Australia: Arsonists must be punished but offenders need to listen to their victims as much as those affected need to understand motive, writes David Moore.

Confronting your victim is the best trial by fire

Public anger about arson is understandable and appropriate. But what is an appropriate response? Recent suggestions include locking offenders in the zoo and even burning them at the stake. This, it seems, is a time for toughness.

And it is also supposed to be a time of evidence-based policy-making, when the key policy question should not be whether we prefer soft or hard responses. The key question should be which responses are most effective. More specifically, then, this is a time for tough-mindedness.

About three-quarters of the alleged offenders arrested here recently for lighting fires were teenage boys, quickly dubbed "Little Lucifers". This proportion is consistent with international experience. About 80 per cent of arson falls into the category of "youth disorder and nuisance", thoughtless copycat experimentation motivated by the thrill of publicity.

Some of these recent cases will probably be dealt with in a youth justice conference, a process provided for in NSW under a law which came into effect from April 1998. The 1997 Young Offenders Act provides a hierarchy of responses to criminal behaviour by people between the ages of 10 and 18. The first option is a police warning, the second a formal police caution. Until 1998, court was the only remaining official option.

Since then, however, conferencing has been available, and between 1200 and 1600 youth justice conferences are held annually in NSW, most of them for commonly committed property offences. (Conferencing is not available for the most serious indictable offences.)

The program is co-ordinated by an independent unit within the Department of Juvenile Justice. A statewide network of administrators receive appropriate cases from police youth officers, the Director of Public Prosecutions or court, and allocate each case to a local conference convener. The convener brings together the person or people who have admitted to the offence, the primary victims of that offence, other family members, friends or colleagues and relevant officials.

All these people have been affected by what happened. The questions they answer represent a profound shift in the practice of justice. Rather than one person determining whether to impose a relatively soft or tough sentence, a community of people first gain a fuller understanding of what happened and how they have been affected, before determining how to make things better, by repairing what damage they can and minimising the likelihood of reoffending. So, how effective is conferencing? The most readily measured outcome is whether conference participants are satisfied that justice has been done. And all the evidence is that conferencing achieves higher levels of satisfaction than any comparable intervention.

Dr Don Weatherburn, director of the NSW Bureau of Crime Statistics and Research, remarks in a recent evaluation of youth justice conferencing that "the level of satisfaction among both victims and offenders is truly remarkable, considering the hurt and anger often occasioned by an offence and the inevitable pain and guilt experienced by offenders brought face to face with their victims".

The next most readily measured outcome is the effect of conferencing on the youth justice system. Here the results are dramatic. As the Herald reported in late October, there has been a 38 per cent fall in cases appearing before the NSW Children's Court in the four years since the Young Offenders Act took effect. There has been a corresponding reduction in detention. So victims, offenders and other members of their communities seem satisfied with the process, and the state has saved a good deal of money.

All very well, but does conferencing reduce reoffending? While reoffending rates are difficult to measure, the short answer seems to be: yes. The first randomised controlled trial of conferencing in criminal justice was conducted in the ACT from 1995 through 2000. Among its notable findings was a 40 per cent greater decrease in reoffending for violent offenders who went to conference rather than court. This figure corresponds to earlier results from a pilot program in the Riverina, a recent smaller randomised controlled trial in the United States and anecdotal evidence from conferencing programs across Canada.

This evidence persuaded the British Home Office recently to fund a very large randomised controlled trial of conferencing, evaluating a planned 4000 cases for offences similar to those admissible here.

When a group of people are provided with an opportunity to gain some shared understanding of what has happened to them, they tend to transform conflict into co-operation, and find the optimal solutions to their common problems. Arson is a problem for all of us. We may agree with the Premier, Bob Carr, when he says that arsonists seems "mad or bad or some combination of the two". We may also agree that people lighting fires should understand "the consequences of their actions".

Making things better might well involve some of the suggestions made by the Premier and others - but the decision is best made by each affected community, using the process provided by this Government's groundbreaking legislation.

David Moore is a director of Transformative Justice Australia (TJA) which developed the model of TJA Conferencing used in corporate and community sectors, and which trains conference facilitators internationally.

http://www.smh.com.au/news/0201/08/opinion/opinion3.html