Updates and background for this project (Digest)

• Background to this report
• Who is a “Young Offender”?
• To what extent are young people involved in crime?
• Nature and conduct of the Commission’s inquiry
• Content of this report

BACKGROUND TO THIS REPORT

1.1 On 12 April 1995, the then Attorney General, the Hon Jeff Shaw QC, referred the reform of sentencing law to the New South Wales Law Reform Commission. The Commission divided the reference into phases. The first phase, an evaluation of the general principles of sentencing law in New South Wales, was the subject of the Commission’s Report 79, Sentencing.¹

1.2 The second phase has involved a review of the particular issues that arise in sentencing groups of offenders requiring special consideration, namely, young offenders, Aboriginal offenders and corporate offenders. In October 2000, the Commission published Report 96, Sentencing: Aboriginal Offenders. In July 2001, Issues Paper 19 (“IP 19”), Sentencing: Young Offenders was published. In 2001, the Commission published Issues Paper 20, Sentencing: Corporate Offenders and in June 2003, the Commission published Report 102, Sentencing: Corporate Offenders.

WHO IS A “YOUNG OFFENDER”?

1.3 Offenders who are aged between 10 and 17 years at the time they commit an offence are sentenced under a separate system to adults. In its use of the expression “young offender”, this report draws on the title of the Young Offenders Act 1997 (NSW) (“YOA”), despite the content of the YOA referring to such persons as “children”.² The YOA defines “child” as a person aged 10 and over, and under 18.³

1.4 The age of criminal responsibility in New South Wales is 10.⁴ There is a conclusive presumption that children who are younger than 10 years old are doli incapax (a Latin term meaning “incapable of wrong-doing”). As such, they cannot be guilty of a criminal offence as they are conclusively presumed incapable of forming the requisite criminal intent (mens rea).⁵ Children aged 10 and older, but who have not yet turned 14, who commit criminal offences are also presumed doli incapax but, for this older age group, the presumption is rebuttable. The presumption is incorporated in legislation in a number of jurisdictions,⁶ but remains a common law principle in New South Wales.⁷

1.5 To rebut the presumption of criminal incapacity and hence convict a child aged 10-13 years of a crime, the prosecution must prove beyond reasonable doubt that the child did the act charged and knew, when doing the act, that it was seriously wrong, as distinct from merely naughty or mischievous.⁸ The act itself, no matter how apparently wrong, cannot be relied on to rebut the presumption.⁹ The requisite guilty knowledge may be proved by circumstances attending the act, the manner in which it was done, and evidence as to the nature and/or disposition of the child.¹⁰ The closer the child is to the age of 10, the stronger the evidence must be to rebut the presumption.¹¹

1.6 The Commission is aware that some prosecutors use previous cautions and conferences under the YOA as evidence to rebut doli incapax. Under section 66(2) of the YOA, records of cautions and conferences may be divulged to the Children’s Court for the purposes of deciding whether to take action under the Act, or making a decision concerning sentencing. It is arguable that this is a limited requirement that should not be extended to disclosure in order to rebut the doli incapax presumption. On the other hand, s 68(2)(c) of the YOA provides that the immunity granted in s 68(1) to a person who has been the subject of a caution or conference from having to disclose this criminal history¹² does not apply to proceedings before the Children’s Court (including a decision concerning sentencing).

1.7 On one view, the rehabilitative effect of diversion under the YOA supports the position that previous, cautions or conferences should not be disclosed to rebut the doli incapax presumption. However, the Commission believes that the better view is that a record of interventions under the YOA is legitimately admissible as evidence to rebut the presumption. It is then up to the court what it makes of that evidence, and how it is considered in conjunction with any other evidence of guilty knowledge.

TO WHAT EXTENT ARE YOUNG PEOPLE INVOLVED IN CRIME?

Empirical evidence

1.8 The population of 10-17 year-olds in New South Wales in 2004 was approximately 727,622.¹³ In 2004, police proceeded against 47,991 10-17 year-olds (excluding driving offences), or approximately 7%¹⁴ of the juvenile population.¹⁵ Of these, 13,600 (28%) were proceeded against to court and 34,391 (72%) were proceeded against by means of infringement notice (21%), referral to conferencing (3%), cautioning (27%) or, predominantly, warning (48%). These figures indicate that the vast majority of offences being committed by 10-17 year-olds are minor.

1.9 The proportion of 10-17 year-olds in New South Wales that appeared in the Children’s Court in 2004 was approximately 1%.¹⁶ Sixty-eight per cent of those appearances resulted in a finding of the offence proved.¹⁷

1.10 Other significant features of the 2004 NSW Criminal Courts Statistics are as follows:

• Young persons appearing were predominantly male (84%).¹⁸
• Most appearances were by young people in the 16-17 and 18-plus age brackets (71% of all male appearances; and 64% of all female appearances).¹⁹
• Of those found guilty, 46% had no prior conviction.²⁰
• Theft and related offences were the most common for which persons in Children’s Courts were found guilty (20%).²¹
• The next most common offence proved was acts intended to cause injury (13%),²² followed by unlawful entry with intent/burglary, break and enter (12%).²³
• Serious violent offences (homicide and related offences, aggravated assault and aggravated sexual assault) constituted 2.5% of all charges proved; while less serious assaults²⁴ constituted 12% of all charges proved.²⁵
• The majority of offences did not warrant a severe penalty: in 80% of cases, the offence resulted in a bond (31%), probation (15.5%), fine (15%) or dismissal with caution (18%).²⁶

1.12 This study also found that the minority of juveniles who do reoffend account for a disproportionately large percentage of Children’s Court appearances: almost half of the appearances (45%) were accounted for by only 15% of juveniles appearing before the Court. Freeman noted that the finding that a relatively small percentage of offenders (whether juvenile or adult) account for a disproportionately large number of offences, arrests and convictions has been shown many times by past research.³¹

1.13 While these studies were undertaken prior to the introduction of the YOA in April 1998, subsequent research has revealed similar findings. In 2002, The New South Wales Bureau of Crime Statistics and Research (“BOCSAR”) published its findings of the effects of conferencing under the YOA on reoffending rates.³² For first-offenders who attended court, there was very little difference in the time lapse between first and subsequent offences before and after the YOA was introduced. Those conferenced under the YOA, however, remained offence-free for longer and the difference between the court and conference groups increased over time.³³ Interestingly, this study found that those aged 13-17 were less likely to reoffend than those aged 10-12; males were more likely to reoffend than females; and those who committed less serious offences against the person, or theft offences, were more likely to reoffend than those who committed other types of offences.³⁴

1.14 A 2005 BOCSAR study followed 5,476 young offenders aged 10-18 for eight years from their first appearance in the NSW Children’s Court in 1995.³⁵ Sixty-eight per cent of these had reappeared at least once³⁶ in a criminal court (juvenile or adult) by the end of 2003.³⁷ A reappearance was more likely for Indigenous defendants, males and those who were relatively young at their first appearance.³⁸ Those charged with offences other than property or violent crime were less likely to reappear.³⁹

1.15 BOCSAR observed that the results of its study seem to conflict with those of the 1994 Coumarelos study.⁴⁰ It offered two main explanations for this. First, at the time of Coumarelos’s research, it was not possible to track the criminal careers of juveniles into adulthood. Hence, many in her study who did not reappear in the Children’s Court, may have later reappeared in an adult court.⁴¹ Secondly, juveniles aged 10-12 were under-represented in the Coumarelos cohort. The true rate of juvenile reoffending may therefore have been higher than her data suggested because “past research suggests that those who first appear in court when they are young are more likely to reoffend than those who first appear in their late teenage years”.⁴²

Public perceptions of young people

1.16 Bearing in mind the empirical evidence set out in paragraphs 1.8-1.15 above, does the public have an accurate impression of the extent of juvenile criminality?

1.17 Except for those professionally involved in juvenile justice, people generally obtain their information on the extent and nature of juvenile crime from the mass media, which, as two empirical studies in Australia suggest, is often negative, singling young people out for special mention as allegedly among the most criminally active.⁴³ Bala and Bromwich have commented that:

Reports of youth crime are frequently inflammatory. Youth crime, and especially youth violence, attract considerable media attention and contribute to the sense of “moral panic” and demands for government action to “do something” about crime.⁴⁴

1.19 Concerns about young people’s use of public space are not without foundation. The NSW Department of Health points out that juvenile offences are often related to the use of public spaces, such as shopping centres and public transport.⁴⁶ However, this in itself, together with the fact that juvenile offences are often episodic and opportunistic in nature, makes them more visible and easier to detect.⁴⁷ In turn, high visibility and detection rates, especially as compared with adult offending, can result in skewed perceptions of the extent of juvenile offending.

1.20 There have been a number of research studies and surveys that demonstrate that the public overestimate the possibility of criminal victimisation⁴⁸ and the extent of crime.⁴⁹ It has been argued that this exaggerated fear of criminal activity easily attaches itself to the more visible sections of the population, such as young people or members of ethnic communities, and is fuelled by their representation in the media.⁵⁰ Bala and Bromwich have also put forward an interesting argument of particular relevance in Australia’s multi-cultural society:

As young people are increasingly not just members of a different generation, but also of a cultural, ethnic, racial, or linguistic minority, these adolescents may be resented at least in part because they may not be perceived as the legitimate inheritors of their respective nations.⁵¹

1.22 There are at least two reasons why public perceptions of young people as offenders are troubling. First, if there is a constant repetition of alarmist views in the media, a climate is created in which political decision-makers are presented with the increasing criminality of young people as a “fact” to be taken into account when determining policy.⁵⁵

1.23 BOCSAR asserts that:

public perceptions of crime play an important, sometimes even critical role in shaping law and order policy.⁵⁶ There would be little cause for concern in this if public perceptions were always well founded, but often they are not. Public opinion on crime is strongly shaped by what the media have to say about it. Media coverage of crime is often selective and, on occasion, can be downright misleading.⁵⁷

[e]lectoral politics and the role of media reporting on young people and crime go hand in hand. Neither is fettered by appeals to rational discourse about the nature of juvenile offending. Empirical evidence and calls for reasoned debate on juvenile justice policy are lost when populist politics are in command.⁵⁹

1.26 The Commission hopes that this report will offer a positive contribution to reasoned debate on juvenile justice policy.

NATURE AND CONDUCT OF THE COMMISSION’S INQUIRY

1.27 During the Commission’s preliminary consultations,⁶² a wide range of issues was raised about many aspects of the criminal justice system including police powers, public order offences, alternative ways of commencing proceedings and legal representation of young people. We took the view that although these issues called for further consideration, they were largely outside the scope of this reference, which is an inquiry into sentencing.

1.28 Ultimately, IP 19 identified 27 issues relating to sentencing young offenders. The Commission subsequently consulted extensively with the community on these issues before preparing this report. Written submissions were received from 18 key bodies and individuals. To ensure broad community input, we also held consultations in Coffs Harbour, Albury and Broken Hill.⁶³ Among those consulted were magistrates, Legal Aid solicitors, Public Prosecutors, youth liaison officers, youth health workers, solicitors of the Aboriginal Legal Service, officers of the Department of Juvenile Justice, Youth Justice Conference convenors, Community Legal Centre solicitors, and local council Youth Development Officers.

CONTENT OF THIS REPORT

1.29 Chapter 2 examines the historical development of juvenile justice policy in New South Wales, leading to the contemporary focus on diversion and the embodiment of this approach in the Young Offenders Act 1997 (NSW) (“YOA”).

1.30 Chapter 3 considers the impact of discretionary decision-making on the diversionary aims of the YOA. The focus is on the role of police, as the YOA seeks to achieve its objectives essentially through a structuring of police discretion in relation to the diversionary options.

1.31 Chapter 4 addresses the operation and interaction of the YOA and the Children (Criminal Proceedings) Act 1987 (NSW). It considers whether the scope of the offences covered by the YOA is adequate and whether, if that scope were expanded, certain offences should be specifically excluded.

1.32 Chapter 5 discusses generally the operation of the diversionary scheme under the YOA, focusing on the role of “gatekeepers”, admissions necessary to qualify for a caution or conferencing and legal advice given to young offenders who may be eligible for diversion.

1.33 Chapter 6 separately considers cautions and Chapter 7 focuses on the most serious form of diversion, youth justice conferencing, and the resulting outcome plans.

1.34 Chapters 8 and 9 focus on issues that arise in the context of the involvement of young offenders in court proceedings. Chapter 8 explores, among other things: the role of restorative justice in court-based sentencing; admission of evidence of prior offences; identification of young offenders; sentencing options, including the Youth Drug and Alcohol Court; and whether guideline judgments and/or mandatory sentencing are appropriate in the context of sentencing for young offenders. Lastly, the chapter looks at care issues arising in criminal matters, both in sentencing and bail hearings.

1.35 Chapter 9 considers the name and status of the Children’s Court; selection, tenure and education of Children’s Magistrates; and the adequacy of court facilities.

1.36 Chapter 10 analyses the effect of bail law and practice on young offenders, having regard to the impact of issues such as homelessness and legislative changes limiting presumptions in favour of granting bail.

1.37 Chapter 11 focuses on the sentencing of young offenders for exceptionally serious crimes.

1. New South Wales Law Reform Commission, Sentencing (Report 79, 1996).

2. Young Offenders Act 1997 (NSW) s 4.

3. This use is consistent with the definition of “child” adopted in the United Nations Convention on the Rights of the Child as a person under 18 years of age See also other legislative descriptions of a child as a person under the age of 18 years: Children (Care and Protection) Act 1987 (NSW); Children (Detention Centres) Act 1987 (NSW); Children (Community Service Orders) Act 1987 (NSW).

4. Children (Criminal Proceedings) Act 1987 (NSW) s 5. At common law, the age of criminal responsibility is seven: see P Gillies, Criminal Law (Law Book Company, Sydney, 1997) at 208.

5. Children (Criminal Proceedings) Act 1987 (NSW) s 5. See also NSW Attorney General’s Department, Criminal Law Review Division, A Review of the Law on the Age of Criminal Responsibility of Children (2000); G Urbas, The Age of Criminal Responsibility (Australian Institute of Criminology, Trends & Issues in Crime and Criminal Justice, No 181, Sydney, 2000); The Law Reform Commission of Hong Kong, Age of Criminal Responsibility in Hong Kong (Report, 2000); Scottish Law Commission, Report on Age of Criminal Responsibility (Report No 185, 2002); and T Croft, The Criminal Responsibility of Children and Young Persons: A Comparison of English and German Law (Ashgate Publishing Co, Aldershot, England, 2002).

6. For example, Criminal Code (Qld) s 29(2); Criminal Code (Tas) s 18(2); Criminal Code (WA) s 29; Criminal Code (NT) s 38(2); Crimes Act 1961 (NZ) s 22(1).

7. See R v CRH (NSW, Court of Criminal Appeal, No 60390/96, 18 December 1996, unreported).

8. See C (A Minor) v Director of Public Prosecutions [1996] AC 1. That case questioned whether the presumption of doli incapax was still part of English law. The House of Lords held that the presumption that a child between the ages of 10 and 14 was doli incapax was a rule of the common law that could only be abrogated by statute. The Court commented that “the time has now come to examine further a doctrine which appears to have been inconsistently applied and which is certainly capable of producing inconsistent results”: headnote. “This is a classic case for parliamentary investigation, deliberation and legislation”: at 40 (Lord Lowry). See also R v CRH (NSW, Court of Criminal Appeal, No 60390/96, 18 December 1996, unreported); Ivers v Griffiths (NSW, Supreme Court, No 10255/98, Newman J, 22 May 1998, unreported). See also NSW Attorney General’s Department, Criminal Law Review Division, A Review of the Law on the Age of Criminal Responsibility.

9. C (A Minor) v Director of Public Prosecutions [1996] AC 1; DK v Rooney (NSW, Supreme Court, No 11370/96, McInerney J, 3 July 1996, unreported).

10. DK v Rooney (NSW, Supreme Court, No 11370/96, McInerney J, 3 July 1996, unreported).

11. C (A Minor) v Director of Public Prosecutions [1996] AC 1.

12. The immunity in s 68(1) also extends to a question concerning the person’s criminal history, which is taken not to refer to any such warning, caution or conference: Young Offenders Act 1997 (NSW) s 68(1)(b).

13. In 2003, the population of 10-17 year-olds in New South Wales was 727,275: Australian Bureau of Statistics, Population by Age and Sex, Australian States and Territories, (2003) Table 1: Estimated Resident Population by Single Year of Age, New South Wales (Time Series Spreadsheet No 3201.0, 2004). The population of 10-17 year-olds in New South Wales in 2004 is not yet available. However, for the purposes of gleaning some idea of what proportion of young people are currently engaging in criminal activity, it could be estimated that the 2004 population would be roughly 727,622. (This is arrived at by taking the 2003 figures and adding the number of 9 year-olds and subtracting the number of 17 year-olds. It does not make allowance for deaths and movements in and out of the State.)

14. In this section, the Commission has rounded all percentages off to whole numbers.

15. New South Wales Bureau of Crime Statistics and Research, New South Wales Recorded Crime Statistics 2001 to 2004 (2005). These figures are obtained from the NSW Police COPS database.

16. The number of young offenders appearing in the Children’s Court in 2004 was 8,125: S Moffat, D Goh and J Fitzgerald, New South Wales Criminal Courts Statistics 2004 (New South Wales Bureau of Crime Statistics and Research, Statistical Report Series No S93, 2005), Table 2.1 at 61.

17. New South Wales Criminal Courts Statistics 2004, Table 2.1 at 61.

18. New South Wales Criminal Courts Statistics 2004, Table 2.2 at 62.

19. New South Wales Criminal Courts Statistics 2004, Tables 2.4a and 2.4b at 69-73.

20. New South Wales Criminal Courts Statistics 2004, Table 2.5 at 74.

21. New South Wales Criminal Courts Statistics 2004, Table 2.1 at 59.

22. New South Wales Criminal Courts Statistics 2004, Table 2.1 at 58.

23. New South Wales Criminal Courts Statistics 2004, Table 2.1 at 59.

24. There were 660 persons convicted of non-aggravated assault and one person convicted of other acts intended to cause injury. Other than the 56 persons convicted of aggravated sexual assault, there was one other sexual assault conviction: New South Wales Criminal Courts Statistics 2004, Table 2.1 at 58.

25. New South Wales Criminal Courts Statistics 2004, Table 2.1 at 58. In 2004, a total of 21 persons appeared in the Children’s Court for homicide, 125 for aggravated assault and 103 for aggravated sexual assault. This number constituted 3% of all persons appearing in the Children’s Court that year. The proportion of persons appearing for non-aggravated assault and non-aggravated sexual assault was 13%.

26. New South Wales Criminal Courts Statistics 2004, Table 2.3 at 63-65.

27. C Coumarelos, Juvenile Offending: Predicting Persistence and Determining the Cost-Effectiveness of Interventions (NSW Bureau of Crime Statistics and Research, General Report Series R33, 1994) at 6.

28. Coumarelos at 7-8.

29. Coumarelos at 8.

30. K Freeman, Young People and Crime (NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 32, 1996) at 5. Although, BOCSAR concedes that “this statistic may underestimate the length of juvenile criminal careers because juveniles may have been offending for some time before their first appearance in the Children’s Court and may have offended after their last appearance in the Children’s Court”: at footnote 22.

31. Freeman at 5. See the research cited in footnote 23: M Wolfgang, R Figlio, and T Sellin, Delinquency in a Birth Cohort (University of Chicago Press, 1972); D P Farrington, R Loeber, D S Elliott, D J Hawkins, D B Kandel, M Kleun, J McCord, D C Rowe and R E Tremblay, “Advancing knowledge about the onset of delinquency and crime” in B B Lahey and A E Kazdin (ed) Advances in Clinical and Child Psychology (Plenum, New York, 1990) Vol 3; and K Polk, C Alder, G Bazemore, G Blake, S Cordory, G Coventry, J Galvin and M Temple, An Analysis of Maturational Development from Ages 16 to 30 of a Cohort of Young Men (University of Oregon Press, 1981).

32. G Luke and B Lind, Reducing Juvenile Crime: Conferencing versus Court (New South Wales Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 69, Sydney, 2002). This study is looked at in more detail in Chapter 7 at para 7.40.

33. Luke and Lind at 5.

34. Luke and Lind at 7.

35. S Chen, T Matruglio, D Weatherburn and J Hua, The Transition from Juvenile to Adult Criminal Careers (New South Wales Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 86, Sydney, 2005).

36. On average, 3.5 appearances (both juvenile and adult courts).

37. Chen, Matruglio, Weatherburn and Hua at 2. Forty-three per cent reappeared at least once in the Children’s Court and 57% appeared at least once in an adult court. “[Thirteen per cent] of those who appeared for the first time in a Children’s Court in 1995 ended up in an adult prison within eight years”: Chen, Matruglio, Weatherburn and Hua at 9-10.

38. Chen, Matruglio, Weatherburn and Hua at 2.

39. Chen, Matruglio, Weatherburn and Hua at 2.

40. See para 1.11-1.12 above.

41. Chen, Matruglio, Weatherburn and Hua at 1.

42. Chen, Matruglio, Weatherburn and Hua at 1.

43. See K Freeman, Young People and Crime at 1. BOCSAR observed that the casual newspaper reader might well conclude that most young offenders were “involved in violent crime and offend frequently”. See also H Sercombe, “Easy pickings: the Children’s Court and the economy of news production” Paper presented to Youth 93: The Regeneration Conference (Hobart, 3-5 November 1993) cited in C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia (Oxford University Press, Melbourne, 2002) at 90. This paper surveyed newspaper reporting in Western Australia from 1990 to 1992, which showed that crime stories constituted 63% of all stories dealing with young people: Similarly, research in the United States in the 1990s showed that 47% of television news coverage of youth related to crime and violence and only about 15% to education issues: P Omaji, Responding to Youth Crime: Towards Radical Criminal Justice Partnerships (Hawkins Press, Sydney, 2003) at 35.

44. N Bala and J Bromwich, “International perspectives on youth justice” in N Bala, J P Hornick, H N Snyder and J J Paetsch (eds) Juvenile Justice Systems: An International Comparison of Problems and Solutions (Thompson Educational Publishing Inc, Toronto, 2002) at 14. See also R White and D Habibis, Crime and Society (Oxford University Press, South Melbourne, 2005) at 279.

45. Chapter 3 examines interactions between young people and the police.

46. New South Wales Health Department, NSW Youth Alcohol Action Plan – 2001-2005 (2002).

47. New South Wales Health Department, NSW Youth Alcohol Action Plan – 2001-2005.

48. See D Weatherburn, E Makta and B Lind, Crime Perception and Reality: Public Perceptions of the Risk of Criminal Victimisation in Australia (NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 28, 1996); D Indermaur, Crime Seriousness and Sentencing: a Comparison of Court Practice and the Perceptions of a Sample of the Public and Judges (Australian Institute of Criminology, Criminology Research Council Report, Canberra, 1990); Queensland Criminal Justice Commission, Fear of Crime: Research Notes (Criminal Justice Research Paper Series Vol 1 No 2, Brisbane, 1994); K Freeman, Crime Trends in New South Wales: The Crime Victim Survey Picture (NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 37, 1998). This research concluded that “the victim survey data show that the risk of crime is much lower than many people imagine” (at 4).

49. D Weatherburn and D Indermaur, Public Perceptions of Crime Trends in New South Wales and Western Australia (NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 80, 2004). See also M Hough and J Roberts, Youth Crime and Youth Justice: Public Opinion in England and Wales (The Policy Press, 2004): the findings of this research showed that the public has a more pessimistic view of youth crime than is justified by official crime statistics. As well, most people interviewed said that they wanted the youth justice system to be tougher.

50. Youth Action and Policy Association, Submission. For those surveyed for the Crime Victim Survey Picture who perceived a crime or public nuisance problem in their neighbourhood (approximately 43-55%), one of three main problems nominated was that of louts/youth gangs: K Freeman, Crime Trends in New South Wales: The Crime Victim Survey Picture at 3. (The other two primary concerns were house burglary and dangerous/noisy driving.)

51. N Bala and J Bromwich, “International perspectives on youth justice” at 15.

52. The exact proportion is 0.75%. It includes offenders who were 18 years or older at the time of their conviction in the Children’s Court but who were younger than 18 when they committed the offence. However, the statistic does not include the 1,033 offenders under 18 found guilty of an offence in the Local Courts and the 95 offenders under 18 found guilty of an offence in the Higher Courts: New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 2004 Table 1.11 at 39 and Table 3.9 at 93.

53. Arriving at an approximate figure for the population of 18-24 year-olds in New South Wales in 2004 involves a similar exercise to that carried out for estimating the number of 10-17 year-olds (see footnote 13). (The data for the number of 18-24 year-olds in 2004 is also not yet available.) In 2003, the population of 18-24 year-olds was 321,932: Australian Bureau of Statistics, Population by Age and Sex, Australian States and Territories, Table 1: Estimated Resident Population by Single Year of Age, New South Wales (Time Series Spreadsheet No 3201.0, 2004). Taking the 2003 figures and adding the number of 17 year-olds and subtracting the number of 24 year-olds gives a figure of 323,386. This does not make allowance for deaths and movements in and out of the State.

54. It is important to note that these figures only pertain to offences proved in court and do not include those guilty of an offence but dealt with by diversionary measures. The percentage of 10-17 year-olds guilty of an offence will in reality be higher than 0.75%. As a guide, 6.6% of 10-17 year-olds were proceeded against by police (to court or otherwise) in 2004. Of course, not all proceedings would have resulted in a guilty plea or finding.

55. Brown and Hogg argue that there is a perceived consensus on the fundamentals of law and order issues, “built, layer upon layer, through constant repetition by popular and authoritative sources of a number of questionable views and assumptions which have assumed the status of a set of givens within the debate about crime”: D Brown and R Hogg, “Law and order commonsense” (1996) 8(2) Current Issues in Criminal Justice 175 at 175. As Tonry notes, “Many people have strong commonsense beliefs about sentencing and punishment, but it is often common sense uninformed by knowledge”: M Tonry, Sentencing Matters (Oxford University Press, New York, 1996) Preface at v. Warner has argued that “excessive, rhetorical, simplistic” law and order issues have been at the forefront of the political agenda in all State and Territory elections throughout Australia in recent years: K Warner, “The role of guideline judgments in the law and order debate in Australia” (2003) 27 Criminal Law Journal 8 at 8. See also D Brown, “The politics of law and order”(2002) 40(9) Law Society Journal 64.

56. See J V Roberts, L J Stalans, D Indermaur and M Hough, Penal Populism And Public Opinion: Lessons From Five Countries (Oxford University Press, 2003).

57. D Weatherburn and D Indermaur, Public Perceptions of Crime Trends in New South Wales and Western Australia at 1. BOCSAR adds this note to the quoted text: “A few years ago, for example, the NSW Bureau of Crime Statistics and Research pointed out when releasing the annual crime statistics that a sudden jump in stealing offences had resulted from a change in the way NSW police record the crime of stealing from the person. Sections of the media simply ignored the advice and reported an increase in stealing from the person.”

58. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 89 and 93.

59. Cunneen and White at 92. Cunneen and White cite the introduction of the Summary Offences Act 1988 (NSW) as an example. In a similar vein, Brown refers to the “cudgel of media-driven moral panics” brought about by manufactured public outrage in respect of individual cases: “[L]egislative changes are produced literally over night, seriously distorting the processes of legal and social reform, ignoring machinery established to inform political and public debate such as parliamentary committees, advisory bodies and research agencies in the rush for a political quick fix”: D Brown, Neo-Liberal Governance, Criminal Law and Intoxication: Wild Nights with Norm Hewitt, Noa Nadruku, Craig Gower, Freddy Fittler et al (Australasian Law Teachers Association Conference, Proceedings Vol 1, 1999) at 12-13.

60. In striving to reconcile the image of young people with the reality, it is also important to note that young people are much more likely to be victims that older people, particularly in the area of personal violence offences. In the period 1990-1997, persons in the 15-24 years age group were the most likely of any age group to have been victims of personal crime (6.8% of male and 6.1% of females falling to 0.7% of persons aged over 65): K Freeman, Crime Trends in New South Wales: The Crime Victim Survey Picture.

61. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 91.

62. Prior to the publication of IP 19, the Commission engaged in extensive preliminary consultations with the Aboriginal Justice Advisory Council; the Australian Institute of Criminology; the Attorney General’s Department; the Children’s Court; the Department of Juvenile Justice; the Juvenile Justice Advisory Council; the Law Society of New South Wales; Legal Aid New South Wales; the New South Wales Bar Association; New South Wales Office of the Director of Public Prosecutions; the New South Wales Police Service; the Positive Justice Centre and Public Defenders. We also established a reference group, which greatly assisted us in identifying relevant issues.

63. These took place on 20 and 21 May, 30 and 31 May and 3 and 4 June, 2002, respectively.