BACKGROUND
1.1 On 12 April 1995, the then Attorney General, the Hon Jeff Shaw QC, referred the reform of sentencing law to the New South Wales Law Reform Commission (the Commission).1 The Commission divided the reference into three phases.2 The first phase, an evaluation of the general principles of sentencing law in New South Wales, was the subject of the Commission’s Report entitled Sentencing.3 The second phase involves a review of the particular problems which arise in sentencing groups of offenders requiring special consideration, such as Aboriginal people and juveniles.4 In due course the Commission will undertake further work in connection with penalising corporations. The third phase will involve the review and rationalisation of the maximum penalties prescribed by statute in New South Wales.
DEFINITION
1.2 The age of criminal responsibility in New South Wales is 10. There is a conclusive presumption that no child who is younger than 10 years old can commit an offence.5
1.3 Children aged between 10 and 14 who commit criminal offences are presumed to be incapable of committing a crime because of a lack of mens rea (criminal intention). To rebut this presumption, the prosecution must prove that the child did the act charged and that when doing the act, the child knew that it was a wrong act of some seriousness, as distinct from an act of mere naughtiness or childish mischief. This must be proven to the criminal standard of proof which is beyond reasonable doubt.6
1.4 Offenders who are aged between 10 and 17 at the time they commit an offence, and who are under 21 when charged, are sentenced under a separate system to adults.7 In order to determine questions of jurisdiction, a court may rely on the apparent age of an accused person if no other evidence is readily available.8
1.5 While older legislation dealing with people aged under 18 refers to them as “children” or “juveniles”, recently enacted legislation uses the term “young offender”, which is also the term preferred by the Commission.
EXTENT OF OFFENDING
1.6 Community perceptions about young offenders are influenced largely by the media, which often exaggerates and sensationalises the level and type of offending by young people. In fact, a study by the New South Wales Department of Juvenile Justice of over 50,000 young offenders who appeared before the Children’s Court from 1984 to 1994 found that 70% of young people committed only one offence, and a further 15% committed only two offences. Nine percent of young offenders were responsible for almost one third of all criminal court appearances by young people and less than 2% were responsible for almost 10% of all criminal court appearances.9
1.7 The majority of offences committed by young people are property offences such as housebreaking with intent to steal, motor vehicle theft and stealing. Violent offences are in the minority, even for those few young people who are repeat offenders.10
COURSE OF THIS REFERENCE
Identifying the issues
1.8 The Commission commenced work on this reference by reviewing the literature on juvenile justice in Australia, particularly in New South Wales. There is an enormous body of published literature in this area, including the Report of the 1991 Royal Commission into Aboriginal Deaths in Custody11 and numerous reports by a wide range of government and non-government agencies, including the Aboriginal Justice Advisory Council,12 the Australian Institute of Criminology;13 the Bureau of Crime Statistics and Research;14 the Community Services Commission;15 the Human Rights and Equal Opportunity Commission;16 the Judicial Commission;17 the Juvenile Justice Advisory Council;18 the New South Wales Attorney General’s Department;19 the New South Wales Department of Juvenile Justice;20 the New South Wales Ombudsman;21 the New South Wales Parliament22 and the Youth Justice Coalition.23
1.9 The Commission also engaged in extensive preliminary consultations with the Aboriginal Justice Advisory Council; the Australian Institute of Criminology; the Attorney General’s Department; the Children’s Court; the Department of Juvenile Justice; the Juvenile Justice Advisory Council; the Law Society of New South Wales; Legal Aid New South Wales; the New South Wales Bar Association; New South Wales Office of the Director of Public Prosecutions; the New South Wales Police Service; the Positive Justice Centre and Public Defenders. The Commission also established a reference group which greatly assisted the Commission in identifying relevant issues. The members of the reference group are listed at Appendix A.
This Issues Paper
1.10 During preliminary consultations, a wide range of issues were raised about many aspects of the criminal justice system including police powers, public order offences, alternative ways of commencing proceedings and legal representation of young people. The Commission has taken the view that although these issues are worthy of further consideration, they are outside the scope of this reference, which focuses on sentencing issues.
1.11 This Issues Paper consists of three chapters. Chapter 1 is an introduction. It sets out the background to this Issues Paper, the definition of “young offender” and the course of this reference.
1.12 Chapter 2 deals with existing schemes which divert young offenders away from courts, including warnings, cautions and youth justice conferences under the Young Offenders Act 1997 (NSW) and the Youth Drug Court. It also considers circle sentencing.
1.13 Chapter 3 deals with sentencing by courts. It sets out the criminal jurisdiction of courts over young people, sentencing principles and the penalties which courts can impose. It describes police powers over young people, public order offences, the alternatives for commencing criminal proceedings and young peoples’ right to legal representation when questioned by police and in court.
1.14 Chapter 3 raises issues in relation to bail; the name of the Children’s Court and specialisation of the Children’s Magistracy; the role of evidence of previous offences committed by a young person in later hearings and trials, media identification of young people and restorative justice. It looks at mandatory sentencing and guideline sentencing judgments. Finally, Chapter 3 considers particular groups of young people who are over represented as offenders.
Consultation and recommendations
1.15 This Issues Paper identifies 27 issues relating to sentencing young offenders. The Commission plans to consult extensively with the community on these issues before preparing its final report on young offenders. The Commission is interested in information and views about all of these issues. You do not have to address all of the issues raised in the Issues Paper in your submission if you have information or views on only one or some. The Commission would also welcome submissions about other issues related to sentencing young offenders not identified in this Issues Paper.
The deadline for receipt of submissions for this Issues Paper is 30 September 2001.
FOOTNOTES
1. The background to the reference is outlined in New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996) at para 1.1-1.9.
2. See NSWLRC DP 33 at para 1.11-1.20.
3. New South Wales Law Reform Commission, Sentencing (Report 79, 1996).
4. See New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders (Report 96, 2000).
5. Children (Criminal Proceedings) Act 1987 (NSW) s 5. For discussion of this law, see Australian Law Reform Commission/Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process (Report 84, 1997) at para 18.12-18.16 and Recommendation 194; New South Wales, Attorney General’s Department, Criminal Law Review Division, A Review of the Law on the Age of Criminal Responsibility of Children (2000); L Doherty, “Children Still Presumed to be Innocent – At Least Until 14” Sydney Morning Herald (12 February 2001) at 5.
6. R v C R H (Unreported, New South Wales, Court of Criminal Appeal, 18 December 1996). For discussion of this presumption, see ALRC Report 84 at para 18.17-18.20 and Recommendation 195; New South Wales, Attorney General’s Department, Criminal Law Review Division, A Review of the Law on the Age of Criminal Responsibility of Children (2000); Australian Institute of Criminology, The Age of Criminal Responsibility (Trends and Issues in Crime and Criminal Justice, No 181, 2000).
7. C(CP)A s 3, 16, 28. If no other evidence is readily available, a court is entitled to rely on the apparent age of a person in order to determine whether it has jurisdiction: C(CP)A s 7A. For a discussion on the aspects of the juvenile justice system which apply to offenders who were under 18 when they committed an offence but aged 18-21 when charged see S Mullany, “The Child Offender who Turns 18” (1997) 35(10) Law Society Journal 48.
8. C(CP)A s 7A.
9. M Cain, “An Analysis of Juvenile Recidivism” in Australian Institute of Criminology, Juvenile Crime and Justice (1997) 12 at 13; New South Wales, Department of Juvenile Justice, Recidivism of Juvenile Offenders in NSW (1996).
10. K Buttrum, “Juvenile Justice: What Works and What Doesn’t” in Australian Institute of Criminology, Juvenile Crime and Justice (1997) 63 at 63-64.
11. Australia, Royal Commission into Aboriginal Deaths in Custody, National Report and Regional Report for New South Wales, Victoria and Tasmania (1991-1992).
12. New South Wales, Attorney General’s Department, Aboriginal Justice Advisory Committee, Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process (Discussion Paper, 1999); New South Wales, Attorney General’s Department, Aboriginal Justice Advisory Committee, A Fraction More Power: Review of the Impact of the Children (Protection and Parental Responsibility) Act on Aboriginal People in Moree and Ballina (1999); New South Wales, Attorney General’s Department, Aboriginal Justice Advisory Committee, Policing Public Order: Offensive Language and Conduct, The Impact on Aboriginal People (1999). (In 1999 the Committee was renamed the Council).
13. Australian Institute of Criminology, Family Conferencing and Juvenile Justice (1994); Australian Institute of Criminology, Juvenile Crime and Justice (1997); Australian Institute of Criminology, Juveniles in Australian Corrective Institutions 1981-1998 (1999); Australian Institute of Criminology, Restorative Justice and Conferencing in Australia (Trends and Issues 186, 2001).
14. New South Wales, Bureau of Crime Statistics and Research, Race and Offensive Language Charges (Bureau Brief, August 1999; New South Wales, Bureau of Crime Statistics and Research, NSW Drug Court Evaluation: Program and Participant Profiles 2000 (Crime and Justice Bulletin 50); New South Wales, Bureau of Crime Statistics and Research, Drug Court Evaluation: Interim Report on Health and Well being of Participants 2001 (Crime and Justice Bulletin 53); New South Wales, Bureau of Crime Statistics and Research, An Evaluation of the NSW Youth Justice Conferencing Scheme (2000); New South Wales, Bureau of Crime Statistics and Research, The Scope for Reducing Indigenous Imprisonment Rates (2001).
15. New South Wales, Community Services Commission, The Drift of Children in Care into the Juvenile Justice System (1996).
16. Human Rights and Equal Opportunity Commission, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997); Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process (ALRC, Report 84, 1997).
17. New South Wales, Judicial Commission, Sentencing Disparity and the Ethnicity of Juvenile Offenders (Report 17, 1998).
18. New South Wales, Juvenile Justice Advisory Council, Aboriginal Over-representation and Discretionary Decisions in the NSW Juvenile Justice System (1995).
19. New South Wales, Attorney General’s Department, Crime Prevention Division, Juvenile Crime in New South Wales Report: Statistical Profile of Juvenile Offenders (1996); N Hennessy, Review of Gatekeeping Role in Young Offenders Act 1997 (NSW) (1999).
20. New South Wales, Department of Juvenile Justice, Juveniles in Detention: Issues of Over Representation (1995); New South Wales, Department of Juvenile Justice, Recidivism of Juvenile Offenders in NSW (1996).
21. New South Wales, Ombudsman, Inquiry into Juvenile Detention Centres (1996); New South Wales, Ombudsman, Policing Public Safety (1999); NSW Ombudsman, Investigation into Kariong Juvenile Justice Centre (2000).
22. New South Wales, Parliament, Legislative Council, Standing Committee on Social Issues, Juvenile Justice in NSW (1992).
23. New South Wales, Youth Justice Coalition, Kids In Justice – A Blueprint for the 90s (1990).
