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Allan BorowskiEvaluation of the Children's Koori Court of Victoria

Indigenous Participation in Sentencing Young Offenders: Findings from an

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465THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGYVOLUME 43 NUMBER 3 2010 PP. 465484

Address for correspondence: Professor Allan Borowski, School of Social Work and Social Policy,La Trobe University, Bundoora, Victoria 3086, Australia. E-mail: [email protected]

Indigenous Participation in SentencingYoung Offenders: Findings From anEvaluation of the Childrens KooriCourt of VictoriaAllan BorowskiLa Trobe University, Australia

This article reports on some of the major findings of the evaluationof the Childrens Koori Court of Victoriathe first legislated effortto involve the Indigenous community in the sentencing of young peopleas a strategy of reducing their overrepresentation in the juvenile justicesystem. This court is presided over by a Magistrate sitting with two KooriElders or Respected Persons in what is solely a sentencing court. Theoutcome component of the evaluation focussed on the 62 Koori defen-dants who appeared before the court in the first two years of its opera-tion (2005-07) and who were tracked for between 6 and 30 months. Theevaluation found low rates of failure-to-appear and breaches of courtorders. Just under 60 per cent subsequently reappeared in a court andhad their charges proven. In most cases, however, the principal re-offencewas either less serious or no more serious than the one that hadbrought them before the Childrens Koori Court. This recidivism rate waswithin the realm of what was expected given the highly disadvantagedbackground of the defendants and their established offending histories.Significant reductions in Indigenous juvenile crime will require majorstructural change.

Keywords: Indigenous, children, crime, court, sentencing, Elders

It is almost two decades since the Royal Commission into Aboriginal Deaths inCustody highlighted the overrepresentation of Indigenous Australians in the crimi-nal justice system (Commonwealth of Australia, 1991). As a result of the RoyalCommission there has been a proliferation of strategies designed to reduce theoverrepresentation of Indigenous men and women in the criminal justice system.However, despite the investment of considerable resources, overrepresentationremains a significant problem (Snowball, 2008). This is especially so among thepopulation in detention. Thus, at 30 June 2007 and after adjusting for age differ-


ences, Indigenous people were 13 times more likely than non-Indigenous people tobe in detention. This overrepresentation, however, is not confined to Indigenousadults. Thus, Indigenous youth between 10 and 17 years of age were 28 times morelikely to be in detention than non-Indigenous youth. Further, between 2001 and2007 the number of Indigenous youth in detention increased by 65% while thenumber of non-Indigenous juveniles in detention increased by 1.3% (AustralianNational Council on Drugs [ANCD], 2009; Steering Committee for the Review ofGovernment Service Provision [SCRGSP], 2009; Willis, 2008). In Victoria,Indigenous youth are 16 times more likely to be in detention than non-Indigenousyouth a rate of overrepresentation that is higher than that of Indigenous adultsin that states criminal justice system (SCRGSP, 2009).

A large proportion of the offender population under supervision in the commu-nity is also Indigenous. Thus, of all young Australians who experienced some formof juvenile justice community supervision in 200607, over one-third (36%) wereIndigenous. While the proportion of Indigenous young people under some form ofjuvenile justice supervision in Victoria was, at 10.5%, the lowest in Australia, thisfigure was nevertheless grossly disproportionate relative to the number of youngIndigenous Victorians among that states population of young people (AustralianInstitute of Health and Welfare [AIHW], 2008, p. 32).

Efforts to reduce Indigenous overrepresentation and/or to improve criminaljustice agency responses to Indigenous people have included decriminalisation ofpublic drunkenness; laws requiring prisons to be used as a course of last resort; andan expansion in the range of alternatives to custody, such as realistic bail conditionsand the establishment of bail hostels (Cunneen & McDonald, 1996; Cunneen &White, 2007). Another important strategy has been to foster Indigenous participa-tion in sentencing procedures. Indeed, many of the Royal Commissions recommen-dations focused on increasing participation of Indigenous Australians as courtadvisors and/or court staff as a means, among other things, of restoring theIndigenous mechanisms of social control which have been expropriated throughthe processes of colonization and marginalization (Cunneen, 1997, p. 119).

The Indigenous community first became involved in courts in June 1999 in PortAdelaide, South Australia, with community members participating in sentencingurban adult Indigenous offenders in a Nunga Court. By 2004, Marchetti and Daly(2004) were able to identify 11 variably formalised Indigenous courts and sentenc-ing circles. Since then there have been further initiatives. For example, Aboriginalconferencing has been introduced in the Magistrates Court, supported by the YouthCourt, in the Port Lincoln area of South Australia and a Murri Court has beenestablished in Queenslands Magistrates and Childrens Courts. Today, Indigenoussentencing courts of some type operate in all Australian jurisdictions exceptTasmania (Fitzgerald, 2008). They are premised on the notion that Indigenousparticipation in sentencing will help reduce recidivism among those identifiedoffenders who appear before them and, in turn, Indigenous overrepresentation. Buta reduction in overrepresentation will only occur if these courts process a significantproportion of Indigenous offenders and are able to produce reductions in reoffend-ing. It must also be borne in mind that their scope for preventing offending in thefirst instance another strategy for reducing overrepresentation is limited.

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THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY


Previous Studies of Indigenous Participation in SentencingOnly a few of the efforts to foster Indigenous participation in sentencing have beenevaluated. One of the first was Mark Harriss (2005) evaluation of the Sheppartonand Broadmeadows Magistrates Koori Courts in Victoria. These courts for adultIndigenous offenders were established under the Magistrates Court (Koori Court) Actof 2002. Harris found, among other things, a marked reduction in recidivismbetween 2002 and 2004 the key to reducing overrepresentation. Specifically, hereported that the Shepparton Magistrates Koori Court had a recidivism rate ofapproximately 12.5% for the two years of the pilot program and the BroadmeadowsMagistrates Koori Court had a recidivism rate of approximately 15.5%, rates thatwere significantly below the general recidivism rate of 29.4%.

Harris study, however, has been criticised on methodological grounds. Forexample, Marchetti and Daly (2007) have criticised it for using inadequate follow-up periods and for counting court files rather than individual defendants, whileFitzgerald (2008) has criticised it on the grounds that it employed an inappropriatecomparison group.

In contrast to Harriss positive (albeit methodologically critiqued) findings,Fitzgerald (2008) reported that the circle sentencing method of sentencing adultAboriginal offenders in New South Wales had no discernible impact relative to thesentencing of a traditional court on reducing the frequency of offending, increasingthe time to the next proven offence or reducing the seriousness of any furtheroffending. And while Queenslands Murri Courts have been the subject of an inter-nal review (Parker & Pathe, 2006), it focused on stakeholders (many of whombelieved the Murri Courts to be successful) but did not address the issue of thecourts impact on recidivism.

The limited research completed to date suggests, as Marchetti and Daly (2007,p. 437) point out, that it is too early to tell whether Indigenous participation insentencing has had an impact on reducing recidivism and, in turn, rates of incarcer-ation. Additional evaluations are required. And yet, in the case of ChildrensIndigenous Courts, until recently, there was almost no scope for undertaking evalua-tions. There were two reasons for this. First, hearings were often conducted on an adhoc basis and upon the initiative of a local magistrate. Second, these courts werenot only unlegislated but they were also unprotocolled, that is, their designelements (target client group, staffing, resource requirements, standard operatingprocedures, etc.) and desired outcomes had not been spelt out. In this article wepresent some of the findings of the evaluation of the Childrens Koori Court (CKC)of Victoria the first evaluation of the first legislated effort in Australia to involvethe Indigenous community in the sentencing of young people. Other findingsappear in Borowski (in press).

The Childrens Koori Court (CKC) of VictoriaThe Children and Young Persons (Koori Court) Act was passed in 2004. While unlegis-lated and unprotocolled Childrens Murri Courts were also operating at the time inQueensland and, sporadically, in South Australia (at Port Augusta), the CKC wasthe first legislated Childrens Court of its type in Australia.

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The CKC began operating in October 2005 on a two-year pilot basis with theintention that an evaluation would be conducted during that period. However, ayear later Victorias Attorney-General announced that three new Koori Courtswould be established two in the adult jurisdiction of the Magistrates Court and athird in the Childrens Court jurisdiction at Mildura (Childrens Court of Victoria,2008, p. 11). The Mildura Childrens Koori Court was launched in late 2007.

The CKC ModelThe development of the CKC was overseen by a statewide reference group includ-ing representatives from the Victorian Aboriginal Legal Service (VALS), VictorianAboriginal Child Care Agency, the Childrens Court of Victoria, the VictorianAboriginal Justice Advisory Committee, Victoria Police, Victoria Legal Aid, theexisting Magistrates Koori Courts, the Juvenile Justice section of the Department ofHuman Services, the Indigenous Issues and Criminal Law Policy Units within theDepartment of Justice and the Regional Aboriginal Justice Advisory CommitteeNetwork. The CKC model, as developed by the reference group, was one which,among other things:1. emphasised the creation of an informal court atmosphere in order to reduce

perceptions of intimidation and cultural alienation often experienced by youngKoori defendants

2. allowed for greater participation by the Koori community in the sentencingprocess through the roles played in the court by Aboriginal Elders or RespectedPersons, the Childrens Koori Court Officer, and Koori offenders and their families

3. would be able to inform itself in any way it deemed fit. This would permit theKoori community to participate in the sentencing process in order to bothincrease the participation rate of the Koori community within the justice systemand provide for more effective decision-making than traditional judicialdecision-making (Byrne n.d.).

The CKC began sitting in late 2005 with CKC hearings held in Courtroom 7 of theMelbourne Childrens Court in Little Lonsdale Street, Melbourne.

Goals and Objectives of the Childrens Koori CourtThe CKC has both operational and community-building goals and objectives. Itsfirst major goal is to reduce the overrepresentation of Koori youth in Victoriasjuvenile justice system. In pursuit of this first goal, the objectives of the CKC are:1a. to reduce the failure-to-appear rate at court by Koori youth1b. to reduce the rate at which court orders are breached1c. to reduce the rate and seriousness of reoffending 1d. to build a culturally responsive juvenile justice system for Koori youth.

The second goal of the CKC is to increase Indigenous ownership of the administra-tion of the law. In pursuit of this second goal, further objectives are:2a. To increase positive participation by Koori youth, their families and their

community in the CKC,

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2b. To increase accountability of the Koori community for Koori youth and2c. Promote/increase Koori community awareness about community codes of

conduct/standards of behaviour.

Criteria for Exercise of JurisdictionIn order for the CKC to have jurisdiction to deal with a defendant several criteriamust be met. These are:1. The defendant must be descended from an Aborigine or Torres Strait Islander,

must identify as an Aborigine or Torres Strait Islander and must be accepted asan Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Islandercommunity.

2. The offences must be within the jurisdiction of the Criminal Division of theChildrens Court of Victoria. Thus, the CKC has the jurisdiction to hear andsummarily determine all offences other than murder, attempted, murder,manslaughter, culpable driving causing death and arson causing death. TheCKC does not, however, deal with the sentencing of defendants who havecommitted sexual offences.

3. The defendant must be within the age jurisdiction of the Criminal Division ofthe Childrens Court of Victoria, that is, aged 10 years or above, but under 18years of age, at the time of the alleged commission of the offence(s) and under19 years of age when proceedings commenced before the CKC.

4. The defendant must intend to plead guilty to the offence(s), plead guilty or havebeen found guilty of the offence(s) (in a mainstream Childrens Court). In orderto obviate increasing the risk that vulnerable Koori youth might plead guiltywhen they were not, in fact, guilty in order to access the CKC, the CKC wasopened for sentencing to young Koori defendants who had been found guilty ina mainstream Childrens Court.

5. The defendant must consent to his/her matter(s) being dealt with by the CKC.

Sentencing PowersThe CKCs sentencing options are the same as those that may be imposed on defen-dants who appear in the mainstream Childrens Court. All supervised orders andthose involving detention are administered by the Department of Human ServicesYouth Justice section.

Responsibility for the Sentencing DecisionAs in any criminal case, it is the presiding magistrate who is responsible for makingthe sentencing order. (Note that all references to magistrates also include thePresident of the Childrens Court of Victoria who is a judge of the County Court.)Indeed, while one of the rationales for the CKC was Indigenous participation in thesentencing process, this does not involve consulting with the magistrate about theparticular sentence to be imposed on the defendant by the court. Indigenous partici-pation in the sentencing decision largely entails the provision or eliciting of infor-mation that may inform the magistrates choice of a particular sentence and anyconditions that may be attached to it.

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Aboriginal Elders and Respected Persons (ERPs)Elders and/or Respected Persons (ERPs) are appointed by the Secretary of theDepartment of Justice. They sit with the presiding magistrate. As noted, their roleis to:

... provide advice regarding the background of the defendant and possible reasons forthe offending behaviour. They may also explain relevant kinship connections of thedefendant, how a particular crime has affected the Aboriginal community and adviseon cultural practices, protocols and perspectives relevant to sentencing. (Departmentof Justice, n.d.)

Court Sittings and Catchment AreaThe CKC sits every second Thursday morning. Usually only a handful of cases(including cases that have been previously adjourned) are listed for any one sitting.This court deals with cases involving Koori youth who reside in the Department ofHuman Services northern or western regions or within the boundary of any courtin those regions.

Type of CourtThe CKC, like many other courts and sentencing circles that have Indigenousparticipants, is not an adversarial forum. Unlike the mainstream Childrens Court, itis solely a sentencing division. While not explicitly articulated in any of the officialdocumentation on the CKC, it is, nevertheless, like the adversarial mainstreamChildrens Court, premised on the notion that the sentencing hearing process can bean important influence on the future behaviour of the individual offenders appearingbefore the court (and potential offenders in the community too) (OConnor, n.d.).

Further, the CKC may be described as a either a specialist court that also hassome problem-solving and therapeutic overtones (Freiberg, 2001) or a specialtycourt given the new and innovative court practices that it incorporates (Payne,2006). (Freiberg provides greater detail about the distinction between these twotypes of courts.) Marchetti and Daly (2004, 2007), however, contest this classifica-tion. They argue that Indigenous sentencing courts (together with circles and otherAboriginal justice practices) are in a category of their own. Although they reflectsome aspects of therapeutic jurisprudence and restorative justice practices, theyhave a distinct theoretical and jurisprudential basis and, hence, distinct goals andobjectives. According to Marchetti and Daly (2007, p. 443): [they] areultimately concerned with transforming racialised relationships and communities.Thus, they are operating according to a transformative, culturally appropriate andpolitically charged participatory jurisprudence.

The EvaluationAn independent evaluation of the CKC was funded by several charitable founda-tions and the Australian Institute of Aboriginal and Torres Strait Islander Studies.Although sufficient monies were available to begin the evaluation in late 2006, itdid not begin until a year later due to the need to obtain multiple ethics committee

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approvals and several legal opinions concerning data confidentiality and access.The study was guided by a Research Advisory Committee.

Research QuestionsThe evaluation sought to address several research questions. The first of thesefocused upon the CKCs outcomes and was cast as follow:1. Have the CKCs objectives (1a to 1d and 2a to 2c above) been realised?

Note that none of the outcome objectives were specified operationally in the courseof developing the CKC, a matter to which we return later.

In addition, there was also an important process dimension to this evaluation.The three research questions reflective of this dimension of the evaluation were:2. Does the CKC serve those it is intended to serve (its target population)?3. Has the CKC been implemented in accord with its design?4. How do court actors and defendants and their families experience the CKC?

This latter question sought to capture how the participants understood and gavemeaning to the CKC.

The evaluation was also conceived of as a formative study one that mightidentify aspects of the CKC that could be improved. Thus, the final researchquestion that the study sought to address was:5. What improvements should be made to the CKC?

Due to the constraints of space, in this article we focus on the evaluations findingsin relation to the first three of the CKCs objectives.

DesignThe design of a study is a key aspect of its methodology. Design as used here refersto the studys data collection plan. In concert with other efforts to measure theeffectiveness of various juvenile justice programs and interventions, this studysimilarly sought to measure reoffending in order to determine the extent to whichobjective 1c had been realised. Although recidivism is a major performance indica-tor for the juvenile justice system, other measures are also important in consideringthe impact of particular juvenile justice initiatives (see Cunneen & Luke, 2007).Indeed, this is recognised in the concern not only for the fact of reoffending inobjective 1c but also the seriousness of any reoffending. And it is also recognised inthe other objectives (1d to 2c) that were set for the CKC. In this article, however,we focus on the findings in relation to outcome objectives 1a, 1b and 1c.

In order to address the extent to which these three objectives were realised, thestudy employed a single-group post-test-only non-experimental outcome evaluationdesign (Posavac & Carey, 2006). The use of an experimental design, the rarelyachieved ideal in program evaluation, would have demanded the random assign-ment of young Koori defendants who had admitted to their offences or been foundguilty in a mainstream Childrens Court to either the CKC or a mainstreamChildrens Court for sentencing. Such a design would never have been approved bythe ethics committees. Further, it presupposes that young Koori defendants can, infact, be identified for the purposes of random assignment: The CKC is premised on

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defendants self-selecting for appearance before the CKC for sentencing (rather thanbeing directed to do so by a program evaluator).

The use of a quasi-experimental design was also not possible. The majorchallenge of designs demanding a comparison group is the difficulty of finding onesufficiently similar to the intervention group to the young defendants who choseto appear before the CKC. While young Koori defendants who appeared beforemainstream Childrens Courts would, on the face of it, appear to be the naturalcomparison group, in the absence of self-identification it is not always possible toknow which young defendants are Kooris. And even if it was possible to identify allKoori defendants, the two groups may not have resembled one another sufficientlyto warrant a comparison being made. While matching on relevant variables is onemeans of addressing this methodological problem, doing so would have proven verydifficult given that the study population was quite small and one that grew graduallyover time (over the first two years of operation of the CKC).

Given the absence of either a control group (used in an experimental design) ora comparison group (used in a quasi-experimental design) or, indeed, outcomeobjectives that had been specified operationally, judgments about whether failure-to-appear rates, court-order breach rates and recidivism that were low, moderate orhigh were partially informed by the findings of previous studies and by the views ofthe members of the studys Research Advisory Committee.

Although the single-group post-test-only design is the simplest one for evaluat-ing outcomes and controls for neither internal validity threats (e.g., maturation,history, selection, etc.) nor external validity (generalisability) threats, it needs to beborne in mind that it nevertheless allows a significant evaluation question to beaddressed, namely, How did those who appeared before the CKC fare consequent totheir appearance before the CKC?.

Sources of DataData on failure-to-appear for scheduled CKC hearings and on the breach of courtorders were drawn from Courtlink, the criminal case management system forVictorias Childrens and Magistrates Courts. Data on reoffending in both juvenileand adult jurisdictions were obtained from the Victoria Police LEAP (LawEnforcement Access Program) database.

The evaluation sought to track defendants reoffending, if any, for an extendedperiod. All defendants who first appeared before the CKC in its first two years ofoperation (through to November 2007) and whose cases were finalised were trackedfrom the date of finalisation to May 2008. This meant that this study was able totrack those who appeared in the first months of the first two years of the CKCsoperation (N = 62) for up to two and a half years and those who appeared towardsthe end of this two-year period for a period of at least six months.

Measures of RecidivismThe measurement of repetitious criminal activity is contentious. Different studieshave focused on different groups of juvenile offenders (e.g., those in detention onlyor those who received either a community-based supervision order or a custodialsanction), relied on different measures of recidivism or indicator events (e.g.,

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police apprehension, referral to a police caution, youth conference or to court, a courtappearance or a court appearance at which new charges were proven) and have drawnon different data sources (self-report data, police data, court data or correctionsdata) covering different observation periods (i.e., have tracked offenders overvarying lengths of time).

Thus, for example, a study of recidivism rates for all young offenders who wereclients of Victorias Juvenile Justice programs between July 1997 and June 1998defined recidivism as the reappearance of these clients in court at which a furtheroffence was proven and a supervised statutory order or custodial sentence was theoutcome. Recidivism was measured over the two-year period following completionof the initial order (Department of Human Services, 2001). As acknowledged in thereport, the use of this measure as a proxy for actual reoffending ignored those who,for instance, were convicted and received other court outcomes and those who werediverted from the court system as a result of the discretionary decisions of the police(Cunneen & Luke, 2007, p. 2).

As Payne (2007, p. ix) points out,

each data source [or indicator event] represents a point in the chronology of thecriminal justice process [and] each is generally regarded as a filter through whichfewer and fewer offences proceed to each successive stage. [Thus, each] data sourcenot only has its own internal limitations [but] it is also likely to inherit many of thelimitations imposed by earlier systems.

It is for this reason that Roberts and Indermaur (2007, p.66) contend that:

Arrests provide a more sensitive indicator of recidivism than prosecuted charges orconvictions as they provide a closer approximation to the level of offending behav-iour than other measures which are further downstream in the legal process. Further,while an error may be possible through including arrests where the individual arresteddid not commit the offence, this error is considerably smaller in magnitude thanthose which would occur by not including crimes committed by a person for whichthey were arrested but not charged or convicted. Re-arrest thus presents the bestoption for a measure of recidivism to judge the success of a program.

Paynes observation and Roberts and Indermaurs argument notwithstanding, theevaluation employed several measures of recidivism. It did so with a view to allow-ing, where possible, comparisons to be made between the recidivism rates of thoseIndigenous youth who appeared before the CKC and the findings of other studies.Such comparisons were needed given the lack in this study of a control or compari-son group and operational statements of the CKCs objectives. Thus, the measuresof recidivism were:1. charges proven in further court appearances (in Victoria),2. re-arrest and/or subsequent charges being laid and3. otherwise coming to the attention of the police as recorded in the Victoria

Police LEAP data base.

SeriousnessWith a view to measuring offence seriousness, the offences committed by CKCdefendants were first categorised or grouped according to the division titles found in

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the Australian Standard Offence Classification (ASOC) (Australian Bureau ofStatistics [ABS], 2008). The seriousness of offending was established using theNational Offence Index (NOI). The NOI is a ranking of ASOCs offence categories(the division titles) according to their level of seriousness. Where more than oneoffence was involved in offending, the most serious of the offences (the principaloffence) was taken as the indicator of seriousness. Seriousness of offending wasmeasured three times the seriousness of any principal prior offence, the serious-ness of the principal offence that brought the defendant to the CKC for sentencingand the seriousness of the principal offence where reoffending occurred after theinitial appearance before the CKC.

The CKC DefendantsBefore presenting the research findings on failure-to-appear, breaches of court ordersand recidivism and its seriousness, we briefly describe the defendant population thatwas the focus of the evaluation. The data were drawn from the files of theChildrens Koori Court Worker, one of the members of the CKCs courtroomworkgroup (Eisenstein & Jacob, 1991). (These data were de-identified and coded.)Although a rich source of data, the files contained no consistently gathered infor-mation on the socioeconomic background of the defendants and their families.However, it was quite evident from the oral information presented at the 19 CKChearings that were formally observed as part of the evaluation that the defendants,like Aboriginal young people in general, were substantially disadvantaged and faredpoorly on such quality of life indicators as educational attainment, employment,health, housing, and so forth (Australian Human Rights Commission, 2008;Cunneen & White, 2007; SCRGSP, 2009).

During its first two years of operation 62 defendants appeared before the CKCfor the first time and had their cases finalised. Of this number:

74% were males and 26% were female.

The average age of the male defendants was 16 years and 2 months and theaverage age of the female defendants was 15 years and 1 month.

9 young men and one young woman (18%) were aged 1819 years at the time oftheir first appearance before the CKC.

Over 80% of the defendants were from the Melbourne metropolitan area.

73% had been formally cautioned and 40% had one or more prior offencesproven at previous Childrens Court appearances. Overall, a high proportion(83%) of the study population had an established offending history.

CKC defendants had committed a very wide range of offences ranging frompublic transport offences to serious property and violent offences. Indeed, mostof the principal offences were of a serious vein.

The most common disposition of the court was a good behaviour bond (34%) ora probation order (24%) or, expressed somewhat differently, the dispositionsincluded unsupervised orders (45%), probation, youth supervision or youthattendance orders (31%) and custodial orders (11%).

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Many of the defendants were already known to the Department of HumanServices at the time of their first CKC appearance, with at least 27% known previ-ously to Juvenile Justice, 24% to Child Protection and 8% to Disability Services.

FindingsData on failure-to-appear and breaches of court orders were obtained fromCourtlink, the Childrens and Magistrates Courts database. All data were de-identified and coded. A list of the 62 defendants comprising the study populationand the codes used to de-identify them was transmitted directly from the ChildrensCourt to the Victoria Police for matching with the records on its LEAP (LawEnforcement Access Program) database. These records were accessed at the officesof the Victoria Police by police personnel. They generated data on prior cautionsand other diversions from the juvenile justice system, previous offences and anysubsequent history of offences (arrests, summons and court outcomes) and mattersoutstanding in both juvenile and adult jurisdictions through to May 31 2008. TheChildrens Court and Victoria Police data collected for this evaluation relate tooffences and court appearances in Victoria only.

The Tracking of DefendantsTable 1 presents the numbers of defendants by gender and the period of time overwhich they were tracked for the purposes of identifying any failures-to-appear,court order breaches and/or reoffending subsequent to an initial appearance beforethe CKC.

Failure-to-Appear Before Court and Breaches of Court OrdersCourtlink records showed a low incidence of both failure-to-appear and breaches ofcourt orders. Thus, among the study population of 62, only seven (11%) failed toappear in court as required and consequently had warrants issued for their arrest.One of these seven failed to attend his/her initial CKC hearing (but eventually didso as a result of the warrant) while three others failed to return to the CKC subse-quent to an adjournment of their initial hearing. The remaining three failed toappear before a court to face new charges. All instances of failure-to-appear involveddefendants who first appeared before the CKC during its first year of operation.

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TABLE 1

Gender of Defendants and Period of Tracking

First Appearance Scheduled Total Males Females Duration of Data Tracking(6-month Cohorts)

October 2005May 2006 24 (39%) 17 7 2430 months to May 2008

JuneNovember 2006 14 (23%) 9 5 1824 months to May 2008

December 2006May 2007 11 (18%) 8 3 1218 months to May 2008

JuneNovember 2007 13 (21%) 12 1 612 months to May 2008

Total 62 46 (74%) 16 (26%)


Similarly, a small proportion of the study population (six males and two females)reappeared before the CKC charged with the breach of either a probation order or ayouth supervision order (four instances of each) that had been made by the CKC(Table 3). All but one of these proven breaches involved young people whoappeared before the CKC during its first year of operation.

As no comparable studies of either failure-to-appear or breaches of court orderscould be identified, it is difficult to comment on whether their incidence among thestudy population was high or low. Intuitively, however, they appear to be very low.This was also the view of the Research Advisory Committee.

RecidivismIn the evaluation, the indicator events the events determining and qualifying forinclusion in assessments of reoffending included: (1) charges proven in furthercourt appearances, (2) rearrest and/or subsequent charges being laid and (3) comingto the attention of the police.Court reappearance with charge(s) proven. The study found that 37 CKC defen-dants (60% of the study population) had charges proven in further appearances ineither a Childrens Court or a Magistrates Court in Victoria subsequent to theconclusion of their initial CKC appearance.Re-arrest and/or subsequent charges. It also found that eight defendants (13% ofthe study population) had charges pending at May 31 2008 and a further four (6%)had appeared in court on a single occasion where all charges had been either struck

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TABLE 2

Failure-to-Appear by Tracking Cohort and Gender

First appearance scheduled (6-month cohorts) Total Male Female

October 2005May 2006 (n = 24) 6 3 3

JuneNovember 2006 (n = 14) 1 1

December 2006May 2007 (n = 11)

JuneNovember 2007 (n =13)

Total: 7 (11%) 3 4

TABLE 3

Breach of CKC-Ordered Probation or Youth Supervision Order (Heard by the CKC) by TrackingCohort and Gender

First appearance scheduled (6-month cohorts) Totals Male Female

October 2005May 2006 (n = 24) 4 3 1

JuneNovember 2006 (n = 14) 3 2 1

December 2006May 2007 (n = 11) 1 1

JuneNovember 2007 (n = 13)

Total 8 (13%) 6 2


out or withdrawn. Given that the 37 members of the study population whoreappeared in court and had their charges proven would have been arrested and/orcharged, a total of 49 members of the study population (79%) were found to havereoffended employing this second indicator event as the criterion for inclusion inthe assessment of reoffending.Coming to the notice of the Victoria Police. While the first two types of indicatorevents necessarily involve coming to the attention of police, no members of thestudy population otherwise came to the attention of the police, that is, none wereeither formally cautioned or referred to other diversionary programs subsequent totheir initial appearance before the CKC. This is as expected given that many of thedefendants had previously been cautioned (73%) and had prior offences proven atone or more previous court appearances (40%). Such defendants who reoffend areprecluded from police cautioning or other forms of diversion from the juvenilejustice system.

Thirteen members of the study population (21%) had no record of any subse-quent offences.

These findings on recidivism are summarised in Table 4.

Recidivism Disaggregated By Tracking CohortTwo years is the generally accepted period of observation required to establishreoffending. In this study, however, only those defendants who were in the firstcohort of defendants to appear before the CKC (between October 2005 and May2006 with data tracked to May 31, 2008) a range of between 24 and 30 monthsfrom their initial CKC hearing met this criterion. Table 5 disaggregates defen-dants offending histories subsequent to their initial appearance before the CKC bythe 6-month tracking cohort to which they belonged.

This shows that 18 (75%) of the 24 young people in the cohort that weretracked for the longest period of time following their initial CKC appearance hadsubsequent offence(s) proven in one or more appearances before the CKC,another Childrens Court or a Magistrates Court. A further two young people inthis cohort had been charged with offences that were either struck out/withdrawnat court or were yet to be heard in a court. The data suggest that, in general, thelonger the period over which the cohort was tracked, the greater the extent of

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TABLE 4

Offending Histories Subsequent to Initial CKC Appearance

Subsequent offending histories Total Males Females

Subsequent offences proven at a court appearance 37 (60%) 30 7

Record of further charges pending at 31 May 2008 8 (13%) 4 4

Record of a single subsequent court appearances 4 (6%) 4where all charges were struck out/withdrawn

No subsequent offences recorded 13 (21%) 8 5

Total 62 46 16


further offending. (But note that this finding is only suggestive given the smallnumbers in each tracking cohort.)

Comparing Recidivism RatesThe design constraints of this study precluded either a control group or a compari-son group. Nevertheless, it is important to try to contextualise the recidivismfindings by making some comparisons with the recidivism rates reported in otherstudies. While no previous studies were found that distinguish between the recidi-vism of Indigenous and non-Indigenous youth and that also employ rearrest and/orsubsequent charges as the indicator event, two previous recidivism studies werefound that employ charges proven in further court appearances as the indicatorevent. One of these was conducted by the Department of Human Services inVictoria (DHS) (2001) and another by Smith and Jones (2008).

The DHS study covered the period 19972001 (DHS, 2001) and focused on allyoung offenders who received juvenile justice statutory orders (including custodialorders) between July 1997 and June 1998. The DHS study, in contrast to this one,excluded defendants who received unsupervised orders, a common disposition in theCKC, suggesting that members of the DHS sample had generally committed seriousoffences and/or had a substantial offending history. The recidivism indicator eventfor the DHS study was reappearance in a Childrens Court or an adult court leading toa further proven offence and a supervised statutory order or sentence (DHS, 2001, p.7). It included court reappearances during a 2-year period following completion of theprevious Childrens Court order. In the DHS study Indigenous offenders comprised137 (9%) of the total sample and were found to have a recidivism rate of 65%.

The Smith and Jones (2008) study focused on the recidivism of young offenderswho had received a noncustodial sanction in 200304 and who were then trackedfor a period of five years. This study included 972 Indigenous young offenders in itssample (26.2% of the total). Employing court reappearance with charge(s) proven

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TABLE 5

Subsequent Offending History by Tracking Cohort

Duration of data tracking to May 2008

Subsequent histories recorded for 2430 1824 1218 612 Totalthe young people in each 6-month months months months monthscohort

Subsequent offences proven at a 18 (75%) 9 (64%) 4 (36%) 6 (46%) 37 (60%)court appearance

Record of further charges pending 1 3 1 3 8 (13%)at 31 May 2008

Record of a single subsequent court 1 2 1 4 (6%)appearances where all charges were struck out/withdrawn

No record of subsequent offences 4 2 4 3 13 (21%)recorded

Totals for each cohort 24 14 11 13 62


as the indicator event, Smith and Joness study found a recidivism rate of 78.4% forIndigenous young offenders.

Other studies of recidivism also provide some basis for contextualising thefindings of this study, even though they do not distinguish between Indigenous andnon-Indigenous youth. Thus, for example, Payne (2007) cites two recent studies one by Doherty (2002) and another by Chen, Matruglio, Weatherburn and Hua(2005). Doherty (2002) examined the proportion of all South Australian juvenilecourt appearances in 2000 that were attributable to recidivist offenders (at least onecharge was proven). This study found that 47% of these youth had at least one priorconviction. Chen et al. (2005) examined Childrens and Magistrates Courtreappearance data for a sample of young offenders who first appeared before theNSW Childrens Court in 1995 and were tracked for eight years. These researchersreported a recidivism rate of 68%. The findings of these two studies could be inter-preted as suggesting that the recidivism rate of the members of a group who aregenerally viewed as being more delinquency prone (young Koori people) and whoappeared before the CKC is very broadly similar to or no worse than that of youngoffenders at large.

Offence SeriousnessWhile the extent of any recidivism is usually the evaluation finding of greatestinterest to policymakers, the seriousness of any reoffending also warrants attention.A program innovation that results in less serious offending should be favourablylooked upon, not only one that may simply reduce reoffending. Indeed, the secondpart of the third outcome objective of the CKC is to reduce the seriousness of anyreoffending.

In Table 6 offences are classified to show the offence category and seriousnessrating of the principal or most serious offence proven at one or more priorChildrens Court appearances (N = 25), at the initial CKC hearing (N = 62) and atone or more subsequent court appearances at the CKC, other Childrens Courts andMagistrates Courts (N = 37).

For each of the 37 members of the study population who reoffended, the serious-ness of the offences (or, to be more precise, the principal reoffence) proven at acourt hearing subsequent to their initial CKC hearing was compared with theseriousness of those heard at the initial CKC hearing. The results of this exercise aresummarised in Table 7.

Table 7 shows that, in the majority of cases, reoffenders principal reoffence waseither less serious (43% of reoffenders) or no more serious (24%) than the principaloffence heard at the initial CKC hearing. Only 12 of the 37 reoffenders (33%)returned to court to face and have proven a principal offence that was more seriousthan that heard at their initial CKC hearing.

Discussion and ConclusionThe CKC is one example of the more formalised Indigenous justice practices Indigenous sentencing courts that have emerged over the course of the lastdecade or so in Australia. It is an expression of a cooperative partnership betweenthe Koori community and the Victorian Government to develop more culturally

479




appropriate court processes in addressing Indigenous juvenile crime and, in turn,Indigenous overrepresentation in the juvenile justice system. The CKC reflects therecognition of both the crucial importance of the Koori communitys involvementin contributing to addressing this problem and its capacity to do so.

The CKC sought, among other objectives, to reduce the failure-to-appear rate,the court-order-breach rate and both the rate and seriousness of reoffending. Theevaluation found that the young Indigenous defendants who undertook to appearbefore the CKC for sentencing overwhelmingly did so in practice. As Cunneen(2008, p. 6) has pointed out, attendance at court when required suggests a sense ofownership of engagement with and confidence in the legal process by theseIndigenous young people and also their family members who accompany them tocourt. Indeed, the modest failure-to-appear rate found in this study also suggests anorganic connection between the CKC and the Indigenous community. And withregard to the breach of orders made by the CKC, the number of cases in which abreach was proven in a reappearance before the CKC was quite low.

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TABLE 6

Offence Seriousness Ratings for Principal Offences Proven at Prior, Initial CKC and any SubsequentCourt Hearings

National Offence Index (NOI) Seriousness Rating Principal Principal Principaland Australian Standard Offence Classification prior offence offence subsequent(ASOC) Categories proven in at initial offence

court CKCNOI rating Aggregated offence categories

09 1. Homicide and related offences

1035 2. Dangerous and negligent acts 15 23 18 endangering persons

3661 3. Non-aggravated robbery, threatening behaviour, weapons offences, intent/burglary 4 18 11

6292 4. Fraud & deception (except fareevasion), theft and motor vehicle offences 3 9 4

93103 5. Property damage and transport offences (including fare evasion) 9 2

104127 6. Public health and safety, escape custody and illicit drug offences 1 1

128137 7. Trespass, offensive behaviour andpublic order offences 2 1

138 8. Theft from retail premises 2

139155 9. Resist or hinder official, driving, parking, pedestrian andmiscellaneous

156157 10. Not known 1

Total 25 62 37


Although other measures are important in considering the impact of particularjuvenile justice initiatives, recidivism is a major performance indicator for thejuvenile justice system. Employing the indicator event of charges proven in furthercourt appearances over a variable period of observation, the study found a recidi-vism rate of 60% (37 members of the study population had further charges provenin a court). However, as the Research Advisory Committee pointed out, it is possi-ble that in a few instances the charges that were proven in a further ChildrensCourt appearance (not the CKC) relate to offences committed prior to the initialCKC hearing. Thus, the actual recidivism rate, in the committees view, was proba-bly around 57%. While high, this compares favourably with the recidivism rate forIndigenous youth in two previous (albeit not directly comparable) studies of 65%and 78.4% employing this same indicator event. And, in many instances, theoffences that reoffenders committed were generally no more serious, and often lessserious, than those that brought them to the CKC. Given (1) the study populationshighly disadvantaged background, (2) the established prior offending history ofmost of its members and (3) the likelihood that the community services to whichthe defendants were referred by the CKC were variably taken up and/or effective inaddressing their problems and needs, both the researcher and the Research AdvisoryCommittee were of the view that this recidivism rate was more or less within therealms of what was to be expected and, thus, considered to be satisfactory.

While a study that employed a more rigorous research design and was able totrack any reoffending for a longer period of time would provide a more precisepicture of the impact of the CKC on recidivism, the experiences of the researchersin trying to meet multiple and complex ethics committee and legal requirements inpursuing this study suggest that future research efforts will face similar majorresearch implementation challenges. Thus, it may not be possible in practice toconduct a timely evaluation employing a more rigorous research design.

But even a more rigorously designed study would most likely find a high recidi-vism rate. It is unrealistic to expect, as other commentators have pointed out (e.g.,Briskman, 2007; Harris, 2005; Marchetti & Daly, 2007), that Indigenous sentencingcourts will result in major reductions in recidivism and, in turn, the overall rate ofincarceration, at least in the short term. There are at least two reasons for this. First,the CKC, like other Indigenous courts, processes only a limited share of youngIndigenous offenders. Of course, the share will grow as/if the CKC model is rolledout beyond its two current sites (Melbourne and Mildura). Second, and more signif-icantly, a reduction in the number of Indigenous youth in juvenile justice systemswill require:

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TABLE 7

Offence Seriousness Compared: Initial CKC Hearing Offences Relative to those Subsequently Provenin Court Reappearance

Totals Less serious No change More serious

Subsequent offence(s) proven relative 37 16 9 12 to Initial CKC offence(s)

Percentage of reoffenders (N = 37) 100 43 24 33


additional forms of intervention and structural change These include increasedeconomic development and capacity building, and better educational and healthoutcomes, all of which need to be forged within the context of Indigenous self-deter-mination. (Marchetti & Daly, 2007, p. 44)

Nevertheless, the CKC is an important vehicle for satisfying the demands byIndigenous people for a more effective legal system through, for example, including asignificant role for Elders and Respected Persons in sentencing decisions (Cunneen,2008, p. 14). Initiatives like the CKC are a significant means for empowering andstrengthening Indigenous communities and transforming their relationships withWhite society (Marchetti & Daly, 2007). Provided these structural changes arerealised, the empowered and strengthened Indigenous communities that these trans-formed relationships will yield should go a long way to reducing, in the future, theoverrepresentation of Indigenous youth in the juvenile justice system.

AcknowledgmentsThe study would not have been possible without the financial support of theGandel Charitable Trust, the Victoria Law Foundation, the Helen McPhersonSmith Trust and the Australian Institute of Aboriginal and Torres Strait IslanderStudies. Their support is gratefully acknowledged.

I would also like to acknowledge the support of: Judges Jennifer Coate and PaulGrant, the former and current Presidents respectively of the Childrens Court ofVictoria; the magistrates and officers of the Childrens Court and especially theElders and Respected Persons who sit on the Childrens Koori Court; the VictoriaPolice for assistance in data collection; the members of the Research AdvisoryCommittee for their constructive contributions and, last but by no means least, SueJones for excellent research assistance.

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