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L e g a L i s s u e s i n p L a i n L a n g u a g e
2010 > hot topics 73
HOT TOPICS
Hot Topics is intended as an introductory guide only and should not be interpreted as legal advice. Whilst every effort is made to provide the most accurate and up-to-date information, the Legal Information Access Centre does not assume responsibility for any errors or omissions. If you are looking for more information on an area of the law, the Legal Information Access Centre can help – see back cover for contact details. If you want specific legal advice, you will need to consult a lawyer.
Copyright in Hot Topics is owned by the State Library of New South Wales. Material contained herein may be copied for the non-commercial purpose
1
overviewWhat is juvenile justice? – major juvenile justice legislation around Australia – international law – Convention on the Rights of the Child (CROC) – age and criminal responsibility – snapshot of NSW young offenders – juvenile justice in NSW.
7
police and young peopleSearches – sniffer dogs for drug detection – move on directions – arrest – safeguards relating to police powers – detention after arrest – special protection for young people in police custody – fines and young people – special protection for young people during police questioning.
12
children in courtThe Children’s Court – principles of juvenile justice – Youth Drug and Alcohol Court.
14
Diversionary schemesYoung Offenders Act (NSW) – Youth Justice Advisory Committee – warnings – cautions – youth justice conferences
17
Juveniles on remandChildren and young people locked in the system – Who are the children and young people on remand? – Why is this happening?
– What are the consequences? – other options/solutions.
22
group offendingJoint criminal enterprise – common purpose or ‘extended’ joint criminal enterprise – background to the Group Offending Project – Burn project.
25
Disadvantaged young peopleIndigenous young people – newly arrived young people – young women or girls and juvenile justice – young people with intellectual disabilities – young people with mental health issues – homeless young people and children in need of care.
30
timeline36
Further informationThis is the seventy third issue in the series Hot Topics:
legal issues in plain language, published by the Legal Information Access Centre (LIAC). Hot Topics aims to give an accessible introduction to an area of law that is the subject of change or public debate.
AUTHOR NOTE: This issue has been co written by:
Jenny Bargen, Adjunct lecturer, Sydney Law School; member, Juvenile Justice Committee, Law Society of NSW; part time lecturer, UTS and Sydney Law School; formerly Director of Youth Justice Conferencing with the Department of Juvenile Justice; writes and consults extensively on juvenile justice issues (Overview, Children in court, Diversionary schemes, Timeline);
Jane Sanders Principal Solicitor for The Shopfront Youth Legal Centre (Police and young people, Disadvantaged young people); Clare Blakemore Policy Officer, UnitingCare Burnside (Juveniles on remand); Louise Sutherland Solicitor, Children s Legal Service, Legal Aid NSW (Group offending) and Sarah Crellin Solicitor, Children s Legal Service, Legal Aid NSW (Youth Drug and Alcohol Court).
Some material in this issue has been based on a previous issue, No. 49: Juvenile justice.
DESIGN: Bodoni Studio
PHOTOS: Cover image and p 6 DW Stock Photo Library;
pp 11 & 29 Fairfax Photos; p 13 Corbis Images; p 16 NSW Police Service; p 23 iStockphoto.
Young people and crime
state Library of nsW
cataloguing in publication data
Title: Young people and crime/[Jenny Bargen ... [et al.];
editor Cathy Hammer].
Publisher: Sydney, N.S.W.: Legal Information Access Centre, 2010.
Subjects: Juvenile delinquency New South Wales Juvenile delinquency Australia
Juvenile justice, Administration of New South Wales Juvenile justice, Administration of Australia Youth Legal status, laws, etc. New South Wales Youth Legal status, laws, etc. Australia Other Authors/Contributors:
Bargen, Jenny Sanders, Jane Blakemore, Clare Hammer, Cathy
Legal Information Access Centre Series: Hot topics (Sydney, N.S.W.); no. 73 Dewey Number: 345.99403
hot topics issn 1322 4301, no. 73
Overview
it is widely acknowledged in australia and around the world that children and young people should be subject to a system of criminal justice that is separate from the adult system and that recognises their inexperience and immaturity. as such, children are typically dealt with separately from adults and treated less harshly than their adult counterparts.1
WHAT IS JUVENILE JUSTICE?
Juvenile justice is a combination of rules, institutions and people involved in the control, punishment and rehabilitation of children and young people as suspects and, most commonly, as offenders. The ‘system’ of juvenile justice is primarily the responsibility of state governments, with state legislation, and state departments and facilities. Various Federal and local authorities, as well as a range of non-government agencies, also play a role in the operation of juvenile justice in each state and territory. International instruments, such as the UN International Covenant on Civil and Political Rights (ICCPR), the UN Convention on the Rights of the Child (CROC), the UN Standard Minimum Rules for the Administration of Juvenile Justice (the
‘Beijing Rules’) and the UN Minimum Rules for the Treatment of Children Deprived of their Liberty provide useful benchmarks against which legislation, policy and practice in juvenile justice may be measured.
The laws, practices, policies and players who make up the ‘system’ of juvenile justice can be called a system only in a very loose sense. In NSW, for example, three government agencies play major roles in juvenile justice – the NSW Police Force, the Attorney General in the Department of Justice and the Attorney General (DJAG), and Juvenile Justice, in the Department of Human Services. Corrective Services NSW (in DJAG) also plays a part, with responsibility for the incarceration of some young offenders who are aged over 18 but have committed a serious offence when aged under 18 and have been sentenced to a term of imprisonment.
Both the Police Force and Attorney General’s have responsibility for adult offenders as well as young offenders. Only Juvenile Justice is solely responsible for young offenders – those who have been referred to a youth justice conference by either the police or the Children’s Court, and those who are on community or custodial orders made by the Children’s Court.
No single piece of legislation regulates the juvenile justice
‘system’ in any Australian jurisdiction. Some legislation applies only to children while other legislation applies to both children and adults. The following table shows the variety of legislation applicable to children and young people in trouble with the law in all Australian states and territories.
Apart from legislation, another defining boundary is the age at which a person allegedly commits an offence.
Except in Queensland, where the cut-off age is 17, those who are under 18 when they commit an offence are dealt with in the juvenile justice system up until they turn 21;2 those who are over 18 when they commit an offence are dealt with in the adult criminal justice system. The one exception to this is in NSW where young people who are old enough to hold a driver’s licence or permit are dealt with for traffic offences in the adult Local Courts. However, where the young person has allegedly committed other offences related to the traffic offence/s, all offences may be dealt with in the Children’s Court.
However, those under 18 who allegedly commit serious offences may be tried in the adult courts (in NSW, either the District or Supreme Courts), and under certain conditions may be transferred between Juvenile Justice Centres and adult Correctional Centres (gaols).
The ‘system’ is also closely linked to the welfare ‘system’
because many of the children who are in the child protection system are also in the juvenile justice system.
From the late 1980s juvenile justice has been the subject of considerable debate and change. One of the most important changes in this period was the introduction of legislation that specifically regulates the diversion of young offenders from both court and custody.
1. Juveniles’ contact with the criminal justice system in Australia, K Richards, Monitoring Report No. 7, Australian Institute of Criminology, 2009, p 22; available at www.aic.gov.au
2. In NSW only – see Children (Criminal Proceedings) Act 1987 (NSW), sections 5 and 28(1). In Victoria, the maximum age at which an adult can be tried as a child is 19 – see section 516(5), Children, Youth and Families Act 2005. In other jurisdictions, no exceptions are made so that those over 18 (17 in Queensland) who commit offences when they are aged less than 18 but are not apprehended until after they turn 18 are dealt with in the adult courts.
overview 1
MAJOR JUVENILE JUSTICE LEGISLATION AROUND AUSTRALIA
3nsW Children (Criminal Proceedings) Act 1987 Children’s Court Act 1987
Children (Community Service Orders) Act 1987 Children (Detention Centres) Act 1987
Children (Interstate Transfer of Offenders) Act 1988 Children (Protection and Parental Responsibility) Act 1997 Young Offenders Act 1997
Crimes Act 1900 Bail Act 1978
act Children and Young People Act 2008
Crimes (Restorative Justice) Act 2004 Rehabilitation of Offenders (Interim) Act 2001
Crimes Act 1900, pt 10 (Criminal investigation) and the Crimes Act 1914 (Cth), pt 1C (which applies in relation to the investigation of certain ACT offences)
Magistrates Court Act 1930 (in particular Chapter 4A (The Childrens Court)) Supreme Court Act 1933
Court Procedures Act 2004 (in particular pt 7A (Procedural provisions — proceedings involving children or young people))
Crimes (Sentence Administration) Act 2005 (in particular Chapter 8A (Sentencing young offenders) and Chapter 14A (Sentence administration — young offenders))
Bail Act 1992
Victoria Children, Youth and Families Act 2005 Crimes Act 1958
Sentencing Act 1991 Bail Act 1977
Queensland Child Protection (Offender Reporting) Act 2004 Children’s Court Act 1992
Youth Justice Act 1992 (newly amended effective March 2010) Youth Justice Regulations 2003
Young Offenders (Interstate Transfer) Act 1987 Bail Act 1980
Western australia Children’s Court of Western Australia Act 1988 Child Welfare Act 1947
Court Security and Custodial Services Act 1999 Inspector of Custodial Services Act 2003 Sentence Administration Act 2003 Young Offenders Act 1994
Young Offenders Amendment Act 2004 Bail Act 1982
south australia Bail Act 1985
Criminal Law (Sentencing) Act 1988 Family and Community Services Act 1972 Young Offenders Act 1993
Youth Court Act 1993 tasmania Youth Justice Act 1997
Youth Justice Amendment Act 2003 Youth Justice Regulations 1999 northern territory Youth Justice Act 2005
Youth Justice Regulations 2005
3. Juveniles’ contact with the criminal justice system in Australia, K Richards, Monitoring Report No. 7, Australian Institute of Criminology, 2009, p 23; available at www.aic.gov.au
Some jurisdictions have introduced separate legislation
for this purpose, while others have incorporated 4
diversionary schemes into existing legislation.5 Victoria has not introduced separate legislation, and reserves the use of youth justice conferences for young people appearing in court who have a long history of offending and would otherwise be sentenced to custody.6 The ACT introduced separate legislation in 20047 that regulates the use of restorative justice processes for both adults and children.
Juvenile justice is volatile, subject to sudden change on the basis of political imperatives which are often associated with elections, and the felt need to be seen to be acting in a particular geographical area or in response to a particular highly publicised incident involving children or young people. Youth crime is an easy target for politicians who wish to be seen to be doing something in the face of (usually unsubstantiated) evidence of increases in offending by young people.
INTERNATIONAL LAW
International law recognises that children and young people should be treated differently from adults in the criminal justice system. A separate juvenile justice system provides safeguards to protect children and young people, based on international rules for the administration of juvenile justice.
The primary international instruments relevant to juvenile justice to which Australia is a signatory are:
> United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) which includes provision that there should be a system for children, separate from adults; that detention should be a last resort and for the shortest possible period of time;
> United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) which provides for the implementation of social policies for crime prevention;
> UN Rules for the Protection of Juveniles Deprived of their Liberty, which cover the importance of maintaining contact with family and community, respect for dignity and the elimination of arbitrary treatment; and
> UN Convention on the Rights of the Child (CROC), which provides the foundations for children’s rights and contains four guiding principles:
1. non-discrimination (article 2);
2. the best interests of the child (article 3);
3. survival and development (article 6); and 4. participation in decision making (article 12).
CROC also contains principles which are persuasive in Australian courts when sentencing young offenders.
In particular, CROC enshrines the principles that the imprisonment of children must be a measure of last resort and that a variety of other appropriate measures, including diversion and the use of restorative justice, should be available for children, and that the focus of all measures for dealing with children who are alleged to have broken the criminal law should be on rehabilitation (articles 37 and 40). For more information on CROC see page 4.
AGE AND CRIMINAL RESPONSIBILITY One of the most difficult areas of criminal justice policy lies in providing appropriate cut off points to reflect the transition from the age of innocence through to maturity and full responsibility under the criminal law.
Consistent with international instruments to which the Commonwealth Government is a signatory,8 in all Australian jurisdictions the minimum age of criminal responsibility is 10 years. The law, however, recognises that children mature at different rates, so that children aged between 10 and 14 are presumed to be incapable of forming the relevant intent to commit a crime, unless the prosecution can prove that they knew what they were doing was seriously wrong, and not merely naughty. This presumption, known as doli incapax, is applicable in all Australian jurisdictions. The maximum age at which a young person who is alleged to have committed an offence can be dealt with in the juvenile justice system is 17 years, except in Queensland where the maximum age is 16 years.
selected other special protections in criminal proceedings against children
> Any statements or admissions made to the police by child are inadmissible in court unless an independent adult was present when the statement or admission was made.
4. Young Offenders Act 1993 (SA), Young Offenders Act 1994 (WA), Young Offenders Act 1997 (NSW).
5. Juvenile Justice Act 1994 (Qld), Youth Justice Act 1997 (Tas).
6. For a detailed analysis of diversionary legislation, see, ‘Kids, cops, courts, conferencing and children’s rights’, J Bargen in Children on the agenda: The rights of Australia’s children, M Jones and L A Basser Marks (eds), Prospect Publishing, 2001.
7. Crimes (Restorative Justice) Act 2004 (ACT).
8. International instruments suggest but do not stipulate that the minimum age should be 10 years. Rather, State parties are encouraged to set a higher age of criminal responsibility. In the UK, the age of criminal responsibility is 10, but in other European countries, the minimum age is much higher – for example, in Sweden the minimum age is 17. For discussion and information about the varying ages of criminal responsibility for children, see ‘The globalization of crime control—the case of youth and juvenile justice: Neo-liberalism, policy convergence and international conventions’, J Muncie (2005) 9(1) Theoretical Criminology, pp 35-64.
overview 3
> All offences (except very serious offences) are heard in specialist Children’s (or Youth) Courts which are usually closed to the public for privacy reasons, and which are conducted with (arguably) less formality than adult criminal proceedings.
> A child under the age of 16 years found guilty of an offence in the NSW Children’s Court cannot have a conviction recorded against them.9 In contrast, in Victoria, whether or not a conviction is recorded depends on the nature of the sentence imposed by the Children’s Court. For lesser sentences such as undertakings and good behaviour bonds, no conviction is recorded. For greater sentences, such as fines, probation and supervision, the court has a discretion whether or not to record a conviction.
Where the sentence is a Youth Attendance Order or a custodial order (either to a Youth Residential Centre or a Youth Justice Centre) the court must record a conviction.10
SNAPSHOT OF NSW YOUNG OFFENDERS Children and young people under the age of 18 who are involved in the juvenile justice system constitute a relatively small proportion of the child and youth population of NSW. Juvenile Justice NSW records indicate that, in 2008-09, for every 1000 people aged 10-17 resident in NSW:
> 13.5 had a criminal matter finalised in the Children’s Court;
> 11 were convicted and/or sentenced in these finalised matters;
> 3.3 were given sentences requiring the department to supervise them in their community; and
> 1.0 was sentenced to detention.
The available data suggest that anywhere between one in 10 to one in four persons with whom police have contact as alleged offenders are children aged between 10 and 17 years. Approximately one-fifth of all alleged young offenders are female. The majority are male and aged between 15 and 17 years.
THE CONVENTION ON THE RIGHTS OF THE CHILD (CROC)
11this convention establishes that children are entitled, not only to the same human rights as everyone else, but also to special rights which recognise their youthfulness and vulnerability.
the convention came into force on 2 september 1990 when 20 countries had lodged their formal document of ratification with the un secretary-general. australia was one of the first countries to become a party to cRoc after it came into force. the australian government ratified the convention in December 1990 and it became binding on australia in January 1991.
cRoc has now been ratified by more than 190 countries worldwide and has thus received greater support than any other human rights instrument in the history of the united nations.
cRoc is not the first united nations convention to speak of the rights of children. there was a geneva Declaration on the Rights of the child in 1924 and this was followed by a Declaration on the Rights of the child proclaimed by the general assembly of the un in november 1959. the 1959 Declaration (like its earlier counterpart) was a short document containing only ten principles, most of which were adapted from the earlier universal Declaration of human Rights of 1948. the 1959 Declaration included in its preamble the notable principle ‘Mankind owes the child the best it has to give’.
‘child’ is defined in article 1 of cRoc as ‘every human being below the age of 18 years’. For convention purposes, a person ceases to be a child on his or her 18th birthday.
Ratification of cRoc involves the acceptance of various obligations including:
> to make cRoc, by appropriate and active means, widely known in australia by both children and adults: article 42;
> to ensure the rights in the convention are available to each australian child: article 2.1;
> to take all appropriate legislative, administrative and other measures in order to implement the rights set out in the convention: article 4;
> to report to the un committee on the Rights of the child regularly on progress made in ensuring children enjoy in practice the rights given to them under the convention; and
> state and territory governments are bound by the convention. there is doubt, however, as to the extent to which the Federal government (which is responsible to the united nations as the signatory to cRoc) can force states and territories to comply with requirements of cRoc. the Federal government has limited power to override state and territory legislation. there is also doubt over whether the convention is binding on lower levels of government, such as local authorities.
For more information on human rights generally, see Hot Topics 65: Human Rights.
9. Children (Criminal Proceedings) Act 1987 (NSW), section 14.
10. Children, Youth and Families Act 2005 (Vic), section 360(1).
11. Taken from “What’s Up CROC?” National Children’s and Youth Law Centre website, www.ncylc.org.au
Children and young people may also be dealt with by
fine or infringement notice. NSW Bureau of Crime Statistics Research data indicate that just over 40% of all children and young people who commit offences are dealt with in this way. Non-payment of fines can result in large accumulated debts to the State Debt Recovery Office, which most children and young people are unable to pay. In 2009, the NSW Government introduced alternatives for children and young people who are unable to pay such debts (see Fines and young people, page 10).
It is widely accepted that juveniles are more likely to come to police attention than adults. In addition to committing public and attention-seeking crimes and acting in groups, juveniles tend to be inexperienced and unplanned, commit offences close to their homes and offend in visible areas, such as shopping centres.12 The opportunistic and impulsive nature of offending by children and young people is often compounded by mental health problems and substance misuse. Juvenile Justice NSW has undertaken health surveys of children and young people on community and control orders.
The major issues identified in these surveys were that for these children and young people:
> they often had a parent who was or had been in prison (43% and 27% for the custody and community groups respectively);
> 11% of the community group had ‘unsettled accommodation’;
> a small but significant number of both groups were parents themselves;
> many had been subject to physical and/or sexual abuse and/or neglect;
> ear infections and mild loss of hearing were common but more so for the girls than the boys in both groups;
> most had left school early or been suspended from school. 75% of the custody group had left school before finishing year 9, and 56% of the community group had left before commencing year 10;
> IQ scores (using culture fair tests) were in the low average range for both groups;
> problems with reading, spelling and arithmetic were common to both groups;
> the majority of the custody group (88%) and 40% of the community group reported symptoms consistent with a clinical mental health disorder; and
> 19% of the boys and 24% of the girls in the custody group, and 14% of the boys and 32% of the girls in the community group had considered attempting suicide.
indigenous over-representation
It is widely recognised that Indigenous young people are significantly over-represented in the juvenile justice system in Australia, in police custody and in juvenile detention centres. Across Australia, Indigenous young people are approximately 28 times more likely to be in detention than non-Indigenous young people.13 For more detail see Disadvantaged young people on page 25.
types of offences
Typically, children and young people come into contact with police in relation to property crimes. Less than one-fifth of offences committed by children are crimes against the person.
Young people tend to commit offences in groups more frequently than adults. This is related to the spontaneous and gregarious nature of most juvenile offending.
Whether police record numbers of arrests, offences or offenders is therefore likely to be of greater significance where children rather than adults are concerned. If police record arrest events rather than numbers of offenders, for example, the true number of children involved is likely to be obscured.
Some offences committed disproportionately by juveniles, such as motor vehicle theft, have high reporting rates due to insurance requirements. Some behaviours (such as drinking alcohol) are illegal precisely because of the age of juveniles.14
As indicated earlier, broad legislative or policy changes can disproportionately impact upon children and young people. An analysis of police ‘move on’ powers15 clearly demonstrates, for example, that the introduction of these powers has disproportionately affected particular groups of citizens, and in particular, children and young people (also see page 8).
Nearly all children who appear in court plead or are found guilty, but the overwhelming majority (92%), receive a non-custodial penalty. The rate of children and young people held in custody was declining and then stabilised to just under 800 children and young people held in custody nationally per day. This is a very small number when compared with adult prisoners, of whom there are about 20,000 serving a term of imprisonment.
12. See Juvenile Justice: Youth and Crime in Australia, C Cunneen and R White, 3rd ed, 2007 Oxford University Press, at p 56; and Youth &
society: exploring the social dynamics of youth experience, R White and J Wyn, Oxford University Press, 2nd ed., 2008, p 161.
13. Juveniles in Detention in Australia, 1981-2007, N Taylor, Monitoring Report No. 5, Australian Institute of Criminology, 2009, available at www.aic.gov.au/publications/current%20series/mr.aspx
14. Juveniles’ contact with the criminal justice system in Australia, K Richards, Monitoring report no. 7, Australian Institute of Criminology, 2009.
15. ‘All the right moves? Police “move-on” powers in Victoria’, J Farrell, Alternative Law Journal 34 (1) January 2009; pp 21-26.
overview 5
However, the daily average number of children and young people in custody is now on the rise, principally due to the increasing remand numbers that have flowed from changes to bail laws, particularly in NSW (see Juveniles on remand, page 17).
JUVENILE JUSTICE IN NSW
A wide variety of government and non-government agencies are engaged in juvenile justice work. In NSW, the NSW Police Force is responsible for the apprehension of alleged young offenders, diversion of eligible and entitled young offenders under the Young Offenders Act, and commencing proceedings against children in the Children’s Court. Specially trained police act as prosecutors in the Children’s Court. Police also operate youth crime prevention programs in many parts of NSW. The Attorney General has overall responsibility for youth crime prevention, the management and maintenance of the NSW Children’s Court, and is also responsible for the overall operation of the Young Offenders Act. Legal Aid NSW operates a specialist Children’s Legal Service (CLS) in Metropolitan Sydney.
Lawyers from the CLS represent and advise children appearing in criminal matters in the specialist Children’s Courts at Parramatta, Bidura (Glebe), Campbelltown, and Wollongong. They also provide legal advice to young people in police custody through the free Youth Hotline, and to children and young people in Juvenile Justice Centres through the Visiting Legal Service, which is partly funded by Juvenile Justice. Legal Aid NSW also pays private lawyers to represent children in specialist Children’s Courts and in all Local Courts sitting as Children’s Courts in rural and regional NSW.
Communities NSW (formerly the Department of Community Services) works with many clients who are also under the supervision of Juvenile Justice, and a court can request Communities NSW to find accommodation for these children when they appear in court for criminal matters. Juvenile Justice NSW (now in the amalgamated Department of Human Services) is responsible for the operation of youth justice conferences, and for the supervision of children on community and control (detention) orders. Juvenile Justice works with a wide range of other government and non-government agencies in providing services to children and young people in trouble with the law. The relevant government agencies include Ageing, Disability and Home Care and Aboriginal Affairs. Juvenile Justice NSW is the largest juvenile justice agency in Australia, but one of the smallest agencies in the NSW bureaucracy.
While supervising young offenders, either in custody or in the community, Juvenile Justice provides rehabilitation programs aimed at reducing the risk of a young person’s re-offending behaviour and assist them in addressing their underlying issues.
The agency also provides funding to a number of community agencies that give assistance to juvenile offenders and their families. For more information and current data on the work of Juvenile Justice NSW see www.djj.nsw.gov.au.
im age u n availa ble
Skateboard rider, Martin Place, Sydney, NSW Australia.
J Eastman, © DWSPL
Police and
young people
Legislation introduced since the mid-1990s in nsW has significantly increased police powers in relation to public order. the issue is an important one for children and young people.
as significant users of public spaces, young people are more likely to be subject to police intervention through increased police powers and public order offences.
The difficult relationship between young people and police has been well documented over the years. There is a wealth of research and literature on the subject.16 Negative contact over the use of police powers can lead to police charging young people with further offences, such as the three offences known colloquially as ‘the trifecta’:
> resist arrest;
> assault police; and
> offensive language.
Most police powers in NSW are now covered by the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), which commenced in late 2005.
SEARCHES
Police may stop and search a person if they suspect on reasonable grounds that the person is carrying:
> prohibited drugs;
> stolen goods;
> something about to be used to commit an offence; or
> a knife or other dangerous implement.17
‘Reasonable suspicion’ can be difficult to define, but must be more than just a hunch or a general prejudice towards certain groups of people.
As the NSW Supreme Court has said, there must be some factual basis for the suspicion and it must not be arbitrary. For example, the fact that some young men were driving a car late at night, and the police received
some ‘intelligence’ that they might be involved in some unspecified offending, was not sufficient to justify the police stopping them. Further, the fact that the young men strongly objected to being searched did not give the police any reasonable grounds to suspect that they may be in possession of something illegal.18
Police may conduct a search without reasonable suspicion with the consent of the person. Consent is a particularly tricky issue where young people are concerned, because police will often ‘ask’ a young person to submit to a search without telling them they have the right to refuse.
If a young person ‘consents’ to a search in the belief that they are under compulsion, this may not be genuine consent and the search may be unlawful.
Depending on the situation, police may conduct different types of searches,19 including:
> a frisk search, which involves patting down the person and may include running a metal detector over the person and their belongings
> an ordinary search which may include requiring a person to empty their pockets and remove outer clothing such as a hat or jacket
> asking the person to open their mouth or move or shake their hair; or
> a strip search, which should only be done if police believe it is necessary for the purpose of the search and if required by the seriousness or urgency of the circumstances.
Police must follow rules to protect a person’s privacy and dignity during the search.
The NSW Ombudsman’s Policing Public Safety report, published in 1999, examined the use of police powers to search for knives and dangerous implements. The report found that 42 per cent of people searched for knives or weapons were juveniles. The majority of these searches were ‘unproductive’ compared to searches of adults, which were more likely to result in a knife or weapon being found.20
16. For a summary, see Juvenile Justice: Youth and Crime in Australia, C Cunneen and R White, 3rd ed, Oxford University Press, 2007, Chapter 9, Policing the Young.
17. Law Enforcement (Powers and Responsibilities) Act, sections 2 and 27.
18. Streat v Bauer; Streat v Blanco, NSW Supreme Court, 16 March 1998.
19. Law Enforcement (Powers and Responsibilities) Act, sections including 21A and 30-33.
20. Policing Public Safety, NSW Ombudsman, November 1999; www.ombo.nsw.gov.au/show.asp?id=389
police and young people 7
The Ombudsman has also conducted a limited review of the personal search powers in LEPRA. A report published in February 2009 made some recommendations aimed at making search powers more easily understood, and at improving the protection of the privacy and dignity of people being searched. The Ombudsman commented:
These are common police powers, the exercise of which affects the lives of many people in NSW every day. The rules governing the exercise of these powers must therefore be clear and practical to ensure effective law enforcement and the proper protection of civil rights.21
SNIFFER DOGS FOR DRUG DETECTION Since 2001, police in NSW have been authorised to use dogs for ‘general drug detection’ in public places including licensed premises, sporting and entertainment venues, public transport routes including trains and stations, and (with a warrant) other public places.22 The law requires police to keep the dog under control and to take all reasonable precautions to ensure the dog does not touch people. Police have no power to detain people for the purpose of general drug detection.
CASE STUDY – APPROPRIATE SUPPORT PERSON
seventeen year old Johnny phung was suspected of committing an armed robbery and fatal shooting.
police arrested him and conducted two interviews while he was in custody. in these interviews phung made admissions about his involvement in the offence.
When phung was charged and brought to court, Justice Wood refused to admit the interview transcripts, finding that the police had acted improperly by not providing an appropriate support person for phung.
the support person in the first interview was phung’s 21 year-old cousin, who did not have strong english, and was himself intimidated by the police. the second support person was a salvation army officer, who was a stranger to phung and did not have any opportunity to talk to him privately.
Justice Wood found that neither support person had been able to properly support phung. in particular, they did not seem to appreciate the seriousness of the charges and they did not give phung any advice or guidance about his right to remain silent or to obtain legal advice.
R v Phung and Hunyh [2001] NSWSC 115; available at www.austlii.edu.au/au/cases/nsw/NSWSC/2001/115.html
However, if a dog indicates that it has detected a scent on a person, this may give the police reasonable grounds to suspect that the person is in possession of a prohibited drug. The police are then empowered to search the person and detain the person while the search is being carried out.
The NSW Ombudsman reviewed the Drug Detection Dogs legislation and published its report in 2006. The Ombudsman expressed a number of concerns, including that drug detection dogs appeared to be targeting small time recreational drug users rather than suppliers.
There were also serious privacy concerns arising from the police practice of recording personal details of the people they searched, even when drugs were not found.
The Ombudsman made a number of recommendations, including recommending that the Government should consider discontinuing use of dogs for general drug detection in public places.23
MOVE-ON DIRECTIONS
In 1998, police were given powers to issue ‘move
on’ directions in public places. This law, with some amendments, is still in force.24
A police officer may give a direction to a person in a public place to prevent:
> the obstruction of other people or traffic;
> harassment or intimidation of other people;
> fear in other people (although it is not actually necessary for there to be anyone else present at the time); and
> the selling or buying of illegal drugs.
The direction must be reasonable in the circumstances to reduce or eliminate the problem behaviour. A direction banning a person from an area for a short period, may be reasonable, but a direction banning a person from a large area, or for a long period such as seven days, would probably be unreasonable.
When giving directions, police must provide certain information and, unless the person is already complying with the direction, must warn the person that failure to comply may be an offence. It is an offence to disobey a reasonable direction without a reasonable excuse.
The NSW Ombudsman’s Policing Public Safety report, published in 1999, examined the use of directions.
Among the findings were that 48 per cent of all directions were issued to people under 18, with the peak age being 16. In the Ombudsman’s opinion, about 50 per cent of the directions were issued for reasons outside the scope of the relevant legislation; for example,
21. Review of certain functions conferred on police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman, May 2009;
www.ombo.nsw.gov.au/show.asp?id=523
22. Law Enforcement (Powers and Responsibilities) Act, sections 145-150, formerly Police Powers (Drug Detection Dogs) Act 2001.
23. Review of the Police Powers (Drug Detection Dogs) Act 2001, NSW Ombudsman, June 2006; www.ombo.nsw.gov.au/show.asp?id=431 24. Law Enforcement (Powers and Responsibilities) Act, Part 14, formerly Summary Offences Act, section 28F.
because people were begging, in a high crime area, or
simply ‘had no reason to be there’.25
The report also found that there was a very high use of move-on powers against Aboriginal and Torres Strait Islander people, who made up 22 per cent of people given move-on directions, even though they only represented 1.9 per cent of the population in NSW.26 ARREST
Police may arrest a person for the purpose of commencing criminal proceedings, if they suspect on reasonable grounds that the person has committed an offence.27 However, criminal proceedings may be commenced without arrest (eg by giving the person a field court attendance notice). Under the Law Enforcement (Powers and Responsibilities) Act, arrest is a last resort.
Police must not arrest a person unless they suspect on reasonable grounds that arrest is necessary to:
> ensure the person appears at court;
> stop the offence from being continued or repeated, or another offence being committed;
> prevent evidence being concealed, lost, destroyed or fabrication of evidence;
> prevent the harassment of, or interference with, any potential witness; and
> preserve the person’s safety or welfare.28
Police also have the power to arrest a person for breaching their bail conditions.29 In this situation, there is no legislative provision saying that arrest is a last resort.
It is therefore lawful for police to arrest young people even for very minor breaches of bail conditions.
SAFEGUARDS RELATING TO POLICE POWERS
When exercising their powers, police must:
> provide evidence that they are police (being in uniform is sufficient);
> give their name and station;
> give the reason for the exercise of the power; and
> in some situations where failure to comply is an offence, warn the person that they may be committing an offence if they fail to comply.30
DETENTION AFTER ARREST
If police have lawfully arrested a person for an offence, they may detain the person for a reasonable time for the purpose of investigating the offence. This period must
not exceed four hours, unless it is extended (for up to eight hours) by a warrant from an authorised justice.31 A person may actually be in police custody for much longer than four hours, because certain periods are regarded as ‘time out’ (eg time spent communicating with a support person or lawyer, to arrange medical attention, to allow the person to sober up).
People who are detained for the purpose of investigation have certain rights including to contact a friend or relative, to contact a lawyer and have them attend the police station, to have an interpreter if necessary, access to bathroom facilities and the provision of reasonable refreshments.
Each police station has an officer (usually a sergeant) who performs the role of ‘custody manager’. The custody manager must provide people under arrest with a summary of their rights, and must also keep detailed records of people being held in detention.
SPECIAL PROTECTION FOR YOUNG PEOPLE IN POLICE CUSTODY
The Regulations provide special protection for certain
‘vulnerable people’, specifically:
> young people under 18;
> people with intellectual or physical disabilities;
> Aboriginal people and Torres Strait Islanders; and
> people of non-English speaking backgrounds (in certain cases).32
Vulnerable people are allowed to have a support person present during any investigative procedure (eg questioning). Young people under 18 cannot waive this right and must have a support person present during investigations.
Support people have a role in assessing whether the investigation is being conducted reasonably, identifying communication issues and assisting a child to assert their rights.
Possible support people include:
> a parent, guardian or other person who has the care of the child;
> an adult (not a police officer) who is there with the consent of a parent, guardian or carer;
> if the child is 14 or over, an adult (not a police officer) who has the child’s consent to be there; or
> a lawyer chosen by the child.
25. Policing Public Safety, NSW Ombudsman November 1999; http://www.ombo.nsw.gov.au/show.asp?id=389 26. Australian Bureau of Statistics: 2001 Census data for NSW available at www.abs.gov.au
27. Law Enforcement (Powers and Responsibilities) Act, section 99.
28. Law Enforcement (Powers and Responsibilities) Act, section 99(3).
29. Bail Act, section 50.
30. Law Enforcement (Powers and Responsibilities) Act, section 201.
31. Law Enforcement (Powers and Responsibilities) Act, Part 9.
32. Law Enforcement (Powers and Responsibilities) Regulations.
police and young people 9
As well as ensuring there is an appropriate support person present, the custody manager must assist a child to exercise his or her rights, including the right to make a telephone call to a legal practitioner.
SPECIAL PROTECTION FOR YOUNG PEOPLE DURING POLICE QUESTIONING A person suspected of committing an offence has the right to silence. This means a suspect does not have to answer police questions (except providing their name and address in some situations, and certain other information in the case of traffic offences).
If a child chooses to participate in a police interview, whatever they say cannot be used against them in court unless:
> there is an independent adult present during the interview (this will usually be the same person who is fulfilling the role of ‘support person’ at the police station); or
> the court believes there was proper and sufficient reason’ for the absence of an independent adult, and that it is appropriate for the evidence to be used against the child in court.33
FINES AND YOUNG PEOPLE
For many young people, fines are a gateway into the criminal justice system. Police Officers and other officials (eg transit officers and council rangers) have the power to issue infringement notices (also known as penalty notices or on-the-spot fines) for a wide range of minor offences.
Young people commonly receive fines for offences such as travelling on a train without a ticket, riding a bicycle without a helmet, disobeying a police direction, unlicensed driving or driving an unregistered vehicle.
These fines can range from as little as $20 (for possessing alcohol in public) to several hundred dollars (in the case of traffic offences). It is not uncommon for young people, especially those who are disadvantaged, to incur several thousand dollars worth of fines.
Figures from the NSW Bureau of Crime Statistics and Research show that 541,689 infringement notices were issued in 2009, which is the equivalent of one fine for every 13 people in NSW. About 32 per cent of these were issued to 14-24 year olds.34
The effectiveness of fines as a penalty lies in their deterrent value, in discouraging similar behaviour in the
future. However, fines have little or no deterrent value for people with no means to pay. Importantly, the aim of rehabilitation (which is the primary consideration when dealing with offences committed by young people) can be undermined by imposing fines.
Enforcement of unpaid fines is governed by the Fines Act 1996 (NSW) and is carried out by the State Debt Recovery Office (SDRO). Fines that are not paid by the due date (or within such extra time as may be allowed) are referred to the SDRO for enforcement action, which includes:
> suspension or cancellation of the fine defaulter’s driver licence;
> cancellation of vehicle registration;
> RTA ‘customer business restrictions’, which means the Roads and Traffic Authority can refuse to issue licences, transfer vehicle registrations, etc;
> civil enforcement, including garnishee orders (forcibly taking money directly from the fine defaulter’s pay or savings) and property seizure orders;
> community service (but only after the SDRO has exhausted all efforts to get the fine defaulter to pay the fine); and
> imprisonment (as a last resort, and only for adults).
A fine defaulter can avoid enforcement action by paying their fines, either in a lump sum or by instalments, but this is often of little assistance to young people who already face serious financial difficulty.
The impact of the fine enforcement system on young and disadvantaged people has been discussed in numerous submissions and papers by legal and advocacy groups such as the Homeless Persons’ Legal Service and the Shopfront Youth Legal Centre,35 and in reports from bodies such as the NSW Sentencing Council.36
Young people are particularly affected by the SDRO’s power to suspend driver licences (or prevent people from getting their licence). This happens at an early stage in the enforcement process and can be difficult to reverse unless the young person makes regular payments or has a good understanding of other options for dealing with their fines. In these circumstances, young people are often tempted to drive unlicensed, incurring further fines and court-imposed disqualification periods which often extend several years into the future.
For people who continue to drive while they are disqualified, imprisonment is also a real possibility.
NSW criminal court statistics show that court
33. Children (Criminal Proceedings) Act 1987, section 13.
34. Young people (aged 14-24) represented approximately 15% of the population of NSW in 2009 (from the Australian Bureau of Statistics publication 3201.0 – Population by Age and Sex, Australian States and Territories, Jun 2009).
35. Not Such a Fine Thing, Homeless Persons’ Legal Service, April 2006, http://www.piac.asn.au/publications/pubs/fines_20060404.html; and various submissions prepared by the Shopfront Youth Legal Centre, www.theshopfront.org/25.html
36. The effectiveness of fines as a sentencing option: court-imposed fines and penalty notices http://www.lawlink.nsw.gov.au/Lawlink/scouncil/
ll_scouncil.nsf/pages/scouncil_publications
appearances for driving licence-related offences increased from 7641 in 1994 to 18,943 in 2005. The number of people sentenced to imprisonment for such offences rose from 443 to 1027 in the same period.37 While there could be other factors responsible for this increase, the fine enforcement regime is thought to be a major contributor.
In recent years, the Fines Act has been amended several times to make the system more flexible and to reduce the hardship faced by disadvantaged people. Amendments include:
> accepting payment of instalments via Centrepay (payments directly from Centrelink benefits);
> guidelines for officers to issue cautions instead of fines; and
> Work and Development Orders (WDOs). WDOs were introduced in 2009 on a two-year trial basis, and are a way for disadvantaged people to ‘pay off’
their fines by doing unpaid community work or developmental activities such as courses, counselling or treatment.38
CASE STUDY – LEGAL AID YOUTH HOTLINE
in the past, when a child asked to speak to a lawyer, police had sometimes just given them a telephone book and told them to look one up, often outside business hours.
in the case of R v ME and LT (unreported supreme court, 3 october 2002), the court found that this was not good enough, and that the custody manager must inform the child about the free Legal aid Youth hotline (tel 1800 101 810) and help them to access it.
in this case, Justice Dowd said (at 38):
‘Young people aged 17 rarely have a solicitor and rarely have a contact number for one available. it is as absurd as suggesting they might contact their architect or dietary advisor. the whole intention of the hotline is that young people would know it is free, that it is available, and that they would be able to obtain advice there and then. Failure to make it available is a clear breach of the act and regulations but, more importantly, in breach of the requirement of fairness to the young person.’
im age u n availa ble
NSW police officers questioning two youths in Macquarie Fields, Sydney in 2005. An accident involving a stolen car which killed two young passengers sparked four days of riots in the suburb.
Kate Geraghty, Sydney Morning Herald
37. NSW Bureau of Crime Statistics and Research, summary of criminal court statistics, www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/
pages/bocsar_lc_05
38. State Debt Recovery Office – WDOs, http://www.sdro.nsw.gov.au/lib/docs/forms/sdr037.pdf
police and young people 11
Children in court
one of the distinguishing features of a juvenile justice system is the establishment of separate children’s courts and principles to guide the courts. children’s courts deal with most offences committed by children under 18 years of age at the time of the offence.
THE CHILDREN’S COURT
In NSW, the jurisdiction and procedure of the Court is covered by the Children’s Court Act 1987 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW). In metropolitan Sydney, Wollongong, the Central Coast and Newcastle there are specialist Children’s Courts. In regional and rural NSW, the Local Court constitutes itself as a Children’s Court whenever a criminal or care case relating to a child is being heard, and the special rules apply.
Children’s Courts are different from other courts in that they are:
> Closed to the public. The public are excluded from Children’s Court proceedings. People other than relatives and friends, court staff, lawyers and police directly involved in the case can only enter the courtroom if allowed by the magistrate or judge; and
> The media are entitled to be present in the court unless the magistrate or judge directs otherwise.
However, the name or anything that could identify a child involved in proceedings may not be published without the consent of the child (if he or she is 16 years or over) or the consent of the court (if the child is under 16).
These two rules are to protect the identity and privacy of the young person as part of the principle that rehabilitation and re-integration back into the community are a priority.
Other characteristics of the separate Children’s Court include:
> less formal proceedings (for example, lawyers remain seated while addressing the magistrate rather than standing); and
> a requirement that the court ensure the child understands the nature of the proceedings and is able to be heard and to participate.
PRINCIPLES OF JUVENILE JUSTICE In NSW, courts must apply the following principles when dealing with children in criminal cases:39
> children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate in the processes that lead to decisions that affect them;
> children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance;
> it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption;
> it is desirable, wherever possible, to allow a child to reside in his or her own home; and
> the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
When it comes to sentencing in particular, the principles that apply in the Children’s Court are different from the sentencing principles that apply in the adult courts.
The most important of these is the principle that rehabilitation must be the primary aim in sentencing a young offender rather than the principles of retribution or general deterrence which may demand more serious penalties. The Children’s Court aims to promote rehabilitation through the use of community-based orders such as good behaviour bonds, probation and community service orders, or special programs like the Youth Drug and Alcohol Court.
The United Nations Convention on the Rights of the Child (CROC) also establishes principles which are persuasive in Australian courts when sentencing young offenders, as Australia is a signatory to CROC. These include:
> the best interests of the child is paramount in decisions made affecting the child (article 3); and
> imprisonment of children must be a measure of last resort and a variety of other appropriate penalties should be available to children, with a focus on rehabilitation (articles 37 and 40).
For more detail see International law on page 3.
39. Children (Criminal Proceedings) Act 1987 (NSW), section 6.
im age u n availa ble YOUTH DRUG AND ALCOHOL COURT
The Youth Drug and Alcohol Court (YDAC) is, after 11 years, still a pilot program that was established on 31 July 2000, following a recommendation made by the 1999 NSW Drug Summit. A young person who satisfies the eligibility criteria for YDAC may be referred to this sentencing option by the specialist Children’s Courts (Bidura, Campbelltown and Parramatta).
The YDAC is a collaborative project between the Children’s Court of NSW, the NSW Police Force, Legal Aid NSW and four government agencies – Juvenile Justice, Justice Health, Community Services, and the Department of Education. These last four agencies each have representatives on the Joint Assessment and Review Team (JART), and, in collaboration with the YDAC Magistrate and the young person, make the treatment decisions that constitute the order of the court.
Young people who are accepted on the YDAC program generally do not spend time in custody, but remain in the community and are given 6-12 months to complete the program. Program plans are tailored towards the individual and often include a residential rehabilitation component.
Any young person who meets the eligibility criteria set out the YDAC Practice Note 1 may be referred to the program. These criteria state that the young person must:
> have entered a plea of guilty to or been found guilty of all charges against him or her (all sex offences are excluded from the YDAC program);
> have a demonstrable drug and/or alcohol problem;
> have been aged between 14-18 at the time of the commission of the offence;
> have committed and offence that can be dealt with to finality within the Children’s Court;
> reside in, have committed the offence in, or otherwise identify with the greater Sydney Metropolitan area;
and
> be ineligible to be dealt with under the Young Offenders Act 1997.
Upon successful completion of the program, the young person is given a non-custodial sentence and no conviction is recorded against their name. If they fail to complete the program, the young person is sentenced in the usual way.
The NSW Attorney General’s Department commissioned a consortium from the University of New South Wales, led by the Social Policy Research Centre (SPRC), to evaluate the pilot program’s operations over the two years to the end of July 2002. The SPRC report is available on the Youth Drug and Alcohol Court website.40
[The section on the Youth Drug and Alcohol Court was written by Sarah Crellin, Solicitor, Legal Aid NSW.]
© Jack Hollingsworth, Corbis
40. See www.lawlink.nsw.gov.au/youthdrugcourt and then go to the ‘Evaluation’ section.
children in court 13