There is no doubt that youthful offending has occurred throughout recorded history. Youth offenders are grouped in an individual division of the criminal justice system, known as the Juvenile Justice System. Juvenile Justice is an extensive term, encompassing numerous aspects of the criminal justice system, from criminology, to crime prevention strategies, punishment and rehabilitation. According to the Children (Criminal Proceedings) Act 1987 (NSW), juvenile justice refers to the system of criminal law which deals with offenders between the ages of ten and eighteen.
This group can then be subcategorised into offences committed by children (aged ten to fifteen) and young people (aged sixteen to eighteen). Both of these subcategories of individuals in the juvenile justice system are said to hold criminal responsibility. But those subjects under the age of ten, according to the Children (Criminal Proceedings) Act 1987 (NSW), hold no criminal responsibility, due to the common law operation of doli incapx1.
The subsequent report will outline a variety of facets of Juvenile Justice as a present criminal justice issue within Australia, with an emphasis on diversionary schemes, the Children’s Court and Detention Centers (juvenile justice centers and juvenile correction centers).
Furthermore, the issue will be considered within the jurisdiction of New South Wales. The reason for such a jurisdiction restriction to consider the issue only within New South Wales is because Juvenile Justice Law differs in each state and territory due to it being part of the residual powers of the state, granted under the principle of the division of power – which is in full operation within Australia.
Preceding the presentation of the issue, an extensive assessment of the issue of Juvenile Justice in relation to justice, equality and fairness will be made, drawing upon various case material, legislation and media sources, to draw an accurate conclusion on the effectiveness of the legal system in dealing with the matters that surround Juvenile Justice.
Breaking the Myths: the reality (Facts and Figures) of Juvenile Justice in New South Wales The usual picture painted of juvenile crime is aptly drawn in the following comment made to the Australian Law Reform Commission when it was examining the sentencing of young offenders: “Notions of a ‘juvenile crime wave’ about to engulf the community have wide popular currency. It seems to be commonly believed that juveniles commit a disproportionately large number of serious personal and property offences, or that new legislation and programs lead to an increase in juvenile crime, or that society is getting soft on its delinquents, and that tougher institutions and harsher penalties would help curb juvenile crime.”2
In contrast to the picture created by many media stories and thus society’s general view on juveniles, it can easily be shown how inaccurate the portrayal may be, when drawing upon statistical evidence and data. One of the crimes most associated with juveniles is motor vehicle theft. Motor vehicle theft has been declining since 2000, with 7618 vehicles stolen in November 2003 being the lowest figure recorded since figures were first collected in 1995. Further, despite poplar images, in 2002 – 03 only 29 per cent of motor vehicle theft offenders were juveniles and this rate was lower than data collected in 1995 – 96, when 36 percent of motor vehicle theft offenders were juveniles.
This is not the only example which exposes the inaccuracy of both the media and society’s illustration of juvenile crime. The rate of juvenile offending is decreasing, from 4092 per 100,000 juveniles in 1995 – 96 to 3130 in 2002–03. The rate of offence dropped twenty per cent since 1995, while the female rate increased slightly to 2000-01, and then dropped 28 per cent by 2003. The most common juvenile offences are other theft (this category includes offences such as pick pocketing, bag snatching, stealing and bike theft), unlawful entry with intent, assault, and motor vehicle theft. Rates for all of these, except assault, declined between 1995-96 and 2002-03 and the rate for other theft decreased by 38 per cent in this period. 3 See Appendix 1 and 2 for full statistical graphs and tabulated evidence.
The NSW Bureau of Crime Statistics and Research publishes extensive figures for criminal cases in the Children’s Court. These figures do not include cases dealt with by diversionary schemes (which will discussed shortly). In 2002, the Children’s Court had 8546 juveniles appear before it on criminal charges, and cases were proven against 5398 of them. The six most common offences are pictured in Appendix 3, 4 and 5.
New South Wales Juvenile Justice Regulatory Legislation
The main statutes regulating the operation of Juvenile Justice in Australia are: Children (Criminal Proceedings) Act 1987 (NSW): This act sets out court procedures for trying children. It was amended by the Children (Criminal Proceedings) Amendment (Adult Detainees) Act 2002 (NSW) to have people convicted of an indictable offence transferred to adult correction facilities upon turning eighteen. Children (Detention Centres) Act 1987 (NSW): This act sets out the way in which juvenile justice centres are administered and processes encompassing the supervision of juvenile detainees Children (Community Service Orders) Act 1987 (NSW): This out outlines supervisory processes of juvenile offenders placed on community service orders Children’s Court Act 1987 (NSW): Sets out the constitution and jurisdiction of the Children’s Court Children (Protection and Parental Responsibility) Act 1997 (NSW): This act explicitly has made parents responsible for the past and future actions of their children.
It has also granted police to have powers to remove young people from public places in local government ‘operational’ areas Young Offenders Act 1997 (NSW): An Act to establish procedures for dealing with children who commit certain offences through the use of youth justice conferences, cautions and warnings instead of court proceedings; and for other purposes 4. Crimes Amendment (Detention After Arrest) Act 1997 (NSW): amends the Crimes Act 1900 (NSW) to give police powers to detain young people after arrest for up to four hours Juvenile Offenders Legislation Amendment Act 2004 (NSW): This act established a new form of prison (‘juvenile correctional centre’) for young people sixteen years and older. Amendments were made to the Children (Criminal Proceedings) Act 1987 (NSW), Children (Detention Centres) act 1987 (NSW) and the Crimes (Administration of Sentences) Act 1999 (NSW).
The statues concerning juvenile justice have been created according to international law principles, or amended, to ratify various international conventions of which Australia is a party. Children are recognised internationally as to be treated differently from adults in the criminal justice system, acknowledging that children progress through a number of developmental stages as part of the process of becoming adults. Such international law which recognises the need to treat juveniles differently comprise of the: Convention on the Rights of the Child (CROC)
United Nations Standard Minimum Rules for the Administration of Juvenile Justice United Nations Guidelines for the Prevention of Juvenile Delinquency UN Rules for the Protection of Juveniles Deprived of their Liberty A separate juvenile justice system provides safeguards to protect children and young people, based on international rules for the administration of juvenile justice. In NSW this separate juvenile justice system is administered by the Department of Juvenile Justice, whose mission statement is to “provide services and opportunities for juvenile offenders to meet their responsibilities and lead a life free of further offending”5.
It is clear that there are a variety of statutes regulating the operation of juvenile justice in New South Wales. Of particular importance is the Young Offenders Act 1997 (NSW). This act came into effect on April 6th 1998. The objects of this act aim to “establish a scheme that provides an alternative process to court proceedings for dealing with children who commit certain offences through the use of youth justice conferences, cautions and warnings”6. That is, change the way the criminal justice system deals with young offenders by diverting young offender’s away from the court and juvenile justice centres, to alternative forms of intervention (see appendix six for full objects of the act and appendix seven for the sentencing of juveniles; an illustration of when diversion can occur).
The Young Offenders Act 1997 (NSW) gives a hierarchical scheme of alternatives to court hearings and detention; these schemes from the lowest level of the hierarchy to the highest level of the hierarchy are: Warnings directed by the NSW Police
Formal cautions directed by the NSW Police
Youth Justice Conferences directed by the Department of Juvenile Justice
These diversions from the court and juvenile justice centres can be employed for the vast majority of offences committed by young people. However, in Section 8 of the Young Offenders Act 1997 (NSW) the offences which are covered/not covered by the statute are outlined. Offences that cause the death of a person, indecent assault, aggravated indecent assault, acts of indecency (see appendix eight for definition and scope), aggravated acts of indecency, sexual intercourse (or attempt of) with a child between ten and sixteen years, attempts or acts of bestiality, serious drug offences and motor vehicle offences where the young person is old enough to hold a license or permit under the Motor Traffic Act 1909 (NSW) are not covered by the Young Offenders Act 1997 (NSW)7 and are therefore dealt with by the court system.
Under the Young Offenders Act police officers have the discretion to give young offenders warnings for minor summary offences that do not involve violence or related issues. An example of such a minor summary offence is the use of foul language in public. A warning can be issued at any time or place and does not require that the young person admit the offence, although, the police must record the time, place and nature of the offence and the offenders name and gender. The investigating official must “take steps to ensure that the child understands the purpose, nature and effect of the warning”8.
Under the Young Offenders Act police have the discretion to issue a formal caution for more serious offences covered under the Young Offenders Act. The young offender must admit the offence (after being given the opportunity for legal advice) and consent to being cautioned. If a young person chooses not to be cautioned, they will be dealt with by a court. When making the decision to issue a caution, the police officer must consider: (a) the seriousness of the offence,
(b) the degree of violence involved in the offence,
(c) the harm caused to any victim,
(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act, (e) any other
matter the police officer thinks appropriate in the circumstances. 9 A maximum of three cautions can be given to any one person. A number of individuals, on request by the offender, can be present when the caution is given, including: (a) the child and the person giving the caution,
(b) a person responsible for the child,
(c) members of the child’s family or extended family,
(d) an adult chosen by the child,
(e) a respected member of the community chosen by the child, if the person arranging the caution is of the opinion that it is appropriate in the circumstances to do so, (f) an interpreter,
(g) if the child has a communication or cognitive disability, an appropriately skilled person, (h) if the child is under care, a social worker or other health professional, (i) if the child is subject to probation or a community service order, the child’s supervising officer, (j) if the investigating official is not giving the caution, the investigating official. 10 As a result of a caution, the young person can be asked to write an apology to any victim(s) of the offence, but no other conditions or penalties may be imposed on the child.
Youth Justice Conferences
The aim of the scheme of Youth Justice Conferences, empowered by the Young Offenders Act, is to encourage young people to take responsibility for their actions and to discourage them from reoffending. This process allows issues to be addressed in a non-threatening environment and enables the youth to gain access to appropriate services, such as counselling, to help them resolve the underlying problems. The offender must consent to the conference, and must be given a chance for legal advice before consenting to the conference. The decision to hold a conference can be made by the Director of Public Prosecutions or upon court order. The decision to hold a conference is based on the following factors: (a) the seriousness of the offence,
(b) the degree of violence involved in the offence,
(c) the harm caused to any victim,
(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act, (e) any other matter the Director or court thinks appropriate in the circumstances. 11 The Department of Juvenile Justice is responsible for the operation of youth justice conference in NSW. Youth justice conferencing offices are based mostly in Juvenile Justice Community Offices throughout NSW. Those usually present at the conference can include, the conference convenor, the young offender, the parents/guardians of the offender, other members of the offenders family, the victim (if they choose to attend), support people of the victim and a police officer.
The result of a Youth Justice Conference is the creation of an “outcome plan”, a realistic and achievable plan agreed on by the offender and victim. Each outcome plan is different, and may include the following: (a) the making of an oral or written apology, or both, to any victim, (b) the making of reparation to any victim or the community, (c) participation by the child in an appropriate program, (d) the taking of actions directed towards the reintegration of the child into the community. 12 If a young person satisfactorily completes an outcome plan, no further action can be taken against him or her for that offence. If this is not the case, the administrator returns the matter to the referring body which then deals with the young person as if the conference had never occurred.
Children’s Court: Sentencing Options
Young offenders are referred to the children’s court [empowered under Children’s Court Act 1987 (NSW) and Children (Criminal Proceedings) Act 1987(NSW)] for the most serious indictable offences, such as murder, manslaughter, sexual offences, domestic violence, drug trafficking and any other offences that result in the death of a person (i.e. all offences which are not covered under the Young Offenders Act). The court has limited sentencing options, set out in a hierarchy of available penalties in order of severity. Sentencing hierarchies have been introduced in order to guide the court in selecting an appropriate penalty and to provide a greater degree of consistency in sentencing. Some statutes prevent the court from imposing a sentence at one level unless it is satisfied that a sentence at a lower level of the hierarchy is inappropriate. Such requirements have been designed to require magistrates to justify the use of more severe penalties, to promote the use of non-custodial options, and to reinforce the use of detention as a sentence of last resort.
The sanctions available to the Children’s Court in NSW, in order of decreasing severity, include the following: detention in a juvenile justice centre or juvenile correction facility suspended detention community service order, attendance centre order probation (usually up to two years) or other supervised order fine or compensation and good behavior bond fine or compensation referral to a youth conferencing scheme good behavior bond undertaking to observe certain conditions dismissal of charges with or without either a reprimand or a conviction recorded The objectives of sentencing, defined as, retribution, deterrence, rehabilitation and incapacitation have a certain difficulty in being met when sentencing juveniles. Instead, sentencing aims to meet the following objectives: Responsibility; intent, excuse, impairment, motive. This mitigating factor of responsibility is changed when applied to young offenders, due to the notion of reduced responsibility because of age Proportionality; sanction applied by the court needs to take account of the seriousness of the crime and responsibility of the offender Equality; consistency in punishment.
Frugality; sentence imposed should be the least restrictive that is appropriate Rehabilitation; the court must take into account the chances of rehabilitation for the offender As well as an outline of the options available when sentencing and the objectives that must be achieved when sentencing, the key issue that remains to be examined is the actual use of these sentencing options. Appendix Nine tabulates the various court outcomes from the Children’s Court in 2000. Noteworthy is the “other proven outcomes” category, comprising a total of 15.1 per cent of the outcomes. This category includes such outcomes as apprehended violence orders, compensation and committals to higher courts. The next major category is dismissed with a caution, comprising 13.8 per cent of the court outcomes. The offence categories where dismissals are most frequently used are public order offences and drug offences. Most notable is the use of detention, the sixth most frequently used outcome, 9.8 per cent of the time.
Detention Centers: Juvenile Justice Centers and Juvenile Correction Centres In some jurisdictions there are certain legislative requirements when the court is considering sentencing a young person to a period of institutionalisation. Generally speaking, the court must be satisfied that no other sentencing option is appropriate, that is, the offender has not responded to the different preventive and rehabilitation methods available or the offender has committed a serious indictable offence and no other sentencing option is feasible. It is clear that the use of detention is meant to be a “last resort” measure.
The detention of young offenders is driven by several competing rationales, including deterrence, retribution, community safety and rehabilitation. The relative emphasis placed upon these will shape the overall direction of detention-centre policy and have a major impact on the nature of the incarceration experience. Many counseling and education programs are available in Juvenile Justice Centers and Juvenile Correction Centers, like, Kairong Juvenile Correction Facility and Reiby Juvenile Justice Centre in New South Wales. It is expected that these young offenders will be able to exit the system with the same skills and vocational opportunities as any other youth, as they offer many services to incarcerated offenders, such as: drug and alcohol counseling services
health programs and services
independent living programs
arts and crafts courses
cultural programs; special services for Aboriginal offenders legal services
It is clear that detention facilities, as required by legislation, provide a secure, stable environment with an accent on rehabilitation and
reintegration into the community. Importance is placed on upholding the rights and dignity of juvenile offenders and maintaining family links.
Juvenile Justice: Fairness, Equality and Justice
The three key legal notions of fairness, equality and justice are fundamental when assessing any issue within the Australian legal system. It is said that these three notions are the speculative cornerstones of the entire legal system, with each decision (whether they be statute law or common law decisions, decisions by government departments or decisions made by law enforcers) made within the legal system, hinging on fairness, equality and justice. It is fundamental, when assessing the issue of juvenile justice as a current criminal justice issue, to consider fairness, equality and justice, independently, even though these three notions, in operation, are interdependent. The following is an assessment of juvenile justice in relation to the specific issues which have been outlined in this report, thus far. These specific facets of juvenile justice are its relevant regulatory legislation, diversionary schemes, the Children’s Court and Detention Centers.
Many individuals argue that equality before the law is the most fundamental and important aspect of our judicial system. Equality before the law means that all people who come before courts are treated equally regardless of their individual situation; this is formal equality before the law. But equality also suggests that everyone is treated the same and to achieve equal treatment, mitigating circumstances must be taken into account during the legal process, so that equality of outcomes can be achieved.
The statues regulating juvenile justice all take into account the age of criminal responsibility before the law, and the fact that being a juvenile does in fact reduce responsibility before the law. Because of this, formal equality for juveniles can be achieved, as all juveniles are considered to have reduced criminal responsibility due to the fact that they are indeed juveniles.
The imposing of formal equality, which is clearly defined in the various statutes regulating juvenile justice, does not occur during the operation of the statutes by law enforcement officials, such as police officers. It is evident that minority racial groups can be discriminated against at the law enforcement level, that is, due to the police. During the documentary, Insight: Juvenile Justice, produced by SBS Australia and screened by SBS Australia on March 3rd 2000, which was documented by reporter, Vivan Ultman, raises many issues in regards to the treatment of ethnic minorities within the juvenile justice system. Chris Cueen a criminologist in New South Wales believes there is a clear reason for the over representation of minority groups in Juvenile Justice Centers, stating “the clear answer to that is the most marginalized kids in society are the ones that end up locked up, it’s a reflection on unemployment and ethnicity”.
Former magistrate of the Children’s Court in NSW, Rod Blackmore, states that “they (ethnic minority juveniles) aren’t being dealt with more harshly by the courts, or by the system, it’s rather a gate keeping problem, whether they’ve been diverted in the first place by the police or they are quickly being charged and arrested by the police”. Because of the lack of diversion by the police, who do not utilize diversionary schemes empowered under the Young Offenders Act 1997 (NSW), such as an on the spot warning or a more serious formal caution, a clear inequality has resulted – leaving more ethnic minorities, such as indigenous Australians, in juvenile correction facilities. This overrepresentation, specifically to indigenous Australians, is clearly illustrated in the statistical data comprised by the Australian Institute of Health and Welfare, shown in Appendix Ten.
Yet, this over representation could be avoided if the police force took active steps to ensure equality in treating indigenous Australians. Over policing in areas of high indigenous population could be reduced to decrease the tensions between indigenous juveniles and the police. In an article written by Liz Gooch, titled “Aboriginal Prison Rates Increasing” in The Age on the 12th of July 2005, the focus is on indigenous juveniles who are, as quoted, “20 times more likely to be detained than other Australians”. Not only this, such unequal treatment “could affect their future significantly, possibly leading to further convictions later in life”.
Yet, of importance, is the inequality of ethnic minorities within the community prior to entering the Juvenile Justice System. In New South Wales, groups of indigenous Australians and those from non-English speaking backgrounds, are portrayed by the media as being disadvantaged and typical “offenders”. Whether or not this true, this has a strong bearing on the factors which lead individuals, like these minority groups, to commit crimes. The result of negative public image can often lead to the justification of groups such as indigenous Australians, to commit crimes. But, active steps have been taken to ensure equality of all juvenile offenders who appear before the Children’s Court, as all juveniles have access to the Legal Aid Youth Hotline, which gives free advice to juvenile’s at all stages in the juvenile justice system.
Not only this, during diversionary schemes – such as cautions and Youth Conferencing – young offenders may elect individuals to be present at such schemes, such as interpreters, to ensure equality of opportunity for all young offenders. Equality of opportunity is further encouraged through the use of various educational and vocational training programs during incarceration periods. This ensures that when juveniles exist their incarceration sentence, they are at equal (or near equal) status with other individuals, as if they had not been through the process.
There is also indirect discrimination created by the notion of equality before the law. An Australian Law Reform Commission and Human Rights and Equal Opportunity Commission join report, “Seen and Heard: Priority for Children in the legal Process”13, identified a number of problem areas with respect to young people. One of the most important problems was their relationship with police, the inadequacy of courtroom facilities and inadequate training for criminal justice personnel in dealing with young people. Although this report was created some time ago, improvement is a process of continuity, which may never be fully achieved.
Fairness refers to the legitimate and proper conduct in the performance of an act or duty. In regards to Juvenile Justice there are many instances when ‘unfair’ treatment in the eyes of the law may occur. One such example of
this is the provision of legal advice upon detainment of a juvenile. In the past, when a child asked to speak to a lawyer, police had sometimes given the young offender a telephone book and told them to look one up, often outside business hours. In the case of R v Clifford Cortez14 the court found that this was not fair practice and that the custody manager must inform the child about the free Legal Aid Youth Hotline and help them to access it. In this case, Justice Dowd created common law precedent, when he stated “Young people aged 17 rarely have a solicitor and rarely have a contact number for one available. It is as absurd as suggesting they might contact their architect or dietary advisory.
The whole intention of the hotline is that young people would know that is free, that it is available, and that they would be able to obtain advice there and then. Failure to make it available is a clear breach of the Act and regulation but, more importantly, in breach of the requirement of fairness to the young person”. It is clear that in an effort to allow fairness during the juvenile justice process, the right to legal advice must be upheld.
Furthermore, in the case R v Phung and Hunyh15 the importance of the appropriate support person was enforced. In this case, seventeen year old Johnny Phung was suspected of committing an armed robbery and fatal shooting. Police arrested him and conducted two interviews while he was in custody. The these interviews, Phung made admissions about his involvement with the offences. Phung, was not granted an appropriate support person during his questionings. The support person in the first interview with Detective Senior Constable Quigg was Phung’s 21 year old cousin, who did not have strong English (and too was intimidated by the police).
The second support person was a Salvation Army Officer who was a stranger to Phung and did not have any opportunity to talk to him privately. When Phung was charged and brought to Court, justice wood refused to admit the interview transcripts, finding that the police had acted improperly by not providing an appropriate support person for Phung. Justice Wood stated “I would exclude the evidence, since I am of the view that the apparent failure of those concerned to secure compliance with the regime gives rise to an unfairness, and outweighs the probative value of the admissions obtained, powerful as they might have been”. It is clear that in the efforts to promote fairness in the juvenile justice system, an appropriate support person must be present during the police detainment.
Particular unfairness can result in the Children’s Court Sentencing Process, with the most important consideration in sentencing juveniles being rehabilitation. This was illustrated in a case that went to the New South Wales Court of Criminal Appeal, R v GDP16. P was a 15 year old boy who, with two friends, caused extensive damage to a car yard and construction company in the western suburbs of Sydney, to the value of more than $1.5 million. P was arrested by the police and made admissions in two records of the interview. P’s charge could have been determined in the children’s court; however, the court used its discretion to commit P to stand trial in the District Court. P pleaded guilty and was sentenced to 12 month’s detention. A successful appeal was lodged in the Court of Criminal Appeal and the sentence was reduced to 12 months’ probation. Justice Matthews, in her judgement, made a number of points concerning the principles of sentencing young people. She noted that P was a first offender and had received a favourable court report, school report and psychiatric report.
He had rehabilitated himself to a substantial degree since the original offence by not reoffending and by returning to school. Justice Matthews found that the original judge who had imposed the custodial sentence had been wrong on two accounts. Although the sentence of 12 months’ detention was within the range of appropriate penalties, it did not take into account the youth of the offender or his or her prospect of rehabilitation. Not only this, the sentencing judge had failed to distinguish the minor role played by P in the offences, he had the same sentence as one co-offender but had played a substantially less role. Other cases since GDP have also been significant in upholding the importance of rehabilitation, including R v Wilkie17, R v Vitros18 and R v ALH19. It is clear that in order to produce a fair outcome for each individual, mitigating circumstances must be taken into account as well any other particular circumstances which surround the case.
Examples such as these are extensive, with numerous cases of unfairness during process due to inadequacy of complying with various specifications, outlined in statutes such as the Children (Criminal Proceedings) Act 1987
(NSW) and the Children’s Court Act 1987 (NSW).
Justice is a subjective term depending on the context it is used in. Everyone has an individual idea on what they personally believe justice is. Justice takes into account the notions of equality and fairness, as well as notions of access, equity and human rights.
Criminal law is said to operate to right the wrongs of individuals in the community, on behalf of the state. It is a matter of public law, where the state prosecution acts on behalf of all members of society to give the most appropriate retribution for the individuals wrong to society. Yet, Youth Conferences as a diversionary scheme are questioned in their ability to achieve justice for the individual affected by the crime, and thus justice for society. In 2003, 1250 Youth Justice Conferences were run as alternatives to the Children’s Court. Through a youth conference, an individual experiences shame in front of the eyes of intimates and must experience a form of repentance in front of these intimates. It is said to achieve justice for young offenders as it is not excessively confrontational and produces an achievable outcome plan, agreed upon by both the offender and the victim. But, the question remains as to if this is in actuality an achievement of justice.
Conferences are considered by many to be a progressive approach to juvenile justice because they recognise the rights of young offenders, their victims, and both their families and community to decide what to do about the damage caused by the offender’s actions. They also provide a forum for discussing and addressing many of the complex issues associated with young peoples offending. In a documentary, titled “Joe’s Conference: what happens at a youth justice conference”, produced by the Redfern Legal Centre Publishing, in 2000, depicts the process of youth justice conferences as it follows the story of Joe, a youth offender who stole a car, preceded to destroy the car and was then caught by the police, and sent to a youth justice conference. At the conclusion of the documentary, Joe’s agreed outcome plan includes community service and undertaking vocational training at a certified mechanic’s work shop. No compensation is rewarded for the victim, who has lost his car. Although agreed upon by both the offender and the victim, justice, in the eyes of many, may have not been achieved.
Yet, contrary to this opinion, in an article featured on the Bureau of Crime Statistics and Research, NSW, titled “Re-offending by young people cautioned or conferenced”, released on the 3rd of January 2007, found that “Juveniles who receive a caution or a youth justice conference are less likely to re-offend than those who are referred to the Children’s Court”. Using statistics given by the Australian Bureau of Statistics, the article states that “Forty-two per cent of those cautioned and 58 per cent of those dealt with at a youth justice conference had a further offence proved against them in the Children’s Court over the five-year follow-up period” and “only a small proportion of those cautioned (5.2 per cent) or conferenced (10.8 per cent) committed an offence serious enough to warrant a custodial sentence within five years of being cautioned or conferenced”. It is clear that Youth Conferencing can achieve justice, because re-offending rates are decreased.
Not only this, justice is achieved for individuals who are able to confront the offender and express their opinions. This is depicted in the article titled “Justice in the cell with no bars”, written by Jock Cheetham, which appeared in The Sydney Morning Herald on the 29th of October, 2004. Journalist, Jock Cheetham, observes the Youth Conference, on condition that “no one except the convener is identified”. The Youth Justice Conference was held to create a successful outcome plan for the offender, who is known as ‘Dave’, for offences larceny, vandalism and driving under the influence of alcohol. This article allows the understanding of how Youth Justice Conferences do in fact achieve justice, as it states how the victims felt as a result of the Conference, when the victims and Dave agreed that the offender, Dave “pay $500 and do 20 hours community work at a Police and Citizens Youth Club”. One of the victims, known as “Jacquline” states, “But I was still a bit angry at the end, I still feel he got off a bit easily. It was good because we felt it was over and done with. It doesn’t wipe it all away, but you feel part of the process.”
It is clear that Youth Justice Conferences do achieve justice for victims and allow rehabilitation, and thus justice, for offenders. Not only this, by diverting cases away from the Children’s Court, a much greater resource efficiency is gained and greater access for all young offenders is promoting, furthering the justice provided. Juvenile Justice Centers and other correctional detention facilities, do not achieve justice. Chris Cureen, a criminologist, states “the most you can say about imprisonment is it takes a young person out of circulation for a period of time and so they are no as likely to commit an offence while they’re behind bars, but in terms of deterrence they don’t work, they don’t stop other kids from committing offences and they certainly don’t stop those same kids from committing offences when they get out”. Juvenile Justice Centers are said to “teach crime” so that young offenders are more skilful criminals upon release – in essence, Criminologist Edwin H. Sutherland, theory of differential association.
It is easiest and most pleasing to society to put youthful offenders behind bars, but perhaps justice is not achieved by doing this, as it hardens the young offender and fosters further criminal behaviour. Yet, the question remains as to why incarceration facilities offer skills for children to earn a good living upon release. Chris Cueen, states, “One of the most profound ironies out of something like this is that somewhere like Kariong (the highest security juvenile justice centre in NSW) has the best employment opportunities, so you lock someone up in sort of the maximum security environment, and there at the end point you begin to five them skills or education that should’ve been offered at the very start of the process”. Juvenile Justice Centers offer educational programs to rehabilitate young offenders, but too, foster crime. It is dependant on each individual as to whether the correctional facility is beneficial or detrimental to the offender. Furthermore, laws regulating Juvenile Justice uphold international human rights standards, such as the UN Conventions on the Rights of the Child (CROC).
The statues regulating juvenile justice provide for non-discrimination (article 4), the best interests of the child (article 3), survival and development (article 6) and participation in decision making (article 12). Justice is achieved for young offenders as statues regulating offenders protect ratified human rights conventions. Not only this, justice for juvenile offenders is achieved as it is an offence to publish or broadcast the name or other identifying characteristics of a young person appearing before or convicted by the children’s court. This achieves justice as it avoids future stigmatisation of the young offender and also by ensuring maximum opportunities for personal growth and development. Conclusion
Overall juvenile justice law, as assessed in the previous section, promotes fairness, equality and justice. The common law aims for rehabilitation of offenders, but will not hide from more serious sentencing options, such as detention. If this is continually maintained as the driving force behind the Juvenile Justice System, the pinnacle point of the effectiveness will be reached. For the system to be most effective, a balance must be achieved between the offender and sentencing options, remaining in proportion. Although great improvements are needed in areas of dealing with minority offenders to achieve formal equality before the law, as well as further strict enforcement of principles set out in Juvenile Justice regulatory statues to achieve fairness, total justice, and the utmost effectiveness of the system will be reached.
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McCarthy. J, Suter. K, Watt. R, Legal Studies 2, Macmillan, South Yarra, 2000
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Fiona Cochrane, Youth Express: Is Justice For all?, Marcom Projects, 1993
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Accessed via http://beta.austlii.edu.au/
R v Clifford Cortez (Unreported Supreme Court, 3 October 2002)
R v Phung and Huynh  NSWSC 115 revised – 15/05/2001
R v GDP (1991) 53 A Crim R 112
R v Wilkie, NSW Court of Criminal Appeal, unreported 2 July 1992
R v Vitros, NSW Court of Criminal Appeal, unreported 3 September 1993
R v ALH, NSW Court of Criminal Appeal, unreported 26 May 1995
Note: Cases in the NSW Children’s Court are heard in camera, and could thus not be used in the report
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