Updates and background for this project (Digest)

• Introduction
• Court-based sentencing and restorative justice
• Evidence of prior offences
• Identification of young offenders
• Sentencing options
• Guideline judgments and young offenders
• Mandatory sentencing of young offenders
• Care issues in sentencing

INTRODUCTION

8.1 Chapters 6 and 7 dealt specifically with procedures under the Young Offenders Act 1997 (NSW) (“YOA”) that aim to divert young people from the court process. This diversionary approach is largely premised upon the belief that the less a child is exposed to traditional criminal justice procedures, the less likely that he or she will re-offend.¹ Nonetheless, some young people will inevitably need to appear in the Children’s Court or District Court as a result of their offending. This is made explicit in the YOA itself, by the limitations to its applicability set out in s 8.²

8.2 This chapter and the next focus on issues that arise in the context of the involvement of young offenders in court proceedings and that were identified in submissions to, and consultations with, the Commission.

8.3 This chapter explores issues relating to:

• the role of restorative justice in court-based sentencing;
  
  
  
• admission of evidence of prior offences;
  
  
  
• identification of young offenders;
  
  
  
• whether the current range of sentencing options under the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”) is being fully used by magistrates.
  
  
  
• the use of licence disqualification, fines and community-based sentencing;
  
  
  
• whether more holistic approaches to sentencing are appropriate where the young offender is drug- or alcohol-dependent; and
  
  
  
• whether guideline judgments and/or mandatory sentencing are appropriate in the context of sentencing for young offenders

8.4 The following chapter, Chapter 9, explores issues pertaining to the Children’s Court itself, recognising that the sentencing process will only work successfully if it is supported by an effective judicial structure.

COURT-BASED SENTENCING AND RESTORATIVE JUSTICE

8.5 Sentencing in the Children’s Court is subject to the principles of the CCPA as set out in s 6 and reinforced by s 33. In addition, in the cases to which it applies, the diversionary options under the YOA are available even where the matter has proceeded to court, such as the magistrate’s power to caution under s 31 of the YOA or refer a young offender to youth justice conferencing under s 40(3) of the YOA.

8.6 Youth justice conferencing, which is the subject of Chapter 7, is particularly suited to the achievement of “restorative justice” outcomes. This is hardly surprising if “restorative justice” is understood principally in terms of a process, as in this frequently-cited definition:

Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.³

8.8 Aspects of the court-based sentencing process for young offenders have restorative justice features, either in a procedural or substantive sense, for example, Victim Impact Statements (“VIS”) and compensation. VIS set out the harm suffered by the victim of an offence or, where the victim died as a result of the offence, the impact of the death on the victim’s immediate family.⁴ VIS are admissible in criminal proceedings for certain offences after the offender has been convicted and before sentencing.⁵ Aside from VIS, victims participate indirectly in the sentencing process in so far as their testimony is admitted as relevant evidence of the commission of an offence and its effect.

8.9 The Children’s Court may order a young offender to pay compensation to the victim of the offence to a maximum amount of $1,000.⁶ Compensation is only awarded after the court has considered the young offender’s means, income and ability to pay.⁷ Having regard to the fact that most young people cannot be expected to pay large amounts, compensation orders are rarely made in the Children’s Court, and when made, are for small amounts.

8.10 IP 19 queried whether court-based sentencing of young offenders adequately emphasises the role of restorative justice, and if not, how a greater emphasis could be achieved.⁸

8.11 The DPP noted that, in the Children’s Court, “restorative justice should be seen as a common and acceptable sentencing outcome”.⁹ Two methods of ensuring this were suggested in a number of submissions.¹⁰ The first was the expansion of the range of offences able to be dealt with under the YOA. This is addressed in Chapter 5. The second method was to cement the position of restorative justice by expressly including it in s 6 of the CCPA, as a principle relating to the exercise of criminal jurisdiction in relation to young offenders.

8.12 There are at least two reasons why the Commission does not agree that “restorative justice” as such should be listed as a principle relating to the exercise of criminal justice in the CCPA (any more than it is identified as such in the YOA). First, the concept of “restorative justice” lacks any precise meaning. Would it be used in a “process” or substantive sense? It can hardly be incorporated in legislation without a legislative definition, on which it would be difficult, if not impossible, to find agreement.

8.13 Secondly, the relationship of “restorative justice” to the existing objects of sentencing is controversial.¹¹ At the least, “restorative justice” focuses on the rupture of the relationships between the victim, the community and the offender. In contrast, the focus of sentencing in the current law is on punishment in the light of the nature of the offence and the circumstances of the offender.¹² Whether or not the law will, or can, accommodate these two concepts is a question that is in the process of evolution, even in the case of young offenders. Interference with that evolution runs the risk of rendering the restorative approach meaningless through its absorption into the traditional sentencing paradigm. As Walgrave writes:

In the punitive climate of today, restorative ethics and practices would gradually fade away and the punitive core of the traditional approach would increasingly be re-accentuated. If we accept so-called restorative punishment, the restorative element would soon be forgotten or distorted, and punishment would remain.¹³

• the desirability that children should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties;¹⁴
• the necessity for children who accept responsibility for their actions making reparation; and
• the effect of the crime on the victim.¹⁵


Recommendation 8.1
Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) should be expanded to provide that, in imposing a penalty on a child, the court should, in appropriate cases, have regard to:
• the desirability that children should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties;
• the necessity for children who accept responsibility for their actions to make reparation; and
• the effect of the crime on the victim.

8.15 The rules governing practice and procedure in courts exercising jurisdiction over young offenders differ from those applying in the adult criminal jurisdiction in two important ways: a young offender’s prior offences are inadmissible; and the court has a discretion to prohibit publication of information identifying young people involved in criminal trials. Paragraphs 8.17-8.21 below discuss the first issue, while paragraphs 8.22-8.34 turn to the second.

8.16 Section s 14(1) of the CCPA prohibits a court from proceeding to conviction or recording a finding as a conviction, where a child under 16 years pleads guilty to, or is found guilty of, an offence.¹⁶ The Children’s Court and the Local Courts also have a discretion not to proceed to, nor record, a conviction against a child who is 16 years or older in respect of an offence which is disposed of summarily.¹⁷ However, any power of a court to proceed to, or record a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily, is not limited.¹⁸

8.17 In criminal proceedings in courts, other than the Children’s Court, evidence that a person pleaded guilty to, or was convicted of, an offence when they were aged under 18 cannot be admitted into evidence if no conviction was recorded, and the person has not been punished within the period of 2 years prior to the commencement of proceedings for the other offence.¹⁹ Nor is evidence that a young person has been warned or cautioned or participated in a youth justice conference under the YOA admissible in subsequent criminal proceedings in courts, other than the Children’s Court.²⁰ In the Children’s Court, however, there is no restriction on the admissibility of evidence that a young person has pleaded guilty to, or been found guilty of, a previous offence, or has previously been dealt with under the YOA.²¹

8.18 As noted in IP 19,²² laws restricting the admissibility of prior offences are designed to minimise the labelling of young people who commit offences as criminals. This reflects the view that most young offenders “grow out” of crime and it is unfair to label them as criminals when adults merely because of mistakes as youths.²³ Related to this is the view that an offence committed when a person was under 18 should not be allowed to affect their ability to obtain employment and to travel.²⁴ It also reflects current criminological theory that argues that labelling young people as deviant or criminal (“stigmatic shaming”) creates a social stigma that is likely to entrench criminal behaviour rather than promote rehabilitation.²⁵ The same policy is reflected in the criminal record expungement legislation in New South Wales, which is more lenient in relation to offences dealt with by the Children’s Court than for adult convictions. ²⁶

8.19 IP 19 raised the question of the appropriateness of the current law regarding admissibility of matters dealt with under the YOA and the CCPA.²⁷ The overwhelming response was that the current law ought to remain unchanged, given that it reflects the rehabilitative aims of juvenile justice and ensures that a young person’s involvement with the criminal justice system is not prejudicial to them in adult life. The Commission generally agrees with this view.

8.20 In relation to the admissibility of pleas of guilty or convictions in the Children’s Court in criminal proceedings in other courts, the Shopfront Youth Legal Centre “concede[d] that it is often necessary for adult courts to have access to information about Children’s Court convictions.”²⁸ While this may be so, the Commission is of the view that the current s 15(1) of the CCPA achieves a satisfactory compromise between making such information available and the rehabilitative aims of juvenile justice mentioned in paragraph 8.19.

8.21 The National Children’s and Youth Law Centre suggested that the diversionary aims of the YOA may be compromised by the admissibility of prior dealings under the YOA.²⁹ However, the Commission is persuaded by the opinion of magistrates and practitioners expressed strongly in consultations that it is in the best interests of the administration of justice that prior dealings under the YOA remain admissible, as is currently the position under s 15 of the CCPA and s 66(2)(c) and s 8(2)(c) of the YOA.³⁰ Unlike non-specialist courts, the Children’s Court has the experience and expertise to give the appropriate weight to prior matters where relevant.

IDENTIFICATION OF YOUNG OFFENDERS

8.22 One of the primary means of ensuring the fair administration of justice is that proceedings are open to public scrutiny. This includes allowing media reporting of court proceedings. However, it is considered that it is not in the public interest that some types of proceedings or parts of proceedings be published. Subject to judicial discretion, there has traditionally been a prohibition on publishing criminal proceedings involving young offenders, if that publication would identify those involved.

8.23 Section 11 of the CCPA makes it an offence in New South Wales to publish or broadcast the name of or any identifying information about a young person who is the subject of criminal proceedings at any time before, during or after the proceedings.³¹ There are several exceptions:

• The prohibition does not apply to young people convicted of driving offences in the Local Courts.³²
• The prohibition does not apply to official reports of court proceedings.³³
• A young person aged 16 or over may be identified if he or she consents.³⁴
• A young person aged under 16 may be identified with the consent of the court. If the young person is capable of consenting to identification, consent is required. If the young person is unable to consent, the court must be satisfied that publishing or broadcasting their identity is in the public interest.³⁵

8.25 In 2001, the CCPA was further amended by the insertion of s 11(1A)(b) to make it clear that the prohibition on publication remains applicable even after the young offender has reached the age of 18.⁴⁰ Obviously, if this were not the case, there would be nothing to stop the publication of identifying information as soon as the offender turned 18.⁴¹ Similar provisions are contained in s 65 of the YOA, although the prohibition on identification without consent remains.

8.26 Submissions generally agreed that the prohibition on publication as it relates to young offenders should not be relaxed.⁴² The NSW Young Lawyers described the current regime under the CCPA and the YOA as the “the very minimum protections necessary to protect young offenders from being unnecessarily identified”.⁴³

8.27 The Legal Aid Commission of New South Wales submitted that identifying young offenders is fundamentally inimical to the ethos of the CCPA, as it may impact adversely upon a young offender’s rehabilitative prospects.⁴⁴ Commentators opposed to public identification of young offenders have likewise emphasised the importance of protecting young offenders from stigma and reprisals as a component of the rehabilitation process.⁴⁵

8.28 The National Children’s and Youth Law Centre submitted that, ultimately, any perceived “benefit” to the community will most likely be outweighed by the harmful consequences:

Although accountability to the state and society is very important, the identification of young offenders could produce detrimental consequences that could outweigh its benefits. The benefits could include raising awareness of the troubled youths within the community and the need to develop programs to minimise this offending behavior and also protect other members of the community from this offending behaviour ... sources have suggested that identification could create unwanted publicity amongst young people and may even encourage future offending. Public identification could also subject the young offender to community reprisal and stigma beyond what may be warranted for the offence committed.⁴⁶

[t]here is no evidence to suggest that this will beneficially alter behaviour especially when the readership of the same media amongst children and young people is low. Where the behaviour is peer-influenced then such publicity is likely to have exactly the opposite effect. If someone is acting out, especially boys, then the greater the publicity the more support for the acting out.⁴⁹

8.31 Competing with the restrictions on publication of identifying information is the principle of “open justice”, the public right to scrutinise and criticise courts and court proceedings. Although the prohibition on identifying young offenders stems from the rehabilitative focus of juvenile justice, research in the United Kingdom suggests that in the course of protecting the identity of young people involved with the criminal justice system, whether as offenders or victims, the public credibility of the juvenile justice process may suffer. A Home Office Research Study relating to the UK Youth Court found that:

the public rated the Youth Court worse than any other part of the criminal justice system, and that those with least knowledge about youth justice had the least confidence in the Youth Court. The Research Study report suggests that improving knowledge about youth justice should increase confidence in the Youth Court.⁵¹

8.33 One additional issue raised by NSW Young Lawyers was that there is currently no means whereby a magistrate can ensure that a young offender is not effectively identified by a process of reading together various media reports that individually comply with the provisions of s 11. It was suggested that s 11(5) of the CCPA should be amended to allow a magistrate specifically to prescribe the type of information that may or may not be published about a child, such as the school which he or she attends, or the suburb in which he or she lives.

8.34 We believe that as s 11 does not refer to a single publication or broadcast, it should not be read down, and is currently sufficient to overcome the concerns expressed by NSW Young Lawyers.

SENTENCING OPTIONS

8.35 The Children’s Court is required to sentence young offenders pursuant to the provisions of the CCPA.⁵³ The range of penalties under the CCPA consists of cautions, good behaviour bonds, fines, probation, community service orders, control orders and detention.⁵⁴ IP 19 asked whether this range was adequate and whether it was being fully utilised by sentencing courts. IP 19 also specifically asked whether licence disqualification should be available as a sentence for all offences,⁵⁵ a suggestion raised during the Commission’s preliminary consultations.⁵⁶

8.36 Although some submissions that addressed the issue of the range of options were of the view that both the range, and the utilisation of that range, were adequate,⁵⁷ a number of other submissions suggested that available options were not being fully utilised.⁵⁸

8.37 A possible disparity between the practice of country Children’s Court magistrates and those of the Sydney metropolitan region in the utilisation of the current range of sentencing options under the CCPA was raised as a matter of concern in the Commission’s consultations.

8.38 There was acknowledgement that in some parts of New South Wales some sentencing options are unavailable in practice. Magistrates outside the Sydney metropolitan region may be willing to use the full range of sentencing options, but resource constraints mean that they are unable to do so.⁵⁹

8.39 The Children’s Court would welcome more sentencing options, or possibly solutions for individual cases. It submitted that “magistrates in the Children’s Court are always looking for non-custodial solutions to the cases before the Court”.⁶⁰

8.40 The Commission agrees that the current range of options should constantly be reviewed to explore alternatives to detention, in order to implement the policy aims of the CCPA as fully as possible. Two submissions suggested that consideration should be given to a form of home detention for young offenders as an option of last resort in appropriate circumstances before a control order is made.⁶¹ However, Shopfront, although it thought that it may be worth considering adapting the adult sentencing options of home detention and periodic detention for young offenders, did not “at this stage” support their introduction.⁶² It pointed out that periodic detention can be very difficult to comply with in practice, especially for those without an independent means of transport, and that home detention is a very intrusive option involving electronic surveillance, which it sees as “generally inappropriate for children”.

8.41 We consider that court-based sentencing of young offenders should be monitored in order to establish in which particular areas of the State the full range of sentencing options is not being utilised. This may be a task best undertaken by the Bureau of Crime Statistics and Research (“BOCSAR”) or the Judicial Commission. Any information obtained should be used as the basis for further investigation to establish whether an increased allocation of resources in those areas would facilitate a more comprehensive application of the sentencing options under the CCPA.

8.42 It is essential that community-based options receive adequate funding, both within and outside the Sydney metropolitan region. It is unacceptable that a young offender should be denied the benefit of an appropriate sentencing option merely by reason of its unavailability.

Licence disqualification

8.43 Submissions were unanimous in their rejection of the suggestion that licence disqualification should be a widely available sentencing option, rather than one restricted to driving offences.⁶³ In the words of the submission of Shopfront:

As to whether licence disqualification should be available as a “sentence” for all offences, our answer is a resounding no. To put it bluntly, this is one of the worst ideas we have heard. Our experience shows that, contrary to conventional wisdom, licence disqualification does not act as a deterrent for young people and is of dubious value in promoting road safety.⁶⁴

8.45 The temptation to drive while disqualified invites further sanctions,⁶⁹ including being declared an “habitual traffic offender” (and disqualification for a further five years),⁷⁰ and may even lead to incarceration.⁷¹ On the other hand, getting an unlicensed or inexperienced friend to drive puts the safety of young people - already over-represented in road casualty statistics⁷² - at risk.

8.46 Shopfront submitted that as a result of the operation of the Fines Act 1996 (NSW) (“Fines Act”), licence disqualification is already a de facto punishment for many types of non-traffic offences when young people accumulate fines they cannot repay.⁷³ The implications of the Fines Act for young people are discussed in paragraphs 8.57-8.64 below.

8.47 Even where licence disqualification is a direct sanction for traffic offences, it was the subject of criticism in submissions. Shopfront submitted that the lengthy disqualification periods that are currently prescribed for traffic offences, “are out of proportion to the seriousness of the offences, and are at odds with the rehabilitation principles of the juvenile justice system”.⁷⁴ The Children’s Court expressed concern that the current “draconian legislative disqualification periods” of 30 or even 50 years will inevitably lead to young people being detained in custody.⁷⁵ The Public Defenders further submitted that:

Taking away a licence … will engender disrespect for the law as arbitrary and uncaring of the reality of life for young people. At present disqualifications are imposed with little or no discretion in a court to moderate the effect of the disqualification where injustice or disproportionate punishment will result. There is no evidence in any event that licence disqualification deters. Any proposal that increases the operation of this imposed injustice should be resisted.⁷⁶

8.48 Rather than expanding the option of licence disqualification, a wider and more offence-focused range of sentencing options relating to traffic offences ought to be available. Widespread access to driver education programs for young people would be much more effective in helping to ensure that young people drive lawfully and safely.⁷⁷

8.49 The Children’s Court submitted that the introduction of a State-wide Traffic Offender Program in Children’s Courts would assist”.⁷⁸ The Traffic Offender Program (“TOP”) is a voluntary program available to offenders found guilty in a Local Court of a drink-driving offence. The offender attends the program before being sentenced by the court. The participant in a TOP program is assessed on attendance, attitude, journal, and weekly and final assessments. “The precise form of these programs varies from court to court but all involve some form of driver safety education”.⁷⁹ The aim is to reduce re-offending. The Children’s Court also points out that, as TOPs are currently not available in Children’s Courts, there is a discrepancy between the treatment of traffic offenders in the Children’s Court and traffic offenders in Local Courts.

8.50 Traffic offences can only be heard in the Children’s Court in conjunction with another offence (for example, stealing a motor vehicle and a prescribed content alcohol offence).⁸⁰ A charge of a traffic offence alone must be heard in a Local Court. Nonetheless, there is still a sufficiently large volume of cases in the Children’s Court involving traffic offences to make a Youth Traffic Offender Program worthwhile. This is particularly so in view of the apparent success of these programs. The results from evaluation of two programs show that these programs may be effective in reducing the risk of re-offending for drink driving.⁸¹

Recommendation 8.2

A Traffic Offender Program should be made available to offenders being sentenced in the Children’s Court.

Power to disqualify

8.51 There are two issues to consider in this section:

• Does the Children’s Court have the power to disqualify a young offender from holding a driver’s licence where there has not been a conviction?
• If so, can this power apply to a person under 16 years of age (given that these young offenders are not legally able to hold a diver’s licence)?

8.53 The Shopfront Youth Legal Centre submitted that “as far as traffic matters are concerned, it has generally been the practice of the Children’s Court to treat a finding of guilt as if it were a ‘conviction’ and to disqualify the young person even if no conviction is recorded”.⁸⁴ Shopfront notes, however, that there is an argument that this is wrong in law, and that a child cannot be disqualified from driving unless a conviction is recorded. They also stated that there have been some decisions of the Children’s Court on this point, but the issue remains unresolved.

8.54 The divergence of opinion appears to be one of statutory interpretation. Section 33 of the CCPA sets out the penalties a Children’s Court can impose where it finds a young offender guilty of an offence. These include cautions, good behaviour bonds, fines, referral to conferencing, probation, community service and detention. Section 33(5) provides that:

Nothing in this section limits or affects any power that the Children’s Court may have apart from this section:

(a) to impose any disqualification under the road transport legislation within the meaning of the Road Transport (General) Act 1999 on a person whom it has found guilty of an offence, …

8.56 The Commission believes that where the Children’s Court finds a young person guilty of a traffic offence, it ought to have the power to disqualify him or her from driving even if no conviction has been entered. This gives the Court the flexibility in sentencing that is consistent with the purposes of the YOA. The Court is not forced into entering a conviction where it is not appropriate, simply in order to avail itself of an appropriate sentencing option. This would also address the concern of some Children’s Court magistrates that there is no legal power to disqualify from driving young offenders under the age of 16.⁸⁵

Recommendation 8.3
Section 33(5)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) should be amended to give the Children’s Court the power to impose any disqualification under the road transport legislation within the meaning of the Road Transport (General) Act 1999 (NSW) on a person whom it has found guilty of an offence. The Children’s Court should have this power notwithstanding that a conviction cannot be, or has not been, entered in respect of the offence pursuant to s 14 of the Children (Criminal Proceedings) Act 1987 (NSW).

8.57 There are of two types of fine.⁸⁶ The first is court-imposed. For example, the Children’s Court has power to fine a young offender found guilty of an offence, provided the fine does not exceed either the maximum fine prescribed or 10 penalty units (currently $1,100), whichever is the lesser.⁸⁷ The second type of fine is one imposed by penalty notice issued pursuant to statutory authority, typically in response to “regulatory” offences.⁸⁸ Two major issues arise in connection with the imposition of fines on young persons:

• the amount of the fine imposed on the young person; and
• the likely escalation of penalties imposed on young persons who cannot pay their fines.

The amount of the fine

8.59 In accordance with general sentencing principles, a court imposing a fine tailors the penalty to fit the individual offender’s circumstances.⁹⁰ The court is required by statute to have regard to the means of the accused in fixing the amount of any fine.⁹¹ In contrast, a fine imposed by penalty notice is not generally tailored to the offender’s means. Penalty notices (which generally⁹² apply irrespective of age⁹³ ), thus ignore the fact that young people are generally likely to have lower incomes than the rest of the population.⁹⁴

8.60 The Children’s Court suggested that on-the-spot fines should be brought into line with court-based fines so that neither can exceed 10 penalty units when being imposed on a young offender. One way in which this may be achieved is by granting greater access to the courts, perhaps by written pleas, so that the court can exercise the task of taking the young person’s means into consideration.⁹⁵ The Commission agrees with the substance of this submission. It would, of course, be administratively impossible to require on-the-spot-fines to differentiate on the basis of a person’s age: the offender may not be present; his or her age may not be apparent; and identification may not be available or offered. The amount specified in any penalty notice ought, in the case of a young offender, to be subject to review in the Children’s Court to enable an assessment of the young offender’s means. Rules of Court should implement a simple procedure for such review.

Recommendation 8.4
Section 53 of the Fines Act 1996 (NSW) should be amended to provide that the Children’s Court has power to review the amount specified in any penalty notice in the light of the young offender’s means.

8.61 The Commission pointed out in its general review of the law of sentencing that the imposition of a further penalty for fine default becomes more likely for an offender without the financial means to pay.⁹⁶ Many young offenders would fall into this category. The Children’s Court informed the Commission that “[t]here is evidence that young persons are burdened with fines which they do not have the capacity to pay”,⁹⁷ one result being that, in the context of sentencing, the “court is from time to time asked to proceed through the difficult maze of the Fines Act to annul old fines and re-sentence a young person.”⁹⁸ The Public Defenders submitted that the consequences flowing from an inability to pay a fine mean that, in the case of young offenders, the use of fines as a penalty should be discouraged.⁹⁹

8.62 Schedule 1 of the Fines Act lists some 75 pieces of legislation under which penalty notices may be issued. The Act provides for a system of fine enforcement, starting with civil enforcement and escalating to imprisonment as a sanction of last resort.¹⁰⁰ Civil sanctions include the inability to apply for a driver’s licence¹⁰¹ or the cancellation of such a licence,¹⁰² the implications of which were discussed above. The penalty notice procedure, contained in Part 3 of the Act, includes a process whereby an alleged offender may elect to have a matter under the Act dealt with by a Court.¹⁰³

8.63 The Fines Act does not require that the rights of an alleged offender be included in any penalty notice.¹⁰⁴ However, penalty notices generally contain the following:

In certain circumstances you may be able to have this matter considered by a court. Specific criteria including time limits and application fees apply. Call the State debt Recovery Office for more information.

Recommendation 8.5
Penalty notices issued under the Fines Act 1996 (NSW) should contain a statement in plain English that a person under the age of 18 is entitled to challenge, in the Children’s Court, both the allegation that they have committed the offence in question and the amount of the fine.

8.65 One of the sentencing options available under the CCPA is for a young offender to perform community service work.¹⁰⁵ The Court may make a community service order (“CSO”) under s 5 of the Children (Community Service Orders) Act 1987 (NSW) or issue a control order. The court may attach conditions to the order.¹⁰⁶ “Community service work” is defined by the Act to mean unpaid work approved by the Minister, or of an approved class or description.¹⁰⁷ “Work” is defined to include “any form of work, service or activity”.¹⁰⁸

8.66 IP 19 asked whether CSOs could be better structured to enable young offenders to participate in educational or vocational work.¹⁰⁹ This is particularly significant given that it is an express principle of s 6 of the CCPA that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption.

8.67 The Children’s Court noted that a common condition of a bond or probation order is that the young person should continue, or undertake, education/employment. The Court also noted that CSOs “are also designed to allow the penalty to be served without interrupting education or employment”.¹¹⁰ What was not made explicit was whether the Court attaches, or can attach, conditions to a community service order specifically ordering the young offender to continue or undertake education/employment. Separately from the issue of education/employment, the question arises whether the power to attach conditions to a community service order also includes the power to order participation in a rehabilitative or personal development program, such as anger management. This is not made explicit in the legislation, although it can be argued that the Court does have this power. A further issue is whether the community service order itself can consist of an order to undertake education or attend programs, courses or counselling. It is not clear whether “activity” in the definition of “work” would include these things.

8.68 Submissions received in response to IP 19, and feedback in the Commission’s community consultations, supported the inclusion of educational or vocational work in community service orders where appropriate.¹¹¹ It was felt that the community as a whole would ultimately benefit from a process that sought to address some of the social causes of young offending, such as illiteracy and unemployment.

8.69 Two factors are relevant to a consideration of whether CSOs can be better structured. The first is the purpose of CSOs and the second is the nature of the young offender who can qualify for a CSO.

8.70 In practice, the Department of Juvenile Justice (“DJJ”) and the Children’s Court have a firm view that the purpose of a CSO is for the young offender to make reparation to the community, and that it should be used as such. It is a sentencing option considered to be the last resort before a custodial sentence, with this message being clearly delivered to the young offender. While conditions can be attached, they are treated as quite separate from the community work to be performed and usually operate more as a recommendation. For example, the Court may order 100 hours of community work and ask DJJ to take steps towards securing the young person a place back at school. The dialogue between court and department is extensive; it may not be reflected formally in the CSO but may result in action DJJ takes towards the welfare and rehabilitation of the young offender.

8.71 Secondly, there are limitations to what can be achieved within a CSO. A young offender is assessed by DJJ for suitability for a CSO and must demonstrate a level of reliability and stability. A person with a substance dependency or mental health issue would not be considered a suitable candidate. Instead, DJJ would seek a probation order or a suspended sentence where the young offender could be channelled into rehabilitative programs. Furthermore, once the designated hours of a CSO are completed, DJJ has no further power to supervise the young offender or compel continued attendance at a course, program or employment. As a result, participation in drug and alcohol counselling or extended courses, long-term education or employment could not be ordered as part of a CSO. However, there are other courses and programs, such as vocational training or anger management, which would be appropriate and could form a valuable part of a CSO.

8.72 Section 90 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court sentencing adult offenders to impose conditions on a community service order, which can include requiring an offender to participate in development programs.¹¹² An amendment to the Children (Community Service Orders) Act 1987 (NSW) along these lines to enable a court to order that a specified number of hours of a CSO be spent in attendance at a vocational, educational or personal development program would be of benefit to both the community and the young offender.

8.73 In making the following recommendation, we are mindful that without proper program resourcing and availability of options, issues raised above, an expanded Community Service Order power will be of limited practical benefit.

Recommendation 8.6
The Children (Community Service Orders) Act 1987 (NSW) should be amended to give the Children’s Court express power to order that satisfactory participation in approved community-based, educational, vocational or personal development programs may be credited towards Community Service Orders.

8.74 Two matters raised in IP 19 that are particularly dependent upon proper resourcing are the linked issues of the availability of drug and alcohol treatment services for young people and the operation of the Youth Drug and Alcohol Court.¹¹³

8.75 According to the 2004 National Drug Strategy Household Survey,¹¹⁴ 29.3% of young people in Australia aged between 14 and 19 had used illicit drugs at least once in their lifetime and 21.3% had used illicit drugs in the 12 months preceding the date of survey.¹¹⁵ In the 12-15 years age bracket, 7.6% had used an illicit drug in the 12 months preceding the survey, of which 5.2% was marijuana/cannabis use.¹¹⁶ In the 16-17 years age bracket, 20.9% had used an illicit drug in the past 12 months, of which 18% was marijuana/cannabis use.¹¹⁷ The Survey also reported that 0.7% of 14-19 year olds (11,400) had used heroin once in their lifetime and 0.1% had used drugs in this category in the past 12 months;¹¹⁸ and 5.5% of 14-19 year olds (109,300) had used meth/amphetamines once in their lifetime and 4.4% (73,600) had used drugs in this category in the past 12 months.¹¹⁹ Another interesting fact to emerge from the survey is that female teenagers (14-19 year olds) report as being slightly more likely than male teenagers to have ever used an illicit drug (30.4% of girls compared with 28.2% of boys) and also slightly more likely to have used an illicit drug in the past 12 months (21.8% of girls compared with 21.3% of boys).¹²⁰

8.76 The 2002 Australian School Students’ Alcohol and Drugs Survey¹²¹ showed that, across all age groups, 89% of males and 87% of females reported drinking at least part of an alcoholic drink. By age 17, 74% of males and 69% of females had consumed alcohol in the past month and 25% of males and 19% of females had consumed alcohol “at a risky level” in the past week.¹²²

8.77 In relation to all offenders, alcohol is linked to a high proportion of crimes of violence and public order¹²³ and nearly half of all alcohol-related deaths in Australia are due to violence.¹²⁴ Thirty-four per cent of adult offenders in New South Wales had been drinking prior to committing their most serious offence.¹²⁵ In relation to young offenders, the NSW Department of Health notes that surveys of adolescents suggest that alcohol use is a factor in violent behaviour in this group.¹²⁶ The NSW Department of Health also notes that alcohol is a known contributor to domestic violence.

8.78 In its NSW Youth Alcohol Action Plan 2001-2005, the NSW Department of Health signals the importance of channelling resources into alcohol treatment services for young offenders and the value of dedicated Drug and Alcohol Courts. The Department reports that:

research clearly illustrates a much higher risk for young people who misuse alcohol with respect to antisocial, delinquent or criminal behaviours, either as victims or perpetrators. The odds of committing an alcohol-related offence, such as physical abuse, property damage, theft, public disturbance and verbal abuse all decreased with age. The 14 to 19-year age group was most likely to be involved in committing these crimes, significantly more so than the 20 to 29 and 30 to 39 year age groups. As victims of alcohol-related disorders, the 14 to 19 year age group once again figures highly.¹²⁷

8.79 New South Wales is currently conducting a pilot Youth Drug and Alcohol Court (“YDAC”).¹²⁸ A two-year pilot program commenced on 31 July 2000 under its original title of “Youth Drug Court” and has since been extended until 30 June 2007. The YDAC is “concerned with reducing drug and/or alcohol related criminal activity by children through judicial and therapeutic interventions that are designed to reduce or manage drug and/or alcohol usage”.¹²⁹ It was modelled on the Adult Drug Court,¹³⁰ with adaptations to make it more relevant to the particular needs of young people. Unlike the Adult Drug Court, sentencing is postponed until the young offender has completed the program or ended participation in it.¹³¹ The judicial supervision involved takes place under the Bail Act 1978 (NSW). The YDAC also differs from the Adult Drug Court in that the former operates within the existing legislative framework of the CCPA (with some minor amendments) whereas the latter “is codified and regulated by its own legislation, the Drug Court Act 1998 (NSW)”.¹³²

8.80 Young offenders are referred to the YDAC by the Children’s Court.¹³³ In deciding whether to refer a young offender, the Children’s Court considers whether the young person has a drug or alcohol problem, and whether other diversionary options, particularly youth justice conferencing would be more suitable.¹³⁴

8.81 Young offenders referred to the YDAC are initially screened to confirm that they have a demonstrable drug or alcohol problem and to determine immediate health needs such as detoxification and primary health care.¹³⁵ They then appear before the YDAC, which determines whether they are eligible to participate in the trial. Eligibility for the YDAC is confined to offenders aged between 14 and 18 (although children under 14 may also be referred); who are charged with an offence over which the Children’s Court has jurisdiction;¹³⁶ who plead guilty to the charge being referred;¹³⁷ who have a drug or alcohol problem; and who are ineligible for diversion under the YOA.¹³⁸

8.82 In addition, the YDAC has a residence criterion.¹³⁹ The young offender must either live within, or have committed the offence within, the boundaries of nominated Local Area Commands (police areas), or can demonstrate that he or she identifies with such area. This criterion, in its early limited geographical ambit, was cited as one of the reasons for a relatively low take-up of the program. The YDAC originally operated out of Lidcombe, Campbelltown and Cobham Children’s Courts and young offenders were required to have a connection to one of these areas that would allow them to attend treatment and support services in Western Sydney.¹⁴⁰ There were many instances of solicitors and parents outside the Western and South Western Sydney region contacting the YDAC hoping to obtain a place for a young offender.¹⁴¹ As a result, Windsor was added to the ambit of the program in 2001 and Gladesville, Eastwood, Burwood, Flemington and Blue Mountains Local Area Commands were added in 2002. A significantly larger expansion of the catchment area, to Central and Eastern Sydney occurred in July 2004, with a weekly sitting of the YDAC in Bidura Children’s Court.

8.83 Following the first appearance in the YDAC to assess eligibility, the case is adjourned for 14 days for the child to undergo a Comprehensive Assessment.¹⁴² This is conducted by a Joint Assessment and Review Team involving the Departments of Health, Community Services, Education and Training and Juvenile Justice. The Team assesses the young offender’s needs and develops an individual plan requiring the young offender to attend programs that aim to reduce or eliminate drug or alcohol misuse and related criminal behaviour.¹⁴³

8.84 Upon development of a suitable Program Plan and acceptance into the YDAC Program, the YDAC makes orders: requiring the young offender to comply with the conditions in the plan; placing the young offender on bail; and deferring sentencing for a minimum of six months.¹⁴⁴ Each young offender is allocated a Case Manager and a DJJ officer to supervise, monitor and assist their progress. Participants also have regular Report Back sessions with the YDAC Court Team,¹⁴⁵ initially on a fortnightly basis.¹⁴⁶ The object of these sessions “is to provide an intensive monitoring process and continuing supervision of the child’s progress and general compliance with the Program Plan”.¹⁴⁷ They are deliberately informal and encourage open discussion to build a rapport between the young person and the members of the Court Team:¹⁴⁸

It encourages the young person to assume responsibility for their actions and to actively contribute to the ongoing development and adherence to their program plan.¹⁴⁹

8.86 A young offender’s participation in the YDAC Program is taken into account in sentencing, whether or not he or she has successfully completed the program.¹⁵¹ Any sentence imposed cannot be more severe than that which would have been imposed had the young offender not participated in the program.¹⁵² Currently, young offenders who successfully complete the program will receive unsupervised orders such as suspended sentences.¹⁵³

8.87 In its first two years, 164 young offenders facing possible custodial sentences for serious offences were referred to the YDAC, of whom 75 (46%) were judged eligible and suitable for intensive case management. Of these, 29 (39%) satisfactorily completed the program.¹⁵⁴ From July 2002 to June 2003, 33 new participants were accepted into the YDAC Program, with a total of 47 participating in the program during this 12-month period. During the same period, 80 young people were referred to the YDAC for initial assessment. Of these, 49 proceeded to comprehensive assessment.¹⁵⁵

8.88 The YDAC trial has been the subject of an extensive evaluation by a University of New South Wales Evaluation Consortium, led by the Social Policy Research Centre. It was commissioned by the New South Wales Attorney General’s Department to provide data on its implementation and determine its short-term impacts and longer-term effectiveness. A “first implementation review” evaluated the YDAC’s first year’s operation.¹⁵⁶ It was based on interviews with 25 key stakeholders of the YDAC and with five participants, as well as observation of Court hearings and team meetings, and review of policy documents.

8.89 Despite the small number of participants interviewed for the 2001 study, views on the program were on the whole positive.¹⁵⁷ The authors concluded that the program was operating effectively as a pilot, in that problems were being identified, discussed and addressed.¹⁵⁸

8.90 Other early assessments of the YDAC Program were also supportive. In its Annual Review for 2001, the Local Court made the following comments on the program:

it is clearly a successful model for high level, court-monitored intervention for serious criminals with high level addictions to illegal drugs … The pilot program is providing some fascinating insights into the level of intervention required to achieve change in behaviour and into the efficacy of using more informal court room settings.¹⁵⁹

8.92 There was then a fuller evaluation of the first two years of the program’s operation to end of July 2002.¹⁶¹ The Consortium found that, initially, the successful implementation and operation of the YDAC was hampered by a critical shortage of accommodation and residential treatment services for participants, leading to some participants spending time in custody awaiting suitable placements.¹⁶² The First Implementation Review of the YDAC had also noted that youth accommodation providers usually refused young people with alcohol or drug issues and that “the name ‘Youth Drug Court’ was often a barrier to placing a young person with a service” for accommodation.¹⁶³

8.93 However, the problem was alleviated in November 2001 with the opening of an Induction Unit, which the Evaluation Consortium cited as “a key element in the program’s subsequent successful development”.¹⁶⁴ The Consortium noted that “although there is still a general shortage of crisis accommodation suitable for YDC participants, particularly for young women, the situation has much improved through partnerships forged with community housing agencies”¹⁶⁵ as well as through the opening of the Induction Unit.¹⁶⁶ The Consortium noted, however, that “some of the available accommodation is designed for independent living, but participants often lack the skills and stability to make successful transitions to this kind of housing”.¹⁶⁷ For this reason there is still a need “both for more supported accommodation and more training in life skills”.¹⁶⁸

8.94 The Consortium was unable to state definitively, within the framework of its evaluation, “that the program had been achieving outcomes superior to those that might have been gained through other forms of intervention”. However, it concluded that, overall, “the program is having an important, positive impact on the lives of many of those participating”. While it recommends a number of legislative, policy and administrative changes to improve the operation and outcomes of the YDAC, its key recommendation is that the program should continue and possibly be expanded to other geographical areas.¹⁶⁹

8.95 This positive conclusion on the value of continuing the YDAC is supported by empirical research relating to legally coerced drug treatment. Although not specific to young offenders, in 2000, BOCSAR observed that research indicates that legally “coerced”¹⁷⁰ drug treatment can decrease drug use and criminal activity by offenders.¹⁷¹ In particular, research suggests that offenders dealt with by drug courts in the United States had lower re-arrest rates than offenders dealt with by the traditional criminal justice system. BOCSAR concluded that while this research was limited and open to criticism on methodological grounds, legally coerced treatment was worthy of further investigation.¹⁷²

8.96 Hall has also researched the role of legal coercion in the treatment of offenders with drug and alcohol problems.¹⁷³ He cited a number of studies that provide evidence that treatment under coercion of heroin-dependant offenders reduces drug-use and criminal activity.¹⁷⁴ Conversely, heroin-dependant offenders who are imprisoned relapse into drug use, and re-offending, on their release.¹⁷⁵ Hall concluded that coerced treatment provides an alternative to imprisonment that may reduce recidivism.¹⁷⁶ He found that the limited research evidence suggested that the more intensive alcohol treatment programs were, the larger the reductions in recidivism.¹⁷⁷

8.97 In relation to adult drug courts, Makkai has noted the increasing criticism of traditional criminal justice responses to drug-related crime.¹⁷⁸ She observes that “given the high rates of illicit drug use and property offending, the courts have been identified as having not dealt adequately with the problem”.¹⁷⁹

Treatment services

8.98 Alcohol and drug treatment may be provided through either residential or outpatient services. Services focus either on reducing or eliminating use of the drug of dependence, or minimising harm associated with drug use. The initial treatment for reducing or eliminating drug use is detoxification, which involves managing the symptoms of withdrawal from drug use. Detoxification is available in hospitals, community health services and designated detoxification units. As at 2005, there were approximately 210 beds in New South Wales dedicated to detoxification treatment, 80% of which are located in metropolitan areas.¹⁸⁰

8.99 The New South Wales Health Department has recognised the need for a detoxification service specifically for young people and has established the Neapean Youth Drug and Alcohol Service (NYDAS) within the 15-bed Centre for Drug and Alcohol at Nepean Hospital. The service provides specialist management of adolescent and youth substance misuse problems, including detoxification. The Commission notes, however, that, in relation to YDAC Program participants, Flick and Eardley voiced a concern that placing juveniles in facilities with adults undergoing detoxification could place the young people at risk.¹⁸¹

8.100 The Ted Noffs foundation provides adolescent rehabilitation facilities, with some 32 places at a number of locations throughout New South Wales. In addition, Youth Off the Streets operates a non-residential adolescent detoxification service called “Dunlea” at Merrylands in Sydney. Youth Off the Streets also operates the Residential Induction Unit for participants in the YDAC Program. The Residential Induction Unit can accommodate six clients for a usual stay of 2 to 3 weeks (although some clients may need to stay longer and others may leave prematurely).

8.101 Submissions received by the Commission, and participants in our community consultations, expressed concern that the current level of alcohol and drug treatment services for young people in New South Wales, especially outside the Sydney metropolitan region, is inadequate.¹⁸²

8.102 While the level of services has increased since the submissions were received and consultations held, accommodation in facilities is still limited and remains concentrated in the metropolitan area. The Commission advocates a State-wide coordinated review of the provision of drug and alcohol treatment services for young people across New South Wales to identify where resources are needed and establish an appropriate level of resource allocation.

GUIDELINE JUDGMENTS AND YOUNG OFFENDERS

8.103 One of the main emphases of this chapter has been the flexibility that courts currently use in devising sentences for young offenders. Submissions and community consultations confirmed that this flexibility and inventiveness is one of the strengths of current juvenile justice policy in New South Wales under the YOA and the CCPA. However, there have been suggestions from some quarters that the community’s expectations of proportionality – that is, that the punishment fit the crime – and consistency in sentencing, warrant a standardisation of the sentences given to young offenders. It is argued that this can be achieved through guideline sentences and/or statutory minimum or fixed sentences for young offenders (“mandatory sentencing”).¹⁸³

8.104 Guideline judgments are judgments formulated by appellate courts that go beyond the facts of a particular case to propose a more generally applicable sentencing scale or appropriate sentence for common factual situations.¹⁸⁴ The aims of guideline judgments are to: foster consistency; to improve public confidence in the legal system by bringing sentences in line with public expectations; and to deter potential offenders by raising awareness that particular offences will attract particular levels of sentence.¹⁸⁵

8.105 In 1998, the New South Wales Court of Criminal Appeal established a formal system for formulating guideline judgments. This was in response to public debate about the introduction of legislation confining judicial sentencing discretion, including debate about mandatory sentencing laws.¹⁸⁶ The Court’s guideline judgments are not binding upon sentencing judges.¹⁸⁷ However, a judge who does not apply a guideline judgment is expected to provide reasons for this decision.¹⁸⁸ The Court has published guideline judgments dealing with five offences: driving causing grievous bodily harm or death;¹⁸⁹ armed robbery;¹⁹⁰ drug importation;¹⁹¹ break, enter and steal;¹⁹² and high range drink-driving.¹⁹³ The Court has also published a guideline judgment dealing with guilty pleas.¹⁹⁴

8.106 The system has been afforded statutory recognition in the Crimes (Sentencing Procedure) Act 1999 (NSW), which empowers the Attorney General to request a guideline judgement and make submissions on how guidelines should be framed.¹⁹⁵ The guideline may be delivered separately or included in an appropriate judgment. Guidelines may either apply generally or in relation to particular instances or to classes of courts, penalties, offences or offenders.¹⁹⁶ The Court of Criminal Appeal has held that the jurisdiction so conferred upon the Supreme Court is constitutionally valid.¹⁹⁷ Guideline judgments are prone to attack in so far as they proscribe judicial discretion inconsistently with fundamental sentencing principles (particularly as stated in legislation) and with constitutional norms requiring the separation of judicial and legislative powers.¹⁹⁸

Application of existing guideline judgments to young offenders

8.107 The age of an offender has been referred to by the Court of Criminal Appeal in the following guideline judgments:

• R v Jurisic:¹⁹⁹ this is a guideline judgment on dangerous driving causing grievous bodily harm or death.²⁰⁰
• R v Whyte:²⁰¹ this guideline judgment on dangerous driving causing death or bodily harm (s 52A of the Crimes Act 1900 (NSW)) reformulated the Jurisic guidelines. It is the primary reference for guideline judgments concerning young offenders. Justice Hunt commented that being a “young offender” was a characteristic of the “frequently recurring case of an offence under s 52A”.²⁰²
• R v Wong; R v Leung: this guideline judgment on drug offences committed by couriers and persons low in the distribution hierarchy or importing organisation refers to the statutory requirement that sentencing courts take into account the age of the offender. ²⁰³ Although R v Wong; R v Leung was overturned by the High Court in Wong v The Queen, the sentencing ranges there identified are still influential.²⁰⁴
• R v Henry: this guideline judgment on armed robbery notes that the fact that the accused is a “young offender with little or no criminal history” is one of a number of sufficiently common characteristics to enable such a guideline judgment to be made by the court.²⁰⁵
• R v Ponfield: this guideline judgment on break, enter and steal includes an observation that juveniles and young persons form an “obvious” group of offenders in relation to this particular offence, although Justice Grove noted that “[t]he prominence to be given to rehabilitation of the young in determining sentence is recognised to the point of being axiomatic”.²⁰⁶

8.109 First, this report uses the expression “young offender” to refer specifically to an offender aged between 10 and 17 years at the time he or she commits an offence. Guideline judgments have not generally given the expression the same specific meaning. In guideline judgments to date, the expression “young offender” must take its meaning from the context. It could, for example, include persons in their early to mid-20s, but not in the late 20s or early 30s.²⁰⁸ The fact that an offender is not “young”, in the sense that the guideline in question envisages, does not mean that the guideline is completely irrelevant to sentence determination where the offender is older. Nor, in principle, can it preclude the application of the guideline to an offender who is a child,²⁰⁹ whether or not the guideline was intended to apply to children.²¹⁰ This follows from the very nature of guideline judgments, which “are not to be regarded as equivalent to statutory instruments, which invite interpretation or which bind judges strictly within their terms, and from which there can be no departure”.²¹¹

8.110 The second point to make is that where the offender is a child, the application of a guideline judgment operates in two ways. First, the guideline will be qualified where the child is being sentenced in the Children’s Court under Part 3 Division 4 of the CCPA, which establishes a more benign sentencing regime than that at law. For example, in so far as the guideline suggests imprisonment ranges,²¹² it will be subject to the restrictions that apply to the Children’s Court making a control order under s 33(1)(g) of the CCPA, namely, that the period of control must not exceed two years²¹³ and it must be a penalty of last resort.²¹⁴ Secondly, where the child is being sentenced at law, the provisions of s 6 of the CCPA remain relevant.²¹⁵ The existence of a more severe penalty regime at law is relevant to the determination, under s 18 of the CCPA, whether the child should be dealt with under Part 3 Division 4 of the CCPA or at law.²¹⁶

8.111 There is, however, some ambiguity as to the application to young offenders of the guidelines developed in R v Henry.²¹⁷ In 2000, in R v Sua, Justice Hidden stated that these guidelines did not “embrace the special facts governing the sentencing of children”;²¹⁸ and in R v RLS, Justice Hulme noted that the applicant was “of a younger age than contemplated by the [R v Henry] guidelines”.²¹⁹ Subsequently, in R v SDM, the Court of Criminal Appeal concluded that the suggestion in R v Sua and R v RLS that the R v Henry guidelines were not applicable to young offenders was “overstated”.²²⁰ Nonetheless, the court found that while the relevant guideline judgments could be applied to young offenders, an offender’s youthfulness remained a matter for consideration in sentencing.²²¹

Should guideline judgments be developed for young offenders?

Submissions to IP 19

8.112 IP 19 asked whether guideline judgments should apply to young offenders.²²² In an adult jurisdiction, guideline judgments may encourage consistency and proportionality, thereby strengthening public confidence in the criminal justice system and acting as a deterrent to offending. By way of contrast, the general tenor of submissions was that the emphases and aims of juvenile justice are so different from those applicable to adult offenders that the provisions of the CCPA, together with the common law, should continue to provide the necessary balance between flexibility and consistency in sentencing.²²³

8.113 The NSW Commission for Children and Young People submitted that guideline judgments “would restrict the ability of Judges and Magistrates to impose innovative sentences tailored to the particular needs of individual young offenders”.²²⁴

8.114 The Children’s Court noted that there were varying views within the Court as to whether guideline judgments should apply to that court. However, it expressed a “major concern” about “result-based” guideline judgments in that “they may set fixed custodial sentence results”. The Children’s Court could not simply choose to follow guideline judgments that set out general sentencing principles, but would also have to follow those setting out expected custodial sentences.²²⁵

8.115 Both the DPP and the NSW Bar Association argued that guideline judgments are not necessarily punitive - citing the decision in R v Thomson²²⁶ with respect to standardising the mitigation of sentence resulting from a guilty plea.²²⁷ However, the Children’s Court noted that the trend of guideline judgments has been to increase the length of custodial sentences for adult offenders.²²⁸

8.116 The Shopfront Youth Legal Centre “vigorously oppose[d] any attempt to apply existing guideline judgments to juvenile offenders”. It submitted that “a primary aim of guideline judgments is general deterrence, which is of limited relevance in the children’s jurisdiction”, where rehabilitation generally takes precedence.²²⁹

8.117 NSW Young Lawyers noted that in R v Ponfield and Ors,²³⁰ the Court of Criminal Appeal declined to issue a guideline judgment for break and enter matters. This was based partly on the fact that the “overwhelming majority” of such cases are dealt with in the Local Court, where the maximum sentence was considerably below the guideline judgment sought by the DPP.²³¹

The Commission’s view

8.118 Three main arguments emerge from the submissions:

• Guidelines are not sufficiently flexible when it comes to young offenders.
• Their general tendency is to impose a harsher sentencing regime that is inappropriate in relation to young offenders.
• Their emphasis on general deterrence undermines, or is at least of limited relevance to, juvenile justice’s primary goal of rehabilitation.

8.120 Secondly, where there is a guideline for such an offence, its effect will be more qualified where the young offender is dealt with under the CCPA rather than at law. That is a factor that is appropriately taken into account under s 18 of the CCPA.

8.121 That said, the Commission does not believe that guidelines specifically directed to the sentencing of children would add anything to (and perhaps would undermine) the flexibility injected into sentencing by s 6 and Part 3 Division 4 of the CCPA. It would be very difficult to frame guideline judgments specifically with young offenders in mind and still retain the flexibility appropriate to their sentencing.

8.122 Furthermore, the ability of the Children’s Court to deal summarily with a range of strictly indictable matters - including offences which are currently the subject of guideline judgments for adults - is the means of providing appropriate sentencing for children in matters that would ordinarily result in a custodial sentence for an adult.

8.123 In conclusion, the Commission does not support the formulation of guideline judgments to apply specifically to children.

MANDATORY SENTENCING OF YOUNG OFFENDERS

8.124 IP 19 also canvassed whether mandatory sentences for offences committed by young offenders ought to be adopted.

8.125 As a general rule, statutes prescribe maximum penalties, leaving the determination of the actual sentence to the court, which has a wide discretion to decide what is appropriate in all the circumstances.²³⁴ The exercise of this discretion is guided by common law sentencing principles and doctrines, developed over many years, and is supervised by appellate courts. Mandatory sentencing operates to prescribe either the actual sentence, a minimum sentence, or a range of sentences, displacing to a greater or lesser extent common law sentencing principles and judicial discretion.

8.126 There was a unanimous view expressed in submissions and in consultations that mandatory sentencing was completely inappropriate for young offenders.

8.127 The Commission is of the view that the principles relating to the sentencing of children as set out in s 6 CCPA cannot be met under a mandatory sentencing scheme. In addition, a mandatory sentencing scheme for young offenders directly conflicts with Australia’s international law obligations, especially Articles 3(1), 37(b) and 40 of the United Nations Convention on the Rights of the Child.²³⁵

8.128 The Children’s Court proposed the following conclusions from the extensive international research on mandatory sentencing:

• Mandatory sentencing inevitably leads to harsh, capricious and unjust punishment.
• Mandatory sentencing escalates court costs and the cost of custodial confinement.
• In overseas research, mandatory sentencing has had either no demonstrable marginal deterrent effects or has only had short-term effects that diminish over time.
• Mandatory sentencing increases police and prosecutorial discretion, which, because they are largely invisible and unreviewable, leads to potential for abuse and injustice (such discretion may sometimes be used to avoid the harsh consequences of mandatory sentencing).
• Mandatory sentencing has adverse specific impacts on: mentally ill and intellectually disabled offenders; juvenile offenders; Aboriginal offenders; and the bail process.
• Mandatory sentencing laws would violate the provisions of an international treaty binding on Australia for the protection of children and young persons, namely, the Convention on the Rights of the Child.
• The overwhelming body of judicial opinion in Australia favours the retention of judicial discretion.²³⁶

CARE ISSUES IN SENTENCING

8.130 Traditionally, the involvement of young people in the court system often arose as the result of an overlap between welfare and criminal justice issues.²³⁷ The separation of the criminal and care jurisdictions of the Children’s Court in New South Wales occurred as part of a national move to divide welfare from justice matters in most Australian jurisdictions, beginning in the late 1970s.²³⁸ The Children’s Court’s care jurisdiction over young people in need of care and protection was overhauled by the Children and Young Persons (Care and Protection) Act 1998 (NSW).²³⁹

8.131 In the course of sentencing a young offender in its criminal jurisdiction, the Children’s Court may become aware that the young offender is in need of care and protection. IP 19 raised the adequacy of the current procedure for dealing with care issues when they come to the attention of the Children’s Court.²⁴⁰

8.132 The Law Society submitted that, unlike the position in the Family Court, there is no protocol or legislative scheme requiring a magistrate hearing criminal proceedings in the Children’s Court to report his or her suspicion to DOCS that the young offender is at risk of harm.²⁴¹ In the Law Society’s view, it can be argued that a Children’s Court magistrate is a person who, in the course of his or her professional work, delivers law enforcement to children and is therefore subject to the reporting requirements under s 27 of the Children and Young Persons (Care and Protection Act) 1998 (NSW).²⁴² The NSW Commission for Children and Young People is sure that s 27 applies to Children’s Court magistrates.²⁴³ It submitted that there is therefore no need for legislative amendment to bring these magistrates within s 27, but that a Practice Direction would remind them of their obligations if care issues emerge during sentencing. It stressed that:

[w]hile there is a need to separate the care and youth offending jurisdictions of the Children’s Court, children in need of care should not be denied the benefit of child protection services.

8.134 In relation to this point, both the DPP and the Bar Association submitted that it is important to maintain the separation of the care and criminal jurisdictions “so that there is as little confusion as possible on the part of young people before the Court as to what the Court is attempting to achieve”.²⁴⁵ Similarly, New South Wales Young Lawyers emphasised that it is not appropriate for care considerations to be incorporated into sentences.²⁴⁶

8.135 Where care considerations arise in the context of sentencing, magistrates should then have the power to deal with them as such. Clearly, care issues ought not to be a factor in sentencing, such as by the imposition of stringent conditions in bail. The matter could be clarified by a Practice Direction if necessary.

8.136 Having said that, magistrates are often placed in a difficult position in trying to balance the child’s welfare and rights in a criminal matter. For example, where a homeless child comes before the Court, who is neither known to DOCS and therefore not officially within its care, nor in custody and therefore not the responsibility of DJJ, the Court is faced with a dilemma. It can refuse bail (which otherwise could have been granted) or send the child back onto the streets.

8.137 Concerns as to the responsiveness of DOCS to care issues that arise in the Children’s Court were expressed both in submissions and in community consultations, notably by magistrates and DJJ staff.²⁴⁷ In cases such as the above example, the Commission understands that DOCS is sometimes reluctant to get involved in the finding of emergency accommodation. Nor does the Children’s Court have any authority to direct DOCS as to how it should apply and prioritise its time and resources.

8.138 A matter for particular concern is the situation of 13-year-old offenders, who are too young to be accepted into refuges, but who may have no alternative accommodation. The only means to resolve this problem is for DOCS to become involved. However, in its submission, the Children’s Court noted that there is difficulty in ensuring that a responsible Departmental officer is available to assist the court in both bail and/or sentencing matters.

8.139 While it would appear to be primarily a question of allocation of sparse funding and resources, the Children’s Court made the practical suggestion that ready access to Departmental court liaison officers would alleviate the problem to some extent. The role of Aboriginal Client Service Specialists in the Local Courts might provide a blueprint for establishing Children’s Court Liaison Officers.

8.140 The Children’s Court also indicated its frustration with its limited capacity to help a young offender with care and protection issues, beyond reporting the problems to DOCS.²⁴⁸ The Court receives no assurance that action will flow from its reporting of its concerns and no information as to what action might have been taken. Accordingly, a magistrate cannot build input from DOCS into any probation plan.

8.141 Furthermore, the relationship between the Children’s Court, DOCS and DJJ in care matters that come before the court seems to be problematic. As noted above, it is not always clear who has, or should have, responsibility for the young person before the Court. Nor is it always clear what services and resources are available and who has the authority to utilise these in a particular matter. Benefits would flow to young people caught up in the criminal justice system if the ambiguities in the Court/departmental interrelationships were resolved and if there were greater co-operation between these bodies in matters before the Court. Such co-operation should extend to providing the Court with the information it needs to make the most appropriate orders in respect of the young offender.

Recommendation 8.7
A Protocol should establish which department or departments has responsibility for a young person appearing before the Children’s Court in a criminal matter who is in need of care and protection and/or bail or crisis accommodation. The Protocol should promote co-operation in such matters between the Children’s Court, the Department of Juvenile Justice and the Department of Community Services, in the child’s best interests.

8.142 Even when the young offender who comes before the Children’s Court is in the care of DOCS, there are frequently obstacles in the way of the Court achieving appropriate outcomes for the young person. Although DOCS has a policy that every child before the criminal courts for whom the Minister or the Director General has responsibility should have a DOCS support person present, the Children’s Court has reported that it often has difficulty making contact with the DOCS worker who has day-to-day responsibility for the child.²⁴⁹ As a result, the young offender ends up appearing alone. The Court misses out on the full information about the young person’s circumstances that a parent or other responsible adult may have been able to provide and the young person misses out on the guidance and assistance of a support person.

8.143 Once again, DOCS’s reluctance or inability to have a caseworker in court is likely to be a resource issue. Nevertheless, although it would not be appropriate for the Court to command DOCS in matters where it does not have parental responsibility for a young person, different considerations apply where a care order is in place. The Children’s Court currently has the power under s 7 of the Children (Protection and Parental Responsibility) Act 1997 (NSW), when exercising criminal jurisdiction, to require the attendance at court of the young offender’s parents. The Children’s Court has submitted that this power should be extended to apply to the Director-General of DOCS or his or her delegate.²⁵⁰ Currently, s 3 of the Children (Protection and Parental Responsibility) Act 1997 (NSW) specifically excludes the Minister and the Director-General of DOCS from the definition of “parent” under the Act.

8.144 The Commission sees the merit and logic of the Court’s submission. However, amendment of the definition of “parent” in the Children (Protection and Parental Responsibility) Act 1997 (NSW) to include the Minister and the Director-General of DOCS would have consequences in many difference areas of parental rights and responsibilities, extending far beyond sentencing. Accordingly, it would not be appropriate for the Commission to recommend this change in this review. This is particularly so given that the submission was made late in the review and we have not had the opportunity to consult widely on it. We do, however, recommend that Parliament consider the issue and the Children’s Court’s submission, at the least in relation to DOCS’s attendance in court in criminal proceedings where the young offender is subject to a care order.

Recommendation 8.8
The New South Wales Parliament should review the definition of “parent” in the Children (Protection and Parental Responsibility) Act 1997 (NSW) with a view to extending the definition to include the Director-General of the Department of Community Services. At the least, the Government should consider extending the definition in relation to the power given to a court pursuant to s 7 to require the attendance in court of one or more parents.

1. The development of diversion is discussed in detail in Chapter 2; see especially para 2.26.

2. Chapter 4 deals with the range of offences covered by the Young Offenders Act 1997 (NSW).

3. T Marshall, “Criminal mediation in Great Britain 1980-1996” (1996) 4(4) European Journal on Criminal Policy and Research 21 at 37.

4. Crimes (Sentencing Procedure) Act 1999 (NSW) s 26.

5. In the Supreme Court and District Court, the sentencing judge may receive and consider a VIS in relation to offences involving actual or threatened violence or sexual assault. Where the victim has died, the Court must receive and consider any VIS given by the victim’s family. In Local Court and Children’s Court proceedings where the victim has died, VIS given by the victim’s family must also be received and considered by the magistrate at the sentencing stage Crimes (Sentencing Procedure) Act 1999 (NSW) s 27 and s 28. These provisions apply to Children’s Court proceedings as a result of s 33C of the CCPA.

6. Children (Criminal Proceedings) Act 1987 s 36(3).

7. Children (Criminal Proceedings) Act 1987 s 24 and s 36.

8. New South Wales Law Reform Commission, Sentencing: Young Offenders (IP 19, 2001), Issue 22.

9. New South Wales Office of the Director of Public Prosecutions, Submission at 8.

10. Cite submissions?

11. See L Walgrave, “On restoration and punishment: favourable similarities and fortunate differences” in A Morris and G Maxwell, Restorative justice for juveniles: conferencing, mediation and circles (Hart Publishing, Oregon, 2001) Ch 2.

12. See NSW Law Reform Commission, Sentencing (Report 79, 1996) at para 13.2, 14.10-14.13.

13. L Walgrave, “On restoration and punishment: favourable similarities and fortunate differences” at 29-30.

14. Compare Young Offenders Act 1997 (NSW) s 7(e) and also Drug Court Act 1998 (NSW) s 3(1)(b).

15. Compare Young Offenders Act 1997 (NSW) s 7(g).

16. Children (Criminal Proceedings) Act 1987 (NSW) s 14(1)(a).

17. Children (Criminal Proceedings) Act 1987 (NSW) s 14(1)(b). This discretion operates in addition to the discretion at law to decline to record a conviction for any offence under the Crimes Act 1900 (NSW).

18. Children (Criminal Proceedings) Act 1987 (NSW) s 14(2).

19. Children (Criminal Proceedings) Act 1987 (NSW) s 15(1).

20. Children (Criminal Proceedings) Act 1987 (NSW) s 15(3).

21. Children (Criminal Proceedings) Act 1987 (NSW) s 15(2) and Young Offenders Act 1997 (NSW) s 68(2)(c).

22. NSWLRC IP 19 at para 3.90.

23. For example, “If juvenile delinquency is defined in terms of naïve risk-taking, the function of the juvenile justice system should be to communicate that actions have consequences. Such communication should involve the minimum consequences possible. That is, the extent of the consequences should be determined by the need to communicate with the juvenile, not by the nature of the offense”: T J Bernard, The Cycle of Juvenile Justice (Oxford University Press, New York, 1992) at 170.

24. Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process (Final Report 84, 1997) at para 19.117-19.127.

25. K Buttrum, “Juvenile Justice: What Works and What Doesn’t”, paper presented at the Australian Institute of Criminology Conference - Juvenile Crime and Justice: Towards 2000 and Beyond (Adelaide, 26 June 1997) at 4. See also generally, J Braithwaite, Crime, Shame and Reintegration (Cambridge, Cambridge University Press 1989).

26. Criminal Records Act 1991 s 9 and s 10.

27. NSWLRC IP 19, Issue 18, para 3.87-3.91.

28. The Shopfront Youth Legal Centre, Submission at 14.

29. National Children’s and Youth Law Centre, Submission at 4.

30. Young Offenders Act 1997 (NSW) s 66(2)(c) and s 68(2)(c) provide exemptions to the law against disclosure of records and disclosure of criminal history respectively in the case of sentencing in the Children’s Court.

31. The penalty is a maximum fine of $55,000 for corporations and imprisonment for a maximum of 12 months and/or a maximum fine of $5,500 for individuals

32. Children (Criminal Proceedings) Act 1987 (NSW) s 11(2).

33. Children (Criminal Proceedings) Act 1987 (NSW) s 11(4)(a).

34. Children (Criminal Proceedings) Act 1987 s 11(4)(b)(ii).

35. Children (Criminal Proceedings) Act 1987 s 11(4)(b)(ii), 11(4A).

36. Children (Criminal Proceedings) Act 1987 s 11(4B).

37. Children (Criminal Proceedings) Act 1987 s 11 (4C), (4D) and (4E). The prosecution bears the burden of proving that this test is satisfied. A court, which makes an order authorising the identification of a child under these provisions, must record its reasons for doing so and explain its reasons to the child. This exception was introduced pursuant to the Crimes Legislation Amendment (Sentencing) Act 1999 s 6 and Schedule 4.66[1] and [2].

38. See, for example, Law Society of New South Wales, Submission at 12: “Anonymity is an important part of the philosophy of Children’s Court. The Law Society maintains its opposition to the existing legislative provision which gives superior courts the power to disclose the identity of young persons found guilty of serious children’s indictable offences.”

39. NSW Commission for Children and Young People, Submission at para 15.06.

40. Children (Criminal Proceedings) Act 1987 s 11(1A)(b).

41. Hon R J Debus, Attorney General, Criminal Legislation Amendment Bill 2001, Second Reading Speech Legislative Assembly (Hansard, NSW Parliamentary Debates, 30 November 2001) at 19298.

42. NSW Commission for Children and Young People, Submission at para 15.01; NSW Bar Association, Submission at 3; New South Wales Office of the Director of Public Prosecutions, Submission at 7; Law Society of New South Wales, Submission at 12; Legal Aid Commission of New South Wales, Submission at 13; National Children’s and Youth Centre, Submission at 4.

43. NSW Young Lawyers, Submission at 6.

44. See, for example, Legal Aid Commission of New South Wales, Submission at 13.

45. See, for example, I Cram, “Publish and damn” (1998) 148 New Law Journal 1748.

46. National Children’s and Youth Law Centre, Submission at 4.

47. “Name and Shame Young Criminals Says Police Chief” (30 October 1998) Daily Telegraph at 7.

48. Editorial comment, “The Protection of Juveniles” (1998) 148 New Law Journal 5.

49. NSW Law Society, Submission at 12.

50. Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, (1987) ALRC Report 84.

51. See United Kingdom Judicial Studies Board, www.jsboard.co.uk/magistrates/ycbb/annex/mf_06.htm

52. Richmond Newspapers Inc et al v Virginia et al [1980]448 U.S 555 at 595 (Brennan J).

53. Children (Criminal Proceedings) Act 1987 (NSW) s 33.

54. See NSWLRC IP 19 at para 3.32-3.3.40 for a description of these sentencing options.

55. NSWLRC 1P 19, Issue 13.

56. Preliminary consultation, Reference Group (18 December 2000). See also NSWLRC IP 19, para 3.136-3.140.

57. Law Society of New South Wales, Submission at 6; Legal Aid Commission of New South Wales, Submission at 9; NSW Young Lawyers, Submission at 5.

58. The Shopfront Youth Legal Centre, Submission at 10; the (then) Minster for Juvenile Justice, the Hon C M Tebbutt MLC, Submission at 7; New South Wales Office of the Director of Public Prosecutions, Submission at 5;

59. The Commission’s consultations in Albury, Broken Hill and Coffs Harbour.

60. Children’s Court of New South Wales, Submission at 17.

61. NSW Law Society, Submission at 7; and NSW Young Lawyers, Submission at 5.

62. The Shopfront Youth Legal Centre, Submission at 10.

63. The New South Wales Bar Association, Submission at 2; Children’s Court of New South Wales, Submission at 17; New South Wales Office of the Director of Public Prosecutions, Submission at 5; Law Society of New South Wales, Submission at 6; Legal Aid Commission of New South Wales, Submission at 9

64. The Shopfront Youth Legal Centre, Submission at 10.

65. Public Defenders, Submission at 4. The point was also made by the Women’s Legal Resource Centre, Submission at 5.

66. Legal Aid Commission of New South Wales, Submission at 9.

67. The Hon C M Tebbutt, MLC, (then) Minister for Juvenile Justice, Submission at 7-8.

68. The Shopfront Youth Legal Centre, Submission at 11.

69. See the NSW Bar Association, Submission at 2; New South Wales Office of the Director of Public Prosecutions, Submission at 5; Public Defenders, Submission at 4.

70. The Shopfront Youth Legal Centre, Submission at 11.

71. The Children’s Court of New South Wales, Submission at 17.

72. In 2002, 17-25 year olds accounted for 27% of road fatalities among drivers and 32.9% among passengers: Australian Transport Safety Bureau, Road Fatalities Australia: 2002 Statistical Summary (2003) at 6.

73. The Shopfront Youth Legal Centre, Submission at 11.

74. The Shopfront Youth Legal Centre, Submission at 11.

75. Children’s Court, Submission at 18.

76. Public Defenders, Submission at 4.

77. See The Shopfront Youth Legal Centre, Submission at 11.

78. The Children’s Court of New South Wales, Submission at 17. Evaluation of two programs (at Mt Penang and Blacktown) show that these programs may be effective in reducing the risk of re-offending for drink driving: S Moffat, D Weatherburn and J Fitzgerald, Sentencing Drink Drivers: The Use of Dismissals and Conditional Discharges (NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No 81, 2004) at 2, referring to D Saffron, N Wallington and A Chevalier, “NSW Traffic Offender Programs: evaluation” in Proceedings of Road Safety Research, Policing and Education Conference (Australian Transport Safety Bureau, 1999) Vol 1 at 509-516.

79. S Moffat, D Weatherburn and J Fitzgerald, Sentencing Drink Drivers: The Use of Dismissals and Conditional Discharges at 2.

80. Children (Criminal Proceedings) Act 1987 (NSW) s 28(2): “Notwithstanding subsection (1), the Children’s Court does not have jurisdiction to hear or determine proceedings in respect of a traffic offence that is alleged to have been committed by a person unless:

(a) The offence arose out of the same circumstances as another offence that is alleged to have been committed by the person and in respect of which the person is charged before the Children’s Court …”

82. Pursuant to the Road Transport (General) Act 2005 (NSW) s 5, “road transport legislation” means that Act itself; the Road Transport (Driver Licensing) Act 1998 (NSW); the Road Transport (Heavy Vehicles Registration Charges) Act 1995 (NSW); the Road Transport (Safety and Traffic Management) Act 1999 (NSW); the Road Transport (Vehicle Registration) Act 1997 (NSW); any other Act prescribed by the regulations; and any regulations made under these Acts.

83. Any disqualification imposed under the legislation is in addition to any other penalty imposed for the offence: see, for example, Road Transport (General) Act 2005 (NSW) s 187(3).

84. The Shopfront Youth Legal Centre, Submission at 11.

85. Children’s Court, Submission at 17.

86. See Fines Act 1996 (NSW) Pt 2 (Fines imposed by Courts), Pt 3 (Penalty notices).

87. Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(c).

88. See Fines Act 1996 (NSW) ss 20-22.

89. See Chapter 4 at para 4.11 and 4.16-4.19.

90. The Commission discusses the necessity for this in Sentencing (Report 79, 1996) paras 1.7-1.15.

91. Fines Act 1996 (NSW) s 6; Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(c).

92. Penalty notices do not apply to children less than 10 years of age: Fines Act 1996 (NSW) s 53(2).

93. Fines Act 1996 (NSW) s 53(1).

94. See Children’s Court of New South Wales, Submission at 19.

95. Children’s Court of New South Wales, Submission at 19.

96. NSWLRC, R 79 at para 3.5.

97. Children’s Court of New South Wales, Submission at 18.

98. Children’s Court of New South Wales, Submission at 18-19.

99. Public Defenders, Submission at 4.

100. See Fines Act 1996 (NSW) Pt 4.

101. Fines Act 1996 (NSW) s 68.

102. Fines Act 1996 (NSW) s 66.

103. Fines Act 1996 (NSW) ss 35-37.

104. Section 27 of the Fines Act 1996 (NSW) provides that a penalty notice must inform the recipient:

(a) that the person has until the due date specified in the notice to make the payment for the offence specified in the notice, and

(b) of enforcement action that may be taken under this Act if the amount is not paid by the due date, and

(c) of additional enforcement costs that become payable under this Act if enforcement action is taken.

106. Children (Community Service Orders) Act 1987 (NSW) s 11.

107. Children (Community Service Orders) Act 1987 (NSW) s 3(1).

108. Children (Community Service Orders) Act 1987 (NSW) s 3(1).

109. NSWLRC IP 19, Issue 14, para 3.43.

110. Children’s Court of New South Wales, Submission at 19. The Court also noted that as a result of the decision in R v Gamgee (2001) 51 NSWLR 707, there is a comparable ability to accommodate education and employment arrangements in the case of partially suspended sentences.

111. See Legal Aid Commission of New South Wales, Submission at 9; The Shopfront Youth Legal Centre, Submission at 11; NSW Commission for Children and Young People, Submission at 6; NSW Young Lawyers, Submission at 5; New South Wales Office of the Director of Public Prosecutions, Submission at 5; NSW Bar Association, Submission at 3; Law Society of New South Wales, Submission at 7; and the Children’s Court of New South Wales, Submission at 19;

112. Crimes (Sentencing Procedure) Act 1999 (NSW) s 90(2)(a).

113. NSWLRC IP 19, Issues 9 .

114. Australian Institute of Health and welfare, 2004 National Drug Strategy Household Survey: First Results (Drug Statistics Series No 13, Canberra, 2005) http://www.aihw.gov.au/publications/index.cfm/title/10122

115. 2004 National Drug Strategy Household Survey: First Results at 23.

116. 2004 National Drug Strategy Household Survey: First Results at 25.

117. 2004 National Drug Strategy Household Survey: First Results at 25.

118. 2004 National Drug Strategy Household Survey: First Results at 28-29.

119. 2004 National Drug Strategy Household Survey: First Results at 30-31.

120. 2004 National Drug Strategy Household Survey: First Results at 23.

121. V White and J Hayman, Australian Secondary Students’ Use of Alcohol in 2002 (National Drug Strategy Monograph Series No 55, Australian Government Department of Health and Ageing, 2004) http://www.nationaldrugstrategy.gov.au/pdf/mono55.pdf

122. Australian Secondary Students’ Use of Alcohol in 2002 at 11. “At a risky level” is at a level that exceeds the National Health and Medical Research Council of Australia guidelines of no more than four standard drinks a day on average and no more than six standard drinks on any one day; for females this rate is no more than two standard drinks a day on average and no more than four standard drinks on any one day: Australian Secondary Students’ Use of Alcohol in 2002 at 12. The 17 year-old boys surveyed had had seven plus drinks on one occasion in the past week and the 17 year-old girls surveyed had had five plus drinks on one occasion in the past week.

123. New South Wales Health Department, NSW Youth Alcohol Action Plan – 2001-2005 (2002) at 14.

124. D English, C D J Holman, E Milne, M G Winter, G K Hulse, J P Codde, C I Bower, B Corti, N de Klerk, M Kniuman, J J Kurinczuk, G F Lewin and G A Ryan, The Quantification of Drug Caused Morbidity and Mortality in Australia (Department of Human Services and Health, Canberra, 1995) cited in New South Wales Health Department, NSW Youth Alcohol Action Plan – 2001-2005 at 14.

125. New South Wales Health Department, NSW Youth Alcohol Action Plan – 2001-2005 at 14.

126. New South Wales Health Department, NSW Youth Alcohol Action Plan – 2001-2005 at 15.

127. New South Wales Health Department, NSW Youth Alcohol Action Plan – 2001-2005 at 15. See T Makkai, Alcohol and Disorder in the Australian Community: Part I – Victims (Australian Institute of Criminology, Canberra, 1997); T Makkai Alcohol and Disorder in the Australian Community: Part II – Perpetrators (Australian Institute of Criminology, Canberra, 1998).

128. The Youth Drug Court was established as a result of a recommendation made at the 1999 NSW Drug Summit: New South Wales, NSW Drug Summit 1999 - Government Plan of Action (Sydney, 1999) at Recommendation 6.11.

129. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004).

130. The NSW Drug Court began operation as a two-year trial in February 1999, conducted under sentencing rules and procedures set out in the Drug Court Act 1998 (NSW), and having both Local and District Court jurisdiction.

131. 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: Final Report (University of New South Wales Evaluation Consortium, Social Policy Research Centre, School of Social Science and Policy, School of Public Health and Community Medicine, Submitted December 2003, Revised March 2004) (“Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report”) http://www.lawlink.nsw.gov.au/lawlink/drug_court/ll_drugcourt.nsf/vwFiles/YDAC_FinalReport_revised_March%2004PRINT.doc/$file/YDAC_FinalReport_revised_March%2004PRINT.doc#target=’_blank’ at 2.

132. R Dive, M Killen, D Cole and A Poder, “”NSW Youth Drug Court Trial” paper presented at the conference Juvenile Justice: From Lessons of the Past to a Road Map for the Future convened by the Australian Institute of Criminology in conjunction with the NSW Department of Juvenile Justice (Sydney, 1-2 December 2003) at 3.

133. Pursuant to s 33(1)(c2)(iii) of the Children (Criminal Proceedings) Act 1987 (NSW). See also Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 5.

134. K Graham, “Piloting a Youth Drug Court Program” (2000) 8 Law Society Journal 34.

135. D de Fina, “New Youth Drug Court - The Pilot Programme Commences” (2000) 12(5) Judicial Officers Bulletin at 33.

136. Excluding sex offences: The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 6(b).

137. Originally a young person was required to plead guilty to all outstanding matters in order to be eligible, but after representations from the Children’s Legal Issues Committee of the NSW Law Society, this was altered so that he or she must plead guilty to only the most serious charge: M Flick and T Eardley, Evaluation of the NSW Youth Drug Court Pilot Program: First Implementation Review (Social Policy Research Centre, University of NSW, 2001) at 10.

138. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 6.

139. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 6(d).

140. K Graham, “Piloting a Youth Drug Court Program” at 34.

141. M Flick and T Eardley, Evaluation of the NSW Youth Drug Court Pilot Program: First Implementation Review, at 10.

142. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 8.6.

143. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 8; see R Dive, M Killen, D Cole and A Poder, “”NSW Youth Drug Court Trial” at 5-7.

144. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 9-10.

145. This comprises the sitting Children’s magistrate, police prosecutor, Legal Aid solicitor, YDAC Registrar and a representative of the Joint Assessment and Review Team.

146. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 11.2.

147. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 11.1.

148. R Dive, M Killen, D Cole and A Poder, “”NSW Youth Drug Court Trial” at 5.

149. Dive, Killen, Cole and Poder at 5.

150. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 14, 16 and 17.

151. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 19.1.

152. The Children’s Court of New South Wales, Practice Direction No 23: Practice Direction for the Youth Drug and Alcohol Court (2004) para 19.2.

153. D de Fina, “New Youth Drug Court - The Pilot Programme Commences” (2000) 12(5) Judicial Officers Bulletin 34.at 35.

154. Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report, Executive Summary at iii.

155. NSW Department of Juvenile Justice, Annual Report 2002-2003 at 21.

156. M Flick and T Eardley, Evaluation of the NSW Youth Drug Court Pilot Program: First Implementation Review.

157. Flick and Eardley, Executive Summary at ii.

158. Flick and Eardley, Executive Summary at ii-iii.

159. Local Court of New South Wales, Annual Review 2001 (Sydney, 2001) at 20.

160. Premier of New South Wales, “Securing a Better Future: Premier Carr Releases Raft of New Drug Initiatives” News Release (23 February 2003) at 2.

161. Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report.

162. M Flick and T Eardley, Evaluation of the NSW Youth Drug Court Pilot Program: First Implementation Review, at 15; Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report at 55.

163. Flick and Eardley at 14.

164. Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report, Executive Summary at ii.

165. Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report at 55.

166. Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report, Executive Summary at ii.

167. Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report at 55.

168. Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report at 55.

169. Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report, Executive Summary at v.

170. The offender has to plead guilty to be eligible to participate in drug court treatment and must be willing to be assessed for rehabilitation. As well, participation has to be co-operative in order to succeed.

171. D Weatherburn, L Topp, R Midford and S Allsopp, Drug Crime Prevention and Mitigation: A Literature Review and Research Agenda (NSW Bureau of Crimes Statistics and Research, 2000). See also T Makkai, Drugs Courts: Issues and Prospects (Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice No 95, 1998), which concluded that drug courts have had successes, but not in every case and that judgments will need to be made about acceptable failure rates.

172. Bureau of Crimes Statistics and Research, Drug Crime Prevention and Mitigation: A Literature Review and Research Agenda at 38-48. See also T Miethe, H Lu and E Reese, “Reintegrative Shaming and Recidivism Risks in Drug Court: Explanations for Some Unexpected Findings” (2002) 46 Crime and Delinquency 522, which reports the results of a study of drug courts in two jurisdictions in the United States that found that drug court participants had substantially higher recidivism risks than non-drug court participants.

173. W Hall, “The role of legal coercion in the treatment of offenders with alcohol and heroin problems” (1997) 30 Australian and New Zealand Journal of Criminology 103. At the time of writing his research, Professor Wayne Hall was the Director (1994-2001) of the National Drug and Alcohol Research Centre, University of New South Wales.

174. J Bell, W Hall and K Blythe, “Changes in criminal activity after entering methadone maintenance” (1992) 87 British Journal of Addiction 251; J Ward, R P Mattick and W Hall, Key Issues in Methadone Maintenance (University of New South Wales Press, Sydney, 1992); D R Gerstein and H J Harwood, Treating Drug Problems Volume 1: A Study of Effectiveness and Financing of Public and Private Drug Treatment Systems (Institute of Medicine, National Academy Press, Washington DC, 1990); R L Hubbard, J J Collins, J V Rachal and E R Cavanaugh, “The criminal justice client in drug abuse treatment” in C G Leukefeld and F M Tims (eds), Compulsory Treatment of Drug Abuse: Research and Clinical Practice (NIDA Monograph No 86, NIDA Rockville, MD, 1988); M D Anglin, “The efficacy of civil commitment in treating narcotic drug addiction” in C G Leukefeld and F M Tims (eds), Compulsory Treatment of Drug Abuse: Research and Clinical Practice (National Institute on Drug Abuse, Research Monograph 86, Maryland, 1988).

175. D R Gerstein and H J Harwood, Treating Drug Problems Volume 1: A Study of Effectiveness and Financing of Public and Private Drug Treatment Systems; B Thompson, Recidivism in New South Wales: General Study (New South Wales Department of Corrective Services, Research Publication No 31, 1995).

176. W Hall, “The role of legal coercion in the treatment of offenders with alcohol and heroin problems” at 104.

177. Hall at 110.

178. T Makkai, “The emergence of drug treatment courts in Australia” (2002) 37 Substance Use and Misuse 1567. Dr Makkai is Director of the Australian Institute of Criminology.

179. Makkai at 1584.

180. New South Wales Department of Health, Consulation.

181 M Flick and T Eardley, Evaluation of the NSW Youth Drug Court Pilot Program: First Implementation Review at 17.

182. NSW Legal Aid Commission, Submission at 6; The Shopfront Youth Legal Centre, Submission at 8; NSW Young lawyers, Submission at 3; New South Wales Office of the Director of Public Prosecutions, Submissions at 3; NSW Bar Association, Submission at 2; Law Society of New South Wales, Submission at 5; and the Children’s Court of New South Wales, Submission at 11. While not a drug treatment service, one positive note being struck in rural New South Wales is the “Nimbal Program”. This is a mentoring initiative, operating in the Shoalhaven Local Area Command for young Aboriginal offenders who have been dealt with under the Young Offenders Act 1997 (NSW) for an alcohol-related offence, and who are in danger of becoming involved in alcohol-related risk-taking. It is run by local police and the Aboriginal community and provides the young offender with a mentor from the local community, including Aboriginal and police representatives. It involves peer support meetings and overnight camps.

183. See para 8.126-8.130 below.

184. Justice J Spigelman, “Sentencing Guideline Judgements” (1999) 73 Australian Law Journal 876 at 881.

185. R v Jurisic (1998) 45 NSWLR 209 at 216, 220-223 and 229, but see comments by Adams J on the limitations of assertions as to what public perceptions might be at 255-256; Justice J Spigelman, “Sentencing Guideline Judgments” at 878-881.

186. Spigelman at 876.

187. R v Jurisic (1998) 45 NSWLR 209 at 220-221.

188. R v Jurisic (1998) 45 NSWLR 209 at 221.

189. R v Jurisic (1998) 45 NSWLR 209: Crimes Act 1900 (NSW) s 52A. See also R v Whyte (2002) 55 NSWLR 252 (revision of Jurisic guideline).

190. R v Henry (1999) 46 NSWLR 346: Crimes Act 1900 (NSW) s 97.

191. R v Wong; R v Leung (1999) 48 NSWLR 340: Customs Act 1901 (Cth) s 233B.

192. R v Ponfield (1999) 48 NSWLR 327: Crimes Act 1900 (NSW) s 112(1).

193. Application by Attorney General (No 3 of 2002) Re (2004) 61 NSWLR 305.

194. R v Thomson (2000) 49 NSWLR 383. This judgment dealt with s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires a sentencing judge to take into account the fact that an offender has pleaded guilty. The same requirement in relation to offences committed by young people is imposed by s 33B of the Children (Criminal Proceedings) Act 1987 (NSW). See also R v Mansour (1999) 29 MVR 409, applying the Jurisic guideline; R v Israil [2002] NSWCCA 255, affirming the decision in R v Sharma (2002) 54 NSWLR 300; and R v Cook (2002) 36 MVR 231.

195. Crimes (Sentencing Procedure) Act 1999 (NSW) s 37. Note that s 41 of the Crimes (Sentencing Procedure) Act 1999 (NSW) retrospectively validates all guideline judgments issued by the Court of Criminal Appeal in the hope of obviating the application to such judgments of the High Court’s decision in Wong v The Queen (2001) 207 CLR 584.

196. Crimes(Sentencing Procedure) Act 1999 s 36.

197. R v Whyte (2002) 55 NSWLR 252 at [117]-[140].

198. See Wong v the Queen (2001) 207 CLR 584. Compare R v Whyte (2002) 55 NSWLR 252.

199. R v Jurisic (1998) 45 NSWLR 209 at 228.

200. It refers to the earlier Court of Criminal Appeal judgment in R v Musumeci (NSW, Court of Criminal Appeal, No 60359/97, 30 October 1997, unreported), where Justice Hunt observed that the need for public deterrence meant that the youth of an offender is given less weight as a subjective matter than in other cases: cited in R v Jurisic (1998) 45 NSWLR 209 at 228.

201. R v Whyte (2002) 55 NSWLR 252.

202. R v Whyte (2002) 55 NSWLR 252 at [204] (Hunt J).

203. R v Wong; R v Leung (1999) 48 NSWLR 340 at 365, referring to the Crimes Act 1914 (Cth) s 16A(2)(m).

204. Wong v the Queen (2001) 207 CLR 584. See R v Otto [2005] NSWCCA 333.

205. R v Henry (1999) 46 NSWLR 346 at 380 per Spigelman CJ.

206. R v Ponfield (1999) 48 NSWLR 327 at 335-336.

207. See R v SDM (2001) 51 NSWLR 530 at [7] (Wood CJ at CL, Giles JA agreeing); compare Simpson J at [40], which is not entirely, but largely, consistent.

208. For example, while Chief Justice Spigelman expressly referred to a “young offender” in R v Henry ((1999) 46 NSWLR 346 at [162]), Justice Simpson subsequently noted in R v SDM that “[t]he reference to ‘young offender’ has nothing to do with ‘children’” as the term is used in the Children (Criminal Proceedings) Act 1987 (NSW): R v SDM (2001) 51 NSWLR 530 at [40].

209. R v SDM (2001) 51 NSWLR 530 at [7].

210. R v SDM (2001) 51 NSWLR 530 at [40].

211. R v SDM (2001) 51 NSWLR 530 at [7] (Wood CJ at CL).

212. It should be noted that although the Children’s Court cannot sentence a young offender to imprisonment, sentencing principles are nevertheless relevant by analogy to control orders: Children (Criminal Proceedings) Act 1987 (NSW) s 33C(a).

213. Children (Criminal Proceedings) Act 1987 (NSW) s 33((1)(g).

214. Children (Criminal Proceedings) Act 1987 (NSW) s 33(2).

215. R v SDM (2001) 51 NSWLR 530 at [18] and [36]. See also R v Tobar; R v Jan [2004] NSWCCA 391 at [55] (Simpson J). Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) sets out the principles which must guide a court exercising criminal jurisdiction over children.

216. See JIW v DPP [2005] NSWSC 760 at [64]. Section 18 of the Children (Criminal Proceedings) Act 1987 (NSW) provides that the Court has a discretion to deal with a young offender charged with an indictable offence (other than a serious children’s indictable offence) according to law (that is, in the District or Supreme Court as an adult) or as a child. Section 18(1A) sets out the matters that the Court must take into account in making this determination. In addition, the decision of R v Bendt [2003] NSWCCA 78 has provided guidance on the exercise of the discretion.

217. R v Henry (1999) 46 NSWLR 346.

218. R v Sua [2000] NSWCCA 94 at [12].

219. R v RLS [2000] NSWCCA 175 at [4]. See also R v Tobar; R v Jan (2004) 150 A Crim R 104 at [55].

220. R v SDM (2001) 51 NSWLR 530 at [43] (Simpson J). See also R v Mohamadin [2004] NSWCCA 401, applying the R v Henry guidelines (19 year-old offender).

221. R v SDM (2001) 51 NSWLR 530 at [2] (Giles JA); [14-20] (Wood CJ at CL); and [40-46] (Simpson J).

222. NSWLRC IP 19, Issue 21.

223. See, for example, Legal Aid Commission of NSW, Submission; NSW Young Lawyers, Submission; The Shopfront Youth Legal Centre, Submission; National Children’s and Youth Law Centre, Submission; NSW Law Society Submission; and the NSW Commission for Children and Young People, Submission.

224. NSW Commission for Children and Young People, Submission at para 17.01.

225. The Children’s Court of New South Wales, Submission at 29.

226. R v Thomson (2000) 49 NSWLR 383.

227. New South Wales Office of the Director of Public Prosecutions, Submission at 8; and the NSW Bar Association, Submission at 4.

228. The Children’s Court of New South Wales, Submission at 29.

229. The Shopfront Youth Legal Centre, Submission at 15.

230. R v Ponfield (1999) 48 NSWLR 327 at 335 (Grove J).

231. NSW Young Lawyers, Submission at 7.

232. See R v Jurisic (1998) 45 NSWLR 209; and R v Whyte (2002) 55 NSWLR 252.

233. See R v SDM (2001) 51 NSWLR 530; and R v Sharma (2002) 54 NSWLR 300 at [74].

234. One exception is the prescribing of standard non-parole periods for a number of serious offences by the Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A. This scheme was established by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW).

235. The Shopfront Youth Legal Centre, Submission at 13.

236. In its submission, the Children’s Court noted the following sample of the “significant literature” on legislative sentencing: New South Wales Law Reform Commission, Sentencing (Report 79, 1996); D Johnson and G Zdenkowski, Legislative Injustice: Compulsory Imprisonment in the Northern Territory (Australian Centre for Independent Journalism, University of Technology, Sydney, 2000); N Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories” 22 University of New South Wales Law Journal 267; M Tonry, “Legislative Penalties” in M Tonry (ed), Crime and Justice: A Review of Research (University of Chicago Press, 1992); Justice J Spigelman, “Sentencing Guidelines”, Address to the National Conference of District and County Court Judges (1999): Senate Legal and Constitutional References Committee, Report of the Inquiry into the Human Rights (Legislative Sentencing of Juvenile Offenders) Bill 1999 (AGPS, Canberra, 2000).

237. See Chapter 2, especially at para 2.9 and 2.23.

238. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia (Oxford University Press, Melbourne, 2002) at 118-122.

239. This Act implemented the recommendations of the New South Wales Community Welfare Legislation Review, Review of the Children (Care and Protection) Act 1987: Recommendations for Law Reform (Department of Community Services, 1997). For a summary of the Act see P Parkinson, “Child Protection Law Reforms in NSW” (1999) 13 Australian Family Law Journal at 1.

240. NSWLRC IP 19, Issue 12.

241. The Law Society of New South Wales, Submission at 6.

242. Section 27 applies to “a person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children’s services, residential services, or law enforcement, wholly or partly, to children”. Section 27(2) provides that if a person to whom the section applies has reasonable grounds (arising during the course of or from the person’s work) to suspect that a child is at risk of harm, he or she must report the concern to DOCS.

243. The NSW Commission for Children and Young People, Submission at para 9.02.

244. The Law Society of New South Wales, Submission at 6.

245. The New South Wales Bar Association, Submission at 2; New South Wales Office of the Director of Public Prosecutions, Submission at 5.

246. New South Wales Young Lawyers, Submission at 4.

247. Law Society of New South Wales, Submission at 6; the Children’s Court of New South Wales, Submission at 16; NSWLRC Consultations held in Albury, Broken Hill and Coffs Harbour (May-June 2002).

248 The Children’s Court of New South Wales, Submission 2 (31 October 2005) at 1-2.

249. The Children’s Court of New South Wales, Submission 2 (31 October 2005) at 1.

250 The Children’s Court of New South Wales, Submission 2 (31 October 2005) at 1.