Impact of NSW Youth Koori Court on Sentencing and Re-offending

To borrow the words of the Westerman Jilya institute for Indigenous mental health today:

‘The ‘system’ has been built by non-Indigenous people, to meet the requirements of non-Indigenous people, and is delivered to Indigenous people by, frequently, non Indigenous people’.

This quote struck out at me today largely cause of my reflections today of the evaluation into the Youth Koori Courts, there is a plethora of evidence locally and abroad of the success of programs and services when community can lead or determine solutions. In fact, our Youth Justice Conferencing diversion pathway under the Young Offenders Act was piloted in 1996 off the back of the success of community led conferencing pathways in New Zealand in reducing reoffending in young people.

Working within juvenile justice centres with young people imprisoned often for crimes of poverty, most of which were experiencing complex trauma and needs that were only further exacerbated by incarceration. One night, i worked with a young girl from Tweed Heads who breached her bail for stealing a can of V and a mars bar from a 7-11, she was transported all the way to Sydney where she waited on remand, for a total of what would have been worth $5.

Strategies for keeping young Aboriginal people out of remand and sentenced custody are an urgent policy priority. Approximately 40% of all young people in youth detention centres in NSW are Aboriginal, even though they represent just 5.3% of the youth population in this State (NSW Bureau of Crime Statistics and Research, 2020).

The Youth Koori Court (YKC) was established in response to the concerning over-representation of Aboriginal young people in the criminal justice system. The YKC is an alternative case management process for Aboriginal and Torres Strait Islander young people charged with a criminal offence.

The YKC was established in Parramatta and Surrey Hills in 2015 and 2019 respectively, providing an alternative to the standard court system for eligible young people charged with a criminal offence. The main objectives of the YKC involve:

• Increase the confidence of Aboriginal and Torres Strait Islander community, including Aboriginal and Torres Strait Islander young peoples’, in the criminal justice system

• Reduce the risk factors related to the re-offending of Aboriginal and Torres Strait Islander young people

• Reduce the rate of non-appearances by young Aboriginal and Torres Strait Islander offenders in the court process

• Reduce the rate of breaches of bail by Aboriginal and Torres Strait Islander young people; and

• Increase compliance with court orders by Aboriginal and Torres Strait Islander young people.

The NSW Bureau of Crime Statistics and Research (BOCSAR) conducted a study in April 2022 comparing 151 YKC participants with 2,883 Aboriginal young people who had criminal matters finalised in the Children’s Court. The aim of this study was to measure the impact of the establishment of the YKC on Aboriginal youth sentencing and re-offending outcomes.

The evaluation found that Youth Koori Court participants were 40% less likely to receive a custodial sentence at their court finalisation relative to Aboriginal young people who were sentenced through the regular pathway.

While the evaluation found no statistically significant reduction in reoffending, Youth Koori Court participants who did reoffend were 84% less likely to receive a custodial penalty at re-conviction.

The YKC differs from the standard Children’s Court process in a few important ways:

• Sentencing is deferred for up to 12 months after the young person has indicated that they are willing to plead guilty or had the offence proven after hearing;

• An Action and Support plan is developed and implemented to address the young person’s underlying risk factors for offending, which is supported by a caseworker and nominated Aboriginal and Torres Strait Islander Elders or Respected Persons

• Participation in the Youth Koori Court process is taken into account by the court when sentencing the young person for their index offence.

As described in the BOSCAR report, the Action and Support plan is a relatively collaborative process and begins with all participants coming together to understand the factors leading to the young person’s offending. Then participants, in consultation with the young person, identify suitable programs to reduce their risk of further offending.

If the case management plan is approved, the young person will also participate in programs to address the underlying factors contributing to their offending behaviour, to reinforce cultural connections and knowledge, and to assist the young person in obtaining employment or further education, accommodation, health or other social services.

An insight into a YKC courtroom and process, as described by Williams et al (2018) in their review of the YKC pilot, describe the arrangement as:

“participants are seated around an oval table and paintings by Aboriginal young people in custody are displayed. They describe the interactions as “...informal, participants speak in plain English not “legalese”, everyone gets a chance to have their say and there is a minimum of hierarchy… and that, “overall, the hearings were conducted in a respectful manner that took advantage of the team gathered around the table, provided affirmation to the young person and focused on the key issues facing the young person”

Despite the emerging evidence of success, the YKC solely relies on referral from NSW children’s courts. NSW/ACT Aboriginal Legal Service chief executive Karly Warner writes that Koori Court deserves a wider rollout (Cross, 2022).

“Decades and decades of evidence have proven that locking children up doesn’t work – it causes trauma and only makes young people more likely to return to jail in the future,” she said.

“Now we have evidence showing that this alternative approach, the Youth Koori Court, keeps more Aboriginal kids out of jail without any adverse effect on re-offending rates.”

A major benefit of the YKC model beyond regular CC proceedings is that the magistrate has access to substantially more information about the young person, in particular the risk factors contributing to their contact with the youth justice system and their progress towards rehabilitation at the point of sentencing.

This provides the young person with the opportunity to demonstrate their commitment to behavioural change and their willingness to build connections with their culture and community. (Ooi & Rahman, 2022).

These results of the recent BOSCAR report reinforce the significane of centreing young people, Cuture and social and emotional wellbeing and paves the way to better outcomes through alternative case management processes for Aboriginal young people, particularly for reducing the over representation of Aboriginal young people in the criminal justice system.

Ooi, E., Rahman, S. (2022) “The impact of the NSW Youth Koori Court on sentencing and re-offending outcomes” NSW Bureau of Crime and Statistic Research

Cross, J. (2022) “Koori court drastically reduces incarceration rates for NSW youth” National Indigenous Times