Review of Gatekeeping Role in Young Offenders Act


Options for amending the Act to better comply with its Principles

Introduction

165. This section of the report examines options for amending the legislation to better comply with its principles, particularly 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.” s 7(c) Two options are restricting police discretion in relation to certain decisions under the Act and adding another level of gatekeeper to review decisions by SYOs to commence criminal proceedings.

Reducing discretion

166.One suggestion was to make referral for a conference mandatory in relation to certain offences unless special circumstances exist. This proposal is similar to the scheme in New Zealand where the only cases which do not qualify for a Family Group Conference are cases involving a charge of murder or manslaughter or a traffic offence not punishable by imprisonment.” Children, Young Persons, and Their Families Act 1989 (NZ) s 246 Unless a young person has been arrested and charged, court proceedings cannot be commenced until a Family Group Conference has been held. Police are only permitted to arrest a young person in very limited circumstances. Children, Young Persons, and Their Families Act 1989 (NZ) s 233 and s 234

167. Reducing the degree of discretion an SYO has to refer a matter to court would involve amending the Act to state, for example, that the offences prescribed in the legislation must be dealt with by way of warning (if permitted), caution, or conference unless special circumstances exist. Offences would then be prescribed in the regulations and could include matters such as common assault and property offences not involving violence, such as shop lifting. The special circumstances could be expressed as “whether the public interest requires the institution of criminal proceedings because of the frequency or severity of the offences.” The young person would still have to admit the offence before a conference could be held. It was suggested that this change could be implemented on a region by region basis and monitored as part of the three year review.

168. If an SYO took the view that special circumstances existed in a particular case, one option would be to require that it be referred to the DPP for approval to prosecute.

169. The main advantage of reducing the discretion available to police is that it would be likely to result in a much higher number of matters being diverted away from court and would make the job of SYOs and other police much easier. The main disadvantage which was re-iterated by many stakeholders was that there are too many variable in any one case for a blanket rule to be appropriate even for the majority of cases. According to one academic, “Efforts to structure and confine . . . discretion inevitably reach the point of diminishing marginal utility: the more this is done the more the system loses its ability to do individual justice.” Goldsmith A, (1990) “Taking Police Culture Seriously: Police Discretion and the Limits of the Law” 1 Policing and Society 91-114 at 107

170. Another disadvantage may be that offences which were not prescribed would be more likely to be sent to court even though they could be dealt with under the Act. Police officers may assume that because there is a presumption that certain offences must ordinarily be referred for conferencing, there would also be a presumption that offences not within that category should be sent to court. Further consultation and refinement of this option would be needed before specific recommendations could be made.

Another level of gatekeeper is needed to review decisions by SYOs to commence criminal proceedings

Rationale for further gatekeeper

171. The statistical evidence shows that more than 50% of matters referred to conference come from magistrates. Even allowing for the fact that some of these cases are referred because the young person has decided to admit the offence, these figures suggest that matters are being inappropriately referred to court by police. One way of reducing the number of inappropriate referrals to court is to add another gatekeeper in between the SYO and the magistrate, to review the appropriateness of decisions to commence criminal proceedings. Two suggestions have been made as to who this group of gatekeepers should be. Some have suggested that it be police prosecutors, others would prefer it to be Children’s Court Registrars.

Police prosecutors

172. Currently police prosecutors have a discretion to discontinue a matter but no powers under the Act. One police prosecutor I contacted, said that some inappropriate cases are still being referred by police for prosecution, although the number is dwindling. He suggested that a prosecutor needs to have power to request the magistrate to adjourn the matter for, say, a month while it is referred back to police for reconsideration. If the matter is still thought by the SYO to be appropriate for court, it could then be re-listed.

173. Another suggestion was that the Act be amended to give police prosecutors the power to refer matters directly to an administrator for a conference or back to the LAC for a caution to be given. Stephen Scarlett, Senior Children’s Court Magistrate, agrees that police prosecutors should have more authority and would like to see a single police prosecutor overseeing and co-ordinating all police prosecutions relating to children.

Children’s Court Registrars

174. As an alternative to using police prosecutors as an extra gatekeeper, some have suggested that Children’s Court Registrars would be ideally placed to make decisions under the Act. Under the Children and Young Persons (Care and Protection) Act 1998 there is provision for Children’s Court Registrars to conduct interlocutory and quasi judicial functions. They could be given power to refer a matter back to the police for a caution or to a conference administrator where the child had admitted the offence. The following passage is quoted from a recent Attorney General’s publication, “Children’s Court - issues for implementation of restructure”

Another role that has been discussed is to give Children's Registrars the ability to make referrals under the Young Offenders Act 1997 (that is, refer appropriate matters to caution or conference). While the Senior Children’s Magistrate is of the opinion that this should not be one of their functions, it would be similar to the function of children’s registrars in the care jurisdiction (ie a gatekeeper function, referring to ADR those matters that should have gone there in the first place).

Again, the Children’s Court Act will need amendment and/or Children’s Court Rules will need to be drafted and the Advisory Committee will need to be consulted in this respect. In addition, if YOA referral powers are given, amendment of the YOA and/or Children’s Court Act will be necessary (the YOA provides that “Courts” may make referrals - it could be that including in the Children’s Court Act a list of possible delegations, including referrals under the YOA, and/or a clause that powers exercised by a Children’s Registrar are taken to be exercised by the “Court” would suffice).

175. There are several advantages and disadvantages of giving police prosecutors or registrars power to review an SYO’s decision to commence criminal proceedings. The more people who review a decision, the less likely it is that a matter will be dealt with inappropriately. On the other hand, in the interests of minimising costs and delay, there is a limit to the number of people who should be reviewing the same decision.

176. If the purpose of adding police prosecutors or registrars to the current gatekeepers is to ensure that SYOs are making appropriate decisions when referring a matter for criminal proceedings, then it would be an unnecessary duplication for both police prosecutors and registrars to review the decision. The advantages of having police prosecutors reviewing these decisions are:

• the decision will be reviewed as soon as the prosecutor receives the brief, thus avoiding the costs and delays of preparing the matter for hearing;
• prosecutors have experience in dealing with criminal matters involving young people and could be trained to apply the Act appropriately;
• the prosecutor can ensure that the matter has been referred by an SYO and not an investigating officer;
• the prosecutor would be comfortable consulting with the SYO to discuss his or her concerns; and
• by allowing the police to review their own decisions, the process of decision making and the decisions themselves are likely to improve.

• the SYO’s decision would not be reviewed until preparations for proceedings were well advanced; and
• SYOs may not be as comfortable with registrars overturning their decisions as they would be with one of their own officers.

RECOMMENDATION

Police prosecutors should be given power under the Act to review an SYO’s decision to commence criminal proceedings. Any referral by a police prosecutor back to the investigating officer for a caution should be a final decision, just as it would be if an SYO made that decision. Similarly, a referral to a conference administrator should be subject to a determination by the DPP if the administrator and the prosecutor disagree about the appropriateness of conferencing.


A single police prosecutor should be appointed to oversee and co-ordinate children’s prosecutions throughout New South Wales and to monitor and evaluate prosecutors’ decisions under the Act.

180. In enacting the Young Offenders Act 1997, parliament clearly expressed its intention that young people should be diverted away from courts wherever it was appropriate to do so in accordance with the principles and discretions set out in the legislation. Parliament did not mention any level of diversion that the Act was designed to achieve. It was never said, for example, that the Act should result in the vast majority of matters being diverted. This makes it very difficult to assess whether or not the diversion rate of 37.22% is within the range envisaged by parliament. It certainly is not within the range achieved in New Zealand or South Australia, nor does it meet with the expectations of the members of YJAC.

181. The discussion in this report indicates that greater levels of diversion could be achieved if the recommendations made in relation to the removal of existing barriers were implemented. The degree to which diversion rates would be increased by these means cannot be predicted. If parliament wants to significantly increase the diversion rates, two options have been suggested. The first is to reduce the level of discretion available to police in determining whether certain offences should be diverted. The second is to add another layer of gatekeeper between the police and magistrates to review decisions to commence criminal proceedings. The second of these suggestions, although requiring some legislative changes, would be relatively easy to implement and would not change the fundamental scheme of the Act. The first is more radical and, as well as legislative change, would require consultation with stakeholders and clear guidelines for implementation.