2.1 Young offenders can be dealt with by warnings, cautions and youth justice conference under the Young Offenders Act 1997 (NSW) (“YOA”). New South Wales is also currently trialing a Youth Drug Court as a diversionary option for young offenders with alcohol or drug problems.
2.2 This Chapter outlines these diversionary sentencing options. Issues raised include the scope of the YOA, the interaction between participation in youth justice conferencing and legal advice, the fairness of youth justice conferencing to young offenders, victims of crime and the community, and the rate of diversion under the YOA. This Chapter also raises the issue of the effectiveness of the Youth Drug Court, both in reducing re-offending by young people and improving their health.
2.3 This Chapter also outlines a diversionary sentencing option known as circle sentencing, which is increasingly used overseas and has been trialed on adult offenders in several Australian jurisdictions. The last issue raised in this Chapter is whether circle sentencing is an appropriate sentencing option for young offenders in New South Wales.
YOUNG OFFENDERS ACT 1997 (NSW)
2.4 Under the YOA, young people who commit certain offences can be dealt with by police warnings, cautions delivered by either police or courts or youth justice conferences, instead of being sentenced by a court.1
2.5 The YOA includes the following general principles:2
- The least restrictive sanction is to be imposed on young offenders.
- Criminal proceedings should not be instituted against young offenders if there is an appropriate alternative.
- Where appropriate, young offenders should be dealt with in their communities.
- Parents are primarily responsible for the development of young people and should participate.
- Victims are entitled to be told about their potential involvement in and the progress of action taken under the YOA.
2.6 The YOA applies to summary offences and indictable offences triable summarily. This includes public order offences, property offences, many drug offences and assaults. Some offences, including offences that result in death, most sexual offences, serious drug offences and traffic offences (if the offender is old enough to hold a licence), cannot be dealt with under the YOA.3
2.7 During consultations, the Aboriginal Justice Advisory Council observed an emerging trend, particularly in the South Coast of New South Wales, for young Aboriginal people to be fined for committing offences under the Fisheries Management Act 1994 (NSW). The Council argued that young people who commit offences under this Act should be dealt with under the YOA rather than by being sentenced by a court to a fine which they often have no way of paying.4
Warnings
2.8 Warnings are available for non-violent summary offences. They cannot be given for indictable offences triable summarily, offences involving violence, or where the investigating police officer considers that it would be more appropriate in the interests of justice to deal with the young offender by other means.5 The intention of the YOA was that warnings would be given for all minor, summary offences not involving violence, such as offensive language.6 The Director of the Department of Juvenile Justice Youth Justice Conferencing Directorate (“YJCD”) has expressed disappointment that despite this intention a significant number of young Indigenous people continue to appear in court charged with offensive language.7
2.9 Warnings are given by the investigating police officer. Officers are not permitted to attach any conditions or other penalties to warnings,8 and are required to explain the purpose and effect of being warned to the young offender.9 Young offenders are not required to admit an offence to receive a warning.10
2.10 Warnings constituted 17% of the total number of police interventions for young people in the year 1999-2000.11
Cautions
2.11 Cautions are available for all offences covered by the YOA.12 Young offenders must admit the offence to be eligible for a caution and must agree to be cautioned.13 Young offenders must not be cautioned where it would be more appropriate in the interests of justice to deal with the young person by other means. The YOA prescribes a number of factors to be considered in deciding whether a caution would be appropriate, including the seriousness of the offence, the degree of violence, the harm suffered by the victim, any other offences committed by the young offender and any other instances in which the young person has been dealt with under the YOA.14
2.12 The YOA provides for the appointment of police officers as specialist youth officers (“SYOs”).15 SYOs are appointed by their Local Area Commanders. All existing Youth Liaison Officers and most custody managers have been appointed as SYOs. The decision to caution a young offender can be made by the investigating police officer, an SYO or the Director of Public Prosecutions.16
2.13 Where the investigating police officer decides that it is not in the interests of justice for a young offender to be cautioned, the matter must be referred to an SYO to consider whether a youth justice conference would be appropriate.17 Where the offence did not involve violence and was not serious, but the victim has suffered substantial harm, or where other circumstances of the victim make it appropriate to do so, the investigating official can refer the matter to an SYO to decide whether the young offender should be referred to a youth justice conference.18
2.14 Cautions can be administered by a police officer or a respected member of the community.19 Police officers are not permitted to attach any conditions or other penalties to warnings, except for requesting the young person to write an apology to the victim.20 Courts can also caution young people under the YOA.21 The YOA expressly provides that this does not affect the power of a court to caution a child under the Children (Criminal Proceedings) Act 1987 (NSW).22
2.15 The Director of the YJCD has argued that it is preferable that courts rely on the power to caution young offenders under the YOA. This provides a formal opportunity for courts to influence the nature of police decision making, since magistrates who caution young offenders under the YOA are required to inform the relevant Area Commander of their reasons for doing so.23
Issue 2
Should the Children’s Court continue to have a power to caution young offenders under the Children (Criminal Proceedings) Act 1987 (NSW)? If so, when should this power, rather than the power to caution under the Young Offenders Act 1997 (NSW) be used?
2.16 In the first full year of operation, 8,128 young people were cautioned by police under the YOA. This represented 34% of all young people dealt with by police during the period. Females comprise 22% of young people dealt with by police, however, the proportion of females who received a caution was higher than for males – 44% of females were cautioned, compared with 31% of males.24 No data is available on the number of young offenders cautioned by courts.25
Youth justice conferences
2.17 Youth justice conferencing is designed to encourage young offenders to accept responsibility for their behaviour, strengthen their families, provide developmental and support services and enhance the rights and interests of victims of crime.26 The YJCD is responsible for conferencing under the YOA.
Referral
2.18 Youth justice conferencing is available for all the offences covered by the YOA.27 The young offender must admit the offence and consent to conferencing.28 Where an investigating police officer determines that a warning or caution would not be appropriate in the interests of justice, the matter must be referred to an SYO to consider whether a conference would be appropriate.29 The SYO has a discretion to decide whether it would be more appropriate to caution the young offender or commence criminal proceedings.30 The YOA prescribes a number of factors to be considered when determining this, including the seriousness of the offence, the degree of violence, the harm suffered by the victim, any other offences committed by the young person and any other instances in which the young person has been dealt with under the YOA.31
2.19 Each youth justice conference is allocated to a conference administrator.32 Where the administrator disagrees with a referral, the case is referred to the Director of Public Prosecutions for a final decision.33 Hennessy has observed that SYOs and conference administrators would benefit from access to the Director of Public Prosecution’s reasoning in these cases.34
2.20 Courts can also refer young offenders to youth justice conferences.35 The court must take into account the factors outlined above in paragraph 2.18, but the consent of the young offender is not required.36 During consultations, it was argued that where young offenders do not consent to being referred to youth justice conferences their full participation may be doubted.
2.21 Some magistrates who divert young offenders to conferences also make orders requiring progress reports to be given to the court, undermining the diversionary purpose of the YOA.37 During consultations, it was suggested that in some cases young offenders are granted conditional bail or sentenced to good behaviour bonds in conjunction with diversion. This is also inconsistent with the diversionary policy of the YOA.38
2.22 The Director of the YJCD has also expressed concern that some magistrates refer young offenders to youth justice conferencing for first, minor offences, where a caution is more appropriate.39
2.23 During consultations, concern was also expressed that some magistrates continue to rely on diversion schemes outside the YOA. In particular, in appears that some magistrates continue to divert young offenders to Community Aid Panels, which are local initiatives run by police and magistrates and not based on restorative justice principles.40 Hennessy recommended that magistrates should give consideration to confining their decisions to the diversionary options under the YOA.41 A Practice Direction issued by the Children’s Court states that any referral of young offenders to Community Aid Panels should be considered in light of the legislative intent expressed in the Young Offenders Act 1997 (NSW).42
2.24 The YOA requires that where possible, youth justice conferences must be held within 21 days of referral, but more than ten days after the young offender has been notified of referral.43 An evaluation of the conferencing scheme by the New South Wales Bureau of Crime Statistics and Research found that this statutory time frame was not met in most cases. On average, 40 days elapsed between the referral date and the date of the conference. 28% of conferences were held before the 10 day notice period expired. Only 8% of conferences met both statutory time frames.44 The Bureau commented that the value of thorough preparation for conferences outweighed the value of meeting the statutory time frames.45
Process
2.25 The offender, a conference convenor,46 a parent, carer, other members of the offender’s family or other adult, a solicitor advising the young offender,47 the investigating police officer the and SYO, the victim and a support person for the victim are entitled to attend youth justice conferences. The conference convenor may also invite a respected member of the community and professionals such as social workers.48
2.26 These participants determine an outcome plan. This may require the offender to apologise to the victim, compensate the victim or the community, participate in an educational or vocational program, or address alcohol or drug misuse. The outcome plan must be realistic and appropriate and must not impose sanctions that are more severe than penalties that might be imposed by a court.49 The outcome plan is not binding unless the young offender and the victim agree to it.50 Where the young offender was referred to youth justice conferencing by a court, the court must also approve the outcome plan.51
2.27 A conference administrator supervises the completion of each outcome plan and issues a written notice detailing whether or not the young offender has completed the plan to the offender, the victim and the police or referring court.52
2.28 No further criminal proceedings may be taken against a young offender who completes an outcome plan.53 Where a court refers a young person to youth justice conferencing without finding an offence proven, the court must dismiss the charge on receiving notice of completion of the outcome plan.54
2.29 According to police data, 806 young offenders, or 3% of all young people dealt with by police, were referred by police to youth justice conferencing in the first full year of operation of the YOA. The YJCD recorded 1,267 conferences and 710 completed outcome plans during the period.55
2.30 An evaluation of youth justice conferencing by the New South Wales Bureau of Crime Statistics and Research found a high level of satisfaction on the part of both victims and offenders with pre-conference preparation, conference proceedings and outcome plans.56
2.31 The YOA states that youth justice conferencing should be culturally appropriate where possible.57 Commentators have criticised the conferencing system on the basis that it does not cater for the needs of Aboriginal and Torres Strait Islander communities. It is argued that there are not enough Aboriginal or Torres Strait Islander conference convenors to ensure that young Aboriginal or Torres Strait Islander offenders are matched with Aboriginal or Torres Strait Islander convenors, and that there should be scope for co-convenors.58
2.32 The Director of the YJCD reports that conference administrators have worked to recruit convenors from specific cultural groups and to train convenors to address specific cultural needs,59 and to ensure a high level of community participation.60 Thirty out of 350 conference convenors are Aboriginal or Torres Strait Islander people, enabling cultural matching of Indigenous offenders and convenors in most cases.61
2.33 Another criticism is that while the YOA provides for a respected member of the offender’s community to attend youth justice conferences, it is expected that these people attend voluntarily rather than as paid consultants.62
2.34 Commentators have also expressed concern that one outcome of youth justice conferences may be that parents are blamed for the behaviour of their children. It has been observed that this has led to Aboriginal and Torres Strait Islander families feeling stigmatised.63 In its preliminary submission to the Commission, the Australian Institute of Criminology argued that research is needed to establish whether outcome plans are fair and consistent.64
The New South Wales Bureau of Crime Statistics and Research evaluation found a high level of satisfaction with outcome plans.65
Issue 3
Should people who attend youth justice conferences as respected members of the offender’s community be paid for their services?
Issue 4
Are the outcomes of youth justice conferences appropriate to achieve the objects of the Young Offenders Act 1997 (NSW)?
Legal advice
2.35 Young offenders are entitled to obtain legal advice, and must be told how to obtain it, before being cautioned or referred to a youth justice conference.66 The conference convenor must also give the young offender a written notice that informs them of their right to obtain legal advice before the conference takes place.67
2.36 The availability of independent legal advice at the police station is critical to ensure that such admissions under the YOA are made voluntarily.68 Legal aid is available to young people in this situation by way of the Children’s Legal Service telephone advice service.69
2.37 The Bureau of Crimes Statistics and Research found that 85% of young offenders who attended youth justice conferences had been informed of their right to obtain legal advice and 80% were told how to get advice from a lawyer. Twenty one percent of young offenders obtained legal advice.70
2.38 Concern has been expressed that some lawyers have advised young offenders against youth justice conferencing because it can result in a more onerous outcome than court-based sentencing processes.71 Hennessy observed that the number of legal advisers present at conferencing was very low.72 She concluded that it would be in the interests of young people for lawyers working in the area to familiarise themselves with the YOA and attend some conferences.73 On the other hand, it has also been argued that it is not valid to compare outcome plans with court-based sentences since the two process have different objectives.74
Record keeping
Statutory requirements
2.39 When a young person is given a warning or caution by a police officer, the officer is required to enter a record of the warning on the Computerised Operational Policing system.75 In relation to warnings, the name and gender of the young person and details of the offence must be recorded.76 There is no requirement to record the cultural or ethnic background of young offenders given a warning. For cautions, additional information about the age and cultural or ethnic background of the young person and information about the caution must also be recorded.77 Where a court cautions a young offender under the YOA, the Registrar must notify the Area Commander of the caution, with reasons.78
2.40 Where a young offender is referred to a youth justice conference, the Commissioner of Police must be notified.79 Details of conferences, including the name, gender and cultural or ethnic background of the young offender, the nature of the offence, and particulars of the outcome plan, including whether it was completed, must also be recorded.80
2.41 It has been observed that in the first year of operation of the YOA, the Police Service did not fulfil its record keeping duties under the YOA.81
Issue 6
Do the Police Service and the Department of Juvenile Justice comply with the record keeping requirements under the Young Offenders Act 1997 (NSW)?
Are the statutory record keeping requirements under the Young Offenders Act 1997 (NSW) appropriate and adequate?
Evidence of prior offences
2.42 While the fact that a young person has committed other offences or previously been dealt with under the YOA is a relevant factor in deciding whether it is appropriate to deal with them under the YOA,82 a young person must not be denied access to diversion on this basis.83
2.43 The fact that a person has been dealt with under the YOA is not considered to be criminal history, except in subsequent proceedings before the Children’s Court.84
Media identification
2.44 The name or any information tending to identify a young offender dealt with under the YOA must not be published or broadcast at any time, unless the offender is 16 or over and consents to being identified.85
Diversion rate
2.45 Although no specific targets were set for diversion under the YOA, it was originally anticipated that the majority of young offenders would be diverted away from court proceedings.86 Hennessy concluded that the diversion rate for 1998, the first full year of operation of the YOA, was lower than anticipated. In this year, 37% of young people dealt with by police received a caution or a referral to a youth justice conference.87 Hennessy observed that this diversion rate was lower than rates achieved in other jurisdictions.88 The diversion rate for 1999 was 35% and in 2000 it increased to 41%.89
Young Aboriginal and Torres Strait Islander offenders
2.46 Hennessy concluded that diversion rate for young Aboriginal and Torres Strait Islander offenders was significantly lower than the overall diversion rate: 24% of young Aboriginal and Torres Strait Islander people dealt with by police were diverted, compared with the overall rate of 37%.90 In a preliminary submission, the Australian Institute of Criminology also drew attention to the under-representation of young Aboriginal and Torres Strait Islander offenders in diversion schemes, and the need for further research.91
2.47 Fourteen percent of youth justice conferences held during the period examined by Hennessy were recorded as involving young Aboriginal and Torres Strait Islander offenders. Hennessy found that recording of information about the cultural background of young offenders dealt with by conference was inadequate. Therefore, the actual rate of participation by young Aboriginal and Torres Strait Islanders may have been higher than the recorded rate.92
Ethnicity
2.48 The YJCD recorded 6% of young people who participated in conferences as being from a non-English speaking background, although the actual rate may have been higher.93 Hennessy observed that the inadequacy of police records made it impossible to draw conclusions about the operation of the YOA in relation to young offenders from particular ethnic groups. She recommended that the Police Service should develop strategies to record information about race as required by the YOA, observing that the Judicial Commission has developed a questionnaire to identify ethnicity which could be adapted for use in the Police Service so that this data can be captured.94
Geography
2.49 Hennessy found a disparity between diversion rates across Area Commands during the first year that the YOA was in operation.95 Diversion rates for young non-Aboriginal people over one month ranged from 33% in Northern New South Wales to 16% in the Hunter region. Diversion of young Aboriginal people also varied from 3% in the Macquarie region to 34% in the Endeavour region during the same month. Concern about different levels of diversion of young offenders in different parts of New South Wales was also expressed during preliminary consultations for this project.96
2.50 A related concern is a serious lack of services such as alcohol and drug misuse assessment and treatment, counselling, educational and vocational services in certain areas.97
Intellectual disability
2.51 The over representation of people with an intellectual disability in the criminal justice system is discussed in Chapter 3 of this Issues Paper. Chapter 3 also summarises the Commission’s previous recommendations in relation to people with an intellectual disability and the criminal justice system. These include the need for a statutory definition of intellectual disability and a police Code of Practice dealing with the identification of intellectual disability and the adjustment of police procedures, such as interview techniques.98 These recommendations are also relevant to diversion of young offenders under the YOA.
2.52 Hennessy noted that police records of incidence of intellectual disability among young people dealt with by police were inadequate, making it impossible to draw conclusions about the operation of the YOA in relation to young people with intellectual disabilities.99 During consultations, concern was expressed that some young offenders with an intellectual disability were inappropriately referred to youth justice conferences, and that the provisions for participation in conferencing may need to be strengthened to encourage attendance by parents or other support people of young offenders with cognitive and developmental disorders.100
State care
2.53 In a preliminary submission to the Commission, the Positive Justice Centre argued that diversion under the YOA is under-utilised for state wards.101
Referral to youth justice conferences by magistrates higher than referral by police
2.54 Hennessy concluded that more young people were referred to youth justice conferences by magistrates than by police.102 Hennessy observed that magistrates’ powers of referral were designed as a safety net and were not intended to be the most common source of referral to conferencing.103 In 1999, Bargen observed that it was originally envisaged that 70% of referrals under the YOA would be made by police, however in practice, 50% of young people were referred by magistrates.104
2.55 Police officers are required to divert young offenders in relation to offences covered by the YOA unless instructed to commence proceedings by an SYO. Hennessy expressed concern that police officers do not always comply with this requirement, recommending that the Police Service should organise comprehensive training for investigating police officers who are likely to make decisions under the YOA.105 The Police Service has developed and implemented several training initiatives, as well as publicising the YOA in the Police Service Weekly, Police Issues and Practice Journal and on Police TV.106
2.56 Anecdotal evidence suggests that one reason for police reluctance to use diversionary processes is that they are more time consuming to institute than court-based procedures.107
2.57 Hennessy also expressed concern that there were not enough adequately resourced SYOs to perform the functions required by the YOA.108 The position of SYO was created to ensure that decision making about referrals to diversion by police was kept at arms length from investigations.109 Hennessy observed that the appointment of existing custody managers as SYOs was problematic in rural and regional areas, where, because there are fewer police, custody managers were likely also to be involved in criminal investigations.110
Supervising police discretion
2.58 In a preliminary submission, the Australian Institute of Criminology argued that consideration should be given to supervising the exercise of police discretion in relation to diversion.111 Hennessy recommended establishing a mechanism for review by police prosecutors of police decisions to commence criminal proceedings against young people for offences covered by the YOA.112
Net widening
2.59 Condliffe argues that there is a risk that diversionary schemes are being imposed on young people who would have a lesser or no action taken against them if diversion was not available. For example, cases which would be hard to prove in court may be referred to youth justice conferences.113
2.60 Hennessy found that the diversion rate of 37% achieved in the first full year of operation of the YOA was accompanied by some decline in the number of new matters dealt with by the Children’s Court, but not to the extent that would have been expected.114 This may be attributable in part to net-widening, as well as the increased police powers referred to in Chapter 2.115 More recent evidence suggests that the number of appearances in the Children’s Court has significantly fallen since the YOA was introduced.116
Evaluation
2.61 The Aboriginal Justice Advisory Council and the University of New South Wales have commenced a joint review of the YOA.
TREATMENT FOR ALCOHOL AND DRUG MISUSE
2.62 National drug use surveys indicate that in 1995, 32% of young people aged between 14 and 19 used an illegal drug. In 1998, this figure had increased to 38%.117 Recent research has estimated that there are 74,000 dependent heroin users in Australia, of whom 35,400 live in New South Wales.118 These figures suggest that Australia has a substantial public health problem with dependent heroin use that is of magnitude similar to that in comparable European societies.119
2.63 Illegal drugs cause approximately 1,000 deaths in Australia every year.120 Over the past eight years there has also been significant growth in levels of property crime in Australia. The growth has been marked in the offence of robbery, which is often committed by heroin dependent people because it provides ready access to cash to buy heroin.121
Treatment services
2.64 Alcohol and drug treatment can be provided through either residential or outpatient services. Services focus either on reducing or eliminating use of the drug or dependence, or minimising harm associated with drug use.
2.65 The initial treatment for reducing or eliminating drug use is detoxification, which involves managing the symptoms of withdrawal from drug use. Detoxification is available in hospitals, community health services and designated detoxification units. There are currently 355 beds in New South Wales dedicated to detoxification treatment, 80% of which are located in metropolitan areas. There is very little data on the extent of need for detoxification treatment. There are no specialist detoxification services for young people. The New South Wales Health Department has recognised the need for a detoxification service specifically for young people.122 Detoxification is not a cure for drug dependence and must be followed up by long term treatment.
2.66 The principal form of long term treatment for dependence on opioid drugs is pharmacotherapy. This involves substituting use of the drug of dependence with a longer acting drug of the same pharmacological class, which prevents the onset of withdrawal and therefore reduces or eliminates consumption of the drug of dependence.123 The principal pharmacotherapy service in New South Wales is methadone maintenance treatment. Approximately 13,500 people in New South Wales currently receive this treatment. 1,300 new places in methadone programs will be created in New South Wales by the end of 2001.124 Several new forms of pharmacotherapy are currently being trialed in New South Wales.125
2.67 Medically supervised drug injection is an alternative to pharmacotherapy which aims to stop the contraction and spread of blood-borne viral infections such as HIV/AIDS and Hepatitis B and C among injecting drug users. The Uniting Church has begun an 18 month trial of this treatment in inner-city New South Wales.126
Drug Courts
2.68 In 2000, the New South Wales Bureau of Crime Statistics and Research examined the existing research on preventing drug related crime.127 The Bureau observed that the research indicates that legally coerced drug treatment can decrease drug use and criminal activity by offenders. In particular, research suggests that offenders dealt with by drug courts in the United States have lower re-arrest rates than offenders dealt with by the traditional criminal justice system. The Bureau concluded that while this research is limited and is open to criticism on methodological grounds, legally coerced treatment is worthy of further investigation.128
New South Wales Youth Drug Court
2.69 New South Wales is currently conducting a pilot Youth Drug Court.129 The trial commenced in July 2000. Young offenders are referred to the Youth Drug Court by the Children’s Court. In deciding whether to refer a young offender, the Children’s Court considers the severity of their dependence on drugs or alcohol, their health, educational and vocational status, family and peer relationships, social skills and attitude towards drug treatment.130 The Children’s Court is targeting serious injecting drug users for referral to the Youth Drug Court. Young people on remand and young women are targeted as a priority for referrals.131
2.70 Young offenders referred to the Youth Drug Court are initially assessed to confirm that they have a demonstrable drug or alcohol problem and to determine immediate needs such as detoxification and accommodation.132 They then appear before the Youth Drug Court, which determines whether they are eligible to participate in the trial. Young offenders who are aged between 14 and 18, who are charged with an offence which the Children’s Court has jurisdiction over,133 who plead guilty, who agree to participate in the trial, who have a drug or alcohol problem, who are ineligible for diversion under the YOA; and are likely to be sentenced to detention, are eligible.134
2.71 In addition, because the Youth Drug Court is a trial program operating out of the Campbelltown and Cobham Children’s Courts, young offenders are required to have a connection to one of these areas through family or work.135
2.72 After the Youth Drug Court accepts a young offender, their case is adjourned for 14 days while a joint assessment and review team involving the Departments of Health, Community Services, Education and Training and Juvenile Justice assesses their needs and develops an individual plan requiring the young offender to submit to tests and attend programs that aim to reduce or eliminate drug or alcohol misuse and related criminal behaviour.136
2.73 The Youth Drug Court makes orders requiring the young offender to comply with the conditions in their individual plan and deferring the final sentencing for a minimum of six months.137 Each young offender is allocated a Program Manager and a Support Worker to supervise, monitor and assist their progress. Participants also have regular meetings with the Youth Drug Court Magistrate, initially on a fortnightly or monthly basis.138
2.74 Offenders who complete the program are sentenced more favourably by the Children’s Court. It is expected that young offenders who successfully complete the program will receive unsupervised orders such as suspended sentences.139
2.75 If an offender has difficulty complying with their individual plan, the Youth Drug Court Magistrate can adjust it to increase the level of supervision or extend the initial orders for up to six months. Offenders who continually or seriously breach their individual plans may be discharged from the Youth Drug Court and transferred to the Children’s Court for sentencing. The Children’s Court will also take into account their achievements in the Youth Drug Court.140
2.76 The Youth Drug Court trial will be evaluated to determine the rate of participation by eligible offenders, the level of re-offending by participants, the factors which affect completion or non-completion of the program by young offenders, the health and social impact of participation and the resources required to maintain and expand the program.141
Other Drug Courts
2.77 New South Wales is also trialing an adult Drug Court.142 The New South Wales Bureau of Crime Statistics and Research is evaluating this trial. Preliminary evaluation has found that the rate of re-offending by participants is low, participants have experienced significant health improvements, and report a high level of satisfaction with the fairness of the program and the treatment services available under it.143
2.78 Western Australia is the only other Australian jurisdiction currently conducting a trial Youth Drug Court. Queensland, South Australia and Western Australia are also piloting adult drug courts.144
Issue 8
How effective is the Youth Drug Court, both in reducing re-offending by young offenders and improving their health and well being?
Issue 9
Are the alcohol and drug treatment services available for young people in New South Wales adequate?
CIRCLE SENTENCING
2.79 Circle sentencing is a community-based sentencing process administered by community committees. A sentencing circle can be held in a court house or a community space.145
2.80 Participants include the offender and the victim and their respective supporters; a judge, community elder, prosecutor, defence counsel, police and court workers; who sit arranged in a circle; and friends and relatives of the offender and the victim, professionals such as alcohol and drug treatment workers and members of the local community; who sit in an outer circle.146
2.81 While procedures vary from community to community, generally the judge or community elder formally opens the sentencing circle, then each participant introduces themselves, and explains why they are attending. The prosecutor outlines the facts of the offence, and defence counsel responds. Then all participants address the offender and the victim and discuss the extent of similar crime in their community, the underlying reasons for it, the impact on victims and on the community, what must be done to heal the victim and rehabilitate the offender, and what the community can do to prevent similar crimes.147 Participants develop a sentence plan which the judge uses to sentence the offender. Custodial sentences can be included in a sentence plan; but this is rare.148
2.82 The sentencing circle reconvenes several months later to examine the offender’s progress towards completing the sentencing plan. If their progress has not been satisfactory, participants can agree to modify or extend the sentence plan, or abandon it. In this case the offender is sentenced by a traditional court.149
2.83 The concept of circle sentencing evolved in Canada, initially as an alternative to traditional sentencing of indigenous offenders.150 The Aboriginal Justice Advisory Council supports circle sentencing for Aboriginal offenders, arguing that it makes sentencing practices more culturally relevant to Aboriginal people and ensures that the offender sees the punishment as being more appropriate as it comes from his or her own community.151
2.84 Proponents of circle sentencing also argue that it enables participants to contribute directly to the sentencing process, and provides much more information about the offender, the impact of the offence, and problems experienced in the community, than a traditional court receives by way of pre-sentence reports. This enables the circle to tailor the sentence to the unique situation of the offender, increasing the likelihood of rehabilitation.152 It also enables communities to take responsibility for broader issues identified during the process and fosters mutual respect between the criminal justice system and communities.153 In a preliminary submission, the Senior Public Defender, Mr John Nicholson QC, emphasised that sentencing initiatives need to be developed and implemented at the local level to maximise their effectiveness.154
2.85 Critics of circle sentencing argue that it costs much more than traditional court sentencing processes. While an initial circle sentencing session usually takes between one and three hours to complete, about four to five times longer than a traditional court hearing,155 the additional cost may be outweighed when the lower rate of custodial sentences and increased prospects of rehabilitation are taken into consideration. However, as circle sentencing is in its infancy, there is no long term empirical research on its costs compared to traditional sentencing processes.
2.86 Circle sentencing is also criticised on the basis that it gives communities an unstructured discretion in dealing with offenders, leading to inconsistent sentencing outcomes.156 On the other hand, it is arguable that the flexibility afforded by closely examining the circumstances of individual offenders and communities facilitates responsive sentencing which increases the prospects of rehabilitating offenders.157
2.87 Another criticism of circle sentencing is that it leads to lack of proportionality in sentencing, with sentence plans which may be too lenient or too harsh for the offence committed, depending on the attitudes of participants.158 However, it is also arguable that the extensive information gathering processes associated with circle sentencing lead to more proportionate sentencing outcomes. Further, the focus on proportionality of sentences ignores the role of restorative justice, crime prevention and rehabilitation in sentencing.159
2.88 Circle sentencing is increasingly being used to sentence both indigenous and non-indigenous offenders in North America, the United Kingdom, Europe, Singapore and New Zealand.160 The Australian Capital Territory161 and Queensland162 have also experimented with circle sentencing. The New South Wales Government is planning a pilot circle sentencing project for adult Aboriginal offenders early in 2002. In a preliminary submission, the New South Wales Director of Public Prosecutions expressed concern about this trial.163
FOOTNOTES
1. For an overview of diversionary schemes in New Zealand, the United Kingdom and Europe, see Justice, Restoring Youth Justice – New Directions in Domestic and International Law and Practice (2000).
2. Young Offenders Act 1997 (NSW) s 7.
3. Young Offenders Act 1997 (NSW) s 8.
4. Preliminary consultation, M Ella-Duncan, Executive Officer, Aboriginal Justice Advisory Council, 25 January 2001.
5. Young Offenders Act 1997 (NSW) s 13, 14.
6. J Bargen, “Young Offenders and the New Options in Youth Justice” (1999) 37(10) Law Society Journal 54 at 54 (Bargen 1999a).
7. Bargen 1999a at 54; J Bargen, “The Young Offenders Act 1997 – Is the Diversionary Scheme Being Diverted?” (2000) (April) 12 Judicial Officers Bulletin 17 at 18. See also para 3.55-3.56.
8. Young Offenders Act 1997 (NSW) s 15.
9. Young Offenders Act 1997 (NSW) s 16.
10. Compare Young Offenders Act 1997 (NSW) s 19 and s 35.
11. NSW Police Service, Annual Report 1999-2000 (2000) at 13.
12. Young Offenders Act 1997 (NSW) s 18.
13. Young Offenders Act 1997 (NSW) s 19.
14. Young Offenders Act 1997 (NSW) s 20. See also para 3.86-3.91.
15. Young Offenders Act 1997 (NSW) s 4.
16. Young Offenders Act 1997 (NSW) s 20(1), (4) and (5) and 23.
17. Young Offenders Act 1997 (NSW) s 21. See para 2.17-2.34.
18. Young Offenders Act 1997 (NSW) s 20(4).
19. Young Offenders Act 1997 (NSW) s 27.
20. Young Offenders Act 1997 (NSW) s 29(4) and 29(5).
21. Young Offenders Act 1997 (NSW) s 31.
22. Young Offenders Act 1997 (NSW) s 31(3). See para 3.32.
23. Young Offenders Act 1997 (NSW) s 31(4); Bargen 2000 at 18. See para 2.39-2.43.
24. N Hennessy, Review of Gatekeeping Role in Young Offenders Act 1997 (NSW) (1999) at para 38. See also Bargen 2000 at 19.
25. Bargen 2000 at 19.
26. Young Offenders Act 1997 (NSW) s 34. For theoretical analysis of conferencing see A Ashworth, “Restorative Justice and Victims’ Rights” [2000] (March) NZLJ 84; Australian Institute of Criminology, Family Conferencing and Juvenile Justice (1994). For an overview of conferencing schemes in Australia, see Australian Institute of Criminology, Restorative Justice and Conferencing in Australia (Trends and Issues 186, 2001) at 2.
27. Young Offenders Act 1997 (NSW) s 35.
28. Young Offenders Act 1997 (NSW) s 36 and s 40(1).
29. Young Offenders Act 1997 (NSW) s 14(4), 21, 37(1) and 38(1). See para 2.12.
30. Young Offenders Act 1997 (NSW) s 37(2) and s 38(2) and (3).
31. Young Offenders Act 1997 (NSW) s 37(3). See also para 3.86-3.91.
32. See Young Offenders Act 1997 (NSW) s 4 and s 61.
33. Young Offenders Act 1997 (NSW) s 38(1) and s 40 and 41.
34. Hennessy at para 67.
35. Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(c1); YOA s 40.
36. Young Offenders Act 1997 (NSW) s 40.
37. Bargen 2000 at 19; Preliminary consultation, Reference Group (18 December 2000).
38. Preliminary consultation, Reference Group (7 November 2000); Preliminary consultation, Reference Group (18 December 2000); M Dennis, “The Bail Act and Young People” paper presented to Legal Aid Commission at Continuing Legal Education Conference, (Dubbo, 2 December 2000) at 2.
39. Bargen 2000 at 19.
40. Preliminary consultation, Reference Group (7 November 2000); Preliminary consultation, Reference Group (18 December 2000). See also Bargen 2000 at 18.
41. Hennessy Recommendation L.
42. New South Wales, Children’s Court, Practice Direction 17 (12 October 2000).
43. Young Offenders Act 1997 (NSW) s 43.
44. New South Wales, Bureau of Crime Statistics and Research, An Evaluation of the NSW Youth Justice Conferencing Scheme (2000) (2000a) at Table 43 and 62-63.
45. Bureau of Crime Statistics and Research 2000a at 68-69.
46. See Young Offenders Act 1997 (NSW) s 42.
47. Subject to Young Offenders Act 1997 (NSW) s 50.
48. Young Offenders Act 1997 (NSW) s 47.
49. Young Offenders Act 1997 (NSW) s 52; Young Offenders Regulation 1997 (NSW) r 18 and 19.
50. Young Offenders Act 1997 (NSW) s 52(2) and (3).
51. Young Offenders Act 1997 (NSW) s 54.
52. Young Offenders Act 1997 (NSW) s 56.
53. Young Offenders Act 1997 (NSW) s 58.
54. Young Offenders Act 1997 (NSW) s 57.
55. Hennessy at para 49. Young Offenders have up to six months to complete Outcome Plans: Young Offenders Regulation 1997 (NSW) r 18.
56. Bureau of Crime Statistics and Research 2000a at Chapter 3.
57. Young Offenders Act 1997 (NSW) s 34(1)(a)(v).
58. L Kelly and E Oxley, “A Dingo in Sheep’s Clothing? The Rhetoric of Youth Justice Conferencing” (February 1999) 4 Indigenous Law Bulletin 4 at 5. See also Australia, 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) at 490 and 502; C Cunneen, “Community Conferencing and the Fiction of Indigenous Control” (1997) 30 Australian and New Zealand Journal of Criminology 292.
59. Bargen 1999a at 57.
60. J Bargen, “Youth Justice Conferencing: The Debate Continues” (1999) 18 Indigenous Law Bulletin 18 (1999b) at 18.
61. Bargen 1999b at 18.
62. Kelly and Oxley at 6.
63. Kelly and Oxley at 6.
64. Australian Institute of Criminology, Preliminary Submission at 1. See para 2.38.
65. See para 2.30.
66. Young Offenders Act 1997 (NSW) s 22(1)(b) and s 24(2)(g) and s 39.
67. Young Offenders Act 1997 (NSW) s 45(3)(g). See Hennessy Recommendation G and NSWLRC Report 79 at para 12.24.
68. Bargen 1999a at 55.
69. See para 3.60.
70. Bureau of Crime Statistics and Research 2000a at Table 28 at 50-52.
71. Hennessy at para 73; Bargen 1999a at 57; Bargen 2000 at 19.
72. Hennessy at para 75.
73. Hennessy at para 75.
74. Preliminary consultation, Reference Group (18 December 2000).
75. Young Offenders Act 1997 (NSW) s 17, 33; Young Offenders Regulation 1997 (NSW) r 15(2) and r 16(2).
76. Young Offenders Regulation 1997 (NSW) r 15(1).
77. Young Offenders Regulation 1997 (NSW) r 16(1).
78. New South Wales, Children’s Court, Practice Direction No 17 (12 October 2000).
79. Young Offenders Act 1997 (NSW) s 40(4). The referral process is explained at para 2.18-2.24.
80. Young Offenders Act 1997 (NSW) s 52(7), 56 and 59; Young Offenders Regulation 1997 (NSW) r 20.
81. Hennessy at Recommendation A and para 35-43.
82. Young Offenders Act 1997 (NSW) s 20(3)(d) and s 37(3)(d).
83. Young Offenders Act 1997 (NSW) s 13(3), 20(6) and s 37(5).
84. Young Offenders Act 1997 (NSW) s 68. See para 3.86-3.91.
85. Young Offenders Act 1997 (NSW) s 65.
86. Hennessy at para 3.
87. Hennessy at para 38.
88. Hennessy at para 3-6, 35, 38 and 52. Note that the statistics do not separate out offences not covered by the YOA, or warnings.
89. G Clancey and P Jackson, “The Young Offenders Act 1998-2001: Three Years of Diverting Young People Away From Court” (2001) 13(13) Police Service Weekly 4.
90. Hennessy at para 38 and 54. See also Human Rights and Equal Opportunity Commission at 501.
91. Australian Institute of Criminology, Preliminary Submission at 1.
92. Hennessy at para 48 and 49.
93. Hennessy at para 48 and 49.
94. Hennessy at Recommendation A and para 42 and 43. See para 2.39-2.43.
95. Hennessy at para 44. See also Bargen 1999a at 54.
96. Preliminary consultation, Reference Group (7 November 2000).
97. Preliminary consultation, Reference Group (7 November 2000).
98. See para 3.144-3.149.
99. Hennessy at para 54.
100. Preliminary consultation, Reference Group (18 December 2000).
101. Positive Justice Centre, Preliminary Submission at 5. The concept of wardship has now been abolished in NSW. The Children’s Court has the power to make care orders in relation to children and young people in need of state care, including an order placing a young person in the sole guardianship of the Minister for Community Services. The care jurisdiction of the Children’s Court is discussed at para 3.13-3.21.
102. Hennessy at para 50.
103. Hennessy at para 50 and 53. See also Bargen 1999a at 55.
104. Bargen 1999a at 55.
105. Hennessy Recommendation B, E and F and para 56-59 and Appendix F.
106. Clancey and Jackson at 4.
107. J Wundersitz, “Pre-court Diversion: The Australian Experience” in A Borowski and I O’Connor, Juvenile Crime, Justice and Corrections (Sydney, Longman, 1997) at 275.
108. Hennessy at para 79, Recommendation D.
109. Hennessy at para 61.
110. Hennessy at para 62.
111. Australian Institute of Criminology, Preliminary Submission at 1.
112. Hennessy Recommendation Q and para 171-177.
113. P Condliffe, “The Challenge of Conferencing: Moving the Goal Posts for Offenders, Victims and Litigants” [1998] Australian Dispute Resolution Journal 139 at 147.
114. Hennessy at para 45-47.
115. See para 3.45-3.54.
116. Clancey and Jackson at 7-8.
117. New South Wales, Bureau of Crime Statistics and Research, Drug Crime Prevention and Mitigation: A Literature Review and Research Agenda (2000) (2000b) at 5, citing Australia, Institute of Health and Welfare, National Drug Strategy Household Survey (1999).
118. T Hall, “How Many Dependent Heroin Users are there in Australia?” (2000) 173 Medical Journal of Australia 528 at 528 and 532.
119. Hall at 532.
120. Australia, Institute of Health and Welfare, National Drug Strategy Household Survey (1999) at 26.
121. Bureau of Crime Statistics and Research 2000b at 5.
122. New South Wales, Department of Health, The NSW Drug Treatment Services Plan: 2000-2005 (2000) at 18-22.
123. Department of Health at 33.
124. Department of Health at 43.
125. These are Naltrexone, buprenorphine and LAAM (levo-alpha-acetyl-methadol): “Is Naltrexone a Cure for Heroin Dependence?” (Editorial) (1999) 171 Medical Journal of Australia 9; Department of Health at 35-39; www.turningpoint.org.au (17 May 2001).
126. M Sun, “Drug Room Open for Business” Daily Telegraph (7 May 2001) at 5. The Supreme Court of New South Wales has upheld the licence for this trial issued pursuant to the Drug Summit Legislative Response Act 2000 (NSW): Kings Cross Chamber of Commerce and Tourism v Uniting Church of Australia Property Trust (NSW) [2001] NSWSC 245.
127. New South Wales, Bureau of Crime Statistics and Research, Drug Crime Prevention and Mitigation: A Literature Review and Research Agenda (2000) (2000b).
128. Bureau of Crimes Statistics and Research 2000b at 38-48. See also T Miethe, H Lu and E Reese, “Reintegrative Shaming and Recidivism Risks in Drug Court: Explanations for Some Unexpected Findings” [2000] Crime and Delinquency 522 which reports the results of a study drug courts in two jurisdictions in the United States that found that drug court participants had substantially higher recidivism risks than non-drug court participants.
129. The Youth Drug Court was established as a result of a recommendation made at the 1999 NSW Drug Summit: New South Wales, NSW Drug Summit 1999 – Government Plan of Action (1999) Recommendation 6.11.
130. K Graham, “Piloting a Youth Drug Court Program” [2000] (8) Law Society Journal 34.
131. D De Fina, “New Youth Drug Court – The Pilot Programme Commences” (2000) 12 (5) Judicial Officers Bulletin 33 at 34.
132. De Fina at 33.
133. See para 3.7-3.8 and Table 3.1.
134. Graham at 34.
135. Graham at 34.
136. De Fina at 34.
137. De Fina at 34.
138. De Fina at 35.
139. De Fina at 35.
140. Graham at 34.
141. De Fina at 35.
142. Drug Court Act 1998 (NSW).
143. 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).
144. Drug Rehabilitation (Court Diversion) Act 2000 (Qld); www.courts.sa.gov.au/courts/magistrates/drug_court.html (at 17 May 2001). For a recent summary of Australian drug courts see A Freiberg, “Australian Drug Courts” (2000) 24 Criminal Law Journal 213.
145. New South Wales, Attorney General’s Department, Aboriginal Justice Advisory Committee, Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process (Discussion Paper, 1999), available at http://www.lawlink.nsw.gov.au/ajac.nsf/ pages/circlesentencing
146. Aboriginal Justice Advisory Committee; M Linker, “Sentencing Circles and the Dilemma of Difference” (1999) Criminal Law Quarterly 116 at 117.
147. Linker at 117; C Pollard, “Victims and the Criminal Justice System: A New Vision” [2000] Criminal Law Review 5 at 13-15.
148. Aboriginal Justice Advisory Committee.
149. Aboriginal Justice Advisory Committee.
150. R v Moses (1992) 71 C C C (3d) 347.
151. Aboriginal Justice Advisory Committee.
152. Aboriginal Justice Advisory Committee; Pollard at 13.
153. Aboriginal Justice Advisory Committee; Linker at 117.
154. J Nicholson, Preliminary Submission.
155. Aboriginal Justice Advisory Committee.
156. J Roberts and C LaPrairie, “Sentencing Circles: Some Unanswered Questions” (1997) 39 Criminal Law Quarterly 69 at 75.
157. Linker at 121-128.
158. Roberts and LaPrairie.
159. Linker at 119-121.
160. Pollard at 13.
161. See L Sherman, Experiments in Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments (Australian Federal Police and Australian National University, Canberra, 1998).
162. See H Hayes, T Prenzler and R Wortley, Making Amends: Final Evaluation of the Queensland Community Conferencing Pilot (Queensland Department of Justice, 1998).
163. N Cowdery QC, Preliminary Submission.
