Application of the criminal law to juvenile offenders (pages 2-11)

• A child under 10 years cannot be guilty of a criminal offence in New South Wales, pursuant to s 5 of the Children (Criminal Proceedings) Act 1987 . Children who are aged from 10 to less than 14 years are presumed to lack the criminal intent to commit an offence, according to the common law doctrine of doli incapax.
• Most criminal charges against children are heard in the Children’s Court, but indictable offences may be referred to the District Court or Supreme Court for trial or sentence when the Children’s Court determines that the charge may not be properly disposed of summarily. Serious children’s indictable offences must be heard by the District Court or Supreme Court.
• Children who are convicted of offences other than serious children’s indictable offences may be sentenced under the children’s penalties outlined by s 33 of the Children (Criminal Proceedings) Act 1987 . The most severe of these is a ‘control order’ to detain the child in a juvenile detention centre for up to a maximum of two years. Children who are convicted of indictable offences may be sentenced under s 33 or ‘ according to law’, making them liable to the same penalties as adults. Serious children’s indictable offences must be dealt with according to law.
• The protections for juvenile offenders provided by the Children (Criminal Proceedings) Act 1987 include prohibiting the publication or broadcasting of the name of a child connected to criminal proceedings, and allowing certain offences committed by children to not be recorded as a conviction.

• The Young Offenders Act 1997 was introduced by the Carr Government and had commenced in full by 6 April 1998. It formally recognised warnings, cautions, and conferences as alternatives to conventional court proceedings for children who commit crimes other than those resulting in the death of a person, serious drug offences, various sexual offences, domestic violence, traffic offences, and strictly indictable offences.
• Police officers may issue warnings to children who commit summary offences which are covered by the Act and do not involve violence. A warning cannot be accompanied by conditions or additional sanctions.
• Cautions are available for any offence that is covered by the Act if the child admits the offence, agrees to be cautioned, and has not previously been cautioned on three occasions. An investigating police officer, a specialist youth officer (a type of police officer), a respected member of the community, or a court may deliver a caution. The only condition that can be attached to a caution is a written apology.
• An investigating police officer who decides that a warning or a caution is not appropriate may refer the matter to a specialist youth officer to consider whether a youth justice conference should be held. Courts can refer matters directly to a conference administrator.
• Conferences are conducted by a conference convenor and the offender must be in attendance. Other attendees may include members of the offender’s family, the offender’s lawyer, police officers, community and school representatives, the victim and their support persons. The participants discuss an ‘outcome plan’ which may involve the offender apologising, making reparation to the victim, receiving counselling, and completing a rehabilitation or educational program.

• Statistics indicate that the diversionary goals of the Young Offenders Act 1997 are being achieved. Only 18.5% of juvenile offenders were dealt with by the courts in the 2001-2002 financial year. In the same period, 1482 young people participated in 1353 youth justice conferences.
• Numerous evaluations of the Young Offenders Act 1997 have been conducted, with most focusing on the conferencing provisions. Studies published in 2000 and 2002 by the Bureau of Crime Statistics and Research found that the majority of offenders and victims were satisfied with the conferencing process and outcomes, and that the reoffending rates of those young people who attended conferences were significantly lower than for those who went to court.
• However, some studies have raised concerns about compliance with the legal obligations of the Act, such as informing young people of their right to obtain legal advice, and the necessity for an admission by the young person to be made in the presence of their parent or another designated adult. The statutory review of the Young Offenders Act 1997 , which is expected to report by the end of 2003, will present further evidence on the performance of the Act.

• Mentoring is a concept that matches a disadvantaged young person with a suitable adult who gives them guidance and support. The Mentoring for Young Offenders pilot program was established in 1999 in the Parramatta area of Sydney and the Coffs Harbour/Clarence region. The program was offered to young offenders who had received a police caution or attended a youth justice conference under the Young Offenders Act 1997 . The evaluation report in 2002 found that the most significant barrier was attracting mentors, but the young offenders who participated experienced benefits including reduced offending, better family relationships, and higher self esteem.
• The model for the New South Wales pilot was derived from the United States of America, where mentoring has an extensive history. An initiative specifically targeted at crime prevention is the Juvenile Mentoring Program (JUMP), which is administered by the Office of Juvenile Justice and Delinquency Prevention in the Federal Department of Justice. Between 1994 and 2002, over 9200 youths were mentored in 203 JUMP projects in 49 States and Territories.
• A national audit of mentoring programs around Australia is currently being undertaken by the Commonwealth Attorney General’s Department and is investigating the success of mentoring as a crime prevention strategy.

• The Youth Drug Court pilot program began on 31 July 2000 and is being conducted in a range of police Local Area Commands in Sydney and the Blue Mountains. The program targets young people who are charged with drug and/or alcohol-related crime and are ineligible to receive a caution or conference under the Young Offenders Act 1997.
• A team of representatives from the Department of Juvenile Justice, NSW Health, Department of Community Services, and Department of Education and Training assesses each applicant and tailors a Program Plan to their individual health and welfare needs. Sentencing is deferred for up to 12 months and the young person is released on bail, conditional upon complying with the program. Participants report back to the Magistrate on a regular basis and receive clinical treatment.
• By February 2003, the Youth Drug Court had produced 25 graduates. The program is continuing to take referrals, and the full evaluation of the pilot is scheduled to be completed by the end of 2003.

• The Carr Government introduced the Young Offenders Amendment Act 2002 , which commenced on 15 November 2002, to tighten some of the provisions of the Young Offenders Act 1997 . Among the changes were: imposing a limit of three times that a young offender can be cautioned; requiring the investigating police officer to be consulted about whether a matter should be referred for a conference; and giving victims who attend conferences the power to veto the outcome plan.
• During the campaign for the State election of March 2003, several parties have referred to diversionary options in their policies. The Labor Party’s policies on crime, youth justice, and drugs continue to emphasise rehabilitation programs, including diversionary programs.
• The Coalition’s juvenile justice policy advocates a limit of one caution or warning for each young offender, and recording the names of juveniles who have received a warning or caution for behaviour associated with gang activity on a ‘gangs watch list’ for the use of police. By contrast, the Greens oppose limitations on the number of warnings or cautions, and recommend establishing a network of youth advocates, who could be accessed by young people facing a caution or a conference.