Review of Gatekeeping Role in Young Offenders Act


APPENDIX D

NSW Police Service - Young Offenders Act 1997

Proposed and Current Strategies

Introduction

The following information has been produced to assist in the current review of the Young Offenders Act 1997 (the Act). This review, authorised by the Youth Justice Advisory Committee, will provide preliminary insight into the initial impact of the Act.

Diversion of Juvenile Offenders in New South Wales

Historically, New South Wales has not utilised diversionary options for juvenile offenders to levels commensurate with other jurisdictions. Prior to the introduction of the Act, police had the capacity to divert young people to police cautions. This power was derived from the Commissioner’s Instructions (75.04). The best estimates of the number of young people cautioned in the years just prior to the introduction of the Act is approximately 12% of all young people ‘formally’ dealt with by the police (Blagg and Wilkie, 1995; Boss, Edwards and Pitman, 1995).

Various reviews of cautioning in New South Wales identified particular problems with the previous arrangements. Issues including the increased level of paperwork required to caution a young person as compared to prosecution (Kraus, 1981); the requirement that only senior police could ratify caution decisions; the absence of legislation (Youth Justice Coalition, 1990; Standing Committee, 1992) and the need for training and promotion within the Service (Standing Committee, 1992).

These issues were considered and addressed in the development of the Act. Beyond addressing these issues, the Act also introduced warnings and youth justice conferences. The youth justice conference model adopted built on international models (particularly the New Zealand scheme) and Community Youth Conferencing (pilot conferencing scheme).

The Act was proclaimed on 6 April 1998. The following information will outline the performance of the NSW Police Service in supporting and implementing the Act.

Initial Response – Overview

The overall performance of the Service, as gatekeepers of the Act, will be ultimately assessed by the level of diversion. As has been stated, diversion of juvenile offenders prior to the introduction of the Act was low, which was one of the major reasons for the development of the Act. Hence, the major performance indicator is likely to be the level of diversion achieved.

1. Level of Diversion

There have been various problems in actually quantifying the exact level of diversion. These problems include:

• Legal process versus individuals – 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.


• It has been shown that young people appearing in Court are, on average, charged with three offences, whereas young people cautioned commit one offence (Powter, 1999). This means that any presentation of diversion, based on the data presented from the EIS, will significantly under-estimate the actual level of diversion of young people from court.


• Divertable versus Non-Divertable – The Act clearly establishes those young people which are not eligible for diversion. These young people may have committed an offence excluded under the Act; be unwilling to admit guilt; be unwilling to be cautioned or conferenced; or be referred to court as a consequence the exercising of police discretion. Currently, the Police Service mainframe (i.e. COPS) is unable to record why a young person has been referred to court. This means that the data will not differentiate between those non-divertable matters and potentially divertable matters.

These issues clearly problematise the interpretation of the data. Consequently, estimates of the actual level of diversion are not as accurate as would be desirable.

Nonetheless, early indicators would suggest the following:

• Cautions and conferences, as legal processes, represent on average, between approximately 20 and 25% of total legal processes.


• When amended to reflect individuals, the best estimates would put the level of diversion closer to 35-40% of all individuals formally dealt with by the police. This figure is produced by applying the ratio from the review conducted by Sergeant Powter on juvenile interventions for the seven Local Area Commands in the North Metropolitan region for January and February 1999. The ratio of legal processes to young people, that was found from this review, has been further supported by data returns provided by YLOs for the month of July. This further strengthens the validity of amending the data according to this ratio.


• This level of diversion is a significant improvement over previous efforts of the NSW Police Service. Assuming that the figures can be further validated, the current level of diversion is better than ever previously achieved in this state.


• While the initial indicators are promising, there is some concern about the total intervention rate. The total intervention rate, measured by adding caution, youth justice conference and all charge types (summons, Court Attendance Notice, Field Court Attendance Notices It should be noted that Field Court Attendance Notices should not be issued to juveniles. However, a number of FCANs have been recorded against juveniles since the inception of the Act., charges) together, increased in December 1998 and has remained high since this time. The fact that this level of intervention has remained high is of concern. Normally, the number of total juvenile interventions recedes after March, when young people have returned to school. Historically, the period from December through March is the highest peak of the year. As the number of interventions has not fallen significantly, and certainly not to the level prior to December, there is some concern as to the reasons for this sustained increase.


• The level of diversion for Aboriginal young people, and especially Aboriginal young women, is lower than non-Aboriginal young people. Research has consistently shown that indigenous (and ethnic minorities) are often under-represented in diversionary schemes. This has been replicated in New South Wales since the implementation of the Act. While the size of the disparity does not appear to be as large as other jurisdictions, it is nonetheless an issue requiring immediate attention.


• 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.

The following identifies some of the strategies, which have been developed by the Service, to support and promote the Act and to address some of the issues identified above.

Initiatives and Strategies to Support Implementation of the Act

Initial Strategies

The NSW Police Service, as a co-sponsor of the Act, is firmly committed to ensuring that the provisions of the Act are equitably employed across the State. A number of strategies were employed to support the commencement of the Act, including:

• Deployment of Youth Liaison Officers – a Youth Liaison Officer was deployed in each Local Area Command (80) across the state. The YLOs have played an integral role in the implementation of the Act. They have and continue to assist in the training of police; inform and guide determinations under the Act; and operate as Specialist Youth Officers.


• Mandatory Training Package – The NSW Police Academy developed a training package to support the implementation of the Act. This package was a mandatory training package, requiring all operational police to satisfactorily complete this training (before 30 June 1999).


• Internal Promotions – An internal marketing package was developed to support and promote the introduction of the Act. This marketing strategy included stories in the Police Service Weekly (and an accompanying insert) and a segment on Police TV. Beyond these organisational marketing strategies, YLOs adopted numerous local strategies, including the sending of local memorandums on the Act to all Local Area Command staff and conducting targeted information sessions for particular police.

Recent and Current Strategies

In the last six months, a number of strategies have been developed and employed by the NSW Police Service to further support the implementation of the Act. A brief summary of these initiatives will be presented with reference to any ongoing plans.

1. Joint Protocols – Youth Justice Conferencing

Joint Protocols have been developed between the Youth Justice Conferencing Directorate and the Police Service. These Protocols provide a detailed explanation of the procedures which should be adopted when police refer matters to the Directorate.

These Protocols are due to be released in September 1999. These Protocols will provide useful procedural information for police, which should increase the level of conference referrals.

2. Internal Communication

An internal marketing strategy has been developed to further promote the Act. This strategy involved various components:

Police Service Weekly – three articles to run across a six-week period. Two of these articles specifically deal with the Act and the third article promotes the role of the YLOs. The first two of these articles are attached.

Police TV – two Police TV segments (over two weeks) have been developed (aired 11 and 18.8.99). These two segments reinforce the need to consider the provisions of the Act, promote the benefits of diversion and the need to use the Legal Aid Hotline.

Other communication strategies are currently being considered to enhance the level of knowledge and commitment toward the Act.

3. Specialist Youth Officer Training

Specialist Youth Officers have a vital role under the Act. SYOs must be consulted when arresting officers believe that a court or youth justice conference referral should be made. The influence that the SYOs are able to have on juvenile dispositions is quite considerable.

In recognition of the vital role assumed by SYOs, a training package was recently developed by a Conference Administrator and a number of YLOs. A YLO from each of the 11 regions have now been trained in the package and have recently commenced training SYOs in their individual regions.

4. COPS Enhancements

Currently, the Police mainframe system (COPS) is unable to identify young people sent to Court who could have been diverted. This means that there is no distinction between those young people eligible and ineligible for diversion, which distorts the actual picture of diversion.

Enhancements to COPS, which have been scheduled for the latter part of 1999, will enable divertable and non-divertable cases to be identified. This will improve the interpretability of the data and will allow for greater identification of those areas which are under-utilising the diversionary provisions of the Act.

5. Aboriginal Pamphlet – AJAC

Preliminary data suggests that young Aboriginal people are under-represented in the diversionary data. This is consistent with previous research.

One potential explanation for this under-representation is lack of admissions by Aboriginal young people. Aboriginal young people have been traditionally encouraged not to make admissions. This advice has evolved as a consequence of the tensions between Aboriginal communities and the police.

The Police Service is currently assisting the Aboriginal Justice Advisory Council (AJAC) to develop a pamphlet for Aboriginal young people. This pamphlet will help educate Aboriginal young people about the Act, in an attempt to encourage Aboriginal young people to make appropriate admissions. An increase in (appropriate) admissions should result in an increase in the number of Aboriginal young people diverted from court.

As part of the reformation of the Police Service, attention is given to the performance of particular Local Area Commands. All Commanders periodically attend an OCR. During this review, the Commanders are asked a serious of questions pertaining to the level of crime in their area. This process serves to focus the Commanders attention on particular issues, including the surveillance of recidivist offenders, crime trends, and the reduction of crime.

This review process has had a significant impact on the manner in which the Service operates. It has definitely focused the attention of the Commanders (and their officers) on crime reduction strategies.

To assist in promoting the profile of the Act and encouraging accountability, a recent meeting was held with the Reform Coordination Unit. This Unit manages the OCRs. As a result of this meeting, it is anticipated that Commanders attending the upcoming OCRs will be asked a serious of questions which specifically relate to the use of the Act. This will enhance the level of accountability of Commanders to the Act.

The Service is represented on a sub-Committee of the Youth Justice Advisory Committee which is responsible for considering the promotion of the Act. While this sub-committee is in its infancy, some tentative progress has been made in promoting the Act more broadly. Some of the initiatives being considered by the Service include:

• External Promotion of the Act – the Media Unit is currently considering strategies to promote the Act within the community.


• Poster – consideration has been given to the development of a poster which outlines the decisions, steps and procedures which need to be adopted when dealing with young people. This poster would be displayed in custody areas to prompt investigating police, custody officers and managers to adopt the correct procedures when dealing with young people.


• Instruction Card – consideration is also being given to the development of a small card outlining the major parameters of police powers when dealing with young people. This card could be inserted into note books or carried by individual officers.

The first Youth Liaison Executive meeting was conducted in May of this year. The Executive was established to further promote the role of YLOs and to better coordinate issues affecting YLOs. The Commissioner attended the inaugural meeting, demonstrating both the commitment of the Commissioner to YLOs and the importance of the Executive.

The Attorney General’s Crime Prevention Division has embarked on piloting a mentor scheme for selected young people who have been cautioned or conferenced. This scheme will be piloted in Parramatta and Coffs/Clarence LACs (anticipated commencement date will be in October 1999). The scheme will be piloted for three years prior to evaluation.

The YLOs from these two LACs have, and continue to contribute to the development of the pilot schemes in the two areas. This scheme will help to support those young people identified as being ‘most at risk’ who are cautioned or conferenced. It is anticipated that the support provided by a mentor will reduce the likelihood of further offending of those young people considered to be ‘most at risk’ of re-offending.

10. YLO Review

The Institute of Criminology has submitted a Maurice Byers funding proposal to the Centre for Applied Policing Research to conduct a review of the Youth Liaison Officer role. The proposal, developed in conjunction with the Operational Programs Branch, is seeking funding to analyse the function of the position, responsibilities, support and career development of Youth Liaison Officers.

The outcome of this proposal is currently unknown. Announcement of the successful recipients will be announced in the upcoming months.

Summary

The response of the NSW Police Service to the introduction of the Act has been encouraging. The level of diversion of young offenders from court would appear to have increased significantly in the 16 months since the Act was proclaimed. Nonetheless, there are some concerns about the recent and sustained increases in total interventions and the low level of diversion of Aboriginal young people.

A number of initiatives have been developed over the last six months, which serve to support the implementation of the Act. Strategies including the enhancement to COPS, the development of joint protocols, re-promotion of the Act and the inclusion of questions about the Act in OCRs, all seek to build on the initial response of the Service.

The Service will continue to monitor the implementation of the Act, responding to emerging or potential problems.

Prepared by: Garner Clancey , August 1999