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Review of Gatekeeping Role in Young Offenders Act 1997 34. Data has been obtained from the COPS System; the Local Courts Statistical System; and the Department of Juvenile Justice Client Information System (CIS). This data reveals some information relating to ATSI offenders and, at least in relation to conferences, some information relating to offenders from a non-English speaking background. There is no data relating to offenders with an intellectual disability.
Diversion statistics recorded by police What is recorded? 35. The COPS system records all juvenile offences, not just those covered by the Act. Consequently not all the offences recorded are eligible for diversion, for example indictable offences, most drug offences and motor traffic offences. In addition, although formally recorded, warnings are not included in these statistics. The data base provides an opportunity for police officers to record the race of the alleged offender. The races listed are Aboriginal/Torres Strait Islander, Asian, Black African, Caucasian, Indian, Latin American, Mediterranean, Middle Eastern, Pacific Islander and Unknown. Weaknesses in the COPS System. 36. According to the Police Service’s Current and Proposed Strategies Document See Appendix D., there are two weaknesses in the COPS system as it relates to the recording of data relevant to the Act. The first is that it is much easier to extract data in relation to the number of offences committed, as distinct from the number of offenders. The Police Service expressed the problem in the following way: The major source of aggregated data utilised by the Service is the Executive Information Service. The EIS counts legal process data. This means that if a young person is referred to court for four charges of break and enter, the system will record four charges. However, diversion is traditionally presented as the number of young people (discrete individuals) diverted. The second weakness identified by the Police Service was that it records all offences relating to young people. In many cases matters will be referred for criminal proceedings because the offence does not come within the Act, the young person does not admit the offence or does not consent to it being dealt with other than through the courts. The COPS system is unable to record the reason a young person has been referred to court. According to the Current Strategies Document, COPS has been scheduled for enhancements during the latter part of 1999 to ensure that this information is captured.
37. The NSW Bureau of Crime Statistics and Research generously agreed to extract data in relation to offenders from the COPS system. Table 1 at Appendix G is the data in relation to all young people formally dealt with by police through court, caution and referral to youth justice conference during the 12 month period from July 1998 to June 1999. Table 2 at Appendix G is the same data for ATSI young people. 38. Table 1 shows that a total of 24,003 young people were dealt with by police during the year. Of these 8,128 (33.86%) were dealt with by caution; 806 (3.36%) were referred to a conference It should be noted that referrals to conference recorded on COPS are not likely to include all referrals from court as this information is not routinely recorded on the COPS system. Additional data in relation to conference referrals can be found at paragraphs 48 & 49.; and 15,069 (62.78%) were dealt with by a court. Females comprised 813 or 21.55% of offenders but the proportion of females who received a caution was considerably higher than for males: 44.32% compared with 31% for males. The rates of conference referrals were similar for males and females: 3.4% and 3.2% respectively but the rates for court were higher for males (65.59%) than females (52.50%). Overall, 47.52% of females were diverted away from court compared with 34.4% for males. 39. The situation in relation to ATSI offenders was that they made up 12.85% of the total offenders despite comprising less than 2% of the population. Diversion rates were also lower for ATSI offenders: 24.38% compared with 37.22% for all offenders. However conference referral rates were only slightly lower for ATSI young people (3.08%) than for the total population (3.36%). Predictably ATSI young people were dealt with by a court in a much greater percentage of cases (75.62%) than for non-ATSI young people (62.78%). Of the ATSI population, 26.35% were female. A higher proportion of ATSI females (30.38%) were diverted away from court compared with ATSI males (24.38%).
Overall diversion rates 40. The overall diversion rate of 37.22% for offenders is significantly higher than the rate based on court processes which was 21.6% for a similar period. This is because there is often more than one process generated in relation to a single young person. During the 12 month period from April 1998 when the Act commenced, until the end of March 1999, a total of 59,110 processes were preferred against young people. For the total population, 18.7% of all processes resulted in cautions; 2.9% in conference referrals and 78.4% were dealt with by charge, summons, court attendance notice or field attendance notice. Data relating to ATSI background 41. Of the total number of processes 10,384 (or 17.6%) related to Aboriginal people. The proportion of ATSI offences being diverted from courts was lower than that for offences not involving ATSI young people. 12% of processes involving ATSI offenders resulted in a caution (compared with 18.7 for the total population) while 2% were referred for conference (compared with 2.9% for the total population). The percentage of processes involving ATSI offenders going to court was higher than that for processes not involving ATSI offenders: 86% compared with 78.4%. Data relating to ethnicity 42. Of the total percentage of offences cautioned or referred to conference during the period April to December 1998, 35% related to Caucasian offenders; 9% to ATSI offenders; 3% to Asian offenders; 2% to Mediterranean and Pacific Islander offenders respectively and 1% to the remaining groups. By far the biggest group (51%) was “Unknown”. The failure to record data relating to race makes it impossible to draw any conclusions in relation to ethnicity based on these statistics. 43. There has been considerable debate within the Police Service and among community and government organisations as to whether statistics on ethnicity should be compulsorily recorded and if so how ethnicity should be defined. The Judicial Commission developed a short questionnaire to identify ethnicity in the course of conducting research into sentencing disparity and ethnicity of juvenile offenders. Gallagher P, & Poletti P, (1998) “Sentencing Disparity and the Ethnicity of Juvenile Offenders” Judicial Commission of New South Wales No 17, Appendix A. This questionnaire could be adapted for use in the Police Service.
Recommendation As well as the enhancements to the COPS system proposed by the Police Service, the Service should develop strategies to improve the recording of information relating to race. Recording of cultural or ethnic background as well as other information, is required by the Act in relation to warnings, cautions and conferences. This information should be recorded on the COPS system. Differences among regions 44. The COPS system can provide information about particular police regions. Statistics for April 1999 show that the percentage of non-Aboriginal young people diverted from court proceedings ranged from 33% in the Northern Region to 16% in the Hunter Region. There were also significant discrepancies in the percentage of Aboriginal young people diverted in the same month. In the Macquarie Region 3% were diverted, while in the Endeavor Region 34% were diverted. Similar discrepancies in Britain have led to accusations of “justice by geography”. Evans R, (1993) “Comparing Young Adult and Juvenile Cautioning in the Metropolitan Police District” (1993) Criminal Law Review, no volume at 575. In their Proposed and Current Strategies Document, the Police Service commented on this phenomenon in the following terms: It also appears that there is a level of ‘justice by geography’ occurring, whereby disparity in the rates of diversion across Local Area Commands exists. While it is inevitable that there will be some disparity across areas, it is important that young people have equal access to the benefits of diversion.
Court statistics Overall number of new matters 45. Since over 37% of young people are being diverted away from court, one would expect that the number of new matters dealt with by the Children’s Court would be declining significantly. There is evidence of some decline but not to the extent that would have been expected given the diversion rates.
46. From January to December 1998, the first partial year of the Act’s operation, the number of new matters was 22,048. This compares with 24,749 in the previous year. However in 1996 the number of new matters dealt with by the Children’s Court was 22,593. The figures for January to March 1999 are a little more promising. During that period 5215 new matters were dealt with. This is fewer than in the corresponding periods for 1998 (6597); 1997 (6715) and 1996 (5778). One reason that the number of new matters has not declined may be the impact of new legislation which gives police increased powers in relation to young people. This legislation includes:
Youth Justice Conference Statistics Matters accepted for conference 48. Information was obtained from the Department of Juvenile Justice Client Information System (CIS) entered on youth justice conferences as at 30 June 1999. Information is recorded on CIS when a referral to a conference is accepted. According to the Youth Justice Conferencing Directorate, the recording of information as to cultural type was not consistent and there is a significant number of entries where no information was recorded. For this reason, the Directorate has concluded that it is likely that the actual rates of indigenous and NESB young people participating in conferences are higher than those recorded. 49. The total number of conferences held during the financial year was 1,267. Of these 14% were recorded as relating to Aboriginal and Torres Strait Islander young people; 6% to young people from a non-English speaking background and 38% did not record a cultural type. Of the 710 young people who successfully completed an outcome plan during the financial year, 13% were recorded as Aboriginal and Torres Strait Islander and 5% as NESB. For 288 outcome plans (41%) cultural type was not recorded. Source of referral 50. Sixty per cent of conferences involving Aboriginal people were referred by courts, and 40% were referred by police. For non-Aboriginal people or people whose ethnic background was unknown, the numbers were 702 (52%) from courts and 650 (48%) from police. Overall, 856 (or 53%) of conferences were referred by courts and 754 (or 47%) were referred by police. These figures do not record the matters referred by the DPP after adjudication.
Conclusions from statistics 51. Prior to the statistics based on offenders becoming available in October 1999 the YJAC members had been relying on statistics relating to offences. These figures showed a much lower rate of diversion, around 22%, although it was always conceded that the figure for offenders would be higher. We now know that the overall diversion rate was 37.22% and that this rate includes offences which cannot be diverted. 52. While it is encouraging that over one-third of offenders are not facing court proceedings, the diversion rate is still not at the level hoped for by YJAC. Nearly 63% of matters are still being dealt with by courts. In particular the figure for conference referrals (3.36%) is very low compared with the New Zealand experience of 13% and the South Australian experience of at least 16.5% being referred. 53. Another critical statistic is that more matters (16.5%) are being referred to conferences from magistrates than from the police. Magistrates’ referral powers were designed as a safety net for matters where police commenced criminal proceedings inappropriately. The disparity between the referral rates from police and magistrates may be explained to some extent by the fact that a young person may change his or her mind and either make an admission or agree to a conference after criminal proceedings have commenced. Furthermore, a magistrate can refer a young person to conference without his or her consent, although consent is generally obtained. There are no statistics available on the percentage of matters referred for conference by courts which were not originally capable of being referred by police. However it is realistic to assume that at least some proportion of matters where police have commenced criminal proceedings, should have been subject to a caution or referred to conference. 54. The situation for ATSI young people is significantly worse in terms of diversion rates than for non-ATSI young people. Because the data for other ethnic groups is not consistently recorded, I cannot come to any firm conclusions on their situation. The situation for young people with an intellectual disability is also unknown.
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