a Queensland police van and the 1997 video recording by Amnesty international of police officers kicking and abusing indigenous Australians, have caused great concern.

Although accusations have been made by indigenous groups against the police, they have not been investigated adequately, and little further action has been taken against the police perpetrators. Consequently, many indigenous victims of police crimes neither report nor complain. According to Sarre and Tomaino (2000:224-5) in 1997 a report prepared by Cunneen and Mc Donald for the Aboriginal and Torres Strait Islander Commission concluded that, in the Far North Queensland Region, many indigenous people did not wish to pursue complaints because of fear of retribution and intimidation by police.

It could be argued that, because of suspicions of police or a history of poor relations with police, indigenous people are not likely to report offences when they have been victims (Cunneen and White, 1995:95). According to Beresford and Omaji (1996: 45) studies have shown a connection between children who are victims of domestic violence and involvement in crime, violence within Aboriginal communities involving incest, suicide, and self-mutilation. It is a matter of great shame in Aboriginal communities to mention incest, and this could be an explanation of unreported crimes against the indigenous child.

Experience with culturally detrimental sentencing outcomes might be a reason not to report the crime. An example of a negative experience with a sentencing outcome occurred in Yarrabah, and was observed by the researcher. In this case, a 16-yearold female was charged with hitting and kicking her grandmother. Consequently, both the girl and her grandmother appeared in court. The grandmother had long forgiven her granddaughter, who had committed the offence whilst highly intoxicated. The girl was sentenced to a community service order, but she was also ordered to leave the premises where she had been residing with her grandmother. Both the child and grandmother cried

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when they heard the verdict as their relationship, although at times very violent, was also supportive since the grandmother was the young girl's closest relative. It could be argued that this outcome was upsetting to the degree that future violent acts would not be reported, but rather dealt with within the family. This partly explains why, frequently, juvenile crime goes unreported, particularly where the young offender is also a victim, friend or relative.

6.1.7 COMMUNITY INVOLVEMENT In community involvement, the family is seen as an institution through which crime control can be delivered. This family-centred approach is one of the changes in the contemporary nature of crime control in Australian youth justice. Community conferencing offers an opportunity for resolving disputes for people who would otherwise have to choose between passive endurance, private retaliation, or the courts. Attending a conference can empower not only those individuals involved but also whole communities (Wright, 1991: 75).

An indicator of the success of the program is its acceptance by the community. This is difficult to establish, as the supporting participants, who are community members, would be present because of a loved one and not necessarily because they approve of the program.

During the second year of the program an information evening was held in the Cairns district, at which the co-ordinator spoke to various members of the public to explain the concept of conferencing. This evening had been advertised by the distribution of leaflets to mailboxes two weeks prior to the public forum. Apart from the co-ordinator and members of the police force, approximately 20 members of the community attended this meeting. Prior to the opening of the program, various newspaper articles in Cairns expressed community discontent, in regarding conferencing as a soft option (Cairns Sun, 3 March, 1999:3).

On the other hand, community involvement appears to be very high in those communities where CJG are in place, like Palm Island and Kowanyama. Community involvement is in

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accordance with the cultural needs of Aboriginal communities, and results indicate the positive influence of community involvement in these communities.

In conclusion, this research has found no real indicators as to whether or not the program in Cairns has been accepted by the community.

6.1.8 DIVERSION

The Community Conferencing Program was expected to provide a much-needed alternative for the police and courts by diverting young people away from detention and the criminal justice system, (Ms Bligh in Ministerial Media Statement, November 1998: 2). Unfortunately, the stated aim of diversion, particularly in the case of indigenous juvenile offenders, has not been met.

6.1.8.1 CAUTIONS The differences between conferencing and other forms of diversion, such as police cautioning, are obvious. Conferencing returns ownership of the conflict to the individual most directly affected by the behaviour, with responsibility for the final outcomes being vested in the key participants rather than in the state. In Queensland, the authority to caution is enshrined in legislation (Juvenile Justice Act, 1992, sections 10 -- 19). In 1963, in Queensland, the Juvenile Aid Bureau (JAB) was established to deal with juvenile offenders, to issue warnings and to offer some counselling. In 1965, where appropriate, JAB adopted formal cautions. Before a police officer can issue a caution, there must be sufficient admissible evidence to establish the offence, and the young offender must plead guilty.

The Queensland Police Service operates a cautioning system for first and/or minor offenders who are juveniles. When a formal caution is given, the child attends the police station with his or her parents and is warned about the consequences of further offending. No further action is taken, but the fact of having received a formal caution is likely to have an influence on later police action involving the young offender.

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The decision whether to arrest or to caution a child is a police decision (CJC, 1992: 5). Police cautioning is very clearly an effective and efficient response to juvenile crime. An advantage of cautions is that a quick response to the offence could mean less chance of recidivism. By the use of a caution, young offenders are diverted from the more formal processes, procedures and sanctions of the system. The rationale for diversion is two-fold: it reduces the harmful effects of stigmatisation and is considerate of the needs of both the victim and the offender.

Police data indicate that, during the 24-month research period, a total of 6221 cautions were given to juveniles aged between 10 and 17 years of age in the police districts of Cairns (Far Northern District), Innisfail and Mareeba. In the immediate Cairns city region, 921 cautions were given. On occasions, children might be referred to behaviour counselling. During an informal meeting in 2000, a JAB officer stated that "it only takes 15 minutes to send a youth to court as opposed to a minimum of 2 hours and a lot more paperwork to organise conferencing. A caution also has a good record of offenders not reoffending and can be done a lot more quickly."

Considering the number of cautions and the number of court appearances, the data show that the number of police cautions exceeds the number of juveniles proceeding to court by a factor of 2.9 to 1. Comparable data on recidivism rates for young offenders receiving cautions and processing to court were not available.

The Queensland Police do not keep data on reoffending rates for those cautioned, consequently there are no data available on the effectiveness of cautioning relating to the courts and conferencing. Hence, further research on this is recommended. In conclusion: There has been no decline in the numbers of cautions or court appearances during the research period.

6.1.9 CULTURAL APPROPRIATENESS

Unfortunately, the number of juveniles who attended conferencing was too small to draw firm conclusions about whether or not the program is culturally appropriate. In addition, the departmentally approved questionnaires did not explore this concept.

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6.1.10 COST EFFECTIVENESS The average cost per conference is almost $13,000. The average court cost is $550. Of course conferencing is more time consuming; many children are in court no longer than ten minutes, during which time the charge or charges are read out followed by sentencing, whereas an average conference can take up to two hours. The cost of a conference in Cairns is also much more expensive than the average cost of one community conference in Ipswich or Logan.

Considering that governments have to make tough decisions about priorities when there are limited resources available, community conferencing appears to be expensive. However, the non-re-offending rate for community conferencing participants is 70%. The subsequent decrease in juvenile crime rates leads to the conclusion that community conferencing may, in fact, be more cost effective than court processes.

6.2 BIAS IN THE JUVENILE JUSTICE SYSTEM: DISCUSSION Discrimination can be manifested in many different ways in the juvenile justice system. At the most obvious level, this occurs when indigenous juveniles are treated differently simply because of their ethnicity. Indirect discrimination is evident in sentencing disparities. This section provides an insight into forms of bias in the justice system.

6.2.1 DIRECT DISCRIMINATION

An example of direct discrimination occurs when police or court representatives make decisions where there is more latitude for discretion as to how a particular juvenile offender will be dealt with (Borowski and O'Connor, 1997: 114).

The number of cautions given to juveniles, based on ethnicity, is a good indicator, as are the number of referrals to community conferencing. At a broader community level, discrimination can be evident in the interaction between juvenile justice agencies and indigenous youth. Both levels will be discussed in the following sections.

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6.2.1.1 CAUTIONS BY ETHNICITY Is there a difference in treatment between cautioning of indigenous and of non- indigenous juveniles? First offenders are dealt with by a police caution or warning rather than a court appearance, particularly when the offence is not serious. Prior to a caution being administered, efforts are made to establish reasons for the offending behaviour and to identify problems that exist at home or at school (Jeffries, QPS: 11). The caution system allows police officers a considerable amount of discretion based on their assessment of the circumstances surrounding the offence, but not all juveniles who offend are formally cautioned (www: QPSJAB:1: 1). Unfortunately, there is no available evidence that discretionary decisions work for or against indigenous or non-indigenous juveniles as Queensland police data do not differentiate between ethnicities in terms of juvenile offenders who have received cautions. It is therefore not possible to ascertain whether or not juveniles receive the full benefit of cautions in terms of ethnicity.

6.2.1.2 REFERRALS Analyses of the conference referrals indicate not only a limited number of referrals but, in particular, a lack of referrals for young indigenous offenders. However, this is not necessarily due to a biased police attitude. Rather, The Police Powers and Responsibilities Act 2000 put measures in place to address cultural sensitivities that have a detrimental effect on the referral process for indigenous juveniles.

6.2.3 INDIRECT DISCRIMINATION Indirect discrimination can occur when sentencing practices treat indigenous youth differently from non-indigenous youth in the same court, for the same offence(s). The following sections provide examples of sentencing practices and look for evidence of discrimination at that level.

6.2.3.1 SENTENCING DISPARITIES In the Ngaarra legal forum, a speaker stated that if you were to treat indigenous people in a particular way, especially with respect to sentencing, a negative reaction in the general

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population would follow, because it would clash with the well- entrenched principle of equity in sentencing (Ngaarra legal forum, 2001: 6).

Peoples' view about disparity in sentencing are evident in an article in the Cairns Post (8 August, 1998: 8). Central to the article is the assumption that 'White Man's Law' no longer applies. The article describes how those accepted as Aborigines are "allowed" to cause incalculable harm to the continuing preservation of Australia's unique and endangered wild life, by having the right to continue hunting species already near the brink of extinction. The cause for the article was the dismissal of charges against an indigenous person who took an echidna and another who wantonly destroyed eggs and chicks on Michaelmas Cay, a small reef close to Cairns. The charges were dismissed because the acts were considered to be consistent with traditional rights for Aborigines.

Indigenous juveniles are treated differently to non-indigenous juveniles by the Children Court process, but there is no clear evidence of racial bias operating as such. At the ultimate stage of the court process, namely sentencing, indigenous juveniles are over represented at the top and the bottom end of the sentencing scale. They are more likely to be sent to detention, but they are also more likely to be reprimanded only.

6.2.3.2 DETENTION In an attempt to look for deeper reasons behind indigenous juvenile crime and the overrepresentation of indigenous juveniles in the justice system, Beresford and Omaji (1996) examined the history of dispossession and institutionalisation, and the reasons for the fact that two-thirds of the inmates of detention centres are Aboriginal, when only 2% of the Australian population is Aboriginal.

A visit to almost any juvenile detention centre in Australia will show the presence of a disproportionate number of young Aborigines. These experiences of detention are so common for many of the inmates that they have become a rite of passage into adulthood (Beresford and Omaji, 1996: 15). Indeed, many juveniles in detention in Townsville, who originated in the Cairns region, have older brothers, fathers, uncles and other extended family members in the adult Lotus Glen Correctional Centre in Mareeba, about 100

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kilometres from Cairns, Informal talks with indigenous juveniles in the justice system revealed that they expect to be sent to Lotus Glen when they leave the juvenile system. Although the research found that indigenous juveniles are three times more likely to be sent to detention, the Detention Order reflects either a long and involved criminal history, or the violent nature and seriousness of the crime.

Detention Orders are handed down as a last resort and where the safety of the community needs to be taken into consideration. Hence, sending a juvenile to detention is not a result of ethnicity, but a result of the nature of the offence, the safety of the community, and the juvenile's previous criminal history. The reasons for the offences being committed might very well be a result of the social conditions of Aboriginality; however, the court considers all other options as well as the offender's background, as described in a pre-sentence report. As a result of the high detention rate for indigenous offenders in the Cairns region, in combination with recommendations of the RCADIC, one would expect a detention centre in, or near, Cairns. A major problem for Cairns, however, is the lack of a youth detention centre. The closest detention centre is 450 kilometres away in Townville; female juvenile offenders have to travel to Brisbane for a suitable detention centre. This distance causes major problems, not only when families from remote Aboriginal communities visit their children, but also when a child is kept on remand only and needs to be flown to and from court in Cairns.

The effects of incarceration are concentrated in Aboriginal communities. The existing system moves juveniles from the north to serve time in detention in the south. The Department of Families encourages indigenous families to stay in touch and endeavours to fly family members out to the detention centre as often as possible. This is at great social and taxpayer cost, and in the meantime the separation of people from their families and, in many cases, institutionalisation, magnifies the failings of the criminal justice system in relation to indigenous offenders.

At present there are a number of departmental initiatives designed to keep juveniles, and indigenous juveniles in particular, on remand in the community rather than in detention. These include promoting greater use of the conditional Bail Program and more actively

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encouraging defence representatives to pursue bail applications (Youth Justice Practice and Procedures Manual: 2001: 6).

6.2.3.3 COURT SUPPORT FOR INDIGENOUS JUVENILES In 1988 in Victoria, the Sentencing Committee decided that Aborigines would receive no preferential treatment, their customary laws would not be recognised and no special sentencing options would be developed for indigenous offenders (Sarre and Tomaino, 1999: 213). In Queensland and the Northern Territory, where there is a bigger indigenous population, courts do take ethnicity into consideration.

At the best of times court is intimidating, but it is much more so for indigenous children. Often they do not understand the procedures, language is a barrier and their legal guardians do not understand the formalities and procedures either. Usually in the Cairns Children's Court, indigenous liaison officers and Legal Aid field workers are present to assist in the court process. They assist the solicitor by talking to the juveniles and their families and by explaining what is happening in court. Often these indigenous support people are distantly related to the juvenile's family.

In July 2000, Ministers Matt Foley and Judy Spence launched a handbook 'Aboriginal English in the Courts'. The Handbook is primarily aimed at those employed in the legal system, and in addition it will provide employment in the indigenous communities through community facilitates. The handbook recognises the existence of the Aboriginal English and the difficulties in communication as well as the recognition of Aboriginal English as the first language spoken by most people from indigenous communities in Queensland (Hamel and Teague, 2000:9).

If the Department of Families knows the child appearing in Court, the allocated caseworker for the child will if necessary, provide transport for both the child and the parents or caregivers to and from Court.

6.2.3.4 AGENCIES

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Some of the Royal Commission's underlying objectives have been achieved and improvements are to be found in a growing awareness of the proper treatment of indigenous juveniles. The Royal Commission's Recommendations 235, 236 and 237, relate to the need for specialist Aboriginal organisations and the need to devise specific youth programs for indigenous juvenile welfare (RCIADIC, 1991: Recommendations 235237). There is a growth in indigenous community-based initiatives, including the establishment of indigenously-run community programs for juvenile offenders. In Cairns, a special agency under the guidelines of the Department has been established to supervise indigenous juveniles on community based orders.

The Cairns Indigenous Youth Outreach Project (CIYOP) is intended to provide programs specifically for indigenous offenders. The rationale of CIYOP lies in the overrepresentation of indigenous juveniles in the justice system, and in the difficulties faced by these juveniles in complying with and completing their community based orders. CIYOP attempts to address these needs by providing programs which supplement CSOs, IROs and FROs. Consequently, CSOs for indigenous offenders are encouraged by legal representatives and Departmental officers as a court sentencing option.

6.3 BIAS IN THE JUVENILE JUSTICE SYSTEM : RESULTS The next section evaluates and discusses the results of direct and indirect discrimination within the justice system.

6.3.1 RESULTS OF DIRECT DISCRIMINATION

This research concludes the following:

No evidence of re-victimisation has been found

No evidence of bias in the referring process has been found

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Evidence of bias has been found in agencies dealing with indigenous juveniles on community based orders. These are much better equipped in terms of manpower, time and resources, compared with agencies for non-indigenous juveniles on community based orders.

The Department of Families in Cairns has an excellent community service venue, namely the Cairns Indigenous Youth Outreach Program, exclusively for indigenous youth, which facilitates the supervision of the offenders. In this instance it appears that indigenous juveniles receive better treatment than do non-indigenous juveniles in terms of prompt government response to their court orders. The researches observed on numerous occasions that every assistance is put in place for the indigenous juvenile to complete the court order, including flexibility with appointment times. In accordance with some of The Royal Commission's Recommendations, (RCIADIC, 1991: Recommendations 237-238).

Departmental workers visit indigenous youths at their schools and drive to the Aboriginal communities to supervise court orders. Indigenous youth workers are encouraged to receive training, and indigenous youth workers are allocated for indigenous juveniles on orders; for non-indigenous juveniles a youth worker is only available in special cases. A non-indigenous juvenile is more likely to be directed to visit the office and does not have the benefit of school visits.

6.3.2 RESULTS OF INDIRECT DISCRIMINATION This research has found some evidence of indirect discrimination in respect to sentencing practices. Although the detention rate is higher for indigenous offenders, the sheer number of indigenous juveniles appearing before the court makes the number sent to detention small. In the Children's Court, and in particular in relation to community based orders, this research found the following:

Court outcomes are stricter for non-indigenous juveniles as compared with indigenous juveniles. In addition, measures put in place for an indigenous juvenile

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to complete and comply with a community based order are more lenient compared to measures put in place for a non-indigenous juvenile placed on a community based order.

On the one hand, sentencing appears to be more lenient for indigenous offenders; on the other hand, the rate of detention orders is much higher for indigenous offenders.

In community conferencing, the outcomes for non-indigenous offenders are more likely to involve work and payments. Fines are adjusted to financial means, and it would be reasonable to assume that the likelihood of receiving fines should be relatively equal regardless of ethnicity.

The next chapter summarises and discusses the major findings of this research. Recommendations based on these findings are discussed and the chapter concludes with a summary which includes ideas about future directions.

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7.0 FINDINGS This research has generated a number of findings. Additional to the findings in relation to bias in the justice system as discussed in the previous chapter, several conclusions were made from this investigation. These can be summarised as follows:

7.1 COMMUNITY CONFERENCING:

KEY FINDINGS

The program has been successful in terms of a reduction in recidivism, since 70% of all participants did not re-offended within the two-year research period of attending a conference. Compared to juveniles appearing in court during the same period, this result is very promising. However, factors associated with juvenile offending --i.e socio-economic background- are not addressed in conferencing.

The program has been successful in the sense that most participants indicated a very high level of satisfaction with the process and the outcome of the conference. There is strong evidence that victims and offenders judge restorative justice practices as fair.

There appears to be very little difference between the rates of recidivism in terms of ethnicity;

The results show that the number of referrals for indigenous offenders is well below that expected, given the number of indigenous offenders.

The findings indicate that the program and the courts are somewhat more lenient with indigenous youth than with non-indigenous youth.

Completion rates of agreements are 100%, in contrast to court outcomes where breaches of community-based orders are time-consuming and costly. However, it must be noted that no reliable monitoring was put in place for the community conferencing outcomes.

Due to the low referral rate thus far, community conferencing has had no influence on the number of court appearances by juveniles.

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7.1.1 Community Conferencing : Recommendations

As a direct result of the research findings, the following recommendations for the future development and direction of community conferencing are made:

A system should be put in place whereby there is consistent monitoring of compliance with conferencing agreements, i.e. regular contact with supervisors to ensure completion of a task within the specified time frame.

Continuous monitoring of re-offending rates for all community conferencing programs should be implemented. Such data would allow for longitudinal investigations.

A number of demographic characteristics, e.g. ethnic group affiliation and socioand economic backgrounds should also be included in questionnaires so that comparisons can be facilitated. This would provide a much deeper insight into the offenders' psychological make up which would allow for a better understanding of the causes of offending behaviour and of the impact of conferencing on all participants.

Questionnaires for conference participants should address the self-esteem of the victim and the offender and other issues relating to stress-factors.

Results indicate that the vast majority of victims are non-indigenous. Follow-up research should explore the effect of the confrontation when the offender(s) are indigenous and the victims are non-indigenous.

Results indicate a lack of indigenous victims. Follow-up research should explore the reasons behind this.

More training of and liaison with police officers are needed, specifically with those dealing with juveniles on the streets, to improve their levels of awareness of the program.

Research is needed in relation to the effectiveness of police cautioning, particularly for comparative purposes with courts and conferencing.

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All participants should be kept informed of the progress of outcomes, particularly when these agreements include community-based work.

Encouragement should be given to the setting up of an indigenous forum consisting of key people (i.e. elders) to address the juvenile offenders within their own communities.

Funding should be provided for a specialised officer in conferencing, who would be employed by the Juvenile Aid Bureau, (JAB) and who would be present during conferences.

During the completion stage of the research reported in this thesis there has been a significant change in the administration of community conferencing in Cairns. In May 2001, three days prior to the last day of data collection for this research, the program was reconstructed and a new co-ordinator was appointed. The contract held by the previous co-ordinator was not extended and due, to a 'structural overhaul', positions were vacated and new staff appointed.

Recommendations based on this research were developed in the context of previous administrative arrangements. Although data collected was limited due to the small number of conferences held during the period, there were sufficient findings to make recommendations for the future of community conferencing in the Far North Region.

Although the rationale behind this overhaul is not of much relevance to the research period, the overhaul caused some interesting changes in service delivery and many of the researcher's recommendations have since been put in place. Immediate changes implemented by the co-ordinator include:

More intensive training for key stakeholders (particularly officers of the JAB) has been put in place by the provision of a specially designed and comprehensive information kit for police.

An increase of highly trained convenors; at present there are 17 convenors who have received intensive training and who will receive ongoing training.

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Specialised training, and a subsequent increase in awareness of the program, in the Cairns region to be conducted for departmental officers.

The monitoring of agreements is being conducted by either convenors or, in most cases, by the co-ordinator. Compliance is established by telephone calls and by follow-up information at relevant agencies involved in and, where applicable, responsible for the agreements.

To keep victims informed of the offender's progress with the agreements, regular courtesy telephone calls to victims are made.

A major task for the new conferencing team was to establish the program's credibility. This has been achieved by:

Discussions with police officers who could potentially be involved with the program; Discussions with court representatives; Ensuring that conferencing representatives are present in Children's Court.

The results of this diligent and more professional approach are evident:

In the current program, the 6-month period 1 July-31 December 2001 had 64 referrals. Compared with the same period of the 'old' program one year previously, where 21 referrals were made, the referrals have increased by more than 300%.

The police questionnaires have been answered in relation to the new program and reflect their current positive attitude in relation to conferencing.

The comment made by a magistrate: "Community Conferencing has only been raised a few times (less than five) whilst I have sat in Children's Court at Cairns," is no longer applicable. Whereas this obviously was the case during the first two years of the program, during the research period of 6 months from 1 July 2000 -- 31 December 2000, there was one court referral. By contrast, during the corresponding period in 2001, there were 21 court referrals.

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7.1.2 COMMUNITY CONFERENCING CONCLUDING REMARKS

Does Community Conferencing in the Cairns Region Work? Table 31 reflects the criteria used in this study to make such an assessment.

Table 31: Does the program work? Criteria 1 Referral Rate 2 Reparation 3 Recidivism 4 Participant Satisfaction 5 Family Participation 6 Victim Participation 7 Community Involvement 8 Diversion 9 Culturally Appropriate 10 Eliminate Discrimination 11 Cost Effectiveness X X X X X X X X X X Yes No X Inconclusi ve

Regardless of the level of success of community conferencing, the expectations should be realistic about the likely impact of a one-or two-hour intervention in the life of a juvenile, whose life experiences in many cases, will have been dictated by the vicious cycle of their socio-economic status. For indigenous offenders in particular, it is impossible to ignore violence in the communities and, to stop the violence cycle, a lot more is needed than a

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single response in the shape of a conference. The conflict experienced by indigenous juveniles will grow, in proportion to the growth of indigenous communities, which will result in more indigenous youth in the justice system. It is unlikely that the present youth justice system will be able to cope without major changes. Because the inequalities experienced by indigenous people restrict their lifestyle choices, the wider patterns of the physical and social environment of the offender must be considered in effectively addressing the offending behaviour.

In addition, it would be fair to expect that the 'newness' of the program in the relative isolation of the far northern region would result in some 'teething' problems, and that therefore, the presentation of the program during the initial 6 to 12 months, would be of paramount importance. Unfortunately, during this critical time it would appear that unsuitable staffing arrangements were detrimental to the program and that the program lost most of its credibility.

Restorative justice does not address major issues such as failure to comply with agreed upon outcomes, equity and proportionality in outcomes, but has to resort to the traditional court for resolutions. Community conferencing does not address the possible causes of the offending behaviour such as lack of schooling, peer-group pressure and socioeconomic background. Research conducted by Alder and Wundersitz (1994) confirmed that conference outcomes reflect responses to the offending behaviour, rather than to the welfare needs of the offenders.

What is needed is a Job Placement Employment and Training Programme (JPET) - like model of holistic case management and follow up. JPET is a programme which helps young people to get things together and provide support in education, employment, training and housing. Without addressing the holistic picture of the circumstances contributing to the offending behaviour, it is unlikely that community conferencing will have an impact on juvenile offending.

Braithwaite ( 2003: 13) agreed that a more holistic approach towards regulation is needed to ascertain motivations underlying compliance. In addition, he commented that jurisprudential traditionalists have trouble with restorative justice because of its seemingly

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slipping and sliding across many objectives ( Braithwaite, 2003: 14). According to Braithwaite, restorative justice wants to use crime to heal family hurt, fix up school culture that does not support its students, compensate a victim, confront underlying substance abuse, build a community and enrich democracy. All these aims cover a cascade of objectives in tension ( Braithwaite, 2003: 14).

A criminal justice system must balance a number of considerations when decisions are made regarding the disposition of the matter, including the needs of the victim, the cost of the intervention and prevention of future offending. Since the causes and effects of crime are many and complex, a range of responses should be present for dealing with juvenile offending and offenders. To be effective, any system dealing with juvenile offenders should have a range of responses for dealing with the offender and these need to be well coordinated. The approach of restorative justice on its own will not be effective in reducing juvenile crime, particularly since juveniles change as they enter adulthood.

In relation to indigenous juveniles, this research concludes that conferencing is at best a 'band aid' solution, and a very expensive one at that.

7.2 OTHER MAJOR FINDINGS Additional major findings of this research include:

The total number of court appearances by indigenous juveniles, in the two- year research period, was equivalent to 88% of the indigenous juvenile population. By contrast, the equivalent figure for the non-indigenous population is 3.6%, a ratio of 24:1.

Nearly one third (29.5%) of all court appearances result in juveniles being remanded or they fail to appear

There are successful indigenous diversionary schemes like the CJGs in some Aboriginal communities in Queensland, and that the success of this diversionary process is the success of self-determination.

The essential feature of these CJGs is that they have developed from community involvement in finding solutions to specific problems. As described in sections 1.6.2,

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1.6.2.1 and 1.6.1.2 of this thesis, community justice groups reported an increase in school attendance and a decrease in fighting, and in Kowanyama the CJG significantly controls the law and order issues, particularly in relation to juveniles.

A successful response to crime requires government support, not government control, to address underlying social and economic issues of indigenous juvenile crime in Aboriginal communities. This is supported by a recent newspaper coverage in relation to the current prime minister Mr John Howard's attendance at a Cape York summit, organised by indigenous leaders. The community elders told Mr Howard that their communities were emerging from a 30-year fugue of welfare dependency and violence. They said that they wanted help-not hand-outs- to move forward (Cairns Post, 16 August, 2003: 4-5).

The need for culturally appropriate responses to crime was also expressed in the Ngaarra legal forum by Chief Justice Black, who spoke about some of the important reforms that are going on in the Federal Court in terms of taking judges and barristers out of the courtroom and taking them into the desert to hear cases. in their own familiar setting, people are not constrained in the way they are in court and in the way they choose to express themselves (Ngaarra legal forum, 2001: 13).

An example of a successful diversion, mentioned in section 1.6.1 of this thesis, is the Boys from the Bush Program, which is currently expanding to the remote indigenous communities and has reported a high level of success in diverting indigenous juveniles away from court and to involve these juveniles in culturally appropriate programs and enterprises.

The research further concluded that despite previous research into the high number of Aboriginal deaths in custody and subsequent attempts to address this issue, the statistics still reveal the need for a much greater impact on the contributing factors of indigenous juvenile offending.

To address this issue the following recommendations are made:

7.2.1 RECOMMENDATIONS

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·

Empowerment, in the form of community based alternatives for Aboriginal juvenile offenders who will be held accountable, but not locked away in detention, should be implemented, thereby nullifying the risk of institutionalisation. This may not an option for violent offenders; however the majority of indigenous offenders do not pose a threat to the community. A community board would have to be established and a committee selected and formed which should consists of approximately seven members who rotate every two years. Members should appear to be "winners" and should be diverse in background and experience. Members should include prominent indigenous role models, including elders, a psychologist, church members, legal representatives, politicians and members of AA. More importantly, members of the committee should be regarded by the community as peers, not as government officials. Issues addressed should depend on the circumstances of the offence. Potential problem children and areas should be identified and the committee should be highly accountable. Data on crime rates should be collected, and the program monitored constantly with measured outcomes, which save money. A person like the Ombudsman could conduct an independent review and an independent statistical analyst could be employed. For the program to work in communities, the cooperation of various agencies such as police, would be required and training of facilitators would be needed.

Rationale: The essence of self-determination in this context is an understanding that only Aboriginal people can find solutions to the problems which confront them, and that Aboriginal people have the right to make decisions concerning their own lives and their own communities and the right to retain and foster their culture. Broadhurst (1999: 105-6) regards restorative justice approaches in both indigenous and non- indigenous cultures as co-opted customary forms of dispute resolution, equated with self-determination. Recent newspaper coverage in relation to the current prime minister Mr John Howard's attendance at a Cape York summit, and mentioned in this research on page 225, indicates that elders want to move forward. In relation to empowerment, Braithwaite (2003: 10) supports the view that informal alternatives are likely to be more effective than coercive law and that reasoning and dialogue promote feelings of self determination.

A Remand Centre should be established in Cairns whereby juveniles do not have to spend time in the watch house at great economic and social cost to the community. This would be particularly beneficial for juvenile offenders travelling

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from Cape York. This is in accordance with the need for indigenous children to have their family close by; there will be less risk of deaths in custody.

A more workable balance should be found between the needs of indigenous participants and society generally, so as to maximise conferencing access while maintaining protective gatekeeping.

More positions for highly trained and accountable Aboriginal police officers should be created to deal with indigenous youth inside and outside the communities.

Funding should be provided for culturally appropriate programs, similar to the Boys from the Bush Program, which could be targeting indigenous juvenile from urban areas as well indigenous juveniles from remote indigenous communities.

7.2.2 DISCUSSION The Royal Commission into Aboriginal Deaths in Custody concluded that an understanding of the experience of disadvantage in Australian society is critical to understanding the reasons behind the high offending rates for indigenous youth, as this over-representation is a major social problem. Many of the Commission's

recommendations (62, 235-245) deal with indigenous juveniles and the justice system. The Commission found that the most significant contributing factor in bringing indigenous people into contact with the justice system was their disadvantaged position in society. Despite the RCADIC recommendations, Australia in general, and Cairns in particular, has been unsuccessful in reducing the rate at which indigenous juveniles enter the justice system, with the consequent rate of detention. Even though this finding could be applied to most of Australia, the overrepresentation of indigenous juveniles is most noticeable when examining Cairns data on indigenous juveniles appearances before the courts. In recent years, Judges and magistrates in the Cairns region have become more aware of the relevance of their sentencing to the remote indigenous communities. Judges and magistrates in Cairns are currently aware of the importance of the CJGs in making the justice system more meaningful for indigenous juveniles offenders. Self-determination should be the ultimate aim and the major factor in improvement of justice in indigenous communities.

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On his recent visit to Cape York, community leaders and elders told the current prime minister, Mr John Howard, that indigenous communities are determined to stamp out alcohol related violence by introducing community alcohol management plans. CJGs want to engender community pride by putting breaks on alcohol consumption ( Cairns Post, 16 August, 2003: 5).

7.3 CONCLUDING REMARKS This research has, on occasion, been made unnecessarily difficult. Major obstacles included access to data and to people involved with the program. On a number of occasions, appointments were not kept and access to data was made difficult. Professionals associated with the program were hard to approach and on many occasions the researcher was made to feel very uncomfortable and intrusive. Although the program received a major overhaul, key personnel remained in positions for over 18 months. During this vulnerable time for a new concept, much damage was done to the program's credibility.

To prevent future obstacles similar to the ones described above, the following recommendations are made:

7.3.1 RECOMMENDATIONS

People in key positions should be held highly accountable and their work reassessed every six months to minimise damage. The department must put a strategy in place whereby there is an acceptable form of 'damage-control'. Departmental employees should be ensured that they will receive adequate training and that ongoing performance monitoring is a standard safeguard to maintain and encourage skills.

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For the program to be successful, referrals need to be increased. Even in locations where the police presently run the program themselves, or have done so in the past, they have not shown great enthusiasm for referral.

Recommendations:

There should be more police involvement with the program, perhaps in the form of a police "think-tank" where every officer has involvement to some extent. The influence of the police must not be understated. Police have an active role in creating and applying criminal definitions, but they also have the contradictory role of being both friend and enemy. On the one hand they are law enforcers; on the other hand they often have to address social and welfare issues. There is no legal imperative requiring police to consider conferencing as an option; they need to feel that conferencing is 'worth it'. Constant liaison, up-dates and further development of professional relationships between officers of the police and representatives of conferencing can achieve this.

Restorative justice should look carefully beyond the immediate circumstances of an offence, in order to facilitate reintegration and minimise chances of re-offending. It must also be understood that the effect of conferencing on the offender might not be longlasting. To achieve a more accurate picture of juvenile crime, and to minimise the chances of re-offending, the following recommendations are made:

Recommendations:

More research on the relationship between diversionary procedures and recidivism is needed.

Ethnic status should be included in cautioning reports so that research can be conducted in terms of differential treatment and, where necessary, remedial measures can be put in place.

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Consideration should be given to whether Conferencing participants might need a follow up -- i.e. by attending counselling sessions. No provisions are made for participating in such follow-up care; therefore the establishment of specialised counselling services to address issues the participants might experience is recommended. This service could be a part of the program, and attendance would be on a strictly voluntary basis.

During interviews with officers of the JAB, some of the reasons for the low referral rate were explained. In order to address these reasons the following recommendations are made:

Recommendations:

A change should be made to the legislation in the Juvenile Justice Act 1992, which requires for police representatives to be present during conferencing. If JAB officers do not have to attend a conference unless their presence is really necessary, valuable police time will be saved. Instead prior to the conference the officer can submit a brief summary and the co-ordinator can submit a brief outline of the conference outcome and address this to the relevant police officer. If this is not possible:

Police funding should be made available to address the shortage of officers enabling one officer, trained in conferencing, to deal with conferencing specifically.

A careful adjustment should be made to section 251 of the Police Powers and Responsibilities Act 2000, so that police can refer an indigenous juvenile to conferencing without having to inform legal aid with the possibility of the juvenile pleading 'not guilty' and hence limiting all chances of a referral to the program. Rather, a juvenile should be encouraged to admit to the crime; if of course, the juvenile did in fact commit the offence.

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Whereas Logan and Ipswich had similar percentages of referrals which resulted in conferences, the Cairns pilot had just over half of all referrals received leading to a conference.

Recommendation:

More Public Relations skills training and development are needed for conferencing staff. Conferencing professionals need to become more involved with the community and with other professionals associated with the program. If the budget allows, advertisements might be run on television or over the radio to increase public awareness.

Much crime is committed because juveniles do not attend school. The 'dropping out rate' can be combated in the following way:

Recommendation:

A failure for a child to attend school should result in monetary penalties to the child's carers. In the case where a child has experienced educational problems some educational assessment should be conducted in order to provide the child with alternatives. Possible alternatives to schooling could include bush camps, or being sent back to traditional communities. In cases of truancy an immediate follow up by the Department of Education should take place. The consequences of truancy should be strict and parents should be interviewed and held accountable.

To ensure the success of the program, and to minimise the damage to victims even after the conference, the following recommendation is made:

Recommendation:

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A courtesy follow-up procedure should be implemented to keep victims informed of the offenders' progress with the agreements. This would take only one telephone call but would make a positive impression on the victim.

Due to the structural overhaul and the subsequent staff changes and changes in the implementation of the program, a follow-up research would be interesting, particularly since the first 24 months experienced an enormous amount of teething problems.

Recommendation:

A follow-up research project would allow for a fuller evaluation of the effectiveness of community conferencing in providing an alternative approach to the administration of youth justice and the reduction of re-offending by young people.

In order to follow up on key recommendations made based on the Forde Report and to bring Queensland in line with international standards, principles of the Juvenile Justice Act 1992 were changed as from the 1st July, 2003. The amendments have been absorbed in to the current Act and the legislation is still called the Juvenile Justice Act 1992. Additional information which will influence the success of the program is in the changes to specific sections in the Juvenile Justice Act 1992, namely sections 119 A (5) and 119 AA (1) (d), which indicate that the victim does not have to consent for a conference to go ahead and is not required to attend.

Other amendments in relation to community conferencing include:

Community Conferencing will now be called Youth Justice Conferencing

Police now MUST consider a diversionary option

Prior

to

the

Act

being

amended,

the

researcher

had

formulated

proposed

recommendations. The recommendations included that separate conferences should be

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held in cases where there are offences against more than one victim and at least one victim does not agree to a conference. A further recommendation made by the researcher, was that amendments should be made to the Juvenile Justice Act 1992, whereby no requirement for victims' consent is needed, but to ensure that victim participation is voluntary at all times.

A number of these changes have been effectively acted upon, particularly the recommendations in relation to the victims' consent. Additional recommended changes as proposed by the researcher are listed below. However, this bill is very recent , so any statement about successful changes would be tentative.

The recommended changes include the following:

There should be ongoing training for Departmental staff in relation to conferencing as an option in pre-sentence reports. At present, departmental staff do not appear to be confident about discussing community conferencing as a sentencing option.

A monitoring system should be implemented to follow-up outcomes and register the rate of compliance with them.

There should be a visible presence in court of conferencing staff, particularly on Children's Courts days, which will create familiarity for magistrates. When needed, the professional associated with the program, would be able to explain the program to the court.

Provision should be made to cover participants, particularly the victim and offender, by having all parties sign a legally binding agreement not to disclose personal details.

Although guidelines have been developed for officers of the Department of Families in relation to the Community Conferencing program, involvement of Departmental staff has been minimal. Officers attending court may have some involvement in

210

court referrals if they consider an indefinite or pre-sentence referral to be an appropriate way to deal with the offence. If a court makes a referral to a Community Conference, the Departmental court officer should ensure that the young offender and his parents understand the process. The court officer may also contact the program's co-ordinator to indicate that a court referral has been made and brief the co-ordinator with any appropriate information, which may assist the organisation of the conference (Guidelines, 1999).

7.3.2 FUTURE DIRECTIONS

The 2002-2003 State Budget has allocated an additional $32 million to the Department of Families. $14.9 million will be spent on preventative programs. The expansion of community conferencing programs throughout Queensland is due to evidence which indicates the positive effect of such programs on reducing re offending. Seven additional Community Conferencing Services will be operational in Queensland within the next two years, making the initiative available statewide (Queensland Families, June 2002:4-6).

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Community Conferencing Service -- FNQ

Questionnaire

1

I was NOT pushed into being at the conference

Agree a lot

Agree a little

Disagree a little

Disagree a lot

2

I had a good idea what the conference would be like before I cam

Agree a lot

Agree a little

Disagree a little

Disagree a lot

3.

I understood what was going at the conference

Agree a lot

Agree a little

Disagree a little

Disagree a lot

There were people at the conference who supported me 4

Agree a lot

Agree a little

Disagree a little

Disagree a lot

5

I was treated with respect at the conference

Agree a lot

Agree a little

Disagree a little

Disagree a lot

6

I was NOT pushed into things in the conference

Agree a lot

Agree a little

Disagree a little

Disagree a lot

212

Everyone at the conference seemed to want to work things out 7

Agree a lot

Agree a little

Disagree a little

Disagree a lot

After hearing everyone talk, I see things differently now 8

Agree a lot

Agree a little

Disagree a little

Disagree a lot

9

1 got to have my say at the conference

Agree a lot

Agree a little

Disagree a little

Disagree a lot

10

People seemed to understand my side of things

Agree a lot

Agree a little

Disagree a little

Disagree a lot

11

The conference was just what I needed to sort things

Agree a lot

Agree a little

Disagree a little

Disagree a lot

Overall I thought the conference was fair 12

Agree a lot

Agree a little

Disagree a little

Disagree a lot

13

I was satisfied with the agreement made at the conference

213

Agree a lot

Agree a little

Disagree a little

Disagree a lot

14

Doing the conference means I can now make a fresh

Agree a lot

Agree a little

Disagree a little

Disagree a lot

15

If a friend is in the same position as me, I would tell them to go to a conference

Agree a lot

Agree a little

Disagree a little

Disagree a lot

16

How do things feel at the END of the conference? (tick ONE box

Friendly and helpful

Polite and cooperative

Confused and disorganised

A bit cold and formal

A bit awkward and uncomfortable

Unfriendly and unpleasant

Other:

214

QUESTIONNAIRE FOR Police

TOPIC: Community Conference

Please circle the answer which best reflects your views.

How do you rate your awareness level of community conferencing? - HIGH - MEDIUM - LOW Do you normally consider referrals to Community Conferencing as a viable option? - YES - Sometimes - NO

Are you in favour of Community Conferencing? - YES - NO - Don't know enough about it.

Would you initiate Community Conferencing? - YES - NO

215

Does a referral cause you extra work? - A LOT MORE - A BIT MORE - NO

Do you perceive Community Conferencing in favour of one party?

- YES, in Favour of the Victim

- YES, in Favour of the Offender Neutral.

- Additional comments: (if you wish)

216

QUESTIONNAIRE for Solicitors

TOPIC: Community Conferencing.

Please circle the answer which best reflects your views.

How do you rate your awareness level of community conferencing? - HIGH - MEDIUM - LOW How did you find out about Community Conferencing? - Colleagues - Direct approach by Community Conferencing Staff Special meeting at work

Do you normally consider referrals to Community Conferencing as a viable option? - YES - Sometimes - NO Where Community Conferencing is an option, do you discuss this with your clients and their parents? - Always - Frequently - Seldom

217

- Never If a juvenile is referred to Community Conferencing, do you think the juvenile is no longer required to attend court? - YES - NO - Don't it Do you think a juvenile who attends Community Conferencing receives too little or too much punishment? - Too Little - Too Much - About right - Don't know Are you in favour of Community Conferencing? - YES - NO - Don't know enough about it. In general ( for both Community Conferencing and Courts) , do you think sentences for juveniles are too lenient or too harsh? - Too Lenient - Too Harsh - About Right - Don't Know

218

Does a referral cause you extra work? - A LOT MORE - A BIT MORE - NO Do you perceive Community Conferencing in favour of one party? - YES, in Favour of the Victim - YES, in Favour of the Offender Neutral. Additional comments: (if you wish)

219

QUESTIONNAIRE for Judges I Magistrates TOPIC: Community Conferencing.

Please circle the answer which best reflects your views.

How do you rate your awareness level of community conferencing? - HIGH - MEDIUM - LOW How did you find out about Community Conferencing? - Colleagues - Direct approach by Community Conferencing Staff Special meeting at work Do you normally consider referrals to Community Conferencing as a viable option? - YES -Sometimes - NO Do you consider referrals to Community Conferencing as adding to adjournments and court delays ? - Yes - No Difference Do you think a juvenile who attends Community Conferencing receives too little or too much punishment?

220

- Too Little - Too Much - About right - Don't know

221

Are you in favour of Community Conferencing? - YES - NO - Don't know enough about it. Would you prefer to be aware of the victims' consent to conferencing prior to considering the referral? - Yes - No Does a referral cause you extra work? - A LOT MORE - A BIT MORE NO

Do you perceive Community Conferencing in favour of one party? - YES, in Favour of the Victim - YES, in Favour of the Offender Neutral. - Additional comments: (if you wish)

222

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Gale, F. & Wundersitz, j. ( 1987): http://lawlink.nse.c,ov.au/epd.nsf/pages/JJRCHP1 Hayes, H. And Daly, K. (2002) Youth Justice Conferencing and Re offending (under review). http://www.medu.au/school/ccj/lcdaly docs/lcdpaper17adf International Review of indigenous Issues in 2000: http://www.hreoc.gov.au/social justice/ Jeffries, D, QPS: Youth crime Prevention: A Queensland model.

www.geocities.com/Colosseum/sideline/8358/QPSJAB.htm/ Johnston, E, QC: Law and Justice --RCIADIC-Recommendations

littp://www.atsic.gov.ati/isues/law anA justicerciadic/overview and recommendations6 2.asp Maxwell, Gabrielle & Morris, Allison. http://www.restorativel ustice.org/rj3/L eading Estge/Maxwellbib.htm Mennonite Church: http://www.mcc.org Nathanson, D.L. httpillwww.behavionnellorgs/ssti/bltn06.htm1

http://www,behavionnet/orgs/ssti/bltn12.html Ngaarra legal forum, 2001, session 724 August.

www.garma.telstra.com/pAlfs/n2aarra/Ngaarra-session07,0f Pathways to Prevention Project: www.premiers.q1d.vv.autabouticrimeprevention/safer.pdf RCIADIC: http://www.atsic.gov.au/issues/rciadic/cunneen/executive.htm Restorative

justice in Australia: http://www.aic.gov.au/riustice/australia.html littp://www.aic.gov.au

http://www.aie.gov.au/rjustice/newell/index.html http://www.aic.gov.au/rjustice/rise/working/ http://www.aic.gov,au/rjustice/sajj/index.html The Age: http://www.theage.com.au/brealcing12002/05/08/FPNEA2473YOD.html The Bethlehem Project: http://www.realjustice.o_gr Victim Offender Reconciliation Program (VORP): http://www.vorp.com http:// www.context.oreICLIB/IC36/Cvathtm risepap2.htmi

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