Review of Gatekeeping Role in Young Offenders Act 1997


Overview of the Young Offenders Act as it relates to Gatekeepers

Introduction

14. The Act came into effect on 6 April 1998. It applies to young people over the age of 10 and under the age of 18 years. I have generally referred to the people in this age group as “young people” however the Act refers to them as “children” as do various international instruments including the United Nations Convention on the Rights of the Child. In the Second Reading Speech introducing the legislation the Hon J.W. Shaw, QC MLC, Attorney General for NSW, highlighted the concerns that gave rise to the legislation and outlined the main object of the Act. Hansard, 21 May 1997, Legislative Council. That object, reflected in s 3(a), is to “provide an alternative process to court proceedings for dealing with children who commit certain offences.” The “alternative process” provides for three different levels of interventions into juvenile offending, beginning with police warnings and cautions and graduating to youth justice conferences.

Principles of the Act

15. The general principles of the scheme are set out in s 7 and include:

(a) The principle that the least restrictive form of sanction is to be applied against a child who is alleged to have committed an offence, having regard to matters required to be considered under this Act.

(b) The principle that children who are alleged to have committed an offence are entitled to be informed about their right to obtain legal advice and to have an opportunity to obtain that advice.

(c) The principle that criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter.

Types of offences

16. The least intrusive form of sanction available under the Act is a warning. A warning may be given for most non-violent summary offences but not for any indictable offences, even those which may be dealt with summarily such as assault, malicious damage and stealing. A warning can be given whether or not the child admits that he or she has committed the offence.

Circumstances in which a warning can be given

17. A young person who has previously offended or been dealt with under the Act can still receive a warning. s 14(3) Police must deal with a matter by way of warning unless, in their opinion, “it is more appropriate to deal with it by another means because it is not in the interests of justice for the matter to be dealt with by warning.” s 14(2)(b)

Records of warnings

18. Police are required to keep a record of warnings given, containing details of the time of the offence, the place where the offence occurred, the nature of the offence, and the name and gender of the child. The record is to be kept on the COPS (Computerised Operational Policing) computer system maintained by the Police Service. Young Offenders Regulations 1997 s 15.

Cautions

Types of offences

19. A caution may be given where the young person is not entitled to a warning or the police officer determines that the matter is not appropriate for a warning. s 20(1) Cautions can be given for most summary offences as well as indictable offences that may be dealt with summarily under Part 9A of the Criminal Procedure Act 1986. These include offences such as assault, malicious damage and stealing. Other indictable offences such as murder, manslaughter, offences resulting in death, sexual offences and drug trafficking offences many not be cautioned. Unlike warnings, a young person can be cautioned for offences involving violence. The child must admit the offence and agree to a caution being given.

Circumstances in which a caution can be given

20. As with warnings, police officers have a broad discretion not to give a caution if, in their opinion, “it is more appropriate to deal with it by other means because it is not in the interests of justice for the matter to be dealt with by giving a caution.” s 20(2) The Act lists the factors to be taken into account in making that determination.

They are:
• the seriousness of the offence,
• the degree of violence involved in the offence,
• the harm caused to any victim,
• the number and nature of any offences committed by the child, the number of times the child has been dealt with under this Act, and
• ·any other matter the official thinks appropriate in the circumstances. s 20(3)

Community member can give a caution

21. Generally cautions are given by a police officer who is authorised by the Commissioner of Police for this purpose. s 27(1) However, the Act also allows for the police to arrange for a respected person from the community to administer the caution or to be present when one is given. s 27(2) This person could be a member of an ATSI community or an ethnic community.

Magistrates can give cautions

22. If a matter is sent to court instead of a warning or caution being given, a court may give the child a caution if the offence is one for which a caution may be given and the child admits the offence. s 31 The Courts have power to caution a young person either under the Children (Criminal Proceedings) Act 1987 or under the Young Offenders Act 1997. After giving a caution under the Act, the magistrate must notify the Local Area Commander in which the offence occurred of the decision to give the caution and the reasons that the caution was given. s 31(4)

Records of cautions

23. The person giving the caution must make a record of the caution which includes the child’s name, address, date of birth, gender, cultural or ethnic background and the nature of the offence. Young Offenders Regulations 1997 s 16.

Youth Justice Conferences

Referral to Specialist Youth Officer (SYO)

24. If a warning or caution is not given, the police officer must send the matter to a Specialist Youth Officer (SYO) to consider whether the matter should be cautioned, referred for a youth justice conference or whether criminal proceedings should be commenced. s 37(2) In making this decision the SYO must take the same factors into account as the police officer took into account in considering whether a caution was appropriate. s 37(3)

Circumstances in which a conference can be held

25. A child can be referred for a conference in relation to the same kinds of offences for which he or she can be cautioned. Before a conference is arranged a child must admit the offence and consent to a conference being held. s 36

Administration of conferences

26. Conferences are the responsibility of conference administrators and are organised and conducted by conference convenors. The Youth Justice Conferencing Directorate is an independent unit based in the Department of Juvenile Justice.

Disagreement about whether a conference is appropriate

27. If the SYO refers the matter to conference and the conference administrator takes the view that the matter should not be dealt with by conference then, if consultation with the SYO fails to lead to agreement, the conference administrator must refer the matter to the Director of Public Prosecutions to determine how the matter should be dealt with. s 41(2)

Timing of the conference

28. If practicable, the conference must be held within 21 days of the conference administrator receiving the referral and at least 10 days after notice of the conference has been given to the child. s 43

Court can refer matter to conference

29. A court can also refer a matter for a conference if the child admits the offence, whether or not the child consents to a conference being held. A court may also refer a matter to conference after finding a child guilty of an offence. s 40(3) If a matter is referred by a court, the court must notify the Commissioner of Police in writing of the particulars of any referral. s 40(4)

Purpose and principles of conferences

30. The purpose of a conference is to make decisions and recommendations about, and to determine an outcome plan in respect of, the child who is the subject of the conference. s 34(2) The principles which apply to conferences include:

(a) The principle that measures for dealing with children who are alleged to have committed offences are to be designed so as:
(i) to promote acceptance by the child concerned of responsibility for his or her own behaviour, and


(ii) to strengthen the family or family group of the child concerned, and


(iii) to provide the child concerned with developmental and support services that will enable the child to overcome the offending behaviour and become a fully autonomous individual, and


(iv) to enhance the rights and place of victims in the juvenile justice process, and


(v) to be culturally appropriate, wherever possible, and


(vi) to have due regard to the interests of any victim.

The aim of conferencing is to encourage discussion between those affected by the offending behaviour and those who have committed it in order to produce an agreed outcome plan which restores the harm done and aims to provide the offender with developmental and support services which will enable the young person to overcome his or her offending behaviour. Conferences are not a soft option for young offenders and should not be utilised for first offenders unless the circumstances of the offence warrant such an intervention being taken. Hansard, 21 May 1997, Legislative Council at 8960.

32. The Act provides for the DPP to be involved in gatekeeping in two ways. The DPP’s first gatekeeping function is set out in s 40. Under that section the DPP has the power to refer a matter where a child is alleged to have committed an offence to a conference administrator for a conference in certain circumstances. Phil Dart, Assistant Solicitor for Public Prosecutions (Sydney), advised that the intention when the legislation was enacted was that the DPP would take over from the police the function of prosecuting summary offences involving children. If this had occurred, matters referred to the DPP for prosecution could be referred back for a conference or caution if prosecution was considered inappropriate. Since the job of prosecuting summary offences involving children has remained with the police, the powers in s 40 are not used. The only role left for the DPP is making a determination where the SYO and the conference administrator disagree about how a matter should be dealt with. s 41

Overall objective of gatekeeping role

33. The chain of gatekeepers provided for in the legislation has the objective of ensuring that all appropriate matters are diverted away from a court hearing. Some of the ways in which this objective is addressed are by:

• stating principles in the Act which are intended to underpin its operation;
• listing factors in the Act which gatekeepers must take into account when making decisions;
• appointing specialist police to make decisions under the Act;
• providing that a magistrate who decides that a caution or conference is more appropriate than a court hearing, can caution the young person on the spot or refer the matter for a conference;
• providing for an independent umpire (the Director of Public Prosecutions) to arbitrate in certain cases where there is a disagreement about the decision; and
• enacting statutory time limits to increase the likelihood that decisions are made and implemented in a timely manner and that the process is flexible enough to respond in certain circumstances if a young person changes his or her mind.
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