New Zealand Law Society - Making a difference in people's lives

Making a difference in people's lives

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People are radically changing the direction of their lives, thanks to the work that they, the Special Circumstances Court and various community agencies are doing.

Some would be in prison today but for the changes they have made. Instead, their offending has come to an end, and they have dealt with issues contributing to their appearances in the criminal justice system.

In fact, the vast majority of those who have been through Wellington's Special Circumstances Court have now stopped offending, according to one of the Court's judges, Judge Bill Hastings. He is one of two judges on the Court's bench. The other is Judge Barbara Morris.

His words are echoed by the Court's Co-ordinator, Bianca Fernando, and PDS lawyer Leah Davison, who is both duty lawyer for the Court and the duty lawyer supervisor for the Wellington and Hutt Valley District Court.

"I think we need more of it [the Special Circumstances Court approach]," Judge Hastings says.

"While the criminal justice system is set up to punish offenders, there is the emphasis on rehabilitation of the Sentencing Act.

"You do need consequences, but you can achieve longer-term goals through addressing what is causing the problems in the first place."

And this is what happens in the Special Circumstances Court.


The first step in the process usually is that somebody – quite often a lawyer – identifies that the person who has offended (and is pleading guilty) may benefit from the approach the Court offers.

Judge Bill Hastings presides over a case in the Wellington District Court
Judge Bill Hastings of Wellington's
Special Circumstances Court, presides
over a case in the Wellington District Court.

They are then assessed.

As Judge Hastings points out, to be eligible for the Special Circumstances Court, the person needs to admit guilt. They can't be charged with anything serious, such as high-end violence or sexual offending, they must be homeless, they must have an identifiable need and want help with this need, which may be addiction, mental health, accommodation or benefits – to name some examples.

"The idea is that when we assess them for this Court, we identify what the issue is," Miss Davison says.

"Then we use that main difficulty, the main issue that they need help with, to look for what we term the lead agency. So if it's an alcohol or drug problem, then we co-ordinate the appropriate agency.

"We will put the two of them together and they will work together to do whatever they need to do to get them into rehabilitation or treatment or whatever it is. And we will wrap that around any other services they may need."

An example of identifying a need arose just the morning LawTalk spoke to Miss Davison.

A 17-year-old who has no income was going to be out in the street in two days, because the lease was up on the place where he was camping.

"The young man's plan was to sleep in the internet café, he told me, where you can sleep, if you manage it properly, without getting kicked out. It beats a bus shelter.

"This morning already we've had WINZ here, so WINZ has talked to him. He is going to be with them at 10 o'clock tomorrow morning to get his benefit sorted. And he's meeting with Downtown Community Ministry, who are one of our fabulous community supports, and they are looking at some sort of accommodation for him.

"I'll oversee that, and by the time we come back to the next Special Circumstances Court he will have accommodation and he will have an income. That stops this guy sleeping on the street," Ms Davison says.

It's expanding

So how do people get to the Special Circumstances Court?

"A few ways," Miss Davison says. "Most commonly it is through those of us lawyers who are on duty here, or lawyers who have a legal aid assignment or client, and they think: 'this person might be good for Special Circumstances. We'll go and talk to Leah or Bianca'.

"What has happened of late, which is interesting and encouraging, is that the police have mentioned a couple of people and also the community agencies who work with us are seeing people who are needing assistance.

"So it's expanding of late.

"Lawyers appearing in court are alert and awake to it [the Special Circumstances Court] and, as I said before, it's just an extension of what we do as criminal defence lawyers anyway, which is looking to help our clients solve their issues so they don't come back [to court again]."

An important part of the assessment is discussing with the client what the Special Circumstances Court is all about, particularly the fact that it provides access to other agencies that can help, and also that it is important that the client is motivated to change.

Clients need to sign a form that says the Court, its lawyers and staff can discuss the client's situation with other agencies.

"There are also certain questions that we ask regarding motivation," Miss Davison says.

Underlying issues

As well as being the Special Circumstances Court Co-ordinator, Ms Fernando is also the Wellington District Court's alcohol and other drug (AOD) clinician.

Photo of Bianca Fernando
Bianca Fernando

"My primary role in court is to assess the clients with regard to alcohol and drug issues," she says. "My secondary role is to assess clients with regard to the Special Circumstances Court.

"The majority of the clients I see, I would say 95% of them, have underlying alcohol or other drug issues."

There are, naturally, a number of other underlying issues. The main one after alcohol and drugs would be mental health issues, she says. "Often there will be schizophrenia, depression, a range of different mental health issues. A smaller percentage would have intellectual disabilities."

In the Special Circumstances Court, people are given more time than they are in the mainstream court, Ms Fernando says.

"The time in the court is something which means that we can have room to do the work that needs to be done with the aim of preventing reoffending."

First of all, an assessment of each client is made before they enter the court. This helps determine what the client needs, and what resources can be provided for them.

The clients are also asked to make a commitment to the longer process. "I say: 'Are you okay with coming back to court on a monthly basis, or as required, until we make a plan and that plan has been considered and worked through, and then we have reached a certain point where you are achieving your goals?'"

If the answer to that question is "no", then that's fine. The client will be dealt with in the mainstream District Court.

"If people aren't motivated," Miss Davison says, "then the Special Circumstances Court is not for them. The integrity of the court is a very important thing as well."

"Part of the assessment process is to ask the client: 'What do you want to do with your world at the moment and how can we assist in doing that?'" Ms Fernando says.

Making a plan

"From that discussion, we identify the lead agency … and the key worker, and once the assessment has been done we hand the client over to the key worker. The key worker will, noting what the presenting issues are, work with the client to make a plan. Some of the plan's goals might be:

  • I want to secure more appropriate housing;
  • I want to get into some form of treatment for my alcohol and drug issues;
  • I want to have access to my children;
  • I would like to have meaningful employment;
  • I would like to address financial issues;
  • I want to stabilise my mental health, for example by starting to comply with medication that's been recommended;
  • I want to stop offending – I don't want to have any new charges; or
  • I want to comply with whatever sentence the court imposes.

"These types of things are very real issues that need to be explored and managed," Ms Fernando says.

"Essentially, the key worker is given the responsibility of looking in more detail as to what the goals of the client are and then putting services around that client to assist them in managing these presenting issues.

"They will be making referrals to other services to support the client to reach these goals.

"It's giving them the opportunity to make change by wrapping services around them to address their presenting issues."

Hard work

The path ahead for the client is one that requires them to put in a significant effort as they work towards achieving those goals.

"It's never a smooth road," Judge Hastings says.

"Getting the social services the client needs and monitoring their progress takes a longer and greater involvement of court time and social services time.

"Every case is unique. You have to figure out what will work in the circumstances, with the help of the experts.

"We are reliant on the experts, but we are also reliant on the continuity of the judge. The continuity aspect is really important," Judge Hastings says.

Photo of Leah Davison
PDS lawyer Leah Davison.

The one judge gets to see "every single move that these clients make towards their own well-being on a monthly basis," Miss Davison says.

"So when it comes to sentence, then they've watched the clients, usually for a number of months, and heard from all of us [lawyers, the Court co-ordinator, social services, prosecutors, Corrections] as to how things are going or not going. The judge's views then are pretty informed and pretty rounded.

"So when it comes to the sentence, then what I like to think is that the sentence is 100% appropriate and informed.

"The law's the same. The charges are the same. The evidence is the same. What is different is that we are trying to identify why someone comes to court or keeps coming to court and can we help them to do something about it so they don't come back.

"That's the bottom line," Miss Davison says.

The client's story

"One of our jobs as defence lawyers is to be able to tell the client's story – to be able to tell the judge who this person is that they are about to sentence. That's what we do.

"We are all just people at the end of the day. We all have problems and some people are unable to deal with their problems.

"I don't excuse their offending. No one's trying to do that.

"I think when you see the growth of these kinds of courts, it can be very easy to take the view that somehow we say: 'Poor you' and pat you on the head and say: 'We'll get you through this'.

"I'd probably go so far as to say that would really annoy me and really upset me, because it is completely wrong and it is a very narrow response in my view.

"People work really hard in this court. They've got to come back month after month.

"All of the work is going on in that month. They're not just coming back after a month having done nothing, because when they come back each month, the judge questions what they have done."

The day before that appearance, there is a meeting involving all the people and services to discuss what has been happening, so that the judge knows this. The judge then can talk directly to the client about what is happening.

"They can say, for example, you were supposed to do a, b and c and you've only done a. What's going on?"

Or, as happened twice during LawTalk's first visit to the court, the judge congratulates the client on the progress he or she has made.

"It's a hard court. We're there to offer a practical solution. At the end of the day it's a practical court, a solution-based court. We want a result," Miss Davison says.


"It is a court of consequence.

"But who says the consequence should be something really punitive? Consequences don't need to be just punitive.

"People may think that people come to the court and that they can just cruise.

"It's just exactly the opposite. As I said before, people work really hard in this court."

Not only do the defendants work hard, so also does everyone else involved with the court.

A very important aspect of the Wellington Special Circumstances Court is that it has no extra resourcing.

All the work of the court is, therefore, thanks to the essentially pro bono effort of those who participate and make it happen.

And the court is heavily reliant on the unpaid services provided by the many community organisations.

"Unlike the similar court in Auckland, we don't have any extra funding," Judge Hastings says.

"This is done purely by good will that the social services have shown, that court staff have shown, that the Chief District Court Judge has shown."

"There is nothing that we cannot change in this courtroom, apart from if you drop dead on us," Miss Davison says. "Short of that, there's absolutely nothing that we can't influence.

"That's happened because the community has become so involved. Without the community organisations, we wouldn't be doing this.

"They are fantastic and they are so involved. They come to the meetings the day before the court and they come to the court.

"They are consistently available and it is absolute gold," Miss Davison says.

Success story

So how well is the court working?

"I can't give you figures," Miss Davison says. That is because a statistical analysis has not been undertaken.

"But very broadly, I would say most of the people who come through the Special Circumstances Court, we don't see in the court system again."

That does not mean that people don't take backwards steps. They do. And sometimes they do reoffend and come before the Special Circumstances Court again.

Miss Davison tells the story of a young woman who had been shoplifting and had no previous convictions.

"She was quite distraught a lot of the time, and what it turned out was happening was that when she got depressed or when she got any bad news or when things were just happening, she would go out and shoplift.

"We did what we needed to do and got her certain counselling, and got things sorted out. She was about to be discharged without conviction – as is right. I can't see anything wrong with that outcome at all. She is an educated young woman who is going to be going places and doing things, and she just got stuck."

However, she offended again, "so we adjusted a few things, and we haven't seen her since.

"And it was fine for her to come back in after one slip-up because the pattern was still repeating. I've not heard from her since, and to me that's a perfect result."

The fact is that all of us slip up from time to time.

"I know the Special Circumstances Court is working because of the results," Miss Davison says.

"Almost every single sentence that has been passed over the years the Court has been operating I've had something to do with, so I know the results.

"And I know that we are not seeing all these same people back [as defendants] again."

The court has experienced many resounding successes, Ms Fernando says.

"We have had clients who have had low self esteem and an inability to connect and engage with people, have conversations and just be themselves. They've made no eye contact and would primarily look at the ground while speaking.

"Through the process they have become engaging, able to speak and make eye contact, and have changed attitudes and beliefs.

"For me, that would be a success story.

"Another success would be someone who's been in prison for quite some period of time in the past, who's now in suitable accommodation, hasn't reoffended, is working towards goals and is looking towards employment. That would be a success.

"Another success would be completing treatment programmes, graduating and gaining access to their children.

Really good results

"I would think that for many of the people that we work with we get some really good results. I think we are finding, typically, that there is a lower rate of reoffending."

Of the clients who move through the Special Circumstances Court, the "vast majority" have not reoffended, Judge Hastings says.

With the Court's emphasis on long-term rehabilitative gains, there is a consequent reduction in recidivism.

"We've gone through quite a few clients, and generally they don't reappear.

"I often find myself saying to people who end up appearing: 'I've got to know you very well. I've enjoyed the time we've had together. But I don't want to see you again [as a client of the Court].

"Because we get to spend more time on them, we get to know them a bit better and we get to see the redeeming features that we can work on.

"It is also a real privilege to get to know people and to get to do something for them to benefit them and to benefit society in the long term," Judge Hastings says.

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