A past and a future: Therapeutic justice for youth offenders

Tony Fitzgerald aims to change young lives by staying on the case. Photo / Brett Phibbs

They are teenagers on a path to prison, criminals who had a miserable childhood. But they've been thrown a lifeline, a chance to make a change. The Weekend Herald had unprecedented access to a high risk judicial programme.

The boy in courtroom 15 is clean and tidy and has a spring in his step. He's a bit cheeky and a bit jaunty and can be quite the chatterbox these days.

He walks to the witness box and takes his seat near the judge, head held high.

"I'm okay, yourself your honour?," he says with a grin to Judge Tony Fitzgerald who has asked warmly how the lad is today.

Now, that's a bit unusual in Youth Court. But this is no ordinary Youth Court.

It wasn't that long ago, just 10 months or so, this thin, bruised boy was on his way to becoming a career criminal.

He had sores and scars, physical and mental. Actually, he'd looked so ill his worried youth advocate had called for a health assessment.

This was a kid who, back then, couldn't look the judge in the eye.

We can't identify him, or any of the others who appear in this special court, but like the others this boy has quite a rap sheet.

Those admitted here - only 10 at a time and mainly male, although the number of females is rising - meet sad and disturbing criteria.

They are young offenders predicted by forensic assessments and their criminal histories to have the potential to become among the country's worst offenders.

By the time they are 14, they have entrenched in their personalities a complicated mix of emotional and behavioural problems which have earned many of them the label "conduct disordered."

Crime and a lack of empathy for victims are often part of conduct disorder. Sustained abuse from a young age is often a contributing factor.

This boy's crimes, which have included driving offences, burglary, disorderly behaviour and resisting police, came to a tipping point when he and a mate, who was armed with a hammer, robbed a bus driver.

The boy could have easily gone to youth prison at 15, but instead he got lucky. He ended up here, in an Auckland Youth Court known as the Intensive Monitoring Group (IMG), under the watchful eye of Judge Fitzgerald and a group of professionals whose aim is to intervene at every turn in order to direct him away from the path he was taking.

This was his life - removed from his home at three after a shoot-out and raised by other family members who whacked him. He was a drunk at seven, a pot-head at 12. He was angry, a bully, a fire starter, a thief, he'd slash tyres for the hell of it.

Home, when he was there, was broken and violent; his gang-involved parents were drug and alcohol-addled.

He was lonely. At 12 he sought out a youth gang. To get in he had to walk the line; that's where everyone punches you as you go by.

He's been stabbed, seen someone shot. He's tried to kill himself, he's seen his mother being beaten up, he's been beaten up and he's beaten people up.

At home, drugs and alcohol still flow like honey. Handing him drugs is how his mum bonds with him.

Like most of the not-much-more-than-children who end up here, he was dragged up rather than raised.

The lives of these young offenders, says Judge Fitzgerald, have been crap.

His problem-solving court - one of only two such courts in New Zealand (the other is a youth drug court in Christchurch) - is modelled on specialist American courts dispensing what is called therapeutic justice.

The judge's aim is to give reparation and justice to victims and hold these young offenders to account, but also to intensively treat the underlying causes of why they behave so badly, before it's too late.

The Weekend Herald has been watching the young offenders come and go for much of the year. They trail in and depending on how far along the process they are, either hunker down in the witness box where they sit and mumble, or they sit up and look the judge in the eye.

They mostly wear a uniform of baggy track-suit bottoms or low-slung jeans, oversize T-shirts, oversize sports shoes.

They come from suburbs and streets associated with gangs, poverty, hard-out domestic violence, drink and drugs.

Over the months, they often become tidier. Straggly hair becomes short hair; heavily gelled spikes are cropped.

Do any of them look like they'd bash you if you passed them in the street, or sexually abuse a child, or pull out a weapon and rob you?

Actually, no, they just look like kids. Yet this is what some of them have done.

As you sit in this court, regularly, you find yourself hoping like hell they'll get a good report card for the past fortnight from the various courses they attend which teach work and life skills, or the residential programmes to which they are directed to sort out drug and alcohol issues, behavioural issues, mental health issues.

They stay part of the court until they have fulfilled all parts of an indepth plan and have shown enough positive progress, returning every fortnight to face either the wrath of the judge ... or the praise and encouragement of the judge.

The boy I'd seen was doing so well and can be quite a charmer. He'd raise an eyebrow and grin across the room. I really hoped he'd make it.

He seemed to understand why the Weekend Herald was there - to try to show why kids like him end up in the criminal justice system, and why it's in everyone's interests that they don't.

In their chaotic lives, the courtroom setting, with gray carpets and bland cream walls, is often the first place anyone has dealt with them with kindness, firmness and consistency.

Over the months, the boy talked to us and let us read his file, and outside court one day he told us about his life.

He'd be in jail if not for this court, he says. He has no doubt about that.

Even the non-family caregiver who took him under his wing thinks the crimes we know about are just the tip of a very violent iceberg.

The boy says he was raised to use his fists. He reckons he was kicked out of primary school on his first day for punching another boy who stole his banana.

He broke the boy's nose, he says.

He's "smashed" teachers, bitten them too.

He drank heavily and by 13 was hooked on weed.

He still boasts - "I can smoke an ounce in one day, my mum can smoke about two. I've done it all, heroin, crack."

The heroin only once, he says, then "try and inject ecstasy, see what that does to ya, makes ya flip, and I had to drive a car home that night, whoa, that was scary."

He remembers why he was taken away from home at three.

"Because they had SWAT vans at our house shooting at my biological father and all his dickie gangster mates so there was literally ... have you ever heard of that street where all the houses got knocked down cause they couldn't stop the crime? I grew up there."

He says he has strong morals - respect, honour, hustle, loyalty and love. This court has turned his life around, he says, and he smiles about the judge.

"He's cool. He's a cool fella, Judge Fitzgerald."

The boy's had a good day. In court the professionals and the judge praised him, telling him how well he's been doing, that they have confidence in him, that he can make it.

It's not that complicated, he says to me.

"All you gotta do is follow the rules, stick on track and don't stuff up. It's pretty easy cause after a while it does actually change your life."

He's completed his community work, attended his treatment programmes, cut right down on his drinking and drugs, held down part-time work and attended training.

He also holds the unusual distinction of receiving a letter of congratulations from one of his victims.

So when he falls, it's very sad. Right when he was doing so well, circumstances changed for him.

We can't tell you why but he went crazy in a stolen car and hit a pedestrian.

She might lose her leg, he told me dejectedly outside court.

Relapse, they call this. They expect it. Sometimes it's the best thing; it's the jolt needed to get kids back on track.

This was a big fall, though.

The boy struggles with what he's done.

You might think, so what, throw away the key. But the professionals say struggling with a conscience shows big progress in a kid so smacked around.

He told Kiri Brokenshire, a clinical social worker assigned to this court, that since the accident he's been having suicidal thoughts.

In court, she tells other professionals he wishes he had died rather than hurt someone.

This is another highly unusual aspect of this court. Professionals from a variety of agencies gather round a table in the courtroom before court officially begins and discuss the past fortnight's behaviour of the kids due to appear.

There are people from the youth forensics service, social workers, youth advocates (lawyers), police, perhaps someone from Youth Horizons (a residential programme for conduct disordered young people), Odyssey House (for drug and alcohol addictions) or the education or health departments.

It's rare to have so many agencies represented in one room. Like Judge Fitzgerald, who set the court up from within his existing budget, they get no special funding but juggle already tight budgets to come along.

The boy we have been following is not the only one to have fallen this past fortnight. Often the professionals will advise the judge to give praise, but today they think he should give them a serve.

When the boy appears for the first time after the accident his cheery grin is absent and he's pale.

Judge Fitzgerald still greets him kindly, but today tells him how disappointed he is. He hopes the boy understands the peril he is in and the importance of getting off the track he seems to have gotten back on, but delays any decision until a family group conference has been held.

This boy has been lucky. He's had someone willing to step in as caregiver, to give him opportunities, take him under his wing and give him a chance.

This man, who we can't name, but who has a high profile, told the Weekend Herald earlier in the process that demonstrating commitment is vital because these kids have never had that.

His mother loved him but puts him in constant danger, he said. His other caregivers said they loved him but "in fact they pop him on the head the whole time".

There were a lot of kids out there like him, he said, living in a layer of society people in Remuera don't understand even exists.

So when someone like his charge emerges and offends, they just want to punish. Though understandable, this won't fix the problem. Look at him now, he said. You should have seen him then: "scrawny, scarred, bruised, sick".

At court last week, the boy catches another break. He can stay on the IMG, but even he knows this is his final chance. At the family group conference after the accident, police said they'd had enough, but after many hours a plan is produced which will extend his stay with the court, unless he re-offends.

The boy told the conference that "if I screw up this time I deserve to go to jail". For the first time in years he broke down and cried and cried over what he had done to the pedestrian.

In court, he and Judge Fitzgerald have a long talk.

At one stage, the boy says he knows he has two options. He could have a family down the track and a job, or spend half his life in prison.

We asked the boy's youth advocate, lawyer and restorative justice advocate Jim Boyack, why he should get another chance.

Boyack replies: "Because he's worth saving. He's a charming and intelligent young man who is going to battle through the background that heavily weighs on him, and we're going to give him one more shot."

* * *

All sound a bit like the pampering of baby criminals?

Judge Fitzgerald says his court is actually quite the opposite.

In normal Youth Court, youths are sentenced and that's about it. This court is harder and goes on for much longer with many and intensive interventions.

If they behave, make progress with their treatment, improve their attitude, repay their victims and complete their community service, some of their charges will be erased. More serious charges will stay recorded in their files, but otherwise they get a clean start.

Judge Fitzgerald thinks the youths are worth this type of investment and this is why: 80 per cent of kids who offend are dealt with outside court - of the 20 per cent who do get to court, those the IMG deals with are in the top 1 or 2 per cent of repeat offending.

They are part of the small group who do the most damage. Their age group, from 14 to when they turn 17, is a brief window of opportunity before they are tried in the less friendly adult court. Send them to prison at this age and you cement their behaviour, the judge says.

Give them a chance, treat the underlying causes, and they may turn around, and that's got to be good for all of us, he says.

Because the court is about giving the youths a chance, but it is also about keeping recidivism down and thus communities safer.

Since the Weekend Herald began attending, there have been many ups and downs. Some of the youths have graduated and others no longer attend.

Take another boy, just 14. One morning at the professionals' meeting, discussion centres on an item on the news - the robbery of a dairy with a pistol for cigarettes and ice cream.

It turns out one of the IMG kids who was to appear today is missing from his residential centre.

The morning paper ran a photo with a hard-to-distinguish video image of the hold-up.

CYFS social worker Dave Brown says jeez, he looked twice at that photo and thought "oh no, that's (the boy's name)."

Others thought so too. They begin discussing the missing boy.

Claire Babbage, then from Youth Horizons and now with Odyssey House, says the youth hasn't been keeping to his conditions, that the situation at the home is at the point where they don't have the security to manage his risk.

Kiri Brokenshire reveals that in her therapy with the boy it has been becoming clear he is hypersensitive to disappointment.

He had badly wanted to go home for the weekend, but his mum went off somewhere else.

He's been let down all his life and cannot trust people, she says.

Judge Fitzgerald says that if the boy was involved in the robbery, his involvement in this court may have to end.

Eventually, the boy is caught. It was him in the photo, though he was not the one with the gun (which turned out to be a fake), and he is now in CYFS custody, with stringent orders in place.

Talking in the judge's office upstairs one day, before the aggravated robbery, the judge described the boy as one of the "hardest-looking little kids I've ever seen".

One time in court the boy had been his usual staunch self in responding to the judge's questions, but the judge later heard, to his surprise, he had gone outside and burst into tears.

As we wind up our time at the court, a new boy arrives, just turned 16.

His story is the most disturbing yet.

The judge has already told me this boy has been abused in every possible way, and is the type of case which gave rise to this court.

The boy enters the courtroom for his first time and walks, head down, to the witness box. He sits low in the chair, shoulders slumped. He can't look the judge in the eye.

We are granted access to his file.

He is clinically depressed and it's not surprising.

He has had multiple head injuries, has been sexually abused by family members, has witnessed and been a victim of physical abuse, has hurt animals and sometimes dreams about his own death and murdering people.

Apart from all the abuse in his life, another extremely worrying trait is that he loves lighting fires.

He set fire to a shop and stayed and watched until the sirens came.

It was his best work yet, he said in his forensic assessments, his "masterpiece".

At one stage, CYFS social worker Dave Brown turns around and mouths "he's gonna be a tough one."

But he and the others are already planning the in-depth intervention the boy will need to him safe and minimise the harm he poses to the community.

Is it all worth it?

Definitely, says Judge Fitzgerald. Research shows IMG youths are between two and three times less likely to re-offend than similar youths in the normal Youth Court.

"I suppose we'll never know just how many crimes we stopped happening by doing this," the judge says.

"But if some percentage of the young people who go through this don't go on to re-offend, given they have the potential to do that in pretty serious ways, then that's got to be a good thing."

THE FITZGERALD STYLE - JUSTICE WITH A DIFFERENCE

Classical music plays softly in an office in the Auckland District Court building.

Judge Tony Fitzgerald resides in the calm atmosphere here, when he is not downstairs presiding over unruly young people in the normal Youth Court - or the special court he has set up to try to help the most at-risk youngsters unravel their generally heinous upbringings and turn away from a life of crime and violence.

The judge is explaining that he does have the power to send some of the youngsters from this court, known as the IMG, or Intensive Monitoring Group, to the District Court from where they may be sent to jail.

Even if they went inside for a year or two, they would still be very young when they got out. By then though, they would probably be unreachable.

Some of the young people who meet the IMG criteria are the Nia Glassies and James Whakarurus who lived, he says. The public forgets that the little abused kid generally grows up, and sympathy for them often ceases when they grow into a disturbed youngster going off the rails.

"It's not surprising any of them are there because what they've grown up with has created this situation."

Judge Fitzgerald may seem kindly but his court is no pushover. The young people have to face up to what they have done and undergo much therapy and treatment. If they don't, they won't stay part of the court.

Of course, the judge says, he understands the very real, and justifiable, anger and upset that serious crime causes. "But if you respond to it by locking that troubled young person up for what might only be a year or two, they're out at 17 a much bigger potential problem than they were."

The stereotype of who ends up in his court is disturbingly accurate, he says. They're mostly male, though more girls are appearing, they're disproportionately Maori, with little knowledge of their cultural roots, they're usually not in school, usually without a father or father figure, usually substance affected and conduct disordered, and have been abused.

"That's the hard core who make up the bulk of the work."

Judge Fitzgerald was a youth advocate, a lawyer appointed by the Youth Court, so knows a bit about problem kids. He worked in New Plymouth as a District and Family Court judge, then became a Youth Court judge in Auckland five years ago.

He set the IMG court up after being inspired by the phenomena of "problem-solving courts"of America which began in the early 1990s.

These started out as drug courts for adults, but now there are a range of specialist courts, from mental health courts to pregnant girls' courts.

Part of their strength, he says, is the coming together of agencies to co-ordinate the services required and regularly review progress.

Often communities will identify an issue they think should get this type of approach.

The idea is therapeutic jurisprudence - where the court acts as an agent to provide therapy for people.

"I mean, you've got this captive audience I guess. You've got people who are coming into the court with a problem and there's an opportunity there to try to address that."

What's really important, he says, is that the court can lend its authority to try to ensure people comply with a course of treatment or a plan to address their problem.

"There's some continuity of involvement with the same judge, an authority figure showing an interest, following the process through, acknowledging gains no matter how small, responding to progress with encouragement and rewards, or to non-compliance with consequences."

America, Judge Fitzgerald says, has moved well past debating whether this approach works.

" The problem solving courts have just taken off."

DO THE CRIME...

The criminal records of 28 young people involved with the Intensive Monitoring Group show charges of : theft, receiving, burglary, drug offences, motor vehicle crimes, causing injury, assault, escaping custody, aggravated robbery, sexual assault, domestic assault, threatening to kill, intimidation, assault with a blunt instrument, assault with a knife, assault of police, possession of offensive weapons, wilful damage, arson, possession of syringes.

THE IMG (INTENSIVE MONITORING GROUP):

* Is a problem-solving youth court opened July, 2007
* It sits in Auckland every second Monday
* It is a joint project of the Auckland Central Youth Court, the regional youth forensic service, the police, Ministry of Education, Youth Horizon Trust and Odyssey House. A vital aspect is close co-operation between agencies. Consistency is a hallmark - same judge, same team every time.

PRISON ESCAPES - THE SUCCESSES

An interim report from the middle of last year found the risk of offending had reduced by 38 per cent for IMG attendees compared to 11 per cent for a control group of youths who met the same criteria but were in normal Youth Court.

A new figure at the end of last year found the offending risk was half that of the control group.

Says Judge Tony Fitzgerald: "The worst figure we've got so far is it's about twice as successful at reducing the risk of reoffending to adopt this sort of approach compared to the alternatives that are available."

One day in court, we watched as a 15-year-old boy quietly surprised everyone by graduating.

At one time this boy was described at the professionals' meeting as having "a raging conduct disorder".

After ups and downs, he had fulfilled all his community work hours and more, repaid victims and attended all the required courses and treatment.

On graduation day the judge said to the chuffed-looking kid how well he'd done and that his charges were now as if they'd never come to court.

"You can walk out of the room shortly with your head held high, you've got no mark against your name."

Another IMG boy - a young man now - is due to graduate shortly. This 19-year-old is a refugee. His crimes, against a young girl, involved serious sexual assault.

He was a controversial admission to this court but they took him on, in part because of his own seriously disturbed history.

He has been part of the court since it first began in July, 2007, and has been attending the Safe programme for adolescent sexual offenders, making steady progress.

It was revealed one day in court that he had given his DNA to the police, so confident was he that he would not reoffend.

There have been other successes too.

The judge says they had a "fantastic" result with the son of one of New Zealand's most notorious criminals, who had some of the traits of his father. Another graduate is now at university.