Home | Databases | WorldLII | Search | Feedback New Zealand Law Students' Journal

Chye, Francine --- "When children kill: the age of criminal responsibility and criminal procedure in New Zealand" [2012] NZLawStuJl 8; (2012) 2 NZLSJ 837

Last Updated: 27 May 2014

WHEN CHILDREN KILL:

THE AGE OF CRIMINAL RESPONSIBILITY AND CRIMINAL PROCEDURE IN NEW ZEALAND

FRANCINE CHYE^*

Introduction

Alex is 11 years old.¹ In New Zealand, Alex is too young to vote, to smoke, to have sexual relations and to be prosecuted for most criminal offences. ² Most criminal offences, that is, except for the homicide offences of murder and manslaughter.³ Under New Zealand law, Alex can be arrested on suspicion of homicide, and tried and sentenced in the High Court.⁴

We see that by law, children are considered to be incapable of making their own decisions such as whether to drink or smoke. By not criminalising them under the criminal justice system, the law protects them from the consequences of their decisions. Nonetheless, children are to be held accountable for the dire consequences of their actions in relation to homicide offences. It seems both unfair and paradoxical that children are tried and punished as adults when the law and society has clearly indicated that they are not to be judged as so.

Keeping this in mind, this article will focus on two main issues. The first issue is the age of criminal responsibility. This article argues that the age of criminal responsibility in New Zealand, 10 years of age, is too low, and that New Zealand should raise the age to 12. As will be discussed, this is to align New Zealand law with that of our international and national obligations, other legal provisions, and developmental research on the nature of children.

* LLB(Hons)/BA (in progress), The University of Auckland.

¹ Fictitious story.

2. In New Zealand, the legal ages are 18 to vote and smoke, 16 to have sex, and 12 to be prosecuted for serious criminal offences.

³ Children, Young Persons, and Their Families Act 1989 [“CYPF Act”], s

272.

⁴ CYPF Act 1989, s 272.

The second issue concerns the prosecution process when dealing with children who kill. The current process tries and sentences children in adult courts. This article will argue that children should be handled entirely by the youth justice system via the New Zealand Youth Court. In short, the argument is that New Zealand can do better and should do better with regard to provisions for dealing with children who kill. Also, it is to be noted that this article will focus purely on the homicide offences of murder and manslaughter⁵ and the child⁶ offender. That is, a child aged between 10 and 13 years.

A. Background

1. History: children are treated differently in law

There exists in most people an intuitive feeling that children are not deserving of criminal punishment in the same way as adults. Children lack the same level of physical, intellectual, emotional and social development as adults. Many would thus say that it would be unfair to subject children to the harsh sanctions that the criminal justice system hands out. This concept of “unfair” punishment, and hence different treatment of young offenders and adults under the criminal law, stems from common law jurisprudence.⁷

At common law, children under 14 years were presumed not to possess the criminal intent necessary to commit a crime. ⁸ However, once between the ages of 7 and 14, this presumption could be rebutted if proven that the child could distinguish between right and wrong and so understand the illegality of his or her act.⁹ Past the age of 14, a child

⁵ Infanticide as defined by s 178 of the Crimes Act 1961 [“Crimes Act”] also constitutes culpable homicide.

⁶ The CYPF Act defines a ‘‘child’’ as a boy or girl under the age of 14 years and a ‘‘young person’’ as a boy or girl of or over the age of 14 years but under 17 years, s 2.

^{7 Charles Polen “Youth on Death Row: Waiver of Juvenile Court Jurisdiction}

and Imposition of the Death Penalty on Juvenile Offenders” (1986) 13

KYLR 495 [“Death Row”] at 496.

⁸ Frederick Woodbridge “Physical and Mental Infancy in the Criminal Law” (1939) 87 UPA L Rev 426 at 428–438.

⁹ At 430.

was considered an adult for the purposes of the law and held to have the capacity to form the requisite criminal intent.¹⁰

As society began to recognise that the adult criminal justice system was not the most appropriate forum for dealing with child and youth offending, separate court systems in the form of family and youth courts¹¹ emerged in the latter part of the nineteenth century.¹²

2. Setting the scene: New Zealand statistics

In New Zealand, the phrase “child offender” brings to mind a few prominent cases. One widely publicised case is that of Bailey Junior Kurariki. Touted as New Zealand’s “youngest killer”¹³ in numerous newspaper articles, Kurariki was only 12 years old when he was implicated in the killing of pizza deliveryman Michael Choy in 2001.¹⁴

^{He was convicted of manslaughter and jailed for seven years.15 More}

recently in 2010, a 12 year old boy pleaded guilty to a charge of manslaughter for shooting an 11 year old boy after telling the younger boy that he would shoot him if he got “cheeky”¹⁶ (the “2010 rifle case”). The boy, who was also given name suppression, was sentenced to 20 months in the youth justice Residence.¹⁷

Newspapers have reported, “[n]umerous children have been convicted of manslaughter, but only a few of murder.”¹⁸ Since 1977, there have

¹⁰ At 434.

¹¹ Youth courts are also known as juvenile courts.

¹² Charles Thomas and Shay Bilckih “Prosecuting Juveniles in Criminal Courts: A Legal and Empirical Analysis” (1985) 76 J Crim Law & Criminology 439 at 448–449.

^{13 NZPA “NZ’s youngest killer up for parole” The New Zealand Herald (New}

Zealand, 5 March 2008).

¹⁴ R v Rapira [2003] NZCA 318.

¹⁵ At 114.

¹⁶ Nicola Brennan “Boy pleads guilty to killing” The Waikato Times (New

Zealand, 26 October 2010).

¹⁷ NZPA “Young killer jailed for 20 months” The New Zealand Herald (New

Zealand, 7 December 2010).

¹⁸ Brennan, above n 16.

been less than ten 10 to 13 year olds convicted of manslaughter and only one 13 year old convicted of murder.¹⁹

Despite the numbers of children involved in homicide offences being very small, it is nonetheless interesting to see what laws New Zealand has for dealing with children who kill.

3. The New Zealand youth justice process: from apprehension to sentencing

In New Zealand, criminal liability is set out in the Crimes Act 1961 (“Crimes Act”). Section 21 of the Crimes Act establishes that no criminal prosecution can be brought against a child under the age of

10,²⁰ making 10 the starting point for criminal responsibility in New Zealand. Prior to the Children, Young Persons and Their Families (Youth Court Jurisdiction and Orders) Amendment Act 2010 (“CYPF Amendment Act”),²¹ a child offender could not be prosecuted for any offence other than murder and manslaughter. In non-homicide cases, the child is dealt with under the care and protection provisions of the Children, Young Persons and Their Families Act 1989 (“CYPF Act”), as opposed to the youth justice provisions. In short, the majority of children cannot be criminalised. With regard to homicide offences, in addition to proving that the child has the requisite mens rea²² for the offence, the prosecution must also prove the child knew what he did was wrong or contrary to law.²³ This provision reflects the common law

¹⁹ Replies to the list of Issues to be taken up in connection with the consideration of the Fifth Periodic Report of New Zealand: New Zealand Government Response (CCPR/C/NZL/5) UN ICCPR (2010) [“New Zealand Government Response”] at 26.

^{20 Crimes Act 1961, s 21.}

²¹ The Children, Young Persons, and Their Families (Youth Court Jurisdiction and Orders) Amendment Act 2010 [“CYPF Amendment Act”] allows children aged 12 and 13 to be prosecuted for serious or persistent offending. Many of my arguments will be evidence against this amendment. However, as the focus of my paper is on murder and manslaughter only, both of which are classified as purely indictable offences (more serious than “serious offences”), I will not be discussing the CYPF Amendment Act in any great detail.

^{22 Latin, “criminal intent”.}

²³ Crimes Act 1961, s 22.

doctrine of doli incapax, which presumes that a child is incapable of committing a crime because of lack of understanding. Doli incapax operates as a rebuttable presumption.

The procedure for dealing with children is set out and governed by the CYPF Act. The preliminary hearing of a child offender apprehended on suspicion of homicide takes place in the Youth Court.²⁴ Subsequently, if the judge decides there is sufficient evidence, the trial and sentencing occurs in an adult court (the High Court).²⁵ The child offender does not have the option to be heard or sentenced in the Youth Court. If found guilty, the child offender will be detained in a Child, Youth and Family youth justice residence.²⁶

4. What makes murder and manslaughter different?

As discussed earlier, children are presumed to be unable to appreciate the real nature of their criminal offending and are shielded from the consequences of such offending, except in the case of murder and manslaughter.

The question then becomes: “what makes murder and manslaughter different from other offences?” It is irrefutable that the notion of the sanctity of life predates any formal legal system. Thus the obvious answer would be that by taking away life, homicide is the most serious crime one can commit. It can also be said that the idea that serious crime ought to be treated severely regardless of the offender's age very much still exists in modern day.²⁷ Retributive principles, such as the

²⁴ The Youth Court is a criminal Court that is part of the District Court. It deals with young persons aged 14 to 16 years. The CYPF Act 1989, s 272 sets out that the Court does not hear murder and manslaughter charges, as well as some minor traffic offences.

²⁵ The CYPF Act 1989, s 272(2)(b) states that children are to be tried “as if [they] were a young person”. Section 274 of the CYPF Act sets out that young persons are to be tried as adults in accordance with the Summary Proceedings Act 1957.

^{26 The child offender will be taken under the custody for the Chief Executive}

of the Ministry of Social Development.

²⁷ Franklin Zimring Confronting Youth Crime: Report of the Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders (Holmes & Meier Publishers Inc., New York, 1978) at 25.

notion of “a life for a life”, can be seen in the literature on child offending.²⁸ Many a time, it boils down to the fact that homicide is a horrible crime that leaves devastation in its path, so the fact that the offender is legally a child often does little to affect how the victim or community believes the offender should be punished.²⁹

B. The First Issue: The Age of Criminal Responsibility

1. What is “the age of criminal responsibility”?

The age of criminal responsibility refers to the age at which a person becomes subject to the full penalties provided by the criminal law.³⁰

Children under this age are immune from criminal prosecution and are considered doli incapax. Children above this age, however, are subject to all the provisions of the criminal law in the same way as adults.³¹

One of the most striking aspects when examining the age of criminal responsibility is the disparity of ages set by different countries as their age of criminal responsibility. Although New Zealand, Australia and the United Kingdom have all set the age of criminal responsibility at 10,³² there is a range of ages set in other countries. For example, Belgium sets it at 18 years of age, Spain at 16, Germany at 14, and Canada at

^12.33

This inconsistency highlights the difficulty in determining an appropriate age, and indeed the arbitrary nature of the concept.

²⁸ Ernest van den Haag Punishing Criminals: Concerning a Very Old and Painful

Question (Basic Books, New York, 1975) at 174.

²⁹ Human Rights Watch “When I Die, They’ll Send Me Home” Youth Sentence to Life without Parole in California (2008) at 3.

³⁰ Barry Goldson “Counterblast: Difficult to Understand or Defend”: A Reasoned Case for Raising the Age of Criminal Responsibility” (2009) 48

The Howard Journal or Criminal Justice 514 at 515.

³¹ Sentencing options may differ.

³² Australia and the United Kingdom also remove homicide offences from the jurisdiction of the Children’s Courts.

³³ UNICEF NZ “Young and Accountable? (2): Should New Zealand Lower the Age of Criminal Responsibility?” (Background paper to UNICEF NZ position summary paper “Young and Accountable? (1)”, 2008) at 17.

Naturally, any legal threshold that suddenly regards a child as being capable of criminal responsibility upon the “dawning of a birthday” is “inherently artificial and arbitrary”.³⁴ Children cannot reasonably be said to promptly acquire the necessary intellectual, emotional and social maturity on their 10th, 12th or 16th birthday as set out by law.³⁵

In spite of this, such an age is a necessary legal fiction.³⁶ It enables society to recognise that, below a certain age, a child does not have the capacity to take responsibility for the illegality of his or her actions, while, above this age, people can be held criminally liable for their offending.

However, a problem arises when the arbitrary and artificial nature of the concept is forgotten,³⁷ as it acts as a barrier against law reform. This article seeks to challenge the notion of the age of criminal responsibility as a static and unchangeable concept.

2. Two elements of criminal responsibility

The concept of criminal responsibility itself can be broken into two components: “criminal culpability” and “adjudicative competence”.

3. The first element: criminal culpability

(a) What is “criminal culpability”?

Criminal culpability, or lack thereof, is the basis for immunity from criminal prosecution for children under the age of criminal responsibility and refers to their criminal capacity.³⁸ In New Zealand, children between 10 and 13 years have limited accountability: they are not accountable for any criminal offences other than murder and manslaughter.

³⁴ Sarah Kuper “An Immature Step Backward for New Zealand’s Youth Justice System? A Discussion of the Age of Criminal Responsibility” (LLB (Hons) Dissertation, University of Otago, 2010) at 4.

^{35 At 4.}

³⁶ At 4.

³⁷ At 5.

³⁸ At 3.

(b) Doli incapax and the implications for child offenders

Before a case reaches any court of law, the child must be acknowledged to have the capacity to commit the offence and not be doli incapax. As mentioned, the historical international common law doctrine of doli incapax presumes that children are “incapable of committing an evil act” and thus cannot be held criminally responsible for their behaviour.³⁹ The motivation for the doli incapax presumption is an example of the law’s method of dealing with the tension between two of its functions. The first is the law’s protective function over vulnerable children, and the second is its drive to control when a child performs the actus reus⁴⁰ of a crime. In New Zealand, for children under 10 years of age, the law’s desire to protect is clear. This category of children is regarded as incapable of evil, so the fact of their age acts as a complete “bar to conviction” (as opposed to a “defence”).⁴¹ It recognises the “fundamental nature of childhood” and that children are “not naturally equipped with an ability to understand the wrongfulness of criminal acts”.⁴²

However, by satisfying s 22 of the Crimes Act—that the child knew “the act or omission was wrong or that it was contrary to law”⁴³—the doli incapax presumption, that applies to a child between 10 and 13 years old, can be rebutted. This is arguably easy to do. For example, in the “2010 rifle case”, Justice Forrest Miller held that it was appropriate to convict the 13 year old boy because he knew right from wrong.⁴⁴

^{Hence, although the doli incapax doctrine provides some flexibility}

against the arbitrary age of criminal responsibility⁴⁵ and does act as a

³⁹ Raymond Arthur Young Offenders and the Law (Taylor & Francis, Hoboken,

2010) at 43.

⁴⁰ Latin, "criminal act."

⁴¹ David Brown, David Farrier, David Neal, and David Weisbrot Criminal

Laws (1st ed, Federation Press, Sydney, 1990) at 669.

⁴² Thomas Crofts “Doli Incapax: Why Children Deserve its Protection” (2003) 10(3) Murdoch University Electronic Journal of Law at 9.

⁴³ Crimes Act 1961, s 22(b).

⁴⁴ Andrew Koubaridis “Killer, 12 – father’s cover-up” The New Zealand Herald

(New Zealand, 27 October 2010).

⁴⁵ The presumption allows the Court to consider the individual child’s capacity in the difficult “in between years”. See Principal Youth Court

safety provision against criminalising children, the protection afforded is minimal.

Rhonda Thompson, in her thesis, “Old Enough To Know Better: The Doli Incapax Presumption In New Zealand Law”, agrees that the knowledge of wrongfulness component of the doli incapax doctrine is too narrow and hence too easily proved.⁴⁶ Thompson comments, “[i]t is probably fair to say that in the majority of child offending cases, the child was about to identify that their behavior was wrong.”⁴⁷ However, a child’s immaturity goes to whether he or she acted with rational agency. ⁴⁸ That is, understanding the nature, circumstances, and consequences of their actions and to be able to control them.⁴⁹

As such, Thompson suggests that a better test would take into account

Finlay J’s dissent in R v Brooks:⁵⁰

[A person’s] idiosyncrasies, his strengths, and his weaknesses ... must be made the subject of inquiry, for only so can the degree of his understanding and comprehension and so of his knowledge, be fairly and properly estimated.

(c) Developmental Research and Studies

There have been many developmental psychology studies and a great deal of neuroscience research on the cognitive and psychosocial influences of juvenile behaviour. These provide the scientific backing to the gut feeling that children are too immature to understand the real nature of their offending. Importantly, these studies testify to the

Andrew Becroft “Putting Youth Justice Under the Microscope: What is the Diagnosis? A Quick Nip and Tuck or Radical Surgery?” (Paper presented at

Conference on the Rehabilitation of Youth Offenders “A New Zealand Perspective”, Singapore, 2007) [“Putting Youth Justice Under the Microscope”].

^{46 Rhonda Elizabeth Thompson “Old Enough To Know Better: The Doli}

Incapax Presumption In New Zealand Law” (LLM Dissertation, Victoria

University of Wellington, 2009) at 2.

⁴⁷ At 68.

⁴⁸ At 68.

⁴⁹ At 9.

⁵⁰ R v Brooks [1945] NZPoliceLawRp 19; [1945] NZLR 584 (CA) at 602.

limited moral culpability of child offenders, as well as their amenability to rehabilitation and treatment.

It can be argued that the separate system of dealing with child offenders, the youth justice system, is established on the notion that the law should not expect that persons whose brains are not fully developed to be fully capable or to be the recipient of adult punishment.⁵¹ In Roper v Simmons, the United States’ Supreme Court used numerous scientific research and sociological studies to justify a finding that capital punishment of youth offenders under 18 years old was “cruel and unusual punishment” and violated the Eighth Amendment. ⁵² Due to “anatomically underdeveloped nature of the juvenile brain”,⁵³ children lack the “general character required to stand trial and be sentenced as an adult.⁵⁴ The studies relied on by the Court show that “psychosocial maturity is incomplete until age 19.”⁵⁵

The New Zealand Court of Appeal also recognizes this developmental immaturity, expressing in R v Slade that “it is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults.”⁵⁶ This statement reveals the “integral connection between the developmental immaturity of [children] and their level of culpability”.⁵⁷

The development of a child’s brain has substantial implications in respect of the child’s commission of crime. For example, the Court in Roper highlighted traits such as the lack of responsibility, “impetus and

⁵¹ Kuper, above n 34, at 17.

⁵² Roper v Simmons 542 US (2005), at 578–579.

⁵³ Brief of American Medical Association et al. as Amici Curiae in Support of Respondent, Roper[2005] USSC 2017; , 543 U.S. 551 (No. 03-633), 2004 WL 1633549 [“AMA Brief”] at 9; Brief for American Psychological Association & Missouri Psychological Association as Amici Curiae Supporting Respondent, Roper,

^{[2005] USSC 2017; 543 U.S. 551 (No. 03-633), 2004 WL 1636447 [“APA Brief”] at 7–10.}

⁵⁴ Roper v Simmons, above n 53, at 578-579.

⁵⁵ AMA Brief, above n 53, at 9; APA Brief, above n 53, at 2, 7.

⁵⁶ R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 at 533.

⁵⁷ Kuper, above n 34, at 29.

ill-considered actions and decisions”⁵⁸ and a greater susceptibility to peer pressure⁵⁹ as being large drivers of youth crime.

Other situational factors also tend to be fertile ground for child offending to occur, like the seemingly immediate rewards from offending with few obvious or immediate costs, and a lack of adult supervision.⁶⁰

These observations may be seen in the facts surrounding Bailey Junior Kurariki’s conviction. Although premeditated and thus not an impulsive crime, Kurariki was the youngest member of an older group of at least 7 teenagers ranging from 15 to 20 years old. ⁶¹ The extent that situational factors and peer pressure may have played in his offending is undeniably worthy of attention.

These findings are further aggravated by predisposed intellectual disabilities and learning disabilities of the child, as well as external factors such as an unhealthy family environment, abuse or neglect.⁶²

Thus, it has been said that a juvenile’s susceptibility to acting irresponsibly means “their irresponsible conduct is not as morally reprehensible as that of an adult” ⁶³ and “it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character”.⁶⁴ These factors indicate that the law should be more receptive to forgiving children for their actions than it would with adults, and following from this, that children should not be treated like adults.

⁵⁸ Roper v Simmons, above n 53, at 569.

⁵⁹ At 569.

⁶⁰ Laurence Steinberg “Should the Science of Adolescent Brain Development

Inform Public Policy?” (2009) 64 The American Psychologist 739 at 741.

⁶¹ R v Rapira, above n 14.

⁶² Kuper, above n 34, at 32.

⁶³ Roper v Simmons, above n 53, at 570.

⁶⁴ At 570–571.

(d) International and national obligations

By ratifying the United Nations Convention on the Rights of the Child (“UNCROC”)⁶⁵ in 1993, New Zealand exemplified a commitment to ensure that certain rights are afforded to all children.⁶⁶ Under the UNCROC, State Parties agree to adapt the law, judicial procedures, authorities and institutions to suit children’s abilities and needs when dealing with child offenders.⁶⁷ In particular, art40(3)(a) requires State Parties to establish a minimum age below which children shall be presumed not to have capacity to infringe the criminal law. That is, of course, a minimum age of criminal responsibility. The philosophy behind doing so can be found in the official commentary to the United Nations’ Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) which states:⁶⁸

The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of responsibility would become meaningless.

Expounding on this, Rule 4.1 of the Beijing Rules states:⁶⁹

In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age

⁶⁵ United Nations Convention on the Rights of the Child, GA Res 44/25, UN GAOR, 44th Sess, Supp No. 49, UN Doc A/44/49 (1989) [“UNCROC”].

⁶⁶ Defines children as young persons below 18 years of age.

⁶⁷ UNCROC, art 40.

⁶⁸ United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33, UN GAOR, Supp No 53, UN Doc A/40/53 (1985) [“Beijing Rules”] at 3. See also Attorney-General Legal Advice on the consistency of the Young Offenders (Serious Crimes) Bill 2006 with the NZBORA 1990 (Ministry of Justice, 2006).

⁶⁹ Beijing Rules, r 4.1 at 3.

shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.

Although neither the UNCROC nor the Beijing Rules stipulate any particular minimum age of criminal responsibility that should be set, the United Nations Committee on the Rights of the Child (“UN Committee”) responsible for monitoring compliance with the international instruments has criticised jurisdictions that have set the age below 12 years.⁷⁰ In their 2003 report on New Zealand, the UN Committee commented that the age of criminal responsibility in New Zealand at 10 was too low. It recommended that New Zealand “raise the age of criminal responsibility to an internationally acceptable age and ensure that it applies to all criminal offences”.⁷¹

On the national level, s 25 of the New Zealand Bill of Rights Act 1989 (“NZBORA”) states that in relation to the minimum standards for criminal procedure, when charged with an offence, the child has the right to “be dealt with in a manner that takes account of the child’s age”.⁷²Further to this, s 9 of the NZBORA affirms the right not to be subjected to “disproportionately severe treatment or punishment”.⁷³

However, in T v UK, ⁷⁴ the European Court of Human Rights (“ECHR”) did not find the equivalent provision of the latter right to be infringed.⁷⁵ The question for the Court was whether the attribution of criminal responsibility to a child as young as 10 years old violated the right not to be subjected to disproportionately severe treatment or punishment. The Court held that the minimum age of criminal responsibility in England and Wales at 10 years did not deviate so far

⁷⁰ Justice Children and Homicide – Appropriate procedures for juveniles in murder and manslaughter cases (Justice, London, 1996) at 7, quoted in Gregor Urbas The Age of Criminal Responsibility (Trends and Issues in Crime and Criminal Justice, No 181, Australian Institute of Criminology, 2000) at 2.

^{71 United Nations Committee on the Rights of the Child (past session,}

concluding observations on New Zealand), CRC/C/15/Add.216.

⁷² New Zealand Bill of Rights Act 1990, s 25(i).

⁷³ Section 9.

⁷⁴ T v United Kingdom [1999] ECHR 171; (2000) 30 EHRR 121 (ECHR).

⁷⁵ Attorney-General Legal Advice on the consistency of the Young Offenders (Serious

Crimes) Bill 2006 with the NZBORA 1990 (Ministry of Justice, 2006).

from European practices as to violate the relevant human rights standards. This allowed Robert Thompson and Jon Venables, who were both 10 years old at the time of the offence, to be tried and convicted for the murder of then two year old James Bulger. The Attorney- General used this case as evidence that the provision in the Young Offenders (Serious Crimes) Bill 2006,⁷⁶ which allowed the minimum age of criminal responsibility to be reduced to 10 years of age for all offences, did not violate s 9 of the NZBORA.

4. The second element: adjudicative competence

In her article “In the Frame: Crime and the Limits of Representation”, Alison Young discusses representations of childhood as seen in the James Bulger case. ⁷⁷ Bulger was portrayed as “small, affectionate, dependent, vulnerable [and] high-spirited”. ⁷⁸ This correspondence between his child-like appearance and typically child-like nature meant he was “an allegory of the innocence of childhood”.⁷⁹ In contrast, by their acts of violence, there was a lack of correspondence with Thompson and Venables’ actions and the child-like behaviour expected of children their age. The effect of this was that:⁸⁰

Venables and Thompson, despite their appearance of childhood, could not “really” be children ... James Bulger's status as child was therefore elevated, while Venables and Thompson were subjected to strategies which undercut their childlike appearances, treating them more like adults in disguise. Thus, they were tried in Preston Crown Court as if they were adults.

This section discusses the implications of trying children as adults and concludes that it should be avoided, regardless of the severity of crime committed, as children are not have sufficient adjudicative competence to have a fair trial.

⁷⁶ One of the main aims of the Bill was to lower the age of criminal responsibility for all offences to 10 years. The bill was negatived in its second reading.

⁷⁷ Alison Young (1996) “In the Frame: Crime and the Limits of

Representation” 29 ANZJ Crim 81.

⁷⁸ At 83.

⁷⁹ At 84.

⁸⁰ At 84–85.

(a) The problems with trying children as adults

Adjudicative competence refers to the ability of a defendant to stand trial having “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.”⁸¹ In rehabilitation and welfare-based youth courts, competency to stand trial is deemed “conceptually irrelevant” as the court’s focus is on helping the young offender get back onto the straight and narrow path. Wherein such courts a “defence” per se is unnecessary,⁸² this is not so in adult courts which are established on principles of retributive justice, punishment and public safety. In these often-adversarial settings, a young vulnerable child may find him or herself to be incompetent and thus greatly disadvantaged.⁸³ It has been said that:⁸⁴

The immaturity that leads children to commit crimes in the first place leaves them ill-prepared to navigate the criminal justice system, so they’re more likely than adults to receive the heaviest sentence.

Research shows that the reduced capability of children and youths in foreseeing the consequences of their decisions is especially detrimental with regard to pleading decisions.⁸⁵ For instance, interviews reveal that some child or youth offenders “didn’t understand the plea bargain

⁸¹ Dusky v United States [1960] USSC 51; (1960) 362 US 402 at 402.

⁸² Thomas Grisso “Juvenile Competency to Stand Trial: Questions in an Era of Punitive Reform” (1997) 12 Am Bar Assoc Criminal Justice Magazine 3, at 6.

⁸³ Grisso, above n 82, at 6.

⁸⁴ Human Rights Watch “California: Repeal Law Jailing Children for Life.

Senate Should End ‘Life Without Parole’ for Juvenile Offenders” (2008)

<http://www.hrw.org/news/2008/01/13/california-repeal-law-jailing- children-life> .

^{85 Regarding plea decisions, preadolescents are less likely than older}

adolescents to think strategically Michele Peterson-Badali & Rona Abramovitch (1993) “Grade Relating Changes in Young People’s Reasoning About Plea Bargains” 17 Law & Human Behaviour 537.

system, for instance, so they’d reject a 15-year sentence as being too long and then end up with life.”⁸⁶

Furthermore, there is a whole body of research dedicated to showing that children are not fit to stand trial as adults. For example, when tests assessing adult proficiency were administered to youths, only one-fifth under the age of 13 and only half of youths aged 13 were found competent.⁸⁷ Additionally, in an American government funded study investigating the ability of youths in a juvenile detention facility to comprehend Miranda rights,⁸⁸ it was discovered that youths between 14 to 16 years old believed the “right to remain silent” meant that “you can be silent unless you are told to talk”.⁸⁹

The New Zealand youth justice system is unique in that its main focus is to hold child and youth offenders accountable for their actions: it is premised on criminal justice principles and not “welfarising the response”.⁹⁰ That is, they are held responsible for their actions via due process and legal representation, where judges are expected to give reasons for their decisions as well as impose sanctions in the proportionality of the offending. That being said, another great focus of the system is to address the underlying causes of offending, rehabilitation and community care through initiatives like the Family Group Conference.⁹¹ Moreover, in the youth justice system, specially trained judges are aware of the literature on what makes children and young persons different from adults, and understand the issues

⁸⁶ Human Rights Watch “California: Repeal Law Jailing Children for Life.

Senate Should End ‘Life Without Parole’ for Juvenile Offenders”, above n

84.

⁸⁷ Grisso, above n 82, at 9.

⁸⁸ Miranda rights (also known as Miranda warning), is a warning that the police must issue to criminal suspects held in custody about their constitutional rights.

⁸⁹ Grisso, above n 82, at 6.

⁹⁰ Andrew Becroft “Children and Young People in Conflict with the Law: Asking the Hard Questions” (XVII World Congress of the International Association of Youth and Family Judges and Magistrates, Belfast, 2006).

⁹¹ The Family Group Conference enables victims and offenders to meet together with their families and enforcement agency members to decide on the appropriate penalty.

surrounding them. This makes them better equipped to handle cases of child offenders and defend their rights.

(b) International obligations and case law

Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”) states that all children ought to receive a “fair trial”.⁹² What constitutes a “fair trial” was debated in the ECHR in T v UK,⁹³ where the Court eventually found that Thompson and Venables were not given a fair trial in the sense that inadequate measures were taken to guarantee that they could properly understand and participate in the legal proceedings.⁹⁴ In its judgment, the Court expressed that a fair trial “constituted the capacity to participate and engage within the trial arena”. More specifically, it held that it was:⁹⁵

Highly unlikely that the applicant would have felt sufficiently uninhibited, in the tense courtroom and under public scrutiny, to have consulted with them [his lawyers] during the trial, or indeed, that, given his immaturity and his disturbed emotional state, he would have been capable outside the courtroom of cooperating with his lawyers and giving them information for the purposes of his defence.

In her article on the human rights of juvenile defendants, Gail Hubble argues that in light of the Court’s decision, trying young persons for homicide in an adult court must now be viewed as unacceptable and a potential violation of the young person’s human rights.⁹⁶

5. The age of criminal responsibility: conclusion

It is clear that research has indicated that children between the ages of

10 to 13 are not sufficiently mature to be criminally accountable. However, the real world demands that individuals be taught accountability. Hence the enforcement of an age of criminal

⁹² International Covenant on Civil and Political Rights, art 14.

⁹³ T v UK, above n 74.

⁹⁴ Gail Hubble (2000) “Juvenile Defendents: Taking the Human Rights of

Children Seriously” 25 Alternative Law Journal 116 at 116–120.

⁹⁵ T v UK, above n 74.

⁹⁶ Hubble, above n 94.

responsibility, however arbitrary, is essential. With this in mind, setting the minimum age of criminal responsibility for all offences, including homicide offences, at 12 years seems to be the best option. This aligns New Zealand with its international and national obligations, as well as New Zealand’s age of consent. Further to this, taking into account the literature on the adjudicative competence of children, this article now argues that in New Zealand, the adult court is an unsuitable arena for child offenders to “engage in meaningful dialogue with the rest of society to explain and account for the wrongful conduct”.⁹⁷

C. The Second Issue: The Process of Prosecuting Children for

Homicide Offences

1. The process: statutory exclusion

As discussed, the process for prosecuting children aged between 10 and

13 for homicide offences in New Zealand begins in the Youth Court where their preliminary hearing takes place. However, legislation ⁹⁸ provides that the child be immediately transferred to the High Court for the substantial criminal trial. This immediate transfer from the jurisdiction of the Youth Court to that of the High Court is whatthis article will refer to as a “statutory exclusion”.⁹⁹ A statutory exclusion provision is one of the three main ways the law can remove a young offender from a youth court into an adult criminal court. The two other ways this transfer can happen is via judicial waiver provisions¹⁰⁰ or prosecutorial waiver provisions.¹⁰¹ New Zealand’s statutory exclusion

⁹⁷ Gerry Maher (2005) “Age and Criminal Responsibility” 2 Ohio State

Journal of Criminal Law 493 at 507.

⁹⁸ CYPF Act 1989, ss 272, 274.

⁹⁹ It is also known as a “legislative waiver” or “automatic transfer”. See Joseph B. Sanborn Jr. (1994) “Certification to Criminal Court: The Important Policy Questions of How, When, and Why” 40 Crime and Delinq 262 at 264.

^{100 Will be discussed in greater detail in Part C(6) of this article.}

¹⁰¹ It is also known as “concurrent jurisdiction” between the youth and criminal courts over certain offences. In these cases, the prosecutor is given discretion to determine which cases should be transferred to the adult court from a youth court. See Barry Feld (1978) “Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions” 62 Minn L Rev 515 at 557–561.

provision for homicide offences is not unusual and many jurisdictions have similar provisions that automatically transfer children into adult courts for specific crimes ¹⁰² or for persistent offending. ¹⁰³ While legislation in other jurisdictions may also call for a transfer based on the nature of the offence (severity or heinousness), some additional or alternative factors may be the perceived dangerousness of the offender, the desire to protect the community, the potential for the offender to be successfully rehabilitated or subjective factors like one’s pattern of living.¹⁰⁴

Advocates for statutory exclusion provisions highlight that one of its strengths is in its non-discretionary and objective nature, allowing it to ensure accountability and be easily administered. ¹⁰⁵ The complete reliance on legal criteria set out in statute is said to prevent prejudicial or arbitrary decisions from being made, while facilitating rational ones.¹⁰⁶

2. Why have statutory exclusion for homicide offences?

Criminal prosecution is but one method of dealing with the transgressions of children. It is normally called upon only when the act is sufficiently serious or repetitive that non-criminal responses are deemed inadequate.¹⁰⁷ As discussed earlier, murder and manslaughter are distinguished from other crimes in that they are the most serious offences one can commit. In New Zealand, this is reflected in the classification of murder and manslaughter as purely indictable offences requiring intervention from the criminal justice system and necessitating offenders to be held accountable for their actions in the High Court,¹⁰⁸ regardless of the offender’s age.¹⁰⁹ They are seen to be beyond the

¹⁰² Usually for violent crimes to the person such as murder, manslaughter, aggravated robbery and rape.

¹⁰³ Examples of countries are Australia, the United Kingdom and Louisiana, United States.

^{104 Kent v United States [1966] USSC 50; (1966) 383 US 541, at 566–577.}

¹⁰⁵ Simon Singer “The Automatic Waiver of Juveniles and Substantive Justice” (1993)39 Crim & Delinq 253, at 253–255.

¹⁰⁶ At 259.

¹⁰⁷ Urbas, above n 70, at 1.

¹⁰⁸ “New Zealand Government Response”, above n 19, at 26.

¹⁰⁹ Except where the doctrine of doli incapax applies.

purview of the Youth Court and the Youth Court does not believe it has the necessary tools to deal with the offending.¹¹⁰

Insofar as serious and heinous crimes are concerned, it is not unusual for society to demand retribution rather than rehabilitation.¹¹¹ At the heart of this concept of retribution is the “just deserts” principle: the idea of punishment as condemnation and blameworthiness.¹¹² As stated by von Hirsch, punishing a person “conveys in dramatic fashion that his conduct was wrong and that he is blameworthy for having committed it.”¹¹³ That is, proportioning punishment to the gravity of an offence shows the connection between the act and its blameworthiness. ¹¹⁴ As murder is the most serious crime one can commit, it follows that it merits the harshest punishments— those that only a court higher than the New Zealand Youth Court is able to give.¹¹⁵ The statutory exclusion scheme “brings children into an arena where there exists a great potential for them to be given harsher punishment, without inquiry into any circumstances,”¹¹⁶ fitting into the retributive aims of society. Thus, along with the knowledge that the High Court has the ability to hand out harsher punishments, there is also the overall expectation that it will.

¹¹⁰ Kuper, above n 34, at 15.

¹¹¹ F Thomas Schornhorst “Waiver of Juvenile Court Jurisdiction” (1968) 43

Ind LJ 583 at 597.

¹¹² Andrew von Hirsch Doing Justice—The Choice of Punishments (Hill and Wang, New York, 1976) at 48.

^{113 At 174.}

¹¹⁴ At 66.

¹¹⁵ In adult courts, there is the possibility of life imprisonment for manslaughter and the presumption of life imprisonment for murder. The presumption of life imprisonment for murder can be rebutted if the sentence is found to be “manifestly unjust”. See Sentencing Act 2002, ss

^{177 and 102, respectively.}

¹¹⁶ David Matza Delinquency and Drift (Wiley, New York, 1964).

3. Implications of transfer provisions

However, studies indicate that instead of reducing crime rates, harsher punishment actually exacerbates the problem. ¹¹⁷ Boot camps and corrective training programmes are examples of “get tough interventions” that are ineffective. ¹¹⁸ With regard to boot camps, Principal Youth Court Judge Becroft has been famously quoted saying “it made them healthier, fitter, faster, but they were still burglars, just harder to catch”.¹¹⁹ In relation to imprisonment, due to their reduced developmental and psychological maturity, children are more susceptible to threatening and provocative behaviour. Furthermore, as their identity is still developing, children are more likely to act to their detriment to gain peer approval or avoid rejection. Also, children are more likely to learn criminal behaviour from other inmates, leading to both a higher risk of reoffending and higher rates of recidivism when released.¹²⁰

Although harsh punishment does not deter offending, appropriate rehabilitative assistance can.¹²¹ As children’s behaviour is a form of communication, effective strategies for reducing offending necessitates addressing the drivers of such behaviour – the root of the offending. However, because retribution, deterrence and public safety are the main goals of adult courts, rehabilitation is often relegated to a place of secondary focus.

¹¹⁷ Andrew Becroft. “Alternative Approaches to Sentencing” (CMJA Triennial

Conference, Toronto, Canada, 2006).

¹¹⁸ Andrew Becroft “How to Turn a Child Offender Into An Adult Criminal—In 10 Easy Steps” (Children and the Law International Conference, Tuscany, Italy, 2009) at 27–31.

¹¹⁹ Emily Watt “Judge puts boot into boot camps” The Dominion Post (New

Zealand, 2 March 2000).

¹²⁰ Becroft “Alternative Approaches to Sentencing”, above n 117.

¹²¹ Becroft “Putting Youth Justice Under the Microscope”, above n 45, at 44–

47.

4. Recommendations

(a) Transfer provisions should not exist for homicide offences

No longer deemed a vulnerable and salvageable “child”, the juvenile tried as an adult is written off for rehabilitation. Instead, the criminal justice system mechanically metes out punishment for the crime in full measure, commensurate with the full moral responsibility of the “adult”.

Janet E. Ainsworth, Youth Justice in a Unified Court¹²²

Regardless of the method of transfer, once transferred, the child is held to the same standard as an adult, making it the most crucial stage of the proceedings. In essence, the transfer is a “determination that the child is beyond the rehabilitative philosophy of the juvenile court”, and the process where the child is “abandoned as incorrigible”.¹²³ Barry Feld explains that:¹²⁴

exclusion on the basis of [offences] represents a legislative repudiation of the courts’ philosophical premise that it can aid those appearing before it by denying the courts the opportunity to try, without even an inquiry into the characteristics of the offending youth.

Indeed, transfer provisions represent society’s decision that a child no longer merits the “consideration, regard, and special protection” otherwise provided for children.¹²⁵

Another reason for its abolition is that transfer provisions eliminate the “last opportunity a youth is afforded to receive effective treatment and possibly accept society’s standards in the hopes of eventually becoming

¹²² Janet Ainsworth “Youth Justice in a Unified Court: Response to Critics of

Juvenile Court Abolition” (1995) 36 BCL Rev 927at 947.

¹²³ F Thomas Schornhorst (1968) “The Waiver of Juvenile Court Jurisdiction: Kent Revisited” 43 Ind LJ 583 at 586, quoting Watkins v Unites States (1964)

[1964] USCADC 413; 343 F2d 278 at 282.

¹²⁴ See Barry Feld “The Juvenile Court Meets the Principles of the Offense: Legislative Changes in Juvenile Waiver Statutes” (1987) 78 Journal of Criminal Law and Criminology 471 at 520 [“Legislative Changes”].

^{125 Franklin Zimring The Changing Legal World of Adolescence (The Free Press,}

New York, 1982) at 195.

a productive citizen.”¹²⁶ However, due to the politicised nature of youth crime,¹²⁷ it is unlikely that this is a cause of concern for most people, people who desire to see retributive justice be done. Hence the fact that transfer provisions may not serve the function of retributive punishment may be of interest.

In the case of Bailey Junior Kurariki, although known as New Zealand’s youngest “killer”, he was found guilty of manslaughter because he was party to the offence, not because he actually delivered the fatal blow that killed Choy.¹²⁸ His role was to be a decoy for the delivery and to give the signal to an older boy to deliver the blow. With New Zealand’s party liability provisions in the criminal law,¹²⁹ one can be held to be party to and guilty of an offence if he or she simply aids, abets, incites, counsels or procures the primary person to commit the offence. Furthermore, s 66(2) sets out that:¹³⁰

Where 2 or more persons form a common intention to prosecute any unlawful purpose ... each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Had Michael Choy not died, the offence would have been classified as the lessor offence of aggravated robbery—the “unlawful purpose” that was the common intention of the group. However, due to the Court’s finding that homicide was a “probable consequence” of the intended aggravated robbery, Kurariki was held to be guilty of manslaughter. This arguably holds offenders accountable over and above their actions.¹³¹

¹²⁶ Polen “Death Row”, above n 7, at 501.

¹²⁷ Kuper, above n 34, at 20.

¹²⁸ R v Rapira, above n 14.

¹²⁹ Crimes Act 1961, s 66.

¹³⁰ Section 66(2) (emphasis added).

¹³¹ Joseph Yeckel “Violent Juvenile Offenders: Rethinking Federal

Intervention in Juvenile Justice” (1997) 51 Wash U J Urb & Contemp L

331. Hector Linares and Derwyn Bunton “An Open Door to the Criminal Courts: Analyzing the Evolution of Louisiana’s System for Juvenile Waiver” (2010) 71 La L Rev 191.

Moreover, as studies indicate, harsh punishment does not work. In New Zealand, most child offenders are placed in one of four units attached to prisons, which also house older offenders between 17 to 20 years old. ¹³² This is dangerous in that while adults adapt to their surroundings, the nature of children see them being “adopted” by it.¹³³

These children are likely to learn the criminal ways of the prison culture and continue to use these norms upon release,¹³⁴ leading to higher rates of reoffending and crime. This shows that the purpose of public safety and deterrence is not met either.¹³⁵

Another compelling reason why transfer provisions should not be used is that the New Zealand Youth Court is well equipped to deal with child offending. The New Zealand youth justice system and its main provision, the CYPF Act, is admired internationally and has been described with phrases such as “world renowned” ¹³⁶ and a “new paradigm”.¹³⁷ Its two key objectives act to ensure that child offenders are held accountable for their crimes while dealt with “in a way that acknowledges their needs” and give them “the opportunity to develop in responsible, beneficial, and socially acceptable ways”.¹³⁸

Expounding on this, the “need” principle is an example of the welfare model that underlies most youth justice systems. Such an approach has its origins in the positivist philosophy of criminology, which supposes that young offenders commit crime due to factors beyond their

¹³² Only the six “most vulnerable” are housed in a Youth Justice Residence.

Becroft “Alternative Approaches to Sentencing”, above n 117.

¹³³ Barry Clark and Thomas O’Reilly-Fleming. Youth injustice: Canadian perspectives (Canadian Scholars Press Inc., Toronto, 1993) quoted in Becroft “Putting Youth Justice Under the Microscope”, above n 45, at 51.

¹³⁴ Becroft “Putting Youth Justice Under the Microscope”, above n 45, at 51.

¹³⁵ Linares and Bunton, above n 131.

¹³⁶ Principal Youth Court Judge Andrew J. Becroft “Youth Justice Family Group Conferences: A Quick ‘Nip and Tuck’ or Transplant Surgery – What would the Doctor order in 2006” (Paper presented at the International Conference on the Family Group Conference—Coming Home, Te Hokinga Mai, Wellington, New Zealand, 2006).

^{137 Allison Morris and Gabrielle Maxwell (1993) “Juvenile Justice in New}

Zealand: A New Paradigm” 26 Australian and New Zealand Journal of

Criminology at 81.

¹³⁸ CYPF Act 1989, s 4(f)(ii).

control.¹³⁹ Thus this care-focused approach looks to the root causes of the child’s offending and what assistance the child requires to cope with their personal problems and stop offending.¹⁴⁰ The welfare approach places importance on the rehabilitation and protection of offenders, while discouraging punitive custodial measures such as imprisonment. The New Zealand Youth Court views imprisonment as the very last resort and urges against criminalising young offenders.¹⁴¹ Due to the Youth Courts’ utilisation of methods such as diversion and supervision orders, imprisonment rates have decreased significantly.¹⁴² Keeping in mind the detrimental effects of imprisonment on young people, this is positive news.

The other aspect of the youth justice system encourages young people to accept responsibility for their criminal actions. This is an example of the justice approach at work. The justice approach operates on retributive principles and necessitates punishment fitting the crime.¹⁴³

As such, criticisms that the youth justice system does not hold children accountable and thus transfer provisions to ensure the adult court does are unfounded. More importantly, the justice element balances the right of society to be protected from criminal conduct and the right of individuals to just treatment under law,¹⁴⁴ hence due process rights are emphasised.

¹³⁹ Nicholas C Bala Juvenile Justice Systems: An International Comparison of Problems and Solutions (Thompson Educational Publishing, Toronto, 2002) [“Juvenile Justice Systems”] at 6.

¹⁴⁰ Nessa Lynch “The Rights of the Young Person in the New Zealand Youth

Justice Family Group Conference” (PhD Thesis, University of Otago,

2008) at 15.

¹⁴¹ CYPF Act 1989, ss 208(d), 208(f).

¹⁴² Gabrielle Maxwell, Jeremy Robertson and Venecia Kingi “Achieving the Diversion and Demarcation of Young Offenders” (2002) 19 Journal of Social Policy 76.

¹⁴³ Bala “Juvenile Justice Systems”, above n 139, at 6.

¹⁴⁴ Raymond Arthur Young Offenders and the Law (Taylor & Francis, Hoboken,

2010) at 43.

5. When is a transfer necessary?

However, when a child offender is unlikely to benefit from the rehabilitative values of the youth justice system, ¹⁴⁵ or in “most exceptional cases and in the gravest matters of public policy” and public safety,¹⁴⁶ it may be necessary to remove a child from the Youth Court jurisdiction. Other such cases would be when the maximum penalty the Youth Court could possibly impose is still insufficient to hold the offender accountable for his or her actions. These situations will be rare, but retaining a flexibility to deal with such cases as and when they occur is vital.

However, the criticisms of New Zealand’s statutory exclusion scheme do not make it the transfer provision of choice. The “one size fits all” approach is too mechanical ¹⁴⁷ and does not afford the flexibility required to deal with the circumstances of offending. The scheme assumes that if a child offender fits the profile by committing a homicide offence, he or she is immediately beyond the reach of rehabilitation in the youth justice system.¹⁴⁸ Another criticism is that the only criterion looked at before a transfer occurs is the nature of the offence. However, evidence on the development of delinquent careers suggests that many young persons are involved in both petty and serious crimes at the same time.¹⁴⁹ Thus, the gravity of a first offence is not as telling as to the child’s character and likelihood of reoffending as one may have thought. Instead, the amount of offences a youth has committed is a more reliable indicator. ¹⁵⁰ Therefore, an offender’s cumulative record should be looked at too, and not merely the nature of the offence.

¹⁴⁵ This is usually inferred from serious and persistent conduct.

¹⁴⁶ Gerry Maher “Age and Criminal Responsibility” (2005) 2 Ohio State

Journal of Criminal Law 493 at 497.

¹⁴⁷ Barry Feld “Justice by Geography: Urban, Suburban, and Rural Variations in Juvenile Justice Administration” (1988) 82 J Crim L & Criminology 156 at 3.

¹⁴⁸ Francis McCarthy “The Serious Offender and Juvenile Court Reform: The Case for Prosecutorial Waiver of Juvenile Court Jurisdiction” (1994) 38 St Louis U LJ 655 at 654.

^{149 Marvin E. Wolfgang, Robert M. Figlio and Thornsten Sellin Delinquency in a}

Birth Cohort (University of Chicago Press, Chicago,1972).

¹⁵⁰ Feld “Legislative Changes”, above n 124.

6. Judicial waiver

(a) What is it?

The judicial waiver scheme is predicted on the principle of individualised justice, ¹⁵¹ in which the youth court judge has the discretion to determine whether a child ought to be tried in an adult court or remain in the youth court. This is done by gaining a thorough understanding of the offender’s character and needs.¹⁵² However, it is the discretionary nature of this individualized screening element that has been the cause of concern by some legal commentators and academics.¹⁵³

Despite its perceived shortcomings, this article contends that the judicial waiver scheme is the best method for handling child offenders preparing for a hearing on a homicide offence. Like the statutory exclusion scheme, the judicial waiver scheme does take into account the seriousness of the crime. However, that is but one factor for consideration. It also ensures factors other than the nature of the offence will be considered,¹⁵⁴ thus assuring that the procedural and constitutional rights of children are addressed. One such factor that can be looked at is the cumulative seriousness of all offences, which also happens to be a better predictor of recidivism.¹⁵⁵

(b) Sufficient competency provisions

The concerns about wide judicial discretion can be overcome by legislating sufficient competency provisions, like those already used

¹⁵¹ Kelly Elsea “The Juvenile Crime Debate: Rehabilitation, Punishment, or

Prevention” (1995) 5 Kan JL & Pub Poly 135.

¹⁵² David Matza Delinquency and Drift. (Wiley, New York, 1964) at [114-115].

¹⁵³ Kathleen Strottman “Creating a Downward Spiral: Transfer Statutes and

Rebuttable Presumptions as Answers to Juvenile Delinquency” (1998) 19

Whittier L Rev 707; Robert Acton “Gubernatorial Initiatives and Rhetoric of Juvenile Justice Reform” (1996) 5 JL & Poly 277.

^{154 Catherine Guttman “Listen to the Children: The Decision to Transfer}

Juveniles to Adult Court” (1995) 30 Harv CRCL L Rev 507, at 523, 526.

¹⁵⁵ Richard Redding “Juveniles Transferred to Criminal Court: Legal Reform

Proposals Based on Social Science Research” (1997) Utah L Rev 709, at

733.

when transferring youth offenders for non-homicide offences. The New Zealand youth justice process allows youth offenders to be transferred to adult criminal courts at 15 years of age ¹⁵⁶ in limited circumstances. The judge will then look to the factors set out in s

^{284(1) of the CYPF Act157 to determine if the transfer should be made.}

In Police v WMT¹⁵⁸, Judge Watson of the Youth Court took into account the criteria in s 284(1) as well as factors in Police v James. ¹⁵⁹ Of particular relevance was the violent nature and history of offending and the lack of victim empathy. However, after weighing up the rehabilitative options available from the Youth Court and WMT’s age (15 years old), Watson J did not employ the transfer provision but gave WMT sentences of supervision instead. He noted that in the long term, the rehabilitative options would produce a more positive outcome for the community.

7. Reverse waiver

In the event that there is reluctance to abolish New Zealand’s statutory exclusion provision for homicide offences in favour of a judicial waiver, there should be an addition of a reverse waiver.¹⁶⁰ This would safeguard against arbitrary and unfair transfers where the circumstances surrounding the offending or the potential to benefit from the youth justice system ought to warrant an appeal.¹⁶¹ The reverse waiver may even prove effective as a form of “judicial review” with the introduction of a judicial waiver.¹⁶² It is noted, though, that reverse waivers are generally less desirable in conjunction with judicial waivers due to the burden it places on the limited resources of courts.”¹⁶³

¹⁵⁶ CYPF Act 1989, s 283(o).

¹⁵⁷ See CYPF Act 1989, ss 284(1)(a) to (i) for the list of factors.

¹⁵⁸ Police v WMT YC Hastings, CRI 2005-220-53; CRI 2006- 220-7; CRI 2006-

220-60; 28 July 2006.

¹⁵⁹ Police v James (A Young Person) [1991] 8 FRNZ.

¹⁶⁰ David Tanenhaus and Steven Drizin “Owing to the Extreme Youth of the Accused: The Changing Legal Response to Juvenile Homicide” (2002) 92 J Crim L & Criminology 64

¹⁶¹ For example, in cases of first-time offenders or non-violent accomplices.

¹⁶² McCarthy, above n 154, at 668.

¹⁶³ Tanenhaus and Drizin, above n 163, at 694.

8. Limited imprisonment: 31st birthday provision

The effect of judicial waivers in Louisiana is mitigated by a special sentencing rule that does not allow young persons who were transferred at 14 years of to receive a sentence of imprisonment past their 31st birthday, regardless of their offence.¹⁶⁴This article contends that New Zealand should adopt a similar provision, especially if the age of criminal prosecution remains as low as 10 years. While children can still be incarcerated in the High Court via transfer provisions, or possibly in the Youth Court in the future, such a provision essentially puts a limit on the sentence of imprisonment a child can serve. This aligns with the key CYPF Act and youth justice principles of addressing “need” and the “deed”.¹⁶⁵ The child is still punished proportionate to the crime, but this punishment is adapted to take into account the age of the child at the time of offending. It recognises the lack of maturity of children and thus limited culpability, as well as leaves room for the offender to outgrow his offending in time. It would be hoped that rehabilitative efforts would be invested in child offenders to counteract negative influences of prison life, and hence to prevent them from becoming “persisters”.

Furthermore, just as the age of criminal responsibility is in itself arbitrary, so is the age of 31. As such, this article does not advocate that New Zealand necessarily adopt that specific age. However, as long as a fair and reasonable age can be arrived at which both ensures that the child offender “does his time” and yet has years left to contribute meaningfully back to society, such a provision should be implemented.

Conclusion

This article has argued that children are treated as incapable to face the full blow of the law in every other way and so they should too with regard to homicide offences. It is to be noted that there have been previous efforts made to raise the minimum age of criminal

¹⁶⁴ La Child Code Ann, Art 857(B) (Supp 2010).

¹⁶⁵ Andrew Becroft “Youth Justice—The New Zealand Experience Past Lessons and Future Challenges”. (Paper presented at the Australian Institute of Criminology/NSW Department of Juvenile Justice Conference, Sydney, 2003) at 10.

responsibility to 12. This occurred in this form of the Crimes Bill 1989, that aimed to replace the “anachronistic two-tier approach” with a “blanket age of criminal responsibility” at 12 years. This meant that a child could not be responsible if they were under 12 years of age and after that age, no special rules for children applied.¹⁶⁶ This is similar to, but different from what this article proposed—which would be to have no criminal liability of children under 12 years of age, but to allow the care and protection and the youth justice provisions in the CYPF Act to remain in force with regard to children older than 12 years. That being said, the Crimes Bill 1989 did not take off. Conversely, the recent CYPF Amendment Act, which increased the circumstances (other than homicide offences) where a child between the ages of 12 and 13 can be prosecuted in the criminal justice system, was put into force in 2010.

In the same year, the New Zealand Government responded to the UN Committee’s ¹⁶⁷ recommendation to increase the age of criminal responsibility:¹⁶⁸

New Zealand has no plans to raise the minimum age for prosecution of murder and manslaughter offences from 10. New Zealand recognises murder and manslaughter offences as being in a special category that require the offender to be held accountable for their actions in the High Court.

On these facts, as well as with the knowledge of New Zealand’s “tough on crime” stance, it appears unlikely that the age of criminal responsibility in New Zealand will be increased to 12 years, to bring it in line with international and national covenants and the age of consent. However, there may be hope that New Zealand may abolish its transfer provisions for homicide offences ¹⁶⁹ and make full use of its

¹⁶⁶ (2 May 1989) NZPD at http://www.vdig.net/hansard/content.jsp?id=10425.

¹⁶⁷ UNCROC.

¹⁶⁸ New Zealand Government Response, above n 19, at 26.

¹⁶⁹ Discussing the CYPF Act 1989 s 283(o) is not within the scope of my paper, but the face of things, it is not as imperative that the CYPF Act 1989 s 283(o) transfer provision be abolished with regard to other offences as they will carry lesser sentences than the possibility or presumption of life imprisonment for manslaughter or murder. Furthermore, it may be

internationally renowned youth justice system. If not, perhaps New Zealand will instead replace its statutory exclusion provision with a judicial waiver (with sufficient competency provisions), or consider adding a reverse waiver or limited imprisonment provision.

As stated, homicide cases involving child offenders are far and few between. Surely then, the justice done by taking the time to judge each case on its individual merits, recognising that the child will once again be part of society, would outweigh the costs. So New Zealand has a choice to make. Will it allow its criminal policies to be characterised as static and unchanging? Or will it forge its own pathway ahead? At the end of the day, only time will tell.

desirable to keep it in place as it provides accountability, flexibility and individualised screening.