• Jurisdiction
• Sentencing principles
• Penalties
• Police powers
• Public order offences
• Commencing proceedings
• Police questioning
• Bail
• Children’s court
• Criminal records
• Media identification
• Mandatory sentences
• Sentencing guideline judgements
• Restorative justice in court-based sentencing
• Young Aboriginal offenders
• Ethnicity
• Geography
• Intellectual disability
• State care

3.1 This Chapter outlines the jurisdiction of courts over young people, sentencing principles and the penalties which courts can impose on young offenders. It describes police powers over young people, public order offences, alternative ways of commencing criminal proceedings, and young peoples’ right to legal representation when questioned by police and in court.

3.2 The Chapter then discusses the issues identified by the Commission so far, including bail; the role of evidence of previous offences committed by a young person in later hearings and trials; media identification of young people and restorative justice. It looks at the name and status of the Children’s Court; mandatory sentencing and guideline sentencing judgments.

3.3 Chapter 3 also considers particular groups of young people who are over represented as offenders, including young Aboriginal people, particular ethnic groups, young people with intellectual disabilities and young people in State care. Finally, geographical sentencing disparity is considered.

3.4 The main Act which governs sentencing of young offenders by courts is the Children (Criminal Proceedings) Act 1987 (NSW). This Act is referred to throughout this Chapter as the C(CP)A.

JURISDICTION

3.5 Courts have both criminal and care jurisdiction over young people. The Children’s Court, Local, District and Supreme Courts all hear criminal charges against young people.¹ The Children’s Court also has jurisdiction over children and young people in need of care and protection.²

Criminal jurisdiction

3.6 The Children’s Court, Local, District and Supreme Courts all hear criminal charges against young people, depending on the offence that the young person is charged with.

Table 3.1: Criminal proceedings in the Children’s Court 1998/1999³

1. This includes charges referred to the District and Supreme Courts.

2. These figures include all appearances, including where the offence was not proven.

3. Tables 2.4a and 2.4b provide breakdowns of males and females in each age bracket for each category of offence.

4. Category includes murder, attempted murder, manslaughter and driving causing death.

5. Category includes robbery, blackmail, extortion, break and enter, theft from a person, retail and motor vehicle theft, receiving stolen property, fraud and property damage offences.

6. Category includes possession, trafficking, cultivation and manufacture.

7. Category includes driving under the influence of alcohol and drugs, dangerous driving and traffic offences.

Children’s Court

3.7 The Children’s Court hears most criminal charges against young people. It has jurisdiction over all offences except certain driving offences and “serious children’s indictable offences”, including homicide, other offences which attract the most severe penalties (imprisonment for life or 25 years or more), and a number of serious sexual offences.⁴ Table 3.1 summarises criminal proceedings heard in the Children’s Court in 1998/1999.⁵

3.8 In 1998/1999 the Children’s Court heard 13,672 charges against young people. 10,277 of these charges were proven. Property offences were the most common, followed by assault, offences against good order and drug offences. Most young people who appeared in the Children’s Court were male. In general, increase in age correlated with an increase in the number of offences proven.⁶

Local Courts

3.9 The Local Courts cannot hear charges that the Children’s Court has jurisdiction over, except where permitted under the C(CP)A.⁷ The jurisdiction of the Local Courts over young people mainly relates to driving matters where the young person was old enough to have a licence or permit.⁸ In 1998/1999, 1,028 young people were found guilty of offences in the Local Courts. Table 3.2 summaries the number of young people found guilty of offences in the Local Courts in 1998/1999.

Table 3.2: Young people found guilty in the Local Courts, 1998/1999⁹

1. Category includes robbery, blackmail, extortion, break and enter, theft from a person, retail and motor vehicle theft, receiving stolen property, fraud and property damage offences.

2. Category includes possession, trafficking, cultivation and manufacture.

3. Category includes driving under the influence of alcohol and drugs, dangerous driving and traffic offences.

District and Supreme Courts

3.10 The District Court and the Supreme Court have jurisdiction over young people charged with indictable offences along with the Children’s Court. In addition, only the District Court and the Supreme Court can hear charges against young people involving “serious children’s indictable offences”.¹⁰ Young people accused of “serious children’s indictable offences” must be dealt with according to law.¹¹ These Courts have a discretion to deal with young people accused of indictable offences either according to law or under the C(CP)A.¹²

3.11 Where the District Court or Supreme Court deals with a young accused person according to law, this has a number of procedural consequences. One consequence arises where the young person is convicted and sentenced to a period of detention. The Director General of the Department of Juvenile Justice has the power to discharge young offenders dealt with under the C(CP)A from full time detention, but does not have this power in relation to young offenders dealt with according to law.¹³ The New South Wales Court of Criminal Appeal has observed that it is anomalous that this power is not available for young offenders dealt with according to law.¹⁴

Issue 11

Should the Director General of the Department of Juvenile Justice be able to exercise his or her power to discharge detainees under s 24(1)(b) and (c) of the Children (Detention Centres) Act 1987 (NSW) in relation to young offenders dealt with according to law as well as those dealt with under the C(CP)A?

Care jurisdiction

3.13 The Children’s Court also has care jurisdiction over young people in need of care and protection. This jurisdiction was completely overhauled by the Children and Young Persons (Care and Protection Act) 1998 (NSW).¹⁷

3.14 The Department of Community Services can bring proceedings in the Children’s Court for a care order. The Children’s Court may make a care order if satisfied that the child or young person is in need of care or protection for any of the following reasons:¹⁸

• There is no parent available to care for them.
• The parents acknowledge that they have serious difficulty caring for them.
• They have been, or are likely to be, physically or sexually abused.
• The parents are not meeting, or are not likely to meet, their basic physical, psychological or educational needs.
• They are suffering, or are likely to suffer, serious developmental impairment or psychological harm because of the environment they live in at home.
• They are aged under 14 and have exhibited sexually abusive behaviours.
• They are subject to a care order in another Australian jurisdiction that is beings breached.

3.16 If the Department initiates care proceedings, a preliminary conference between the Department, the child or young person and their family is held with a Children’s Registrar, to attempt to resolve the matter by consent.²⁰

3.17 If the matter proceeds to hearing, the Department must put forward a care plan covering the proposed allocation of parental responsibility, the kind of placement which will be sought for the child or young person, the agency which will supervise the placement, arrangements for contact with parents, and any services that the child or young person requires. The Department must endeavour to obtain agreement with the parents on the care plan.²¹

3.18 When the Children’s Court makes a care order, it allocates parental responsibility. Care may be allocated between the parents and others, most commonly family members or foster parents.²² The Court can also place the child or young person in the sole guardianship of the Minister, which is the equivalent of a wardship order, although wardship has been abolished.²³ The important legal and fiduciary functions for children and young people in the care of the Minister are exercised by the person holding the newly created position of Children’s Guardian.²⁴

3.19 When a child or young person is placed in out-of-home care, the Act distinguishes between care responsibility, which is vested in the person with whom they are placed, and covers the authority necessary to care for them on a daily basis; and supervisory responsibility, which is vested in a designated agency to ensure that the placement promotes their well being.²⁵

3.20 The Department of Community Services and police officers also have emergency powers to remove a child or young person from a place of risk, including their home. When considering the emergency removal of a child or young person from their home, they must first consider whether to ask police to obtain an apprehended violence order to remove the person who is endangering the child or young person instead.²⁶ Where the emergency removal powers are exercised, the Department must apply to the Children’s Court for an emergency care and protection order. In this situation the child or young person is to be kept at a place approved by the government and the Director-General of the Department has care responsibility for them.²⁷

3.21 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 separate welfare from justice matters in most Australian jurisdictions, beginning in the late 1970s.²⁸ The Children’s Court sentencing a young offender in the course of its criminal jurisdiction may become aware that the young offender is in need of care and protection. While the formal separation of the care jurisdiction and the criminal jurisdiction of the Court in this situation is clear, it is important to ensure that the two jurisdictions operate together effectively to ensure that care issues which arise in this situation are adequately addressed.

Issue 12

What is the current procedure for dealing with care issues which come to the attention of the Children’s Court in the course of sentencing a young offender? Is it adequate?

3.22 Courts sentencing young offenders can choose from a range of sentencing options.²⁹ The exercise of judicial sentencing discretion is guided by common law sentencing objectives, principles set out in the C(CP)A and international law.

Common law sentencing objectives

3.23 While the objectives of sentencing are traditionally stated as retribution, deterrence, rehabilitation and incapacitation,³⁰ the New South Wales Court of Criminal Appeal has emphasised on a number of occasions that distinct principles apply in the sentencing of young offenders, where the focus is on promoting rehabilitation.³¹ However, tension between these objectives does arise. The High Court has observed that the objectives of sentencing are “guideposts to the appropriate sentence but sometimes they point in different directions”.³²

3.24 This tension can also arise in relation to the practical operation of the juvenile justice system. For example, a 2000 Report by the New South Wales Ombudsman on Kariong Juvenile Justice Centre criticised the Department of Juvenile Justice and the management team at Kariong for conflict and role confusion between rehabilitative and custodial functions. The Report commented that Kariong was operated for the purpose of containing detainees and did not address the goal of rehabilitation.³³

3.25 When a young offender conducts themselves like an adult, and commits a crime involving violence or of considerable gravity, sentencing focuses on protecting the community by giving effect to the retributive and deterrent elements of sentencing, rather than rehabilitation.³⁴ Preliminary submissions by both the Director of Public Prosecutions, Mr Nicholas Cowdery QC, and the Senior Public Defender, Mr John Nicholson QC, commented on the difficulty resolving conflict between the sentencing principles of rehabilitation, retribution and deterrence in these cases.³⁵

Children (Criminal Proceedings) Act 1987 (NSW)

3.26 The C(CP)A also sets out the following principles which courts must take into account when dealing with young people:³⁶

• Children have the same rights and freedoms before the law as adults, including the right to be heard and to participate in processes leading to decisions that affect them.
• Children who commit offences need to bear responsibility for their actions, but because of their dependency and immaturity, they require guidance and assistance.
• It is desirable, wherever possible, not to interrupt the education or employment of a child.
• It is desirable, wherever possible, to allow a child to reside in his or her home.
• The penalty imposed on a child should be no greater than the penalty imposed on an adult who commits the same offence.

International law

3.28 Australia is signatory to a number of international conventions relating to the rights of children in particular and human rights in general, including the United Nations Convention on the Rights of the Child³⁸ and the International Covenant on Civil and Political Rights.³⁹ These conventions also include principles relevant to sentencing young offenders:

• The best interest of the child is the paramount consideration in all actions concerning young people, including legal proceedings.⁴⁰
• No child should be subject to cruel, inhuman or degrading punishment, and a child who is imprisoned must be treated with humanity and dignity, taking into account the needs of a person of their age.⁴¹
• Imprisonment of children must be a measure of last resort, and a variety of other appropriate and proportionate penalties should be available to children found guilty of criminal offences, with a focus on rehabilitation.⁴²
• Imprisonment of children must be for the shortest appropriate period of time.⁴³
• Children are entitled to privacy at all stages of criminal proceedings.⁴⁴

PENALTIES

Sentencing under C(CP)A and sentencing at law

3.30 The Children’s Court must sentence young offenders under the C(CP)A.⁴⁶ Other courts have a discretion to sentence young offenders wither under the C(CP)A or at law.⁴⁷ In deciding which approach to take, a court should consider the penalty which would be appropriate in the circumstances, including the nature of the offence and the age of the offender.⁴⁸

Range of penalties

3.31 The range of penalties under the C(CP)A consists of cautions, good behaviour bonds, fines, probation, community service orders and detention.⁴⁹

3.32 Dismissal, caution. In 1998/1999, the Children’s Court cautioned 1,786 young offenders under the C(CP)A.⁵⁰ Courts also have the power to caution young offenders under Part 4 of the Young Offenders Act 1997 (NSW). This power is discussed in Chapter 2.⁵¹

3.33 Good behaviour bond. The maximum period for a bond is 2 years. There are a number of compulsory conditions, which are set out in s 33(1A) of the C(CP)A. A good behaviour bond must not require the young offender to perform community service work or pay a fine or compensation.⁵² In 1998/1999, the Children’s Court sentenced 2,236 offenders to a bond.⁵³

3.34 Fine. The maximum fine courts can impose is either the maximum fine at law for the offence, or $1,100 – whichever is less.⁵⁴ In 1998/1999 the Children’s Court fined 1,568 young offenders.⁵⁵ Courts can sentence young offenders to a combined good behaviour bond and fine. In 1998/1999 117 offenders sentenced by the Children’s Court received this sentence.⁵⁶

3.35 Probation. The maximum time for a probation order is 2 years. In 1998/1999 the Children’s Court sentenced 1,715 children to probation.⁵⁷

3.36 Community service. Courts can sentence offenders aged under 16 to a maximum of 100 hours of community service. For offenders aged 16 or over, the maximum number of hours depends on the offence, up to a maximum of 250 hours.⁵⁸ Community service orders can only be imposed where the court can also sentence the young offender to detention.⁵⁹ In 1998/1999 the Children’s Court imposed 918 community service orders.⁶⁰

3.37 Detention. The maximum period for a detention order is 2 years.⁶¹ Courts can only sentence young offenders to detention where the penalty for the offence at law is imprisonment,⁶² and cannot impose a detention sentence that is more severe than the penalty at law.⁶³ Detention can be suspended or combined with a good behaviour bond.⁶⁴ Courts cannot sentence a young offender to detention unless satisfied that all the other sentencing options available under the C(CP)A are inappropriate.⁶⁵ In 1998/1999 the Children’s Court sentenced 876 young offenders to detention.⁶⁶

3.38 Alcohol and drug rehabilitation. Courts can adjourn a hearing for up to 12 months and release the young accused person on bail in order to assess their suitability for rehabilitation and/or permit them to participate in a rehabilitation program (formerly known as a “Griffith remand”). At Campbelltown and Cobham, this includes referring the offender to the Youth Drug Court.⁶⁷ The Youth Drug Court is a pilot program which began operating in July 2000. It is discussed in Chapter 2.

3.39 Youth justice conferencing. Courts can also refer a young offender to a youth justice conference.⁶⁸ Youth justice conferencing is a diversionary sentencing option available under the Young Offenders Act 1997 (NSW). It is discussed in Chapter 2.⁶⁹

3.40 Licence disqualification. Young people found guilty of driving offences can be disqualified from holding a driver’s licence.

3.41 Table 3.3 shows the sentences imposed by the Children’s Court in 1998/1999 by type of offence.

Table 3.3: Sentences imposed by the Children’s Court, 1998/1999

1. CSO: Community Service Order

2. Category includes robbery, blackmail, extortion, break and enter, theft from a person, retail and motor vehicle theft, receiving stolen property, fraud and property damage offences.

3. Category includes possession, trafficking, cultivation and manufacture.

4. Category includes driving under the influence of alcohol and drugs, dangerous driving and traffic offences.

3.42 During preliminary consultations, it was suggested that it would be valuable for the Commission to consider whether the community-based sentencing options available under the C(CP)A are fully utilised. It was also suggested that the Commission should consider whether the range of non-custodial sentencing options available under the C(CP)A needs to be increased.⁷⁰ One option may be to widen the availability of licence disqualification as a sentence so that it is available generally, rather than restricted to driving offences.

3.43 Another issue raised during preliminary consultations was whether community-based sentencing orders such as community service orders could be better structured to enable young offenders to participate in educational and vocational activities, rather than menial work. ⁷¹

Issue 13

Is the range of sentencing options under the Children (Criminal Proceedings) Act 1987 (NSW) fully utilised by sentencing courts? Is the current range of options adequate?

Should licence disqualification be available as a sentence for all offences?

Issue 14

Could community-based sentencing orders be better structured to enable young offenders to participate in educational or vocational work?

3.44 Where a young offender breaches the conditions of a good behaviour bond or probation order, or fails to comply with a community service order, the court may impose any of the penalties originally available for the offence.⁷²

POLICE POWERS

3.45 Police in New South Wales have a range of powers to enable them to carry out their law enforcement function in relation to young people.

3.46 Searches. At common law, a police officer may search a person under arrest if the officer reasonably believes that this is necessary to discover a concealed weapon, or secure or preserve evidence.⁷³ This is enhanced by a more general statutory power to search a person in lawful custody and take anything found during the search. The suspect’s consent is not required.⁷⁴

3.47 Forensic tests. Forensic procedures can be carried out on young people, but only if police obtain an order from a Magistrate or authorised justice. Forensic procedures include taking photographs, finger-prints, palm-prints, casts, physical measurements, hair, nail, blood or saliva samples, dental impressions or swabs.⁷⁵

3.48 Since 1998, several new police powers have been enacted. These powers have a significant impact on young people.

3.49 Knives. Police can search a person in a public place or school who is reasonably suspected of having a knife. This includes the power to search the person’s school bag or locker. Police can confiscate knives and it is an offence to refuse to submit to a search.⁷⁶

3.50 Give directions. Police can give directions to a person in a public place reasonably suspected of obstructing, harassing, intimidating or frightening another person. Refusal to comply with a direction without reasonable excuse is an offence.⁷⁷

3.51 Name and address. Police can demand the name and address of a person at or near the place of an alleged indictable offence who the police officer suspects may be able to assist in an investigation. Refusal to provide this information without reasonable excuse is an offence.⁷⁸

3.52 A police officer can only search a person for a knife, give directions or demand their name and address if the police officer first tells the person their name and place of duty, gives a reason for exercising the power and warns that failure to comply may be an offence. If the police officer is not in uniform, they must also provide evidence that they are a police officer.⁷⁹

3.53 Remove young people. Police can also remove a person believed to be under 16 years old from a public place which has been declared an “operational area”. This power can be exercised if the police officer believes on reasonable grounds that the young person is not subject to the supervision or control of a responsible adult and is at risk of harm or of committing an offence. The young person must be escorted to the residence of a parent or carer. Police officers may request the name, age and address of the child, remove concealed weapons and use reasonable force to exercise this power.⁸⁰

3.54 The enactment of these additional police powers and their effect in practice has been criticised by the Aboriginal Justice Advisory Council,⁸¹ the Australian Law Reform Commission and Human Rights and Equal Opportunity Commission⁸² and commentators.⁸³ Concerns were raised with the Commission during preliminary consultations for this review.⁸⁴ While an examination of this issues is outside the scope of the Commission’s terms of reference, the Commission considers that they merit further consideration.

PUBLIC ORDER OFFENCES

3.55 There are a number of statutory public order offences in the Crimes Act 1900 (NSW) and the Summary Offences Act 1988 (NSW). Commonly prosecuted public order offences include offensive conduct,⁸⁵ offensive language,⁸⁶ assault police⁸⁷ and resist arrest.⁸⁸ In 1998 a new offence of carrying a knife in a public place or school without reasonable excuse was enacted.⁸⁹

3.56 The incidence of offensive language charges is increasing, while the incidence of other categories of offence is stable or falling.⁹⁰ This increase, and the impact of prosecuting adults and young people for public order offences, has been criticised by the Aboriginal Justice Advisory Council;⁹¹ Magistrate David Heilpern;⁹² the Human Rights and Equal Opportunity Commission;⁹³ and commentators.⁹⁴ It was also raised as an issues of concern during preliminary consultations for this Issues Paper.⁹⁵ While consideration of public order offences is outside the scope of the Commission’s terms of reference for this review, the Commission considers that the increase in prosecutions for public order offences and the impact of charging adults and young people with public order offences warrants further attention.

COMMENCING PROCEEDINGS

3.57 Police can commence criminal proceedings either by issuing a summons or court attendance notice or arresting and charging the suspect. The C(CP)A states that criminal proceedings against young people should be commenced by summons or attendance notice rather than arrest, except where:⁹⁶

• The young person is suspected of committing a “serious children’s’ indictable offence”.⁹⁷
• The young person is suspected of committing a indictable drug offence.⁹⁸
• The violent nature of the offence or the violent behaviour of the young person indicates that they should be held in custody.
• There are reasonable grounds to believe either that the young person is unlikely to comply with a summons, or is likely to commit further offences if proceedings are commenced by way of summons.

3.59 The Australian Law Reform Commission and Human Rights and Equal Opportunity Commission,¹⁰⁰ the Juvenile Justice Advisory Council,¹⁰¹ Magistrate David Heilpern,¹⁰² the Royal Commission into Aboriginal Deaths in Custody¹⁰³ and commentators¹⁰⁴ have observed that the statutory preference for summonses and attendance notices is not always observed in practice, and that the arrest process is likely to escalate conflict between police and young people. This concern was also raised with the Commission during preliminary consultations.¹⁰⁵ It is likely that the fact that issuing a summons involves more paperwork for police officers than arresting a suspect contributes to the low use of summons.¹⁰⁶ This issue is not within the terms of reference for this review, but the Commission considers that is has merit.

POLICE QUESTIONING

3.60 During consultations, it was argued that the availability of adequate legal representation for young people at police stations, as well as during court hearings, including bail hearings, is an issue that significantly affects court-based sentencing of young offenders.¹⁰⁷ New South Wales Legal Aid Children’s Legal Service operates a legal advice hotline for young people who have committed or are suspected of committing an offence.

3.61 In October 2000 the Law Society of New South Wales adopted a statement of principles for lawyers representing children which deals with the role of the lawyer, and duties of representation.¹⁰⁸

3.62 The Law Society Specialist Accreditation Board has also given in principle approval to setting up Children’s Law as an area of accreditation for lawyers. The Law Society will establish a Children’s Law advisory committee which will be responsible for structuring the speciality and formulating the accreditation assessment process.¹⁰⁹

3.63 In England and Wales, the arrest, detention, questioning and treatment of adults and young people by police is extensively regulated by the Police and Criminal Evidence Act 1984 (Eng) (“PACE”) and a number of police Codes of Practice enacted under PACE. While the treatment of young people by police is not within the terms of reference for this review, the Commission considers that there is merit in considering whether it is desirable to introduce legislation governing the arrest, detention, questioning and treatment of young people in New South Wales, using PACE as a model.

BAIL

3.64 A young person who is charged with a criminal offence can either be released on bail or held on remand.

3.65 People charged with minor offences are entitled to be released on bail.¹¹⁰ There is a presumption in favour of bail for most offences except serious drug offences, homicide and related offences, kidnapping, aggravated forms of robbery, certain sexual assaults and certain domestic violence offences.¹¹¹ There is a presumption against bail in relation to serious drug offences, but no presumption either for or against bail in relation to the rest of these offences.¹¹² This is consistent with the international law principle that detention be used only as a measure of last resort.¹¹³

3.66 The initial decision on bail is made by police.¹¹⁴ Where police refuse bail, the young accused person must be brought before a court as soon as practicable, (and no later than the following day).¹¹⁵ The court reconsiders the issues of bail.

3.67 Dennis argues that police often refuse bail, but then do not oppose the granting of bail by a magistrate, in order to shift responsibility to the court for any offences which the accused person may commit whilst on bail.¹¹⁶

Discretion to dispense with bail

3.68 A court that may grant bail to a young accused person may instead dispense with the requirement for bail.¹¹⁷ This means that the young person is entitled to remain at liberty until required to appear in court.¹¹⁸

3.69 During consultations it was suggested that courts sometimes place young people on bail in circumstances where it would be more appropriate to dispense with bail, such as where the young person has been charged with a summary offence which does not attract a control order as its maximum penalty.¹¹⁹

Discretion to grant bail

3.70 The Bail Act 1978 (NSW) prescribes the factors to be considered in deciding whether to grant bail. These criteria relate to the probability that the young accused person will appear in court, considering his or her background and community ties. Their previous history of attending court, the circumstances of the offence, their interests, the likelihood of re-offending and the interests of the victim and the community are also relevant factors.¹²⁰

3.71 The Juvenile Justice Advisory Council¹²¹ and the Human Rights and Equal Opportunity Commission¹²² have expressed concern that young Aboriginal and Torres Strait Islander people are more likely to be refused bail and held on remand than young non-Aboriginal people. The Australian Institute of Criminology also expressed concern about this in a preliminary submission to this review.¹²³

3.72 The Bail Act 1978 (NSW) states that where the young accused person is under 18, the fact that he or she does not live with his or her parents is not a relevant factor.¹²⁴ Despite this provision, it has been argued that homeless young people and young people in state care are sometimes refused bail and held on remand because they are considered to be at risk or flight, or by well intentioned police and Magistrates as a way of finding accommodation for them.¹²⁵ This issue was also raised during preliminary consultations for this Issues Paper.¹²⁶

3.73 The Australian Law Reform Commission and Human Rights and Equal Opportunity Commission also observed that young people from rural communities are often transported long distances to detention centres pending a bail hearing. If granted bail and released, the young person often has no way of returning home.¹²⁷

3.74 During consultations concern was also expressed that young people are sometimes released on bail with no way of getting home, or with nowhere to live.¹²⁸ A case manager from Reiby Juvenile Detention Centre commented that young accused people under the age of 14 who are initially refused bail by a rural court are often subsequently granted bail by a metropolitan court. It is often difficult to arrange transport back to rural areas serviced intermittently by public transport during the week and even less often, or not at all, during public holidays. In these situations, the young person may be held in custody for up to two days until transport can be arranged.¹²⁹

3.75 The Australian Law Reform Commission and Human Rights and Equal Opportunity Commission recommended that this issue should be addressed by the establishment of bail hostel programs, and that police should have a statutory duty of care to ensure that young people released on bail are either able to return home immediately or referred to suitable alternative accommodation.¹³⁰

Bail conditions

3.76 A young accused person who is granted bail must undertake to appear in court.¹³¹ Bail can be granted with or without conditions.¹³² There is a statutory presumption in favour of unconditional bail, ¹³³ and a statutory prohibition on inappropriately onerous bail conditions.¹³⁴

3.77 The Australian Law Reform Commission and Human Rights and Equal Opportunity Commission¹³⁵ and commentators¹³⁶ have criticised the imposition of inappropriate and harsh bail conditions on young people which they cannot meet, effectively setting them up to breach bail.¹³⁷ This was also raised during preliminary consultations.¹³⁸

3.78 For example, concern was expressed about young Aboriginal people living in rural New South Wales being granted bail on the condition that they reside in one place and comply with a curfew. This is often unrealistic because young, rural Aboriginal people often do not reside in one place, but have three or four places that they consider home. Curfews may also prevent them from fulfilling family responsibilities including caring for younger children and shopping for food at night.

3.79 A young accused person who has been granted conditional bail can apply to a magistrate to review the conditions imposed.¹³⁹ Dennis has emphasised the importance of vigilance by solicitors in insisting that courts exercise this supervisory power.¹⁴⁰

3.80 A police officer who believes on reasonable grounds that a young person has breached a bail condition can arrest the young person without a warrant, or obtain a warrant or summons.¹⁴¹ Dennis has observed that police officers frequently rely on their power to arrest without a warrant in this situation.¹⁴² This is likely to reflect the fact that the procedure for arresting suspects involves less paperwork for police than the procedure for issuing a summons.¹⁴³

Issue 15

Is the current law dealing with young people and bail appropriate? If not, how should it be changed?

Do police and courts exercise their powers in relation to bail appropriately? If not, in what way? How should this be addressed?

Specialisation

3.81 The Australian Law Reform Commission and Human Rights and Equal Opportunity Commission recommended that criminal jurisdiction over young people should be exercised exclusively by a specialised children’s magistracy, including a rural circuit to overcome the practical difficulty of providing this service in rural areas.¹⁴⁴

3.82 Until recently, the jurisdiction of the Children’s Court was exercised by both specialist Children’s Magistrates and Magistrates authorised to exercise the jurisdiction of the Children’s Court.¹⁴⁵ In amendments to the composition of the Children’s Court in December 2000, the concept of “authorised Magistrates” was abolished.¹⁴⁶ The qualifications for appointment as a Children’s Magistrate were also strengthened.¹⁴⁷

Are Children’s Magistrates appropriately trained, skilled and experienced?

Issue 17

Should the Children’s Court be renamed? If so, what should it be called?

Recording criminal offences

3.86 Where a person aged under 16 pleads guilty to or is found guilty of an offence, the court must not proceed to conviction or record the finding as a conviction.¹⁵⁶ The Children’s Court and the Local Courts also have a discretion not to proceed to or record a conviction against young offenders who are 16 or older.¹⁵⁷ The District and Supreme Courts can record a conviction where a young offender is found guilty of an indictable offence.¹⁵⁸

Evidence of prior offences

3.87 In the Children’s Court, 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 Young Offenders Act 1997 (NSW).¹⁵⁹

3.88 In hearings and trials in the Local, District and Supreme 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 for any other offence for the last 2 years.¹⁶⁰

3.89 Evidence that a young person has been warned or cautioned or participated in a youth justice conference under the Young Offenders Act 1997 (NSW) is not admissible in subsequent proceedings in the Local, District or Supreme Courts.¹⁶¹

3.90 These laws are designed to minimise the labelling of young people who commit offences as criminals. This reflects the fact that most young offenders “grow out” of crime and it is unfair to label them as criminals as adults merely because of youthful mistakes. 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 travel.¹⁶² It also reflects current criminological theory which argues that labelling young people as deviant or criminal (“stigmatic shaming”) creates a social stigma which is likely to entrench criminal behaviour rather than promote rehabilitation.¹⁶³ 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.¹⁶⁴

3.91 On the other hand, depriving sentencing courts of information about previous offences committed by offenders and previous sentences makes it more difficult for courts to sentence offenders appropriately.

Issue 18

Is the law regulating the admissibility of evidence that a person pleaded guilty to or was found guilty of previous offences while aged under 18 appropriate?

Is the law regulating the admissibility of evidence that a person has been dealt with under the Young Offenders Act 1997 (NSW) appropriate?

3.92 In New South Wales it is an offence 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.¹⁶⁵ There are several exceptions:

• The prohibition does not apply to young people convicted of driving offences in the Local Courts.¹⁶⁶
• A young person aged 16 or over may be identified if he or she consents.¹⁶⁷
• A young person aged under 16 may be identified with the consent of the court. If the young person is capable of consenting to be identified, 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. ¹⁶⁸
• When the District Court of Supreme Court sentences a young person convicted of a “serious children’s indictable offence”¹⁶⁹ the Court can order that their name be broadcast or published. The Court must be satisfied that such an order is in the interests of justice and the prejudice to the young person arising from identification does not outweigh the interests of justice. Consent is not required.¹⁷⁰ This exception was introduced in 1999.¹⁷¹

3.94 Proponents of public identification of young offenders, who include the New South Wales Commissioner for Police, Mr Peter Ryan, argue that identifying young offenders in the media would force them to accept responsibility for their actions and act as a deterrent.¹⁷³ It is also argued that as the identity of young offenders would be known within their communities, informing others would not have any harmful effect.¹⁷⁴

Issue 19

Should courts have the power to permit the identity of young offenders to be published or broadcast? If so, is the current law appropriate?

3.95 Mandatory sentences are compulsory sentences imposed by statute for particular offences that remove general judicial sentencing discretion.¹⁷⁵ Mandatory sentences are imposed for a range of minor offences in New South Wales, including traffic infringements.¹⁷⁶

3.96 Mandatory sentences for property offences have been introduced in two Australian jurisdictions. In 1996 Western Australia introduced a mandatory 12 month custodial sentence for young offenders convicted of home burglary with at least one prior conviction.¹⁷⁷ In 1997 the Northern Territory introduced a mandatory 28 day custodial sentence for young offenders convicted of certain property offences with at least one prior conviction.¹⁷⁸ This law was subsequently amended to provide for compulsory diversionary sentencing options for more minor offences, and at police discretion for more serious offences.¹⁷⁹

3.97 Proponents of mandatory sentences argue that they operate as an effective deterrent.

3.98 Opponents of mandatory sentences argue that mandatory sentences do not deter offenders. Crime prevention requires long term strategies, which address economic, educational, employment and social disadvantage and drug and alcohol misuse. Opponents argue that mandatory detention sentences which remove young offenders from their families and communities is actually likely to promote recidivism. Moreover, the severe penalties imposed to achieve deterrence can be far more severe than the objective criminality requires.

3.99 Proponents of mandatory sentences argue that government intervention in judicial sentencing discretion is required to address leniency¹⁸⁰ and inconsistency.¹⁸¹

3.100 Opponents of mandatory sentences argue that mandatory sentencing actually reduces the level of consistency in sentencing because the consequences of criminal behaviour hinge on charging discretions exercised by individual police officers. For example, when mandatory sentences were introduced in the Northern Territory, one response was increased use of the charge of unlawful possession, which did not attract a mandatory sentence, in place of the charge of stealing or receiving stolen property, which did (the law was subsequently amended so that unlawful possession also attracted a mandatory sentence).¹⁸²

3.101 This transfer of discretion also reduces the level of accountability of the criminal justice system because charging decisions made by police officers are not open to public scrutiny.¹⁸³ Justice Santow of the Supreme Court of New South Wales has argued that the transfer of sentencing discretion from judges and magistrates to police may be unconstitutional as it amounts to a usurpation of an essential judicial function by the executive.¹⁸⁴

3.102 It is also argued that such laws conflict with international law principles including the prohibition on racial discrimination and the requirement of proportionality in sentencing, as well as the principles referred to at paragraph 3.28 of this Chapter.¹⁸⁵

3.103 Another criticism of mandatory sentences is that they adversely affect the administration of the criminal justice system. Mandatory sentences eliminate any incentive for offenders to admit guilt in return for sentencing leniency. This leads to an increased number of contested hearings, increasing the resources consumed by police, legal aid, and courts. Mandatory sentences also increase the population of offenders in custody.¹⁸⁶ The existence of mandatory sentences for certain offences may create pressure to plead guilty to an offence, which does not attract a mandatory sentence, in order to avoid the mandatory laws.¹⁸⁷

3.104 It has also been argued that the discriminatory impact of mandatory sentencing on young Aboriginal offenders is exacerbated by the low participation of young Aboriginal people in diversion schemes in the Northern Territory and Western Australia.¹⁸⁸ The under representation of young Aboriginal people in diversion schemes under the Young Offenders Act 1997 (NSW) is discussed in Chapter 2 of this Issues Paper.¹⁸⁹

3.105 The ALRC/HREOC and the Human Rights and Equal Opportunity Commission have both recommended that the mandatory sentencing laws operating in Western Australia and the Northern Territory should be repealed.¹⁹⁰

Issue 20

Should New South Wales introduce mandatory sentences for offences committed by young offenders?

3.106 Guideline judgments are judgments formulated by appellate courts that go beyond the facts of a particular case to suggest a sentencing scale, or appropriate sentence for common factual situations, to trial courts.¹⁹¹ The purposes 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.¹⁹²

3.107 In 1998 the New South Wales Court of Criminal Appeal established a formal system for formulating guideline judgments in response to public debate about the introduction of legislation confining judicial sentencing discretion, including debate about mandatory sentencing laws.¹⁹³ The Court’s guidelines judgments do not bind sentencing judges,¹⁹⁴ but a judge who does not apply a guideline judgment is expected to provide reasons for this decision.¹⁹⁵ The Court has now published guideline judgements dealing with four offences: driving causing grievous bodily harm or death,¹⁹⁶ armed robbery,¹⁹⁷ drug importation¹⁹⁸ and break, enter and steal.¹⁹⁹ The Court has also published a guideline judgment dealing with guilty pleas.²⁰⁰

3.108 The system has been afforded statutory recognition.²⁰¹ The Crimes (Sentencing Procedure) Act 1999 (NSW) empowers the Attorney General to request a guideline judgement and make submissions on how guidelines should be framed.²⁰² The guideline can be delivered separately or included in an appropriate judgement. Guidelines can apply generally or in relation to particular instances or classes of courts, penalties, offences or offenders.²⁰³

3.109 During consultations, it was suggested that there is uncertainty surrounding the application of guideline judgments to young offenders and that guideline judgments may be inconsistent with the rehabilitative focus of sentencing young offenders.²⁰⁴

3.110 The Court of Criminal Appeal has referred to the relevance of the age of the offender in a number of its guideline judgments. The guideline judgement on dangerous driving causing grievous bodily harm or death refers to the earlier Court of Criminal Appeal judgment in Musumeci²⁰⁵ where Hunt CJ at CL 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. The guideline judgment dealing with drug offences committed by couriers and persons low in the hierarchy or drug importing organisations refers to the statutory requirement that sentencing courts take into account the age of the offender.²⁰⁶ The guideline judgement on armed robbery refers to the fact that an offender is of a young age as one of the characteristics common to the category of offenders to which the guideline applies.²⁰⁷ The guideline judgment on break, enter and steal includes an observation that juveniles and young persons are an identifiable group of offenders in relation to this offence and considers whether the guideline should apply to sentencing in the Children’s Court.²⁰⁸

Issue 21

Should guideline judgments apply to young offenders?

3.111 “Restorative justice” is a term used to describe a wide range of formal and informal ways of dealing with criminal offences that increase the emphasis given to the role and experience of victims of crime, encourage more discussion about the offence, the surrounding circumstances and sentencing, and expand the power to make decisions about the outcome of offences.²⁰⁹ It is most often used in relation to young offenders. Proponents of restorative justice argue that it appropriately recognises the role and rights of victims of crime and is an effective method of rehabilitating offenders and reducing re-offending.²¹⁰

3.112 Youth justice conferencing, discussed in Chapter 2, is an example of a sentence which emphasises restorative justice. Several aspects of the court-based sentencing process for young offenders have restorative justice features.

Victims

3.113 A Victim Impact Statement (“VIS”) is a statement setting out the harm suffered by the victim of an offence or, where the victim died as a result of the offence, a statement setting out the impact of their death on the victim’s immediate family.²¹¹ VISs are admissible in criminal proceedings for certain offences after the offender has been convicted but before sentencing.²¹² .

3.114 VIS’s permit victims to directly participate in the sentencing process. Victims also indirectly participate in this process because evidence of victims is always admitted as evidence of the commission of an offence and its effect.

3.115 The Children’s Court may order a young offender to pay compensation to the victim of the offence. The court must consider the young offender’s means, income and ability to pay when deciding whether to make a compensation order and the amount of compensation. The maximum amount of compensation that the Children’s Court may award is $1,000.²¹³

Parents

3.116 Parents may accompany their child to court, apologise to the court on behalf of their child, appear as a witness or even represent their child.^{214 .} Courts exercising criminal jurisdiction over a young person may compel one or both of their parents to attend court.²¹⁵

3.117 Courts may order a young offender to submit to parental supervision, order a young offender’s parents to guarantee that their child will comply with a supervision order, require parents to provide security for the good behaviour of their child, or order young offenders to attend counselling with their parents.²¹⁶ When considering whether to impose a supervision order on a parent of a young offender, it is important to consider whether the parent will be capable of fulfilling the order. Factors such as the occurrence of violence in the family, financial resources and cultural factors may influence this.²¹⁷

3.118 A parent who, by wilful default, contributes to the commission of an offence for which their child has been found guilty, is guilty of an offence punishable by a fine of up to $1,100. The court can order a parent convicted of this offence to undergo counselling in addition to, or instead of imposing a fine.²¹⁸

3.119 During consultations, the Aboriginal Justice Advisory Council suggested that parents of Aboriginal young people are often unlikely to participate in Children’s Court hearings. It was suggested that many Aboriginal people regard the atmosphere of court as alienating and intimidating. Some parents may be unwilling to attend court because of outstanding warrants against themselves. Many young Aboriginal people are cared for primarily by their grandparents rather than their parents. There are often physical barriers to travel and court attendance for grandparents. Due to the low life expectancy of Aboriginal people, many young Aboriginal people find themselves without a parent or grandparent to participate in their court hearing.

Issue 22

Does court-based sentencing of young offenders adequately emphasise the role of restorative justice? If not, how can more emphasis be given to restorative justice?

3.120 Young Aboriginal people are grossly over represented as offenders. While young Aboriginal comprise 1.9% of the youth population in New South Wales, 25% of young people serving detention sentences are Aboriginal.²¹⁹ The rate of over-representation has not improved since the 1992 Royal Commission into Aboriginal deaths in Custody.²²⁰

3.121 Young Aboriginal people are also likely to receive harsher penalties and progress faster through the stages of the juvenile justice system than other young offenders. The Royal Commission into Aboriginal Deaths in Custody referred to this as “deviation amplification”.²²¹

3.122 Reasons for this include that young Aboriginal people are more likely to have prior convictions at an earlier age,²²² both because Aboriginal people are younger when they first commit offences than non-Aboriginal people, and because they are less likely to be diverted under the Young Offenders Act 1997 (NSW).²²³ A recent report by the New South Wales Bureau of Crime Statistics and Research which examined the reasons for the over-representation of Aboriginal adults in prison concluded that increasing the number of offenders efforts to reduce this over-representation should focus on increasing the use of diversion schemes.²²⁴ The under-representation of young Aboriginal people in diversion under the Young Offenders Act 1997 (NSW) is discussed in Chapter 2.²²⁵

3.123 Another reason may be that courts sometimes discriminate against young Aboriginal people when considering the suitability of community-based sentencing orders. Courts assessing the stability of a young offender’s home environment may apply Anglo-Australian standards, disregarding the role of extended kinship networks in Aboriginal communities.²²⁶ The Commission has previously commented that failure to appropriately consider cultural factors in sentencing contributes to the over representation of adult Aboriginal people in prison.²²⁷

3.124 Involvement in the criminal justice system as a young person sets a pattern for involvement as an adult. Aboriginal adults are also over represented as offenders.²²⁸

3.125 In 1997 the Human Rights and Equal Opportunity Commission emphasised the importance of the sentencing principle that custodial sentences should be the last resort for young indigenous offenders.²²⁹ The Commission has previously emphasised the importance of this principle in relation to adult Aboriginal offenders, and noted that the imposition of a custodial sentence on a young Aboriginal person is likely to dislocate or alienate them from their culture, community and traditional values.²³⁰

3.126 In its recent report on sentencing Aboriginal offenders, the Commission recommended that Aboriginal customary law should be given statutory recognition in New South Wales.²³¹ The Commission accepted that customary law is relevant to Aboriginal communities in New South Wales. Evidence that an offender has or will receive punishment in accordance with customary law; that an offence was committed as required by or in furtherance of customary law or of an offender’s future responsibilities under customary law are examples of customary law which may be relevant to sentencing.²³²

3.127 The Commission noted that South Australia and Western Australia have statutory provisions specifically referring to the cultural background of young offenders as a relevant factor in the sentencing process.²³³ The Commission also noted the ways in which customary law could receive greater recognition by increasing the involvement of Aboriginal people in the design and delivery of sentencing options.²³⁴

3.128 The Commission has also previously noted that there are inherent limitations in focusing purely on sentencing in addressing the over-representation of Aboriginal adults in the criminal justice system, as economic, educational, employment, health and social disadvantage are critical issues that need to be addressed beyond reform of sentencing laws.²³⁵

Issue 23

How should the over-representation of young Aboriginal and Torres Strait Islander in the juvenile justice system be addressed in the context of sentencing?

3.129 In Report 96 the Commission identified a wide range of communication problems arising during the sentencing process which affect Aboriginal offenders, including unfamiliarity with the courtroom, language differences, which are often exacerbated by the technical and formal nature of communication in court, differences in non-verbal communication, cultural communication restrictions, the tendency of some Aboriginal people to gratuitously agree with persons in authority, and hearing loss, which is extremely common among Aboriginal people.²³⁶

3.130 The Commission recommended that court staff receive training to improve understanding of these issues.²³⁷ The Commission also discussed the need to employ linguistic and cultural experts for use in sentencing proceedings involving Aboriginal offenders.²³⁸ The Queensland Government has published a handbook for courts on understanding Aboriginal English.²³⁹

ETHNICITY

3.131 There is very little empirical research on the relationship between the ethnicity of young offenders and sentencing, or the over-representation of particular ethnic groups in detention centres, compared to the extensive research on the over-representation of Aboriginal people in the criminal justice system. The Commission considers that the limited research available raises a significant policy issue requiring further examination.

3.132 In 1998 the New South Wales Judicial Commission published research examining disparity in sentences received by young offenders from diverse ethnic backgrounds.²⁴⁰ The research examined sentences imposed on young offenders in the following ethnic groups: Pacific Islands, Southern European, Middle Eastern and East Asian.²⁴¹

3.133 The Judicial Commission found that young offenders from Pacific Islands backgrounds received harsher penalties than young offenders from Anglo-Australian backgrounds, including more frequent and longer control orders.²⁴²

3.134 The Judicial Commission found that there were no statistically significant differences in sentences for other ethnic groups, although the direction of the difference was consistently in favour of Anglo- Australians.²⁴³

3.135 Previous research by the Department of Juvenile Justice examining the ethnicity of all young people detained in New South Wales in 1994 found that young Indo-Chinese, Lebanese, Pacific Islander and New Zealand Maori people were grossly over-represented on remand and on control orders.²⁴⁴

Issue 24

Do young people from particular ethnic groups or backgrounds encounter discrimination in the sentencing process? If so, which groups or backgrounds? How should this be addressed?

Disparity

3.136 As with sentencing and ethnicity, there is very little empirical research on the relationship between the geographical location of young offenders and sentencing, or the over-representation of young offenders from particular geographical areas in detention centres. The limited empirical research on this issue has found significant regional variations in sentencing practices in New South Wales.²⁴⁵ The Commission considers that this raises a significant policy issue requiring further investigation.

3.137 One factor contributing to this is likely to be the limited availability of non-custodial sentencing options and alcohol and drug rehabilitation services in some areas.²⁴⁶ Non-custodial programs in rural and remote areas also tend to involve much less supervision and support than those in metropolitan areas. For example, in country areas a departmental officer may only make monthly visit to a young person on a supervised order.²⁴⁷

3.138 Since most Aboriginal people in New South Wales live in rural areas, these issues contribute to the over-representation of young Aboriginal people in detention discussed in paragraphs 3.120-3.128 above.²⁴⁸

3.139 Until 2000, young offenders in regional and rural New South Wales were often dealt with by Authorised Magistrates.²⁴⁹ Authorised Magistrates tended to impose more severe penalties on young offenders than Children’s Magistrates, and in particular, were more likely to sentence young offenders to detention.²⁵⁰ In a preliminary submission, the Senior Public Defender, Mr John Nicholson QC argued that this occurred because non-specialist Magistrates routinely sentence adult offenders for similar offences and were less likely to distinguish between young and adult offenders, less likely to apply the relevant sentencing principles which apply to young offenders,²⁵¹ and less likely to be aware of the destructive ling term impact of sentencing young Aboriginal people to custodial sentences.²⁵²

3.140 The concept of Authorised Magistrates was abolished in 2000.²⁵³

Effect of detention

3.141 Young offenders sentenced to detention may be accommodated in detention centres a considerable distance from family and community. This results in a high level of dislocation, making it more difficult for the young person to maintain links with their family and community by visits and participation in work release and pre and post release programs.²⁵⁴

3.142 One response to this issue would be to build new detention centres in regional areas. This would be expensive. Commentators have also observed that it would also result in increasing the total number of young offenders in detention, especially young Aboriginal offenders.²⁵⁵

3.143 Another response would be to facilitate contact between young offenders in detention and their families and communities. For example, a 1996 Ombudsman’s Inquiry into Juvenile Detention centres commented that the Department of Juvenile Justice performed well in the assistance it provided to young Aboriginal detainees to attend important family occasions. The Report also emphasised the importance of supportiveness and flexibility in relation to family visits.²⁵⁶

Issue 25

Do young people from regional or rural New South Wales encounter discrimination in the sentencing process? If so, how should this be addressed?

Over-representation

3.144 Adults with intellectual disabilities comprise 2 to 3% of the New South Wales population yet comprise 12-13% of the prison population.²⁵⁷ Research also suggests that more than one third of adults who appear in New South Wales Local Courts on criminal charges may have significant intellectual deficits.²⁵⁸ Although there has been minimal research, it is reasonable to infer that young offenders with intellectual disabilities are similarly over-represented.²⁵⁹

3.145 Researchers explain this over-representation on the basis of increased vulnerability in the criminal justice process, for example during police questioning and psychological and socio-economic disadvantage, for example the fact that young people with an intellectual disability are more likely to be living in communities where they will be suspected of committing, and commit, crimes.²⁶⁰

3.146 The Commission has previously reported on people with intellectual disabilities and the criminal justice system.²⁶¹ A number of the Commission’s previous recommendations are relevant to young offenders with intellectual disabilities.²⁶²

Defining and identifying intellectual disability

3.147 The Commission recommended the introduction of the following standard statutory definition of intellectual disability: “‘Intellectual disability’ means a significantly below average intellectual functioning, existing concurrently with two or more deficits in adaptive behaviour”.²⁶³

3.148 A significant issue in the participation of young people with an intellectual disability in the juvenile justice system is the ability of police and courts to identify intellectual disability. The Commission also recommended the development and adoption of a Code of Practice for police procedures for identifying intellectual disability and conducting criminal investigations involving people with intellectual disabilities.²⁶⁴

3.149 The Hayes Ability Screening Index (“HASI”), which identifies the possibility of intellectual disability, may be appropriate for use by police. The HASI can be administered by non-psychologists in around 10 minutes. The HASI was developed after extensive testing on inmates of correctional centres in New South Wales, including young offenders. It has been trialed in prisons, and results indicted that the index was 100% successful at predicting intellectual disability. The HASI also identifies individuals suffering from psychiatric illness, substance abuse disorder, or who cannot speak English.²⁶⁵

Issue 26

Do young offenders with intellectual disabilities encounter discrimination in the sentencing process? If so, how can this be addressed?

3.150 The care jurisdiction of the Children’s Court is outlined at paragraphs 3.13-3.21 of this Chapter. At June 2000, there were 8,517 children and young people in state care in New South Wales. Of these, 40% were placed with extended family and 31% were placed in foster care.²⁶⁶

3.151 In 1996, 0.2% of the population of New South Wales were State Wards. The New South Wales Government estimated that at that time 17% of young people involved in the juvenile justice system were State Wards.²⁶⁷ Also in 1996, the Community Services Commission estimated that young people who are in state care are 15 times more likely to enter a juvenile detention centre than other young people.²⁶⁸

3.152 In a preliminary submission, the Positive Justice Centre raised the issue of over representation of young people in the care of the State in the juvenile justice system.²⁶⁹ The Centre argued that young people in state care encounter discrimination at sentencing hearings because behavioural difficulties that are attributable to being in care are rarely raised before the court in the context of the assessment of an offender’s character.²⁷⁰ It also argued that young people in state care are unlikely to have the factors commonly used to argue mitigation such as a good home, sporting or community organisation membership, educational achievements and strong employment history.²⁷¹

3.153 Young people in state care also encounter difficulty in earlier stages of the juvenile justice system. For example, while young people are entitled to the support of an independent adult during police interviews,²⁷² police on occasion find it difficult to locate an independent adult for young people in state care.

3.154 The C(CP)A provides that when deciding how to sentence a young offender, the fact that the offender is in need of care is not to be taken into account.²⁷³ This section is designed to protect young people in need of care against discrimination in sentencing. However, it is important that a court that identifies that a young offender is in need of care ensures that the offender is dealt with under the care jurisdiction of the Children’s Court, if necessary, by way of formal care proceedings resulting in a care order.

Issue 27

Do young offenders in state care encounter discrimination in the sentencing process? If so, how can this be addressed?

How are young offenders in need of state care dealt with by sentencing courts?

1. Children’s Court Act 1987 (NSW) s 12 and C(CP)A.

2. Children and Young Persons (Care and Protection) Act 1998 (NSW).

3. New South Wales, Bureau of Crime Statistics and Research, NSW Criminal Court Statistics 1999 (2000) at Table 2.1, 2.4, 2.4a and 2.4b.

4. C(CP)A s 3, 7, 28.

5. The NSW Bureau of Crime Statistics and Research publishes criminal court statistics for New South Wales. The statistics for 2000 were not available at the time of going to print.

6. The NSW Department of Juvenile Justice Annual Report for 1999-2000 estimated that the number of charges heard in 1999-2000 was 12,300: New South Wales, Department of Juvenile Justice, Annual Report 1999-2000 at 7-8.

7. C(CP)A s 7.

8. C(CP)A s 28. The Local Courts are not permitted to hear charges against young people that the Children’s Court has jurisdiction over: C(CP)A s 7.

9. Bureau of Crime Statistics and Research 2000 at Table 1.13, 1.13a, 1.13b. Note that unlike the statistics for the Children’s Court at Table 1.1, the Local Court statistics do not distinguish between appearances finalised and persons found guilty.

10. C(CP)A s 3, s 16-18 and s 28. See para 3.7.

11. C(CP)A s 17.

12. C(CP)A s 18. See R v WKR (1993) 32 NSWLR 447; R v DAR (Unreported, New South Wales, Court of Criminal Appeal, 2 October 1997).

13. Children (Detention Centres) Act 1987 (NSW) s 24. See also R v SLR [2000] NSWCCA 436 at para 27 and R v XYJ (Unreported, New South Wales, Court of Criminal Appeal, No 60823/1991, 15 June 1992). See R v SLR [2000] NSWCCA 436 at para 27 and R v XYJ (Unreported, New South Wales, Court of Criminal Appeal, No 60823/1991, 15 June 1992).

14. R v SLR [2000] NSWCCA 436 at para 27 and R v XYJ (Unreported, New South Wales, Court of Criminal Appeal, No 60823/1991, 15 June 1992).

15. C(CP)A s 20 (This section applies to offenders aged under 21 when they are sentenced).

16. Bureau of Crime Statistics and Research 2000 at Table 3.11.

17. 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 1.

18. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 71.

19. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 37 and s 38.

20. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 65.

21. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 78. Where there is a realistic possibility of restoring parents’ care, the Department must also develop a restoration plan: s 83.

22. New South Wales, Department of Community Services, Annual Report 1999-2000 at 39.

23. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 79 and s 81.

24. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 181.

25. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 140.

26. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 43.

27. Children and Young Persons (Care and Protection) Act 1998 (NSW) Chapter 5 Part 1. See also Chapter 6 which provides for Children’s Court procedure in care proceedings.

28. C Cunneen and R White, Juvenile Justice: An Australian Perspective (Melbourne, Oxford University Press, 1995) at 189-197.

29. See para 3.30-3.41 and Table 3.3.

30. NSWLRC, Sentencing (Report 79, 1996) at para 14.12.

31. R v GDP (1991) 53 A Crim R 112; R v XYJ (Unreported, New South Wales, Court of Criminal Appeal, 15 June 1992; R v Wilkie (Unreported, New South Wales, Court of Criminal Appeal, 2 July 1992). See also Children (Detention Centres) Act 1987 (NSW) s 4.

32. Veen v The Queen (No 2) (1987) 164 CLR 465 at 476.

33. NSW Ombudsman, Investigation into Kariong Juvenile Justice Centre (2000) Chapter 6 and para 9.45 and 11.4.

34. R v Pham (1991) 55 A Crim R 128; R v Tran (Hoai Vinh) (Unreported, New South Wales, Court of Criminal Appeal, 12 May 1999).

35. NR Cowdery QC, Director of Public Prosecutions, Preliminary Submission at 1; J Nicholson SC, Senior Public Defender Preliminary Submission at 1.

36. C(CP)A s 6. See also C(CP)A s 33B and Crimes (Sentencing Procedure) Act 1999 (NSW) which provide that a court sentencing a child must take into account that the child pleaded guilty, and may reduce the sentence.

37. R v GDP (1991) 53 A Crim R 112; R v R (1993) 32 NSWLR 447.

38. Entered into force for Australia on 16 January 1991 (CROC).

39. Entered into force for Australia on 13 November 1980 (ICCPR).

40. CROC, article 3.

41. CROC, article 37; ICCPR, article 7 and 10.

42. CROC, article 37, 40; ICCPR, article 10.

43. CROC, article 37.

44. CROC, article 40(2)(b)(vii); ICCPR, article 14.

45. See para 3.25.

46. C(CP)A s 33.

47. C(CP)A s 18.

48. R v R (1993) 32 NSWLR 447; R v Nguyen (Unreported, New South Wales, Court of Criminal Appeal, 14 April 1994).

49. C(CP)A Part 3, Division 4, s 18 and s 19.

50. Bureau of Crime Statistics and Research 2000 at Table 2.3.

51. See para 2.14-2.15.

52. C(CP)A s 33(1A). See s 24 for the power to order children to pay compensation.

53. Bureau of Crime Statistics and Research 2000 at Table 2.3.

54. Crimes (Sentencing Procedure) Act 1999 (NSW) s 17.

55. Bureau of Crime Statistics and Research 2000 at Table 2.3.

56. Bureau of Crime Statistics and Research 2000 at Table 2.3.

57. Bureau of Crime Statistics and Research 2000 at Table 2.3.

58. C(CSO)A s 13.

59. C(CP)A s 34; Children (Community Service Orders) Act 1987 (NSW) s 5. See para 3.37.

60. Bureau of Crime Statistics and Research 2000 at Table 2.3.

61. C(CP)A s 33(1)(g).

62. C(CP)A s 35.

63. C(CP)A s 34.

64. C(CP)A s 33(1B).

65. C(CP)A s 33(2). This is consistent with international law: See para 3.28.

66. Bureau of Crime Statistics and Research 2000 at Table 2.3.

67. C(CP)A s 33(1)(c2). This power was introduced to enable the Youth Drug Court to adjourn proceedings and grant bail to participants in its program.

68. C(CP)A s 33(1)(c1).

69. See para 2.17-2.34.

70. Preliminary consultation, Reference Group (18 December 2000). See also para 3.136-3.140.

71. Preliminary consultation, Reference Group (18 December 2000).

72. C(CP)A s 41, Children (Community Service Orders) Act 1987 (NSW) Part 5.

73. Leigh v Cole (1853) 6 Cox CC 329; Dillon v O’Brien (1887) 16 Cox CC 245.

74. Crimes Act 1900 (NSW) s 353A(1) and (3)(D).

75. Crimes (Forensic Procedures) Act 2000 (NSW) s 4, s 8, s 18 and Part 5.

76. Summary Offences Act 1998 (NSW) s 28A-28E, inserted by the Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) s 3 and Schedule 1. These amendments also introduced a new offence of carrying a knife in a public place or school without a reasonable excuse: see para 3.55.

77. Summary Offences Act 1998 (NSW) s 28F, inserted by the Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) s 3 and Schedule 1. See C Grant and C Quayle, “Workshops at Walgett and Bourke”, Working Out West Project (unpublished, 2001) for a discussion of the impact of this power on young people in rural New South Wales.

78. Crimes Act 1900 (NSW) s 563, inserted by the Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) s 4 and Schedule 2.

79. Summary Offences Act 1988 (NSW) s 28A(4) and s 28F(4) and Crimes Act 1900 (NSW) s 563(2).

80. Children (Protection and Parental Responsibility) Act 1997 (NSW) Part 3. A public place is declared an “operational area” by the Attorney General on the application of a local council.

81. Aboriginal Justice Advisory Committee, A Fraction More Power: Review of the Impact of the Children (Protection and Parental Responsibility) Act on Aboriginal People in Moree and Ballina (1999).

82. Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process (Report 84, 1997) at para 18.73-18.79 and Recommendation 204.

83. S Campbell, “Reality Checks – The Changing Relationship in the Policing of Young People and its Implications for Legal Practitioners” (1999) 37(10) Law Society Journal 58 at 58-59; N Hennessy, Review of Gatekeeping Role in Young Offenders Act 1997 (NSW) (1999) at para 46, M R Liverani, “For the Disadvantaged Young, NSW is a Police State” (1999) 37(10) Law Society Journal 62 at 64. The Crimes Amendment (Police and Public Safety) Act 1998 (NSW) was reviewed by the NSW Ombudsman in 1999: New South Wales, Ombudsman, Policing Public Safety (1999).

84. Preliminary consultation, Reference Group (18 December 2000).

85. Summary Offences Act 1988 (NSW) s 4.

86. Summary Offences Act 1988 (NSW) s 4A.

87. Crimes Act 1900 (NSW) s 60.

88. Crimes Act 1900 (NSW) s 546C.

89. Summary Offences Act 1988 (NSW) s 11B and s 11C, inserted by the Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) s 3 and Schedule 1.

90. New South Wales, Bureau of Crime Statistics and Research, Race and Offensive Language Charges (Bureau Brief, August 1999) at 1; New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders (Report 96, 2000) at para 1.7.

91. Aboriginal Justice Advisory Committee, Policing Public Order: Offensive Language and Conduct, The Impact on Aboriginal People (1999).

92. Police v Shannon Thomas Dunn (Unreported, New South Wales, Dubbo Local Court, Magistrate Heilpern, 27 August 1999). See also Police v Lance Carr (Unreported, New South Wales, Wellington Local Court, Magistrate Heilpern, 8 June 2000).

93. Human Rights and Equal Opportunity Commission, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997) at 511-513.

94. Campbell at 58; C Cunneen, “Zero Tolerance Policing: How Will it Affect Indigenous Communities?” (March 1999) 4 Indigenous Law Bulletin 7; Liverani at 64; Hennessy at para 46 and 47.

95. Preliminary consultation, Reference Group (7 November 2000).

96. C(CP)A s 8.

97. See para 3.7.

98. See Drug Misuse and Trafficking Act 1985 (NSW) Part 2 Division 2.

99. Fleet v District Court [1999] NSWCA 363.

100. ALRC Report 84 at para 18.84-18.93 and Recommendation 207; Human Rights and Equal Opportunity Commission at 516-518.

101. New South Wales, Juvenile Justice Advisory Council, Aboriginal Over-representation and Discretionary Decisions in the NSW Juvenile Justice System (1995) at 22, 48.

102. Police v Shannon Thomas Dunn (Unreported, New South Wales, Dubbo Local Court, Magistrate Heilpern, 27 August 1999). See also Police v Lance Carr (Unreported, New South Wales, Wellington Local Court, Magistrate Heilpern, 8 June 2000).

103. Australia, Royal Commission into Aboriginal Deaths in Custody, National Report (1991-1992) at Recommendations 87 and 239 and para 30.2.6.

104. M Dennis, “The Bail Act and Young People” paper presented to Legal Aid Commission at Continuing Legal Education Conference, 2 December 2000 at 3.

105. Preliminary consultation, Reference Group (18 December 2000).

106. Preliminary consultation, Reference Group (18 December 2000); New South Wales, Parliament, Legislative Council, Standing Committee on Social Issues, Juvenile Justice in NSW (1992) at 74.

107. Preliminary consultation, Reference Group (18 December 2000). See Bail Act 1978 (NSW) s 19; Crimes Act 1900 (NSW) s 356N; C(CP)A s 13(1)(a)(iv).

108. Law Society of NSW, Representation Principles for Children’s Lawyers (October 2000).

109. Telephone conversation with S Currie, Senior Legal Officer, Law Society of NSW, 23 April 2001.

110. Bail Act 1978 (NSW) s 8.

111. Bail Act 1978 (NSW) s 8A and s 9.

112. Bail Act 1978 (NSW) s 8A.

113. See para 3.28.

114. Bail Act 1978 (NSW) s 17.

115. Bail Act 1978 (NSW) s 20; C(CP)A s 9.

116. Dennis at 7.

117. Bail Act 1978 (NSW) s 10.

118. Bail Act 1978 (NSW) s 11.

119. Preliminary consultation, Reference Group (18 December 2000).

120. Bail Act 1978 (NSW) s 32.

121. Juvenile Justice Advisory Council at 23-24.

122. Human Rights and Equal Opportunity Commission at 519-520.

123. Australian Institute of Criminology, Preliminary Submission at 1. See also para 3.120-3.130.

124. Bail Act 1978 (NSW) s 32(4).

125. ALRC Report 84 at Recommendation 228 and para 18.164 and 18.171. See the Bail Act 1978 (NSW) s 32(4). See also Royal Commission, Report at para 14.3.2, and Australia, Royal Commission into Aboriginal Deaths in Custody, Regional Report for New South Wales, Victoria and Tasmania at 352. See also para 3.150-3.154.

126. Positive Justice Centre, Preliminary Submission at 4; Preliminary consultation, Reference Group (7 November 2000). The over-representation of young people in state care in the sentencing process is discussed at para 3.150-3.154.

127. See para 3.136-3.143.

128. Positive Justice Centre, Preliminary Submission at 4; Preliminary consultation, Reference Group (7 November 2000).

129. Telephone call with B Manyen, Case Manager, Reiby Juvenile Detention Centre, 23 April 2001. See also S Schreiner, “The Law Has Lost its Marbles” (17 December 1999) Sydney Morning Herald at 17.

130. ALRC Report 84 Recommendation 228 and para 18.166.

131. Bail Act 1978 (NSW) s 34.

132. Bail Act 1978 (NSW) s 36, s 36A.

133. Bail Act 1978 (NSW) s 36 and 37.

134. Bail Act 1978 (NSW) s 37(2).

135. ALRC Report 84 at Recommendation 228 and para 18.159. See also Youth Justice Coalition, Kids In Justice – A Blueprint for the 90s (1990) at 284-285; Royal Commission Regional Report at 129.

136. Dennis.

137. See para 3.80.

138. Preliminary consultation, Reference Group (7 November 2000).

139. Bail Act 1978 (NSW) s 44(2).

140. Dennis at 4.

141. Bail Act 1978 (NSW) s 50.

142. Dennis at 4.

143. See para 3.57-3.59.

144. ALRC Report 84 at Recommendation 130, 230 and 231.

145. Children’s Court Act 1987 (NSW) Part 2. See also para 3.139-3.140.

146. Children and Young Person’s Legislation (Repeal and Amendment) Act 1998 (NSW) Schedule 1[6], which commenced operation on 18 December 2000: NSW Government Gazette No 159, 8 December 2000 at 12781.

147. Children’s Court Act 1987 (NSW) s 7, as amended by the Children and Young Person’s Legislation (Repeal and Amendment) Act 1998 (NSW) Schedule 1[2] and 1[7], which commenced operation on 18 December 2000: NSW Government Gazette No 159, 8 December 2000 at 12781.

148. Children And Young People Act 1999 (ACT) s 53, Children’s Court Act 1992 (Qld) s 4, Children and Young Persons Act 1989 (Vic) s 8, Children’s Court of Western Australia Act 1988 (WA) s 5.

149. Juvenile Justice Act 1996 (NT) s 14.

150. Youth Court Act 1993 (SA) s 4.

151. Youth Justice Act 1997 (Tas) s 159.

152. Criminal Justice Act 1991 (Eng).

153. Children, Young Persons and Their Families Act 1989 (NZ) s 272.

154. www.canada.justice.gc.ca/en/dept/pub/trib/PC.html#tp (as at 9 May 2001).

155. Children and Young Persons (Care and Protection) Act 1998 (NSW).

156. C(CP)A s 14(1)(a.

157. C(CP)A s 14(1)(b). This discretion operates in addition to the discretion at law to decline to record a conviction for any offence under s 556A of the Crimes Act 1900 (NSW).

158. C(CP)A s 14(2).

159. C(CP)A s 15(2) and Young Offenders Act 1997 (NSW) s 68(2)(c). See para 2.39-2.43.

160. C(CP)A s 15(1).

161. C(CP)A s 15(3).

162. ALRC Report 84 at para 19.117-19.127.

163. K Buttrum, “Juvenile Justice: What Works and What Doesn’t” in Australian Institute of Criminology, Juvenile Crime and Justice (1997) 63 at 64. See also J Braithwaite, Crime, Shame and Reintegration (Cambridge, University Press, 1989).

164. Criminal Records Act 1991 (NSW) s 9 and s 10.

165. C(CP)A s 11. 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.

166. C(CP)A s 11(2).

167. C(CP)A s 11(4).

168. C(CP)A s 11(4), 4A.

169. C(CP)A s 11(4).

170. C(CP)A s 11(4), (4B), (4C), (4D), (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.

171. Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) s 6 and Sch 4.66[1] and [2].

172. I Cram, “Publish and Damn” (1998) 148 New Law Journal at 1748. See para 3.86-3.91.

173. “Name and Shame Young Criminals Says Police Chief” Daily Telegraph (Friday 30 October 1998) at 7. But see K Gledhill, “The Naming of Juvenile Defendants” [1994] New Law Journal 365.

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

175. “Mandatory Sentences for Young Offenders” (Editorial) (1998) 22 Criminal Law Journal 201 at 201.

176. N Morgan, “Mandatory Sentences in Australia: Where Have we Been and Where are we Going?” (2000) 24 Criminal Law Journal 164.

177. Young Offenders Act 1994 (WA) s 124; Criminal Code (WA) s 401.

178. Juvenile Justice Act 1996 (NT) s 53AE-G.

179. The Northern Territory mandatory sentencing laws were amended in response to a Commonwealth Government Senate Committee Report, which found that the laws breached Australia’s international law obligations and recommended federal legislation to override them: Australia, Senate Legal and Constitutional References Committee, Inquiry into the Human Rights (Mandatory Sentencing and Juvenile Offenders) Bill 1999 (2000). The Senate inquiry arose from the introduction of the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 (Cth) into Federal Parliament. This bill sought to override the mandatory sentencing laws in their application to young offenders. For commentary on the impact of the amendments, see J Hardy, “Mandatory Sentencing in the Northern Territory – A Breach of Human Rights” (2000) 11 Public Law Review 172.

180. See N Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories” (1999) 22 University of NSW Law Journal 267 at 269.

181. See Morgan 1999 at 269; “Mandatory Sentences for Young Offenders” (Editorial) (1998) 22 Criminal Law Journal 201 at 201-202; Morgan 2000 at 171-174; R Hogg, “Mandatory Sentencing Laws and the Symbolic Politics of Law and Order” (1999) 22 University of NSW Law Journal 262 at 263; G Zdenkowski, “Mandatory Imprisonment of Property Offenders in the NT” (1999) 22 University of NSW Law Journal 302 at 305.

182. Morgan 2000 at 164-183.

183. Morgan 2000 at 177-178; Hogg at 264; Zdenkowski at 306.

184. G F K Santow, “Mandatory Sentencing: A Matter for the High Court?” (2000) 74 Australian Law Journal 298 at 298. But see Morgan 2000 at 180-182.

185. Australia, Senate Legal and Constitutional References Committee, Inquiry into the Human Rights (Mandatory Sentencing and Juvenile Offenders) Bill 1999 (2000); United Nations, Committee on the Rights of the Child, Concluding Observations: Australia (1997) [crc/c/15/Add.79; para 22]; United Nations, Committee on the Elimination of Racial Discrimination, Concluding Observations: Australia (2000) [CERD/C/56/Misc.42/rev.3, para 16]; M Flynn, “Mandatory Sentencing, International Law and the Howard/Burke Deal” (2000) 4(30) Indigenous Law Bulletin 7 at 8-9; “Mandatory Sentences for Young Offenders” (Editorial) (1998) 22 Criminal Law Journal 201 at 203-204; M Flynn, “International Law, Australian Criminal Law and Mandatory Sentencing: The Claims, the Reality and the Possibilities” (2000) 24 Criminal Law Journal 184 at 188-189; Zdenkowski at 311; J Blockland, “International Law Issues and the New NT Mandatory Sentencing Regime”, paper delivered to the NT Criminal Lawyers Association Sixth Biennial Conference, 22-26 June 1997; H Bayes, “Punishment is Blind: Mandatory Sentencing of Children in Western Australia and the Northern Territory” (1999) 22 University of NSW Law Journal 286 at 286; Santow at 299-300; M Jaskulski, “Mandatory Sentencing” (2000) 9(1) Human Rights Defender 2.

186. “Mandatory Sentences for Young Offenders” (Editorial) (1998) 22 Criminal Law Journal 201 at 202.

187. Morgan 2000 at 178; C Thomson, “Preventing Crime or ‘Warehousing’ the Underprivileged? Mandatory Sentencing in the NT” (1999-2000) 4(26) Indigenous Law Bulletin 4 at 5.

188. Morgan 2000 at 179.

189. See para 2.46-2.47.

190. ALRC Report 84 at Recommendation 242; Human Rights and Equal Opportunity Commission at 528-530 and Recommendation 53b.

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

192. R v Jurisic (1998) 45 NSWLR 209 at 216, 220-223, 229, (but see comments by Adams J on the limitations of assertions as to what public perceptions might be at 255-256), J J Spigelman, “Sentencing Guideline Judgements” (1999) 73 Australian Law Journal 876 at 878-881.

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

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

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

196. R v Jurisic (1998) 45 NSWLR 209. (Crimes Act 1900 (NSW) s 52A).

197. R v Henry [1999] NSWCCA 111. (Crimes Act 1900 (NSW) s 97).

198. R v Wong [1999] NSWCCA 420. (Customs Act 1901 (Cth) s 233B).

199. R v Ponfield [1999] NSWCCA 435. (Crimes Act 1900 (NSW) s 112(1)).

200. R v Thomson [2000] NSWCCA 309. 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 C(CP)A s 33B imposes the same requirement in relation to offences committed by young people.

201. Crimes (Sentencing Procedure) Act 1999 (NSW) s 36-42.

202 Crimes(Sentencing Procedure) Act 1999 (NSW) s 37.

203 Crimes(Sentencing Procedure) Act 1999 (NSW) s 36

204. Preliminary consultation, Reference Group (18 December 2000). See para 3.23.

205. (Unreported, NSWCCA, 30 October 1997), cited in R v Jurisic (1998) 45 NSWLR 209 at 228.

206. R v Wong [1999] NSWCCA 420 at para 140, referring to the Crimes Act 1914 (NSW) s 16A(2)(m).

207. R v Henry [1999] NSWCCA 111 at para 162.

208. R v Ponfield [1999] NSWCCA 435 at para 38-41.

209. Australian Institute of Criminology, “Restorative Justice and Conferencing in Australia” (Trends and Issues 186, 2001) at 2.

210. A Ashworth, “Restorative Justice and Victims’ Rights” [2000] (March) NZLJ 84 at 84 and 86; P Condliffe, “The Challenge of Conferencing: Moving the Goal Posts for Offenders, Victims and Litigants” [1998] Australian Dispute Resolution Journal 139 at 144-145.

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

212. 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 s a result of the C(CP)A s 33C.

213. C(CP)A s 24 and s 36.

214. New South Wales, Youth Justice Coalition, Kids In Justice (1990) at 157.

215. Children (Protection and Parental Responsibility) Act 1997 (NSW) s 7.

216. Children (Protection and Parental Responsibility) Act 1997 (NSW) s 8, s 9 and s 10. If the child does not comply with a supervision order, the court can impose any penalty available for the original offence.

217. R White “Regulating Youth Space” (1997) 1 Alternative Law Journal 31.

218. Children (Protection and Parental Responsibility) Act 1997 (NSW) s 11.

219. Juvenile Justice Advisory Council at 6; New South Wales, Department of Juvenile Justice, Juveniles in Detention: Issues of Over Representation (1995) at 7 and 13; New South Wales, Judicial Commission, Sentencing Disparity and the Ethnicity of Juvenile Offenders (1998) at 17. See also Cunneen at 7.

220. Royal Commission, Report at para 14.3.10-14.3.12. See also para 14.3.29-14.3.31.

221. Royal Commission, Regional Report at 352.

222. Royal Commission, Report at para 14.3.32-14.3.34; Juvenile Justice Advisory Council at 19-31.

223. Hennessy at para 7 and 41.

224. New South Wales, Bureau of Crime Statistics and Research, The Scope for Reducing Indigenous Imprisonment Rates (2001).

225. See para 2.46-2.47.

226. ALRC Report 84 at para 19.112; Human Rights and Equal Opportunity Commission at Recommendation 46b.

227. NSWLRC Report 96 at para 1.46.

228. NSWLRC Report 96 at para 1.6; Royal Commission, Regional Report at 353. For a recent examination of over representation of adult Aboriginal people in the New South Wales court system see Bureau of Crime Statistics and Research 2001.

229. Human Rights and Equal Opportunity Commission Recommendation 53b. The Royal Commission into Aboriginal Deaths in Custody also recommended that custodial sentences should be used only as a last resort: Royal Commission, Report at Recommendations 62 and 92. See para 3.28.

230. NSWLRC Report 96 at para 2.32-2.33.

231. NSWLRC Report 96 at Recommendation 1. Recognition of Aboriginal customary law was first recommended in 1986 by the Australian Law Reform Commission: Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws Summary Report (Report 31, 1986). This recommendation was subsequently endorsed by the Royal Commission into Aboriginal Deaths in Custody: Royal Commission, Report at Recommendation 219 and para 29.2.39-29.2.54, and the Australian Law Reform Commission and Human Rights and Equal Opportunity Commission: ALRC Report 84 at Recommendation 252.

232. NSWLRC Report 96 at para 3.9 and 3.24 and 3.30.

233. Young Offenders Act 1993 (SA) s 3(3)(e); Young Offenders Act 1994 (WA) s 46(2)(c).

234. NSWLRC Report 96 at para 4.1 and 4.4.

235. NSWLRC Report 96 at para 1.51.

236. NSWLRC Report 96 at para 7.5.

237. NSWLRC Report 96 at para 7.8.

238. NSWLRC Report 96 at para 7.20-7.41.

239. Queensland, Department of Justice and Attorney General and Department of Aboriginal and Torres Strait Islander Policy and Development, Aboriginal English in the Courts (2000).

240. New South Wales, Judicial Commission, Sentencing Disparity and the Ethnicity of Juvenile Offenders (1998).

241. The research also examined sentences imposed on young Aboriginal and Torres Strait Islander people: see para 3.120-3.128.

242. Judicial Commission at 18.

243. Judicial Commission at 17.

244. Department of Juvenile Justice at 7 and 13.

245. Juvenile Justice Advisory Council at 33-69; Hennessy at para 44 and 70.

246. Australian Law Reform Commission and Human Rights and Equal Opportunity Commission at para 19.4, 19.100; S Schreiner, “The Law Has Lost its Marbles” (17 December 1999) Sydney Morning Herald at 17; J Nicholson, Preliminary Submission.

247. Australian Law Reform Commission and Human Rights and Equal Opportunity Commission at para 19.100.

248. Australian Law Reform Commission and Human Rights and Equal Opportunity Commission at para 19.99-19.100, 2.119-2.122; New South Wales, Ombudsman, Inquiry into Juvenile Detention Centres (1996) at vol 1 at 71; Human Rights and Equal Opportunity Commission at 535-6; NSWLRC Report 96 at para 1.46, 5.12 and 5.50. See also Royal Commission, Report at para 14.3.35-14.3.38.

249. See para 3.82.

250. Juvenile Justice Advisory Council at 33. See also Australian Law Reform Commission and Human Rights and Equal Opportunity Commission at para 19.99; Hennessy at para 70.

251. See para 3.22-3.29.

252. J Nicholson, Preliminary Submission.

253. See para 3.82.

254. Australian Law Reform Commission and Human Rights and Equal Opportunity Commission at para 19.4, 19.99, 20.117-20.118; NSW Ombudsman at para 8.9-8.25.

255. New South Wales, Ombudsman, Inquiry into Juvenile Detention Centres (1996) at para 8.9-8.25; J Nicholson, Preliminary Submission.

256. New South Wales, Ombudsman, Inquiry into Juvenile Detention Centres (1996) at para 8.9-8.15.

257. S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the NSW Prison Population: An Empirical Study I (Sydney, 1998) at 48.

258. New South Wales Law Reform Commission, Intellectual Disability and the Criminal Justice System (Research Report 4, 1993).

259. New South Wales, Attorney General’s Department, Crime Prevention Division, Juvenile Crime in New South Wales Report: Statistical Profile of Juvenile Offenders (1996).

260. New South Wales Law Reform Commission, People With an Intellectual Disability and the Criminal Justice System (Report 80, 1996) at 27.

261. New South Wales Law Reform Commission, People With an Intellectual Disability and the Criminal Justice System (Report 80, 1996).

262. In September 1998, Attorney General’s Department of NSW established committee to consider the Commission’s Report and the needs of people with an intellectual disability within the criminal justice system. The Committee is currently considering these recommendations.

263. NSWLRC Report 80 Recommendation 1 and 52-54.

264. NSWLRC Report 80 Recommendation 5 and 6. See also Australian Law Reform Commission and Human Rights and Equal Opportunity Commission at Recommendation 217 and para 18.122-18.124.

265. S Hayes, The Importance of Identifying Intellectual Disability Amongst Juvenile Victims and Offenders, paper presented at the conference Legal Aid Commission of NSW – Juvenile Justice Conference (Dubbo, 2 December 2000) at 4.

266. New South Wales, Department of Community Services, Annual Report 1999-2000 at 39.

267. NSW Cabinet Office, Draft Youth Policy Statement (1996). See also K Carrington, Offending Girls (Allen and Unwin, Sydney, 1993); United Kingdom, Select Committee on Health, Children Looked After by Local Authorities (Report 2, 1998).

268. Community Services Commission, The Drift of Children in Care into the Juvenile Justice System (1996) at 7-8.

269. Positive Justice Centre, Preliminary Submission.

270. Positive Justice Centre, Preliminary Submission at 2.

271. Positive Justice Centre, Preliminary Submission at 2.

272. Crimes Act 1900 (NSW) s 356 and s 356N.