A new scheme that keeps minor offenders out of court

Press, 1 August 1989, Page 12

A new scheme that keeps minor offenders out of court

For the last year and a half the police have been testing a new system — called “diversion” — aimed at dealing with minor offenders, like without prosecuting them. In this, the first of two articles, DR PETER SPILLER, of the School of Law at the University of Canterbury, describes how the system works.

| is the process of dlvertinganinor offenders out of tire system before their case is heard-in |court. /lift January, 1988, a trial diversion - scheme was introduced in similar to that ottered by the John Howard 'Society of-British Columbia, Canada. The gcheme was offered to minor (and usually first) of- ’ fenders who admitted their guilt and agreed to diversion. The offender was severely warned, informed that further offending would be dealt with by court action, and required to write r letters of apology to the victim andi the officer in charge of the, case, fully compensate the victim for losses suffered, and undertake,community work and/ or make p donation to charity. When these conditions were met, the matter would be withdrawn, . the case would be filed and the offender would be left without a criminal record. In May, 1988, the senior sergeant in charge of prosecutions in Wellington reported on the success of the diversion scheme to a police prosecutors’ seminar at the Police College in Porirua. The diversion scheme was then introduced in other centres. In July, 1988, Christchurch police diverted the first offender under the scheme. The police have always had the discretion to warn rather than arrest and charge for minor offences and there are clear instances where warning is the most appropriate remedy. Thus, in Christchurch, warnings have been issued in shoplifting cases where the amount involved has been small and there has been reasonable doubt abdut or difficulty of proving the offence, or where serious questions have arisen about the capacity of the offender/r - Further, the emphasis of the criminal justice system for offenders under 17 is on diversion, and minor offenders aged 17 have, in certain cases, been “treated as. if young persons” and duly; warned. < However; there are other cases of minor offending where a warning is not seen to be an adequate response by the police, and yet prosecution is also not seen to be appropriate. The classic and recurrent case is that of the middle-aged or elderly shoplifter (in an alleged state of depression or anxiety) who is caught after having deliberately stolen an article of trivial value. Here the police are caught between the storekeepers, who have the evidence on which to

convict and who clamour for prosecution, and the judges, already overloaded with minor offences and sometimes unwilling to convict and sentence because of the offenders’ circumstances and the small amounts involved. In cases such as these, which require a response between warning and prosecution, diversion has been seen to be the most appropriate procedure. With the assistance of the prosecution section of Christchurch Police Headquarters, I have surveyed the scheme from its start in July, T9BB, to the end of June, 1989. Inspector Peter Nash, head of the prosecution section, enabled me to analyse the police files of the offenders processed under the diversion scheme. On July 19, 1988, the case of an 18-year-old shoplifter without previous convictions, who had stolen a video card, was withdrawn in court, after the offender had fulfilled the conditions of the diversion agreement. Thus commenced the Christchurch diversion scheme. From July to September, only one offender was diverted each month; but, in October, the number climbed to seven and, by December, it had risen to eleven. ■ In January, 1989, the number of cases rose dramatically to thirtyfour, the result of a build-up of minor shoplifting over the holiday season. More women From February to April, the number of offenders diverted each month ayeraged sixteen; in May and June the average monthly number rose again to By the end of June the number of offenders had reached 181. -'•••c . ' Of the offenders diverted, a slight preponderance were women (55 per cent). The overwhelming majority (90 per cent) were labelled “Caucasian," and there was only a smattering of Pacific Islanders, Samoans, Asians and Maoris. A high proportion of offenders were aged 17 to 20 (24 per cent) and 51 and over (28 per cent), including (20 per cent) aged 60 and over.

These figures may be comparerd with the statistics of all shoplifters aged 17 and over, who took goods worth less than $5OO, in the Christchurch region, for the year ended March 31, 1989. These reveal that the percentage of women offenders (54 per cent) is comparable with the percentage of women diverted. Cry for help

But there are significant differences in racial and certain age statistics: the percentage of “Caucasians” was only 74 per cent, and those aged 51 and over were only 13 per cent. The largest group (44 per cent) of diverted offenders were either housewives or retired persons, 15 per cent were unemployed or receiving welfare benefits, and 7 per cent were students. One-third (34 per cent) listed paid employment, and they included a butcher, a baker, a fisherman, a nurse, a schoolteacher, a bank official and a security guard! A claim of around 30 per cent of offenders was that they had psychological, emotional and/or medical problems at the time of the offence, and that these accounted for their otherwise inexplicable behaviour. Such claims were sometimes backed by psychiatric reports. The act of shoplifting was, on occasions, seen by constables and psychiatrists alike as a “cry for help,” in that the offender wanted to get caught and so obtain help. Seven offenders attributed their action to the influence of alcohol. Others, however, simply described their action as a stupid, spur-of-the-moment decision. One of the criteria for diversion, required by Inspector Nash and the Wellington scheme, is that the offender should, in principle, be a first offender. Of the offenders processed, 93 per cent were first offenders. Of those who had previously offended, most had been convicted of very minor offences such as transgressing the liquor laws, using obscene language, and failing to produce a driver’s licence. Of the offences committed, 82 per cent were shoplifting cases.

The great majority concerned shoplifting of items of small value: 61 per cent of all cases diverted were for shoplifting of items valued at $2O or less (and 41 per cent for items of $lO or less). Akin to shoplifting cases were Instances of false pretence (5 per cent of offences), the result of substituting lower price tickets on items purchased, and also involving small amounts. The great majority of shoplifting and false pretence cases processed took place in large supermarkets or stores. Other offences, in descending order of prominence, were minor thefts, wilful damage, being unlawfully in a building and taking property, being in possession of cannabis, burglary and endangering the public. All but one of the offences were crimes against property. The exception was that of a man who assaulted a council inspector, in an act of. frustration. The assault was minor, the victim did not require medical attention, and, if the offender had been charged, he would have lost his livelihood. Inspector Nash, in deciding to divert the offender, noted the need to remain flexible in cases of minor offending, especially where charge or conviction resulted in loss of employment. The maximum penalty for stealing articles not exceeding $lOO in value is three months imprisonment; and that for obtaining by false pretence articles not exceeding $lOO, and for wilful damage, is three months imprisonment or a fine of $lOO. Criteria In November, 1988, Inspector Nash sent out directives outlining the criteria for diversion, and so the scheme became better known amongst Christchurch police. The result was that, certainly from January, 1989, the norm in shoplifting and similar cases which indicated that diversion might be appropriate was for the matter simply to be reported by the local police officer with a recommendation to his senior sergeant, who then

made his own comment for transmission to the prosecution headquarters. However, especially in more unusual diversion cases, such as possession of controlled drugs, wilful damage and shoplifting by those with previous convictions, the offender was still commonly charged in the first instance. \ Police constables commonly supported diversion because the offender had no previous convictions and was the kind of person (described variously as “genuine,” “honest,” or “reasonable”) who was unlikely to commit further offences; and/or because of the nature of the offence (e.g. it was without violence and involved an item of small value). Most constables appeared to support the diversion scheme, and in fact there were instances where they advocated a softer line than that taken by their senior sergeant. Unusual case In one case, involving a 17-year-old shoplifter who had admitted to stealing to see "if she could do it,” the senior sergeant advocated prosecution. The constable insisted that she should be diverted because she was a student, a first offender, and was remorseful. An unusual case was that of another female shoplifter. Both the constable and the senior sergeant recommended prosecution, and the latter noted that the offender’s “two boys were right into stealing." However, the constable raised the point that the offender was a deaf mute, and that this would result in lengthy and difficult proceedings in court His suggestion of diversion as an alternative was adopted by Inspector Nash. It should be noted that one of the criteria for diversion, included in the guidelines of November, 1988, compiled by Inspector Nash, is that the police officer in charge of the case should agree to the diversion. However, in two instances, when the police constable did not support diversion, Inspector Nash retained an overriding discretion and directed that diversion should proceed. 1 In only 9 per of cases were offenders represented by barristers or solicitors, who approached the police with a view to having their clients diverted. Tomorrow: How the system works and its extraordinary success rate.