Updates and background for this project (Digest)

• Introduction
• Age of young offender
• Offences covered by the YOA
  

4.1 A fundamental issue addressed in the Commission’s consultations and submissions was the scope of the Young Offenders Act 1997 (NSW) (“YOA”), including its interaction with the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”). As these two Acts are at the core of juvenile justice law in New South Wales, this issue is of central importance in the sentencing of young offenders.¹

4.2 Offences within the jurisdiction of the YOA can be dealt with by options that are intended to divert a young offender away from formal court processes. As diversion has great potential benefits for a young offender, as well as victims of crime and the community, it becomes important to test whether there is an optimal range of offences falling within the ambit of the YOA. This chapter explores whether the offences presently falling within the jurisdiction of the YOA are adequate, both in meeting community expectations and in fulfilling the legislation’s expressed aims. It also considers whether, if the application of the YOA were to be expanded, certain offences should be specifically excluded from its operation.

4.3 A preliminary issue reviewed in this chapter is the age range of offenders that fall within the jurisdiction of the YOA, and the YOA’s interaction with the CCPA in this regard.

AGE OF YOUNG OFFENDER

4.4 The CCPA defines “child” as a person under the age of 18 years. However, in proceedings in the Children’s Court, and for the purposes of sentencing in other courts, the CCPA applies to a person who was a child when the offence was committed and under the age of 21 years when charged.²

4.5 It is arguable that the YOA, which defines a “child” as a person over the age of 10 and under the age of 18,³ applies only to persons who are under 18 at the time they are dealt with under the Act, not merely under 18 at the time of the commission of the offence.⁴ If so, the two Acts are inconsistent. Considerations of equity and public policy require that the Acts should be made compatible in their application to “children”.

4.6 There is no reason why, if a person is going to be sentenced under the CCPA, the diversionary options provided by the YOA should not be available to him or her, if the offence was committed as a child. The policy considerations that dictate that children, with their undeveloped maturity and self-discipline, should be treated differently when they offend from adults, should not be discarded when there is a delay in dealing with the offence. The Commission is therefore of the view that both the CCPA and the YOA should apply to all persons who have allegedly committed an offence before they turned 18, provided they are under 21 at the time they are dealt with under either Act.

Recommendation 4.1
The definition of “child” in the Young Offenders Act 1997 (NSW) should be amended to refer to persons who are of or over the age of 10 years and under the age of 18 years, when an offence is committed, or alleged to have been committed, and under the age of 21 years when dealt with under the Act.

Current scope of the YOA

4.7 In order for the diversionary options of the YOA to be available to a young offender, it is necessary for the offence with which the young person is charged to be covered by the YOA.⁵ The YOA currently applies to summary offences⁶ and to indictable offences triable summarily under the Criminal Procedure Act 1986 (NSW) or other law prescribed under the YOA itself.⁷ Many indictable offences may be dealt with summarily, including property offences, many drug offences and assaults.⁸ The YOA excludes its operation in relation to specified offences.⁹ These include traffic offences (if the offender is old enough to hold a permit or a licence), offences that result in death, most sexual offences, breaches of apprehended violence orders and serious drug offences.¹⁰

4.8 In determining whether the ambit of the YOA should be expanded, it is important to bear in mind the objects and principles of that Act, which have been set out in Chapter 2 at paragraphs 2.58-2.59. It is clear from the objects of the YOA that Parliament is committed to diversionary options, in particular youth justice conferencing, as providing a more satisfactory way of dealing with young offenders than traditional methods of punishment. And it is clear from the principles underpinning the YOA that restorative justice themes, with their emphasis on community reintegration and concern for victims, inform the operation of youth justice conferencing, in particular.

4.9 Perhaps the major reason why youth justice conferencing (the centrepiece of the YOA)¹¹ is thought to be a more satisfactory response to young offending than more traditional forms of punishment is that it obliges the young offender to consider fully, and take responsibility for, the consequences of his or her actions, in particular the harm caused to the victim, usually in a face-to-face encounter between offender and victim. Some empirical research suggests that the process is more effective in terms of outcome than traditional methods of punishment, with both victims and offenders showing a high level of satisfaction with the process. Chapter 7 looks at this research and evaluates conferencing more fully.

The views in submissions

4.10 There was a general consensus in the submissions received by the Commission that the scope of the YOA ought to be expanded.¹² It was argued that the YOA should cover all summary offences that may be dealt with under the CCPA (which are not “prescribed laws” for the purposes of the YOA), including drug offences, and breaches of apprehended violence orders. The consequence of expanding the offences covered by the YOA would, of course, be that the diversionary options available under the YOA, notably youth justice conferencing, would be available in relation to these offences.¹³ In support of the desirability of this, the Children’s Court submitted that:

it is the experience of the Court that many individual offences could appropriately be dealt with by conferencing in appropriate cases, especially robbery in company and robbery while armed with an offensive weapon: Crimes Act (NSW) section 97(1), especially where the amount taken is below a certain value. ¹⁴

4.12 Against the weight of opinion in favour of expanding the scope of the YOA was the submission made by the New South Wales Commission for Children and Young People (CCYP).¹⁷ The CCYP was also opposed to extension of the YOA to cover minor traffic and fisheries offences (usually victimless offences).¹⁸ One of the principal functions of the CCYP is “to make recommendations to government and non-government agencies on legislation, policies, practices and services affecting children”,¹⁹ with priority given to vulnerable children.²⁰ Having regard to its statutory obligations, the CCYP opposes the expansion of the scope of the YOA to include more serious offences on the grounds of public accountability and public perception. While the CCYP strongly supports youth justice conferencing, it submitted that as the community has a legitimate interest in accountability for criminal behaviour, including that of young people, the very public setting of a court is the appropriate venue for such accountability to take place. The CCYP argued that if the current range of offences under the YOA were widened to include more serious offences, the nature of the process would damage the credibility of youth justice conferencing.²¹ The CCYP did, however, support the application of youth justice conferencing to traffic offences that involve significant personal injury or property damage.²²

The Commission’s view

4.13 In the objects and principles underlying the YOA, Parliament has made obvious its conviction that diversionary schemes can be a far better response to young offending than traditional court processes and punishment. The Commission strongly supports these objects and principles. While there may well be some public perception that diversionary options, such as youth justice conferencing, are a “soft option” for young offenders, our consultations, particularly with those professionally involved in youth legal or social welfare issues, persuaded us that such perceptions would not be well founded.²³

4.14 We are persuaded, rather, that the process of an offender facing his or her victim is, generally, both daunting for the offender and empowering for the victim.²⁴ This is particularly so where both offender and victim are young people, as is often the case.²⁵ We also reiterate our previous support for the appropriate involvement of victims in the criminal justice system,²⁶ and note that conferencing provides a particularly suitable occasion for such involvement. For these reasons, the Commission takes the view that, in principle, the application of the diversionary options in the YOA ought to be made applicable to all offences except those that cannot appropriately be made the subject of diversionary options (especially conferencing).

4.15 Extending the scope of the YOA would also address the NSW Police submission to the statutory review of the YOA pointing out that larceny involving theft from a shop, a generally minor offence, is currently ineligible for a warning, as it is not a summary offence.²⁷ The NSW Police commented that a warning would be appropriate in many instances of this offence, particularly where the value of the stolen property is low.²⁸

4.16 However, after careful consideration of the further aspect of the NSW Police submission,²⁹ we are unable to agree that penalty notice offences should be brought within the YOA. On the face of it, it is a fair and sensible suggestion to enable young offenders to escape the burden of fines that stretch, or are beyond, their resources. Our concern is that the practical effect of extending the diversionary options of the YOA to penalty notice offences would be to net-widen and bring a young person further into the criminal justice system than they otherwise would be.

4.17 At present, an officer with the authority to issue a penalty notice can, in his or her discretion, simply warn the young person about the offending behaviour and thereby bring the incident to a close. A warning given under the YOA is recorded³⁰ and kept on the COPS (Computerised Operational Policing) computer system maintained by NSW Police.³¹

4.18 In order to caution a young person under the YOA (he or she must admit the offence and consent to the caution³² ), the young person must attend at a police station,³³ a record of the caution is kept and the tally of a maximum of three cautions begins to run. Once a child has been dealt with by caution on three or more occasions, he or she is no longer entitled to be dealt with by caution in relation to an offence.³⁴ Furthermore, if penalty notices were covered by the YOA, the gatekeepers under the Act would need to be expanded to include such people as railway ticket inspectors. It is difficult to see how this would work in practice.

4.19 In Chapter 8, we explore the problem of fines, and a young person’s ability to pay, in greater detail. We have recommended that the Children’s Court be given the power to review the amount specified in any penalty notice in the light of the young offender’s means.

4.20 Otherwise, we believe that the only reason why an offence should be excluded from the operation of the YOA is that it is so serious that, even in the case of a young offender, it cannot appropriately be dealt with by a diversionary option.

4.21 The current legislation recognises the legitimate community concern that serious offences ought not to be the subject of diversionary options, even in the case of young offenders, by:

• the general exclusion of all indictable offences that cannot be dealt with summarily under Chapter 5 of the Criminal Procedure Act 1986 (NSW); and
• the specific exclusion of particular offences under s 8(2) of the YOA itself.

4.22 The Commission considers that the current legislative framework of criminal justice in NSW does not identify the offences that ought generally to be excluded from the operation of the YOA with sufficient precision. The general exclusion of all indictable offences that cannot be dealt with summarily under Chapter 5 of the Criminal Procedure Act 1986 (NSW) seems inappropriate. The classification of offences as indictable or summary (and if indictable, nevertheless triable summarily) is made to identify the seriousness of offences for more general purposes of the criminal law, such as determining the mode of trial or the jurisdiction of courts. It is not directed to the specific question whether the classification is appropriate in the context of the impact of the criminal justice system on young offenders, especially the question whether the offence is, or should be, amenable to diversion under the YOA.

4.23 In the CCPA, however, Parliament has addressed that specific question by creating a category of “serious children’s indictable offences” for the purposes of that Act. “Serious children’s indictable offences” refer to: homicide; offences punishable by imprisonment for life or for 25 years; a number of serious sexual offences (including attempts to commit such offences); offences relating to the manufacture or sale of firearms punishable by imprisonment for 20 years; and, by regulation,³⁵ certain sexual offences where the victim is under ten years of age.³⁶

4.24 All these offences must be dealt with according to law,³⁷ thus excluding the operation of diversionary options under the YOA. Except for committal proceedings, the Children’s Court has no jurisdiction to hear and determine “serious children’s indictable offences”,³⁸ which means that these offences must be heard in the District or Supreme Courts.

4.25 A general exclusion of “serious children’s indictable offences” as defined in the CCPA from the operation of the YOA is justified in terms of the objects and principles of the YOA. In addition, it creates a consistency of approach between the YOA and CCPA, generally aligning that approach with the jurisdiction of the Children’s Court. Further, a general exclusion in the terms we propose takes account of the legitimate considerations of accountability outlined in the submission of the CCYP.³⁹

4.26 We note that the statutory review of the YOA recommended that “the range of offences covered by the Act be extended to cover all offences for which the Children’s Court has jurisdiction”.⁴⁰ While the Government did not support this recommendation, this was by reason of the seriousness of some of the offences dealt with under the CCPA.⁴¹ The Commission is firmly of the view, for the reasons outlined above, that the YOA should be reformed as recommended in Recommendation 4.2 below. Excluding serious children’s indictable offences should meet the government’s objections to enlarging the scope of the YOA.

4.27 As well, it is open to Parliament to legislate from time to time to exclude further specific offences from the operation of an Act. Parliament may legitimately want to exclude offences from the operation of the YOA without expanding the category of “serious children’s indictable offence” under the CCPA, that is, without ousting the jurisdiction of the Children’s Court.

Recommendation 4.2
Section 8(1) of the Young Offenders Act 1997 (NSW) should be amended to provide that all offences committed, or alleged to have been committed, by children are covered by the Act, except serious children’s indictable offences, as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW), and except as otherwise provided by the Young Offenders Act 1997 (NSW).

4.28 Section 8(2) of the YOA excludes identified specific offences from its operation. The scope of the exclusions in section 8(2) of the Act was the subject of comment in submissions and consultations. The comments focused on the exclusion, in s 8(2)(e), of offences under Part 15A of the Crimes Act 1900 (NSW) (apprehended violence order offences); and on the treatment of offences relating to drugs in s 8(2)(e1), (f) and 8(3).

4.29 Apprehended Violence Orders. Section s 8(2)(e) of the YOA excludes offences under Part 15A of the Crimes Act 1900 (NSW). Offences under Pt 15A are:

• breaches of an Apprehended Violence Order (“AVO”);⁴² and
• stalking and intimidation.⁴³

4.31 Submissions and consultations tended to favour bringing breaches of AVOs within the ambit of the YOA.⁴⁹ The Director of Youth Justice Conferencing proposed the inclusion of AVOs generally (not just breaches) within the operation of the YOA as early as November 1999.⁵⁰ A number of people told the Commission, both in submissions and in consultations, that many AVOs taken out against young people do not necessarily relate to actual or potential violence by the young person. Rather, it was asserted that they are sometimes used as a behaviour management tool by parents.⁵¹

4.32 Similarly, it was suggested that many breaches of AVOs that have been taken out against young people are insignificant.⁵² A number of respondents to the statutory review of the YOA made the same point and argued that such breaches could be appropriately dealt with by a caution or conferencing.⁵³ The Senior Children’s Magistrate submitted to the review that the YOA should cover AVOs where there is no actual violence, and the victim is an adult and agrees to the referral.⁵⁴

4.33 Other submissions to the review of the YOA, while advocating inclusion of some AVO matters, noted that conferencing may be inappropriate for many domestic violence offences, as it may compound the abuse already suffered by the victim.⁵⁵

4.34 The review found that:

While it may be appropriate for certain breaches of AVOs to be dealt with under the Act (such as the breach of a condition not to come with[in] a certain distance of an applicant’s home/workplace), it would not be appropriate for the Act to cover breaches where actual violence has occurred.⁵⁶

4.36 Drug Offences. Some submissions made specific reference in relation to widening the scope of the YOA to include drug offences.⁵⁷ Likewise, a number of submissions to the statutory review of the YOA submitted that the YOA should cover “all drug offences capable of being dealt with summarily by the Children’s Court”.⁵⁸

4.37 Currently, the bulk of drug offences are excluded from the operation of the YOA pursuant to s 8(2)(e1) and (f).⁵⁹ Exceptions to these exclusions are contained in s 8(3):

(3) An offence under section 23 (1) (a) or (c) of the Drug Misuse and Trafficking Act 1985 is covered by this Act if in the opinion of the investigating official or prosecuting authority:

(a) the offence involves not more than half the small quantity applicable to the prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, or

(b) there are exceptional circumstances in that:


(i) the offence involves more than half, but not more than the total, small quantity applicable to the prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, and

(ii) it would be in the interests of rehabilitation, and appropriate in all the circumstances, to deal with the matter under [the YOA].

The Commission’s view

4.39 For three interrelated reasons, the Commission has decided that it cannot make any recommendations in respect of the particular offences that s 8(2) ought to exclude from the operation of the YOA.

4.40 First, and most importantly, it is within the particular provenance of Parliament to identify from time to time which particular offences are of that degree of seriousness that they should be excluded from the operation of the diversionary options of the YOA. Secondly, it follows that cogent reasons or evidence are needed to support any suggestion that an offence currently listed in s 8(2) is inappropriately excluded from the operation of the YOA. Thirdly, whether or not an offence is of such a nature that it ought not to be conferenced ultimately involves an analysis of the overall objectives of that offence in the context of the criminal law. That task is more appropriate to a review of the offence in question. Taken as a whole, arguments put forward in submissions and consultations, as well as our own researches, have failed to persuade us that a case has been made out for adding any of the offences currently listed in s 8(2), particularly offences under Part 15A of the Crimes Act and drug offences.

4.41 Parliament’s decision to exclude offences under Part 15A of the Crimes Act from the YOA reflects the potential seriousness of stalking, intimidation or breach of an AVO, as well as that such offences are often serious in fact. That seriousness is grounded in actual or threatened violence, often in a domestic context. And, while Parliament envisages that the degree of violence involved in offences falling within the YOA is a factor relevant to determining whether or not such offences are appropriately subject to diversion,⁶² it has, at the same time, deliberately chosen to exclude Pt 15A offences from the operation of the YOA. This is explicable considering that the focus of Part 15A is on domestic violence offences, for which conferencing can be seen as generally inappropriate.

4.42 Generally, attempts to mediate disputes where violence is present are considered inappropriate.⁶³ However, where one of the parties to the dispute is a child who has committed or threatened violence, different considerations apply.⁶⁴ Therefore, our conclusion that Parliament’s decision to exclude breaches of AVOs from the availability of warnings, cautions and conferencing should stand, would not necessarily preclude recourse to mediation. Where there is a dispute involving a young person and there is an AVO in the background (but not a breach of an AVO)⁶⁵ and providing certain factors are present,⁶⁶ the parties could take their dispute to, say, a Community Justice Centre or Relationships Australia, or use some other appropriate conflict resolution mechanism.

4.43 In the case of drug offences, their fairly general exclusion from the YOA no doubt reflects a much broader governmental policy attempting to deal with such offences in a holistic fashion. Thus, s 8(2)(e1) of the YOA⁶⁷ was passed in response to the 1999 NSW Drug Summit.⁶⁸

4.44 Furthermore, in response to the Drug Summit, the NSW Government established the NSW Youth Drug and Alcohol Court pilot program in July 2000, especially to target young offenders with drug and alcohol use problems.⁶⁹ While the offences that the court processes are obviously not confined to drug offences, the program is tailor-made to address the “wide range of young offenders’ needs and problems in a holistic way through intensive case management”.⁷⁰

4.45 Moreover, we note that, in so far as drug offences have unidentified victims, the restorative justice objectives of the YOA may be incapable of full achievement. Otherwise, while we sympathise with the view that it seems sensible to use, or at least to trial the use of, diversionary options as a response to drug offences in the case of young offenders, we have no basis for making recommendations to this effect.

4.46 In the Commission’s view, it is nevertheless appropriate that Parliament should reflect on the continuing justifications for the current exclusions in s 8(2) of the YOA when considering its response to the recommendations in this report, particularly Recommendation 4.2.

4.47 The Commission agrees with the suggestion of the Legal Aid Commission to expand the range of persons able to attend a caution to include health and drug counselling professionals. We recommend that this should apply not just to cautioning but conferencing as well.

Recommendation 4.3
Sections 28 and 47(2) of the Young Offenders Act 1997 (NSW) should be amended to include reference to a health and drug counselling professional where a child has been charged with an offence under the Drugs Misuse and Trafficking Act 1985 (NSW).

4.48 The discussion in paragraphs 4.28-4.46 considers the exclusion from the YOA of specific offences identified by Parliament. Parliament may also wish to identify further the particular diversionary options available in relation to specific offences.

4.49 Cautions⁷¹ and conferencing⁷² , but not warnings, are available in respect of all offences covered by the YOA, other than offences excluded from those options by regulation.⁷³ However, warnings (which are the least harsh diversionary option) are only available where the offence is a “summary offence covered by this Act”,⁷⁴ unless the offence is otherwise excluded by regulation. There are currently no such offences excluded by regulation.

4.50 The Commission recognises that warnings should only be a diversionary option in less serious offences, but, for the reasons pointed out in paragraph 4.22, the fact that an offence is summary may not be the most appropriate way of identifying relevant offences for the purpose of determining whether they can attract warnings. It would be preferable to adopt the YOA’s approach to cautions and conferencing and to provide that warnings may be given in respect of all offences covered by the Act except those prescribed by regulation. This recommendation does not, of course, restrict the discretion of an investigating official to refuse to deal with the matter by a warning where it is not in the interests of justice to do so.⁷⁵ It does, however, require the identification by regulation of offences that are not appropriately dealt with by means of a warning.

Recommendation 4.4
Section 13 of the Young Offenders Act 1997 (NSW) should be amended to provide that a warning may be given for an offence covered by the Act, other than an offence prescribed by the regulations for the purposes of the section.

1. Other laws creating offences and extending police powers are also highly relevant in the context of conflicting juvenile justice policies in New South Wales.

2. Children (Criminal Proceedings) Act 1987 (NSW) s 28(1)(c) and (d).

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

4. Although, the Children’s Court refers a small number of young people between 18 and 21 to youth justice conferencing.

5. Young Offenders Act 1997 (NSW) s 8.

6. Young Offenders Act 1997 (NSW) s 8(1)(a).

7. Young Offenders Act 1997 (NSW) s 8(1)(b).

8. See Criminal Procedure Act 1986 (NSW) Ch 5 and Sch 1.

9. Young Offenders Act 1997 (NSW) s 8(2).

10. Young Offenders Act 1997 (NSW) s 8(2).

11. See Chapter 7.

12. The Children’s Court of New South Wales, Submission at 2; The Shopfront Youth Legal Centre, Submission at 1; The Law Society of New South Wales, Criminal Law Committee and Children’s Legal Issues Committee, Submission at 1; New South Wales Young Lawyers – Criminal Law Committee, Submission at 1; National Children’s and Youth Law Centre, Submission at 1; Legal Aid Commission of New South Wales, Submission at 1; Women’s Legal Resource Centre, Submission at 1; Public Defenders, Submission 3 at 1. The New South Wales Police Service, the Director of Public Prosecutions, the Hon Carmel Tebbutt and the New South Wales Bar Association thought that the current range of offences was generally appropriate but submitted that any jurisdictional problems with statutory provisions that permit investigating officials to levy fines on young people, such as the Fisheries Management Act 1994 (NSW) and the Road Transport (Driver Licensing) Act 1999 (NSW) should be corrected: The New South Wales Police Service, Submission at 1; Director of Public Prosecutions, Submissions at 1; the Hon Carmel Tebbutt, MLC, (then) Minister for Juvenile Justice, Submission at 1; The New South Wales Bar Association, Submission at 1. The Public Defenders also submitted that the YOA should be extended to fisheries and driving offences where fines are generally imposed: Submission at 1.

13. Under the Children (Criminal Proceedings) Act 1987 (NSW), a young offender can be cautioned (s 33(1)(a)) but not referred to conferencing.

14. The Children’s Court of New South Wales, Submission at 3.

15. The exceptions to this are offences under s 11C and s 28F of the Summary Offences Act 1988 (NSW) or, after the repeal of the latter section, under s 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW): Young Offenders Regulation 2004 (NSW) cl 22.

16. NSW Attorney General’s Department, Report on the Review of the Young Offenders Act 1997, Recommendation 3. The NSW Government supported this recommendation: New South Wales, Government Response to Report on the Review of the Young Offenders Act 1997 (tabled in New South Wales Legislative Assembly, 24 June 2004).

17. NSW Commission for Children and Young People, Submission at para 4.02.

18. NSW Commission for Children and Young People, Submission at para 4.09.

19. Commission for Children and Young People Act 1998 (NSW) s 11(d). And see NSW Commission for Children and Young People, Submission at para 1.04.

20. Commission for Children and Young People Act 1998 (NSW) s 12.

21. NSW Commission for Children and Young People, Submission at para 4.04.

22. NSW Commission for Children and Young People, Submission at para 4.09. It was proposed that this might be done by regulation under the Young Offenders Act 1997 (NSW).

23. Research carried out for the New Zealand Ministry of Social Development on family group conferences concluded that “young offenders did not find the family group conference to be an easy option. At the conference, they were required to face their victims and their family and they were expected to apologise and to repair the harm that they had done. Going to court and receiving an order, according to some young people, was much simpler and easier”: G Maxwell, J Robertson, V Kingi, A Morris and C Cunningham, Achieving Effective Outcomes in Youth Justice: An Overview of Findings (New Zealand, Ministry of Social Development, 2004) at 33.

24. The Legal Aid Commission, for example, submitted that “[t]he conference process is arguably more difficult and personally demanding than receiving a probation order or a suspended sentence.”: Legal Aid Commission of New South Wales, Submission at 2.

25. See C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia, (Sydney, Oxford University Press, 2002) at 370.

26. See New South Wales Law Reform Commission, Sentencing (Report 79, 1996) at para 2.16.

27. New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 (2002) at 41. Larceny is an indictable offence, triable summarily unless the prosecutor elects otherwise where the value of the property is less than $5,000, or unless the prosecutor or person charged elects otherwise where the value of the property exceeds $5,000: Criminal Procedure Act 1986 (NSW), Sch 1, Tables 1 and 2.

28. The Review agreed with this submission and recommended that this offence be included in those eligible to be dealt with by warning: New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997, Recommendation 2. The New South Wales Government did not support the recommendation, believing that the existing responses of cautioning and conferencing, are satisfactory: New South Wales, Government Response to Report on the Review of the Young Offenders Act 1997.

29. See para 4.11.

30. Young Offenders Act 1997 (NSW) s 17(1).

31. Young Offenders Regulation 2004 (NSW) cl 14(2).

32. Young Offenders Act 1997 (NSW) s 19(b) and (c).

33. Young Offenders Act 1997 (NSW) s 26(2). A caution can be given at a place other than a police station if appropriate: Young Offenders Act 1997 (NSW) s 26(3).

34. Young Offenders Act 1997 (NSW) s 20(7).

35. See Children (Criminal Proceedings) Act 1987 (NSW) s 3(1)(e).

36. Children (Criminal Proceedings) Regulation 2005 (NSW) cl 4, bringing the offences under s 78I and 80A of the Crimes Act 1900 (NSW) within the definition of “serious children’s indictable offence”.

37. Children (Criminal Proceedings) Act 1987 (NSW) s 17.

38. Children (Criminal Proceedings) Act 1987 (NSW) s 28(1) and (2).

39. See para 4.12.

40. New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997, Recommendation 1. Although the report was published in October 2002, it was not tabled in Parliament until 24 June 2004: see New South Wales Legislative Assembly, Votes and Proceedings, Hansard at 907.

41. New South Wales, Government Response to Report on the Review of the Young Offenders Act 1997.

42. Crimes Act 1900 (NSW) s 562I.

43. Crimes Act 1900 (NSW) s 562AB.

44. See New South Wales Law Reform Commission, Apprehended Violence Orders (Report 103, 2003) for a detailed treatment of the subject by the Commission.

45. Where the applicant is under 18 years of age, the matter will be dealt with in the Children’s Court: Crimes Act 1900 (NSW) s 562G(1)(b). Applications in both the Local Court and the Children’s Court are made by way of complaint orally or in writing and substantiated on oath: see Crimes Act 1900 (NSW) s 562C(1).

46. A domestic violence offence is a personal violence offence committed within a domestic relationship, as defined in s 4 of the Crimes Act 1900 (NSW).

47. Crimes Act 1900 (NSW) s 562C(3). Section 562AB provides that a person who stalks or intimidates another person with the intention of causing that person to fear physical or mental harm, is guilty of an offence. For the purposes of s 562AB, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person: s 562AB(3). The prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm: s 562AB(4).

48. Crimes Act 1900 (NSW) s 562C(2A).

49. Public Defenders, Submission at 1; The Shopfront Youth Legal Centre, Submission at 2; New South Wales Young Lawyers – Criminal Law Committee, Submission at 1; Legal Aid Commission of New South Wales, Submission at 1. The Children’s Court of New South Wales, Submission at 3. The Law Society of New South Wales, Criminal Law Committee and Children’s Legal; Issues Committee, Submission at 1; although, it submitted that conferencing would be inappropriate for many domestic violence offences; see also para 4.33. The National Children’s and Youth Law Centre submitted that trivial breaches of domestic violence orders by young people against their siblings or parents should be covered by the YOA where a caution or a conference would be a more appropriate punishment: Submission at 2. The Women’s Legal Resource Centre submitted that any violent offences should only be covered by the YOA at the discretion of a judicial officer: Submission at 1.

50. J Bargen, “Young Offenders and the New Options in Youth Justice” (1999) (10) Law Society Journal 37 at 54.

51. Legal Aid Commission of New South Wales, Submission at 2; Law Society of New South Wales, Submission at 1. The Shopfront Youth Legal Centre also made this comment in its submission to the committee reviewing the YOA: New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 at 42.

52. Shopfront Youth Legal Centre, Submission at 2. It has also been suggested to the Commission that applications for AVOs frequently relate to schoolyard incidents that are not serious, with bullying between girls being common grounds for seeking an AVO (which doesn’t necessarily mean that the application is granted). In its submission to the statutory review of the Young Offenders Act 1997(NSW), Shopfront Youth Legal Centre commented that “AVOs are often taken out by friends who have had a falling out with the young person”: New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 at 42.

53. New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 at 42.

54. New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 at 42.

55. New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 at 42.

56. New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 at 42.

57. Legal Aid Commission of New South Wales, Submission at 1; The Shopfront Youth Legal Centre, Submission at 2; New South Wales Young Lawyers, Submission at 1; National Children’s and Youth Law Centre, Submission, at 1; and Law Society of New South Wales, Submission at 2. The submission from the Children’s Court proposed expanding the jurisdiction to include all matters other than a “serious children’s indictable offence”, thereby including those drug offences that are not serious children’s indictable offences; and the Youth Justice Advisory Committee endorsed the submission of the Legal Aid Commission without specific reference to drug offences.

58. These included submissions from the Law Society of New South Wales and the Shopfront Youth Legal Centre. New South Wales Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 at 40.

59. Section 8(2)(e1) of the Young Offenders Act 1997 (NSW) excludes from the operation of the Act offences under Pt 2 Div 1 of the Drug Misuse and Trafficking Act 1985 (NSW) that, in the opinion of the investigating official or prosecuting authority, involve more than a small quantity of a prohibited drug as defined in the latter Act; s 8(2)(f) excludes from the operation of the Young Offenders Act 1997 (NSW) certain other offences under Pt 2 Div 2 of the Drug Misuse and Trafficking Act 1985 (NSW).

60. The Shopfront Youth Legal Centre, Submission at 2; The Law Society of New South Wales, Criminal Law Committee and Children’s Legal; Issues Committee, Submission at 2; National Children’s and Youth Law Centre, Submission at 2; Legal Aid Commission of New South Wales, Submission at 1; Public Defenders, Submission 3 at 1.

61. Legal Aid Commission of New South Wales, Submission at 2.

62. Young Offenders Act 1997 (NSW) s 20(3)(b), 37(3)(b) and 40(5)(b).

63. See New South Wales Law Reform Commission, Apprehended Violence Orders (Report 103, 2003) at para 5.28; New South Wales Law Reform Commission, Community Justice Centres (Report 106, 2005) at para 4.31-4.74.

64. NSWLRC Report 106 at para 4.48.

65. See NSWLRC Report 106 at para 4.48.

66. In our report, Community Justice Centres, the Commission nominated ten factors that should be taken into account when considering whether a particular dispute is suitable for mediation, including such things as the safety of the parties and the imbalance in bargaining power: NSWLRC Report 106, Recommendation 7.

67. The section is summarised in footnote 58 above.

68. See Drug Summit Legislative Response Act 1999 (NSW) Sch 3.3. (Schedules 1-3 have since been repealed.)

69. New South Wales, New South Wales Drug Summit 1999 - Government Plan of Action (Sydney, 1999), Recommendation 6.11.

70. T Eardley, J McNab, K Fisher and S Kozlina, with J Eccles and M Flick, Evaluation of the New South Wales Youth Drug Court Pilot Program (Report 8/04, The University of New South Wales Social Policy Research Centre, 2004), Executive Summary at ii.

71. Young Offenders Act 1997 (NSW) s 18.

72. Young Offenders Act 1997 (NSW) s 35.

73. A caution may not (other than in exceptional circumstances) be given for an offence under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW) if it involves more than half of the small quantity of cannabis leaf within the meaning of that Act: Young Offenders Regulation 2004 cl 16(1).

74. Young Offenders Act 1997 (NSW) s 13.

75. Young Offenders Act 1997 (NSW) s 14(2)(b).