The Children’s Court of NSW: 2019

Judge Peter Johnstone, President of the Children’s Court of NSW, NSW Bar Association CPD Conference, 30 March 2019, Sydney Hilton, Sydney[1]

[5-0180] Introduction

The Children’s Court of New South Wales is a unique specialist court that deals predominantly with youth crime and the care and protection of children and young persons. It is established and governed by the Children’s Court Act 1987 and derives its jurisdiction principally from the Children’s (Criminal Proceedings) Act 1987, the Young Offenders Act 1997, and the Children and Young Persons (Care and Protection) Act 1998. It also has the youth parole jurisdiction, pursuant to the Children (Detention Centres) Act 1987.

The Children’s Court of NSW is one of the oldest children’s courts in the world. It is a specially created stand-alone jurisdiction whose origins can be traced back to 1850.

Historically, the criminal law did not distinguish between children and adults, and children were subject to the same laws and same punishments as adults and were dealt with in adult courts.

Indeed there were a number of children under 18 years transported to NSW in the First Fleet of 1788 as convicts.

The precise number of convicts transported is unclear, but among the 750–780 convicts, there were 34 children under 14 years of age and some 72 young persons aged 15–19.[2]

The first special provision in NSW recognising the need to treat children differently was the Juvenile Offender Act 1850.[3] This legislation was enacted to provide speedier trials and to address the “evils of long imprisonment” of children.

Then, in 1866, further reforms were introduced, including the Reformatory Schools Act 1866,[4] which provided for the establishment of reformatory schools as an alternative to prison, and the Destitute Children Act 1866,[5] under which public and private “industrial schools” were established, to which vagrant and destitute children could be sent.[6]

Since those early beginnings there was a steady, albeit piecemeal, progression of reform that increasingly recognised and addressed the need for children to be treated differently and separately from adults in the criminal justice system.

Ultimately, in 1905, specialist, discrete Children’s Courts were established at Sydney, Newcastle, Parramatta, Burwood and Broken Hill. Two “Special Magistrates” appointed from the ranks of existing magistrates commenced sitting at Ormond House, Paddington in October 1905.

Since then, the idea of a separate specialist jurisdiction to deal with children has prospered and developed until the present time.

Over that time the legislation that governs the way in which the Children’s Court deals with cases has become more complex but the fundamental principle upon which the court was established remains the same: that children should be dealt with differently, and separately from adults.

Today, the Children’s Court of NSW consists of a President, 15 specialist Children’s Magistrates and 10 Children’s Registrars. Children’s Magistrates are situated in seven locations across the state: Parramatta, Surry Hills, Lismore, Woy Woy, Broadmeadow, Campbelltown and Port Kembla.

Children’s Court circuits are conducted on a regular basis in various other regions: the Mid North Coast, the Upper Hunter, the Riverina and the near Western Region. It regularly assists the Local Court in remote locations, under the Country Assistance Protocol, by sending the President or a Children’s Magistrate to hear cases of two or more days’ duration. Accordingly, the Children’s Court hears and disposes of the majority of cases in NSW involving youth crime, or the care and protection of children.

The President of the Children’s Court is a District Court Judge who has judicial leadership and other, statutory responsibilities as prescribed by the Children’s Court Act 1997, which include the administration of the court and the arrangement of sittings and circuits; the appointment of Children’s Magistrates in consultation with the Chief Magistrate; convening meetings of Children’s Magistrates and overseeing their training; convening and chairing meetings of the Advisory Committee which is responsible for providing advice to the Attorney General and Minister for Family and Community Services; and conferring regularly with community groups and social agencies on matters involving children and the court.

Youth crime and the Children’s Court of NSW

 

The Children’s Court is specifically mandated to give priority to the rehabilitation of children, such that considerations of retribution, deterrence and punishment are secondary considerations in the sentencing process.

Section 6 Children’s (Criminal Proceedings) Act 1987 specifically provides that the following principles are to be applied in children’s proceedings:

(a) 

that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) 

that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) 

that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) 

that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) 

that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) 

that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) 

that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparations for their actions,

(h) 

that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

The philosophy under which the Children’s Court currently operates in its youth crime jurisdiction is based on what I describe as the four pillars of an enlightened youth justice approach. Those four pillars are: prevention, early intervention, diversion, and rehabilitation.

I propose to deal with issues relevant to each of these pillars later, but first I wish to address some preliminary considerations.

Approaches to youth offending

Oversimplification of the causes of youth offending arises in part out of a tension between welfare and justice approaches to crime reduction and prevention. This involves a tug of war between those who believe young people require help and guidance and those who believe young people are given too many chances and should be treated as accountable and autonomous adults.

The justice approach is informed by deterrence theory, which seeks to hold children to account for their actions. Specifically, offending is the result of the offender’s choice and they are responsible for their actions and deserving of punishment.[7] The welfare approach, on the other hand, focuses on behaviour change and crime reduction through interventions to address the underlying social causes of offending.

Specifically, the welfare approach posits the young person’s behaviour as deriving generally from factors outside of the young person’s control — such as their family environment, their health, or other external factors.

The research that has attracted my attention indicates that progressive juvenile justice systems benefit from a combination of primary, secondary and tertiary strategies to address the discrete risk factors contributing to juvenile crime. Primary crime prevention strategies aim to prevent offending before it begins. Secondary and tertiary crime prevention is more concerned with reduction in offending and the avoidance of re-offending, topics I will address more fully below.

Why children should be treated differently

It is appropriate that I address why it is that I have been persuaded that children should be treated differently, and separately, within the criminal justice system. What follows is a brief excursus on the considerations that I see as determinative.

I have grouped these considerations into three broad categories: philosophical, scientific and pragmatic.

The philosophical basis for treating children differently, or perhaps more correctly, the anthropological basis, is a wider topic.

I will content myself here to a reference to the Preamble to the United Nations’ Convention on the Rights of the Child 1989,[8] and the following quote from the great humanitarian, Nelson Mandela:

There can be no keener revelation of a society’s soul than the way in which it treats its children.[9]

The second category of the considerations that require a different approach to offending children is in fact based in science.

The growing recognition of the relevance of “brain science” has driven the need for policy and legislation to “match” the research.

This issue was addressed in detail by the Principal Youth Court Judge of New Zealand, Judge Andrew Becroft, as he then was, in a comprehensive paper delivered in 2014 at the Australasian Youth Justice Conference in Canberra.[10]

He pointed out that the first decade of this century has been called the “decade of the teenage brain”, an expression coined by the Brainwave Trust Aotearoa, a not-for-profit organisation working in the field of adolescent brain development.[11]

In recent years, a wealth of neurobiological data from studies of Western adolescents has emerged, suggesting that biological maturation of the brain begins (and continues) much later in life than was generally believed. Many neuroimaging studies mapping changes in specific regions of the brain have shown that the frontal lobes (which are responsible for “higher” functions such as planning, reasoning, judgement and impulse control) only fully mature well into the 20s (some even suggest that they are not fully developed until halfway through the third decade of life). Brain science research also shows that when a young person’s emotions are aroused, or peers are present, the ability to impose regulatory control over risky behaviour is diminished.[12]

Judge Becroft argued that these findings have implications for youth justice policy and will affect our perceptions of young people’s culpability for their actions and the establishment of an appropriate age of criminal responsibility.

They also affect our understanding of “what works” with young offenders and what our expectations should be with respect to various responses and interventions … Finally, they change any presumption that young people are simply “mini-adults” and that the same responses to offending should be used for both adults and young people …

A key challenge for Australasian Courts is how to make use of this growing body of irrefutable research …

It is a constant challenge for those involved in youth justice to keep learning more about adolescent brain development, and to take this into account.[13]

Research also demonstrates that there is a range of factors (biological, psychological and social) that make young offenders different from adult offenders, which justify unique responses to youth crime.

A paper entitled “What Makes Juvenile Offenders Different from Adult Offenders?” published by Kelly Richards has particularly attracted my interest and attention.[14] The central theme of Richards’s paper is that “most juveniles will ‘grow out’ of offending and adopt law-abiding lifestyles as they mature”.[15]

The paper goes on to argue that a range of factors, including lack of maturity, the propensity to take risks and a susceptibility to peer influence, combined often with intellectual disability, mental illness and victimisation, operate to increase the risk of contact of young people with the criminal justice system. These factors, combined with the unique capacity of young people to be rehabilitated, can require intensive and often expensive interventions.

The paper postulates that crime is committed disproportionately by young people. Persons aged 15–19 years are more likely to be processed by police for the commission of a crime than are members of any other population group. This does not mean, however, that young people are responsible for the majority of recorded crime.

On the contrary, police data indicates that 10–17 year olds comprise a minority of all offenders who come into contact with police. This is primarily because offending peaks in late adolescence, when young people are aged 18–19 years.

Thus, rates of offending peak in late adolescence and decline in early adulthood.

Although most young people grow out of crime, they do so at different rates. A small proportion of youths continue offending well into adulthood. This small “core” has repeated contact with the criminal justice system and is responsible for a disproportionate amount of crime.

The paper goes on to demonstrate that young people commit certain types of offence disproportionately (graffiti, vandalism, shoplifting and fare evasion). Conversely, very serious offences (such as homicide and sexual offences) are less frequently committed by young people, as they are incompatible with developmental characteristics and life circumstances.

On the whole, young people are more frequently apprehended in relation to offences against property than offences against the person. Young people are more likely than adults to come to the attention of police, for a variety of reasons, including:

  • they are usually less experienced at committing offences

  • they tend to commit offences in groups and to commit their offences close to where they live

  • they often commit offences in public areas, such as shopping centres, or on public transport.

Further, by comparison with adults, young people tend to commit offences that are attention seeking, public and gregarious, and episodic, unplanned and opportunistic.

The paper next looks in detail at the characteristics of youth offending and how they differ from adult offending.

For present purposes, it is sufficient to list some of them:

  • risk-taking and peer influence

  • changes due to pubertal maturation

  • immature competence in decision-making

  • engagement in negative activity despite understanding the risks involved (such as drug and alcohol use, unsafe sexual activity, dangerous driving, and other delinquent behaviour).

This is all food for thought, but my view is that our job is to do our best to help young people through these problem years, until they mature.

Finally, under the heading of justification for treating young offenders differently, I will refer to a growing body of evidence that incarceration of children and young persons is both less effective and more expensive than community-based programs, without any increase in the risk to the community.

Most young persons in the juvenile justice system can be adequately supervised in community-based programs or with individualised services without compromising public safety. Studies have shown that incarceration is no more effective than probation or community-based sanctions in reducing criminality.[16]

No experience is more predictive of future adult difficulty than confinement in a juvenile facility.[17]

Some will form friendships with more experienced offenders and be influenced to commit further offences as a result. This is often referred to as the “contamination” effect.

A further important consideration is the “inoculation” effect. If the young person goes into custody for a day and is then released one of the outcomes is that some will conclude that being in custody wasn't all that bad, especially in comparison to their circumstances in the community. If this happens on a few occasions, even for slightly longer periods of time, the deterrent effect of going into custody diminishes greatly.[18]

Children who have been incarcerated are more prone to further imprisonment. Recidivism studies in the United States show consistently that 50–70% of youths released from juvenile correctional facilities are re-arrested within 2–3 years.[19]

Children who have been incarcerated achieve less educationally, work less and for lower wages, fail more frequently to form enduring families, experience more chronic health problems (including addiction), from those who have not been confined.[20]

Confinement all but precludes healthy psychological and social development.[21] Incarceration actually interrupts and delays the normal pattern of “ageing-out” discussed above.[22]

Prevention

An enlightened society seeks to tackle youth crime at its very roots.

Thus, the primary focus must be on the situations that will impact upon a young person’s likelihood of committing crime, to prevent offending before it begins.[23]

The risk factors for youth offending are well established in research and involve: family “dysfunction”, such as family violence, parental unemployment and parental criminal history; child abuse and neglect,[24] including removal and placement in out-of-home care; physical, intellectual or learning disabilities; and mental health issues.

Poverty is the largest common denominator for juvenile offending.[25]

Alcohol and other drug issues frequently play a predominant role in these factors.

Thus, juvenile offenders are more likely to have been the subject of socio-economic disadvantage, neglect,[26] and residential instability; to have lived in crowded dwellings;[27] and to have experienced interrupted or sporadic participation in formal education.

Situational crime prevention focuses on altering the physical environment to reduce such indicators for crime.[28] We must continue to investigate and appropriately address the root causes of juvenile offending. This requires that we are accurately informed about what causes youth crime and that we base our knowledge and understanding from credible sources rather than sensational moral panic.

In my view, schooling is a major factor in the reduction of youth offending.

I think everyone would generally accept as a universal truth that education of our youth is a critically important aspect of an enlightened society: that it is the pathway of social inequality and a mechanism for breaking the cycle of disadvantage, and creates opportunities for advancement and betterment.

I have had a number of concerns that have emanated from observations of the youth justice system over the last seven years, including such factors as:

  • the high number of children who commit crimes who are not attending school. We estimate this to be some 40% of the young people coming before our court

  • the fact that there is a very high proportion of children who go into detention who are assessed as having delayed educational development, or have deficiencies in literacy skills and numeracy skills

  • the effectiveness of the system of schooling orders and the achievement of therapeutic outcomes, as to which we have been engaged in a dialogue with the Department of Education over the past few years

  • the incidence of cross-over between care and crime and statistics such as the high rate of non-attendance at school by children in residential out-of-home care

  • reports of high levels of non-attendance at some country schools, take Walgett as an example, where the attendance rate was reported to be less than 50%.

As a result of a series of submissions to government and specific representations to the Department of Education, a number of initiatives have been implemented in consultation with Juvenile Justice, DFaCS, Education and Justice Health to address some of these problems. These include a “wraparound service solution” called “A Place to Go”, the main features of which are:

  • a court-based multidisciplinary team that includes DFaCS liaison officers, Education liaison officers and an additional Justice Health Clinician working with existing Juvenile Justice caseworkers and Children’s Court Assistance Scheme workers

  • a DFaCS caseworker working directly with police at Penrith police station to identify and find alternative solutions to young persons entering custody

  • accommodation (4 beds) providing a short to medium term (up to 12 weeks) accommodation option to avoid young people remaining in custody

  • an Education Coordinator to work more intensively with a smaller cohort of young people from the Penrith Police Area Command to pursue solutions to education barriers

  • additional multidisciplinary health workers in the Nepean Blue Mountains area to take referrals directly from the project to provide health solutions

  • integrated case panels to monitor progress of young people who have agreed to be part of project.

Another initiative has been the utilisation of Children’s Registrars to convene compulsory schooling order conferences under s 22C Education Act 1990. This initiative is designed to encourage meaningful participation by parents and children in the conference process through facilitation by a neutral third party. It is also hoped that the specialised mediation skills of Children’s Registrars will promote a holistic approach to conferences in considering support needed to improve the attendance of children’s attendance at school.

Other prevention issues include health (particularly mental health), employment and vocational training, drug and alcohol issues, family violence issues and the availability of community facilities for young people. In this regard, I welcome the new website recently launched by the Advocate for Children and Young People (ACYP) called “Our Local” which was designed and created by kids to find local opportunities, activities and services, particularly in regional and remote areas.[29]

Early intervention and diversion

I turn, therefore to discuss secondary and tertiary crime prevention strategies concerned with reduction in offending and the avoidance of re-offending.

Secondary crime prevention aims to target at risk young people:

They may also target the reduction or avoidance of crime before it reaches the notice of the authorities or becomes more serious.[30]

Secondary strategies may consist of early intervention youth programs, or other programs designed to mobilise communities:

to develop interventions once young people have well established police records, incomplete schooling, and/or problematic peer groups is likely to be very difficult.[31]

Tertiary crime prevention seeks to reduce re-offending by “interventiing in the lives of known offenders”.[32]

Tertiary prevention strategies include other programs for early intervention and for diversion into community-based programs.

much more attention needs to be paid to deciding how to conceptualise and respond to young people in trouble with the law, and to their families, communities and victims, and how to listen and respond to what these people tell us about their lives and their aspirations. We can and should be able to create a humane system that is committed to human rights norms and practice, and one which recognises the human right of young people in trouble with the law to be treated with dignity and respect and to be provided with the conditions in which they can grow and flourish and be happy, contributing and well-rounded adults — surely our responsibility as adults, and an aspiration we must have for all our children.[33]

One of the most effective ways of reducing youth offending is to begin prevention efforts as early as possible and to intervene aggressively with those who are already offending:

Of all known interventions to reduce juvenile delinquency, preventative interventions that focus on child delinquency will probably take the largest “bite” out of crime.

“The earlier the better” is a key theme in establishing interventions to prevent child delinquency, whether these interventions focus on the individual child, the home and family, or the school and community.[34]

Early intervention programmes in NSW include the Youth on Track program and the Family Investment Model.

The Youth on Track scheme has a multi-agency approach, with the involvement of the Department of Education, the Department of Family and Community Services and the Department of Health, in addition to non-government organisations (NGO’s).

Using this collaborative approach, services on the ground — such as police and schools — identify at risk youth and refer them to the Youth on Track program.

An NGO case manager is allocated responsibility for working with the young person to address criminogenic factors in their lives and provide access to specialist services that will provide ongoing support to the young person.

This model recognises that young people who come into contact with the criminal justice system at a young age are more likely to offend for longer, more frequently and to receive a custodial sentence. An evaluation of the social outcomes of this program clearly demonstrates the value of this approach and provides strong evidence of “what works” in interventions for children and young people.

The Youth on Track program is a step in the right direction for an enlightened juvenile justice system. The program is consistent with the principles enunciated in the United Nations’ Convention on the Rights of the Child, specifically that children and young people must be given the opportunity to express their views and to have them taken into account in matters affecting them.[35]

Similarly, the Family Investment Model provides a “one stop shop” to help disadvantaged families with complex and entrenched needs in Dubbo and Kempsey. This model is a two-year pilot which began in late 2016 which aims to reduce exposure to the criminal justice system and human services agencies by addressing underlying needs and factors. The Family Investment Model identifies families with complex needs who require support across multiple government agencies, and develops a plan for the whole family with a particular focus on children. Through the provision of programs and supports, the Family Investment Model is able to help families reduce immediate risks and address long-term issues which may impact on a child or young person’s risk of involvement with the justice system.

Through addressing criminogenic risks and needs at an early stage, these programs and models are able to provide an effective, wraparound service to children, young people and their families in the community, and contribute to successful diversion away from problematic behaviour and involvement with the justice system.

Another early intervention consideration arises from the reality that children and young people in need of care and protection are often the same children and young people who commit offences. There is an unequivocal correlation between a history of care and protection interventions and future criminal offending.

The nexus between care and crime has been persuasively articulated by several commentators.

In her paper, “The link between child maltreatment and adolescent offending: systems neglect of adolescents”, distinguished Developmental Psychologist, Dr Judy Cashmore AO, states that the link between child maltreatment (abuse and neglect) and adolescent offending is well established and that there is now “significant evidence” that the timing of this maltreatment matters.[36]

The Young Offenders Act 1997

Important diversionary processes in NSW are provided for under the Young Offenders Act 1997 (YOA).

In NSW a child or young person’s first contact with the youth justice system will usually occur through coming into contact with police. At this point, police are, in appropriate circumstances, able to utilise the YOA which is a statutory embodiment of early intervention and diversion. Under the YOA, police are provided with the diversionary option of a warning, caution or Youth Justice Conference (YJC).

I will not traverse the details of warnings and cautions as they are fairly self-explanatory. However, I will provide a brief explanation of YJCs and how this option brings the individual child, family and community together to prevent future offending.

At a YJC, a young offender is with his or her family, and is brought face to face with the victim, and the victim’s support person, to hear about the harm caused by their offending and to take accountability for their actions. At the conference, the participants agree on a suitable outcome.

The outcome may include an apology, reasonable reparation to the victim and steps to reintegrate the young person into the community.

A YJC is a valuable alternative to court as it is not an impersonal or exclusive process where the young person and the victim are adversaries. Rather, responsibility for dealing with the young offender is partially transferred from the State to the young person, their family, the victim and the wider community.

A similar option exists in New Zealand, entitled Family Group Conferences (FGCs).

The statutory process of FGCs is similar to that of YJCs, however the process allows for responses tailored to specific cultural needs to allow for stronger engagement with the process.

The Children’s Court believes there is scope for increased use of the diversionary mechanisms provided for under the YOA.[37]

In examining the effectiveness of the YOA as a diversionary mechanism, it is necessary to consider the impact of the requirement for a child or young person to admit the offence in order for police to be able to issue a caution or a warning. Requiring an admission of guilt may discourage some young offenders from participating and from being diverted from the court system.

In New Zealand the young person is required to “not deny” the offence in order to have access to a diversionary mechanism called a family group conference. The Royal Commission into the Protection and Detention of Children in the Northern Territory recommended that the Police General Order be amended to remove the requirement that a child or young person admit to committing an offence, and instead require that the young person “does not deny” the offence.[38]

s 32 Mental Health (Forensic Provisions) Act 1990

The Mental Health (Forensic Provisions) Act 1990[39] (MH(FP) Act) enables the Children’s Court to divert mentally disordered young people from the criminal justice system. Judicial officers undertake a balancing exercise wherein they consider whether using this diversionary mechanism will produce better outcomes for the individual and the community.[40]

Parliamentary debates from 22 March 1990 clearly indicate that the intent of the legislature in enacting s 32 MH(FP) Act was to divert those with mental illnesses or developmental disabilities out of the criminal justice system, away from punishment and into rehabilitation.

This therapeutic response allows judicial officers to dismiss the charges and discharge the young person into the care of a responsible person or, on the condition that they obtain mental health assessment or treatment. Young people appearing before the criminal jurisdiction of the Children’s Court face a number of challenging circumstances. Mental illness and developmental disabilities are widespread and, according to Professor McGorry et al:

Up to one in four young people are likely to be suffering from a mental health problem, most commonly substance misuse or dependency, depression or anxiety disorders or combinations of these … There is also some evidence that the prevalence may have risen in decades.[41]

The difficulty encountered by the Children’s Court when considering the option of making an order under s 32 MH(FP) Act is two pronged.

First, there is a general reluctance to use s 32, as while magistrates appreciate the importance of diversion for young people with a mental illness or developmental disability, many believe that the lack of enforceability of this option detracts from its intent. As Gotsis states:

the issue of enforceability is central to the ability of s 32 orders to provide an effective therapeutic jurisprudence mechanism for offenders with a mental disorder.[42]

The second, but related issue, is that many Children’s Court magistrates consider six months to be too short a period to properly address mental health issues or to provide adequate treatment and supports for young people with a developmental disability.

A possible option available to magistrates is to adjourn the proceedings before orders are made under s 32(3). Justice Adams in Mantell v Molyneux [2006] NSWSC 955 at [43] made it clear that after the magistrate has determined the s 32(1)(b) issue, the proceedings can be adjourned before orders are made under s 32(3):

At the same time, the general power to adjourn proceedings must permit a magistrate to do so before making any decision under s 31(1). I note also that it appears from the terms of s 32(3) that the magistrate is not bound to make an order dismissing the charge although, having decided that the conditions of s 32(1) are satisfied and having decided not to take action under s 32(2), it seems inevitable that an order must be made under s 32(3). I mention these matters simply to demonstrate that it might have been open to the learned magistrate to have adjourned the proceedings in exercise of His Honour’s general power to see how the appellant was coping with the regime then in place pursuant to the bond.

Rehabilitation

In NSW, the paramountcy of rehabilitation, so far as children are concerned, is provided for in s 6 Children (Criminal Proceedings) Act 1987 (the CCPA).[43]

The modern common law recognises that rehabilitation is the primary consideration in sentencing children. In her judgment in R v GDP (1991) 53 A Crim R 112 at 116 Mathews J (Gleeson CJ and Samuels JA agreeing) adopted comments in R v Wilcox (unrep, NSWSC, 15/8/79):

in the case of a youthful offender ... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation.

In the matter of R v TVC [2002] NSWCCA 325 Sperling J at [13] cited Wood J in R v Hoai Vinh Tran [1999] NSWCCA 109 at [9]:

In coming to that conclusion his Honour made reference to the well-known principle that when courts are required to sentence a young offender, considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender’s rehabilitation ... That is a sensible principle to which full effect should be given in appropriate cases. It can have particular relevance where an offender is assessed as being at the crossroads between a life of criminality and a law abiding existence.

As I mentioned earlier, there are a number of psychosocial and developmental processes that separate young people from adults. A wealth of research now exists establishing that adolescence is a period of rapid change, particularly in the areas of the brain associated with response inhibition, the identification of risks and rewards and the regulation of emotions.[44] Neurobiological research undertaken over the last 16 years in particular, reveals the pre-frontal cortex of the brain (the frontal lobe) is the last part of the human brain to develop.

The frontal lobe is that part of the brain associated with identifying and assessing risk, managing emotion, controlling impulses and understanding consequences.

The research has shown that there is a link between decision making and memory. Many of the children and young people who engage in offending behaviour have experienced traumas that activate their memory, resulting in a response that impacts upon their ability to make appropriate decisions.[45] However, just as harm and trauma accumulate over time, so does a child or young person’s capacity to change in response to treatment.[46] Consequently, whilst environmental factors such as parents, carers and teachers can hinder development, environmental factors also have the ability to facilitate change and successful development. It is essential, therefore, that our response to offending behaviour combines therapeutic interventions with traditional criminal justice approaches.

As Professor Kenneth Nunn so aptly put it:

Containment without treatment is custodial futility without any progress except maturation and chance encounters.

Treatment without containment is powerless without any capacity to prevent flight away from help.

Treatment and containment without education is recovery without skills to live in the real world.[47]

Diversion and rehabilitation are examples of therapeutic interventions that seek to address the complex constellation of risk factors related to offending by children and young people.

In NSW in 2007–2008, $103.3 million was spent on juvenile detention.[48] Diverting funds to bolster community and social supports is logical for a number of reasons. In particular, the money spent on imprisonment could be spent in a way that prevents crime and increases community cohesion, as communities are involved in identifying the causes and solutions to crime.

The concept also reinforces the philosophy of detention as the last resort as a core principle for children and young people.

Finally, I wish to address Aboriginal over-representation in the justice system. This problem is most starkly manifested in the Children’s Court. In 2015 the number of Aboriginal children in detention was over 60% of the overall number of children in Juvenile Justice facilities across the State,[49] and the number of families from whom Aboriginal children were being removed was in excess of 40%.[50]

In response, the Children’s Court launched the Youth Koori Court (YKC) at Parramatta four years ago, on 6 February 2015, on the initiative of the court itself, utilising existing resources and processes, without the need for legislative change. The Children’s Court identified that the court itself had a role in relation to the distrust and disconnection experienced by the Aboriginal community from the criminal justice system. Although disconnection with the court process is not uncommon for young people regardless of the cultural identity, the perception of bias and the lack of connection to the process have an historical context for the indigenous community.

It was considered that this needed to be addressed if the legal process was to have any significant deterrent or diversionary effect. This was achieved by involving Aboriginal elders and respected persons in the process.

The Youth Koori Court (YKC) is an excellent example of a holistic process which involves interventions and collaboration amongst professionals to identify relevant risk factors which impact on a young person’s continued involvement with the justice system, and actively monitors the holistic interventions implemented to address these risk factors.

The process involves an application of the deferred sentencing model under s 33(1)(c2) Children (Criminal Proceedings) Act 1987 as well as an understanding of and respect for Aboriginal culture. Mediation principles and practices are employed in a conference process to identify issues of concern and develop an Action and Support Plan for the young person to focus on for three to six months prior to sentence.

The success of the YKC at Parramatta has resulted in its expansion to Surry Hills, where it commenced sitting in February 2019 following a ceremonial sitting attended by the Attorney-General and others.

Currently, the Children’s Court does not have a program similar to the Magistrate’s Early Referral Into Treatment (MERIT) program. A similar program, tailored to the needs of young people would provide this court with greater opportunities to effectively deal with young offenders who have drug and alcohol issues that need addressing.

The Children’s Court believes that there are a number of aspects of the design of the MERIT program that would not be suitable for young people, however with appropriate modification, the process may prove highly rewarding.

Conclusion

In NSW, the youth justice system is moving in the right direction. There has been a dramatic reduction in the past seven years in the number of children in detention, resulting in the closure of three of the nine Youth Detention Centres in this State.

In addition to the children in detention, there are a further 2,000 or so children under supervision; that is, they are serving sentences involving suspended sentences or community service; or they are under good behaviour bonds, probation orders or on extended bail (Griffith remand). They are supervised by caseworkers from Juvenile Justice. Most of them are undergoing drug and alcohol programs, occupational training, anger management courses, or other rehabilitation programs.

Finally, I wish to briefly mention a number of other important initiatives that are proceeding that impact on the administration of youth justice in this State. These include:

(1) 

The report of the Legislative Assembly Law and Safety Committee Inquiry into the adequacy of youth diversionary programs in NSW, the recommendations of which are currently being considered by various government departments and agencies, in conjunction with the Final Report of the Royal Commission into the Protection and Detention of Children in the Northern Territory (2017).

(2) 

The Justice Reinvestment program operating at Bourke (Maranguka) and Cowra.

(3) 

The work of the NSW Bar Association Joint Working Party on the over-representation of Indigenous people in the NSW Criminal Justice System.



[1]  This is the first part of the presentation. The second part of the presentation on proceedings relating to the care and protection of children and young persons in NSW can be found in Care and protection matters — background material at [1-0210].

[2]  State Library of NSW Research Guides, “First Fleet Convicts” at www.sl.nsw.gov.au, accessed 19 June 2019.

[3]  14 Vic No II, 1850.

[4]  30 Vic No IV, 1866.

[5]  30 Vic No II, 1866 (otherwise known as the Industrial Schools Act 1866).

[6]  R Blackmore, “History of children’s legislation in New South Wales — the Children’s Court”, extracted from R Blackmore, The Children’s Court and community welfare in NSW, Longman Professional, 1989.

[7]  A Chrzanowski and R Wallis, “Understanding the Youth Justice System”, in A Stewart, T Allard and S Dennison (eds), Evidence based policy and practice in youth justice, The Federation Press, Sydney, 2011.

[8]  Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, in accordance with article 49, at www.ohchr.org/en/professionalinterest/pages/crc.aspx, accessed 3 April 2019.

[9]  N Mandela, Nelson Mandela Children’s Fund launch, 8 May 1995, Pretoria, South Africa.

[10]  A Becroft, “‘From little things, big things grow’ — emerging youth justice themes in the South Pacific”, Australasian Youth Justice Conference, Changing Trajectories of Offending and Reoffending, 20–22 May 2013, Canberra.

[11]  See www.brainwave.org.nz, accessed 3 April 2019.

[12]  Becroft, above n 10, at p 5.

[13]  ibid at pp 5–6.

[14]  K Richards, “What makes juvenile offenders different from adult offenders?” (2011) 409 Trends & issues in crime and criminal justice 1 at http://aic.gov.au/publications/current%20series/tandi/401-420/tandi409.html, accessed 3 April 2019.

[15]  ibid.

[16]  Becroft, above n 10, at p 7.

[17]  M Wald and T Martinez, “Connected by 25: improving the life chances of the country’s most vulnerable 14–24 year olds”, William and Flora Hewlett Foundation Working Paper, 2003, at www.hewlett.org/wp-content/uploads/2016/08/ConnectedBy25.pdf, accessed 3 April 2019.

[18]  P Mulroney, “Illustrating the impact of bail refusal”, a paper presented at the Reducing Indigenous youth incarceration conference, 27 September 2012, Sydney.

[19]  E Mulvey, “Highlights from pathways to desistance — a longitudinal study of serious adolescent offenders”, Office of Juvenile Justice and Delinquency Prevention, at www.ncjrs.gov/pdffiles1/ojjdp/230971.pdf, accessed 3 April 2019.

[20]  E Mulvey, “A road map for juvenile justice reform”, The Annie E Casey Foundation, at www.scribd.com/document/43676341/A-Road-Map-for-Juvenile-Justice-Reform, accessed 3 April 2019.

[21]  Wald, above n 17.

[22]  B Holman and J Ziedenberg, The dangers of detention: the impact of incarcerating youth in detention and other secure facilities, Justice Policy Institute, 2006, Washington DC, at www.justicepolicy.org/research/1978, accessed 3 April 2019.

[23]  Australian Institute of Criminology, Annual Report 2002–2003, Canberra, 2003 at https://aic.gov.au/publications/annualreport/2003 accessed 3 April 2019.

[24]  A Nellis and R Hooks Wayman, Back on track — Supporting youth re-entry from out-of-home placement to the community, Youth Re-entry Task Force of the Juvenile Justice and Delinquency Prevention Coalition, 2009 at www.njjn.org/uploads/digital-library/resource_1397.pdf, accessed 3 April 2019.

[25]  J Baldwin, Juvenile justice reform: a blueprint, Youth Transition Funders Group, 2012, Washington DC, p 4 at www.ytfg.org/wp-content/uploads/2015/02/Blueprint_JJReform.pdf, accessed 3 April 2019.

[26]  M Marien, “‘Cross-over kids’ — childhood and adolescent abuse and neglect and juvenile offending”, paper presented to the National Juvenile Justice Summit, 26 and 27 March 2012, Melbourne. See “Cross-over kids: the drift of children from the child protection system into the criminal justice system” at [1-0180].

[27]  D Weatherburn, B Lind and S Ku, “Hotbeds of crime? Crime and public housing in urban Sydney” (1999) 45(2) Crime and Delinquency 256.

[28]  Australian Institute of Criminology, above n 23.

[29]  www.ourlocal.nsw.gov.au, accessed 4 April 2019.

[30]  D Singh and C White, Rapua Te Huarahi Tika — Searching for solutions: A review of research about effective interventions for reducing offending by indigenous and ethnic minority youth, Ministry of Youth Affairs, Wellington, New Zealand, 2000, p 23.

[31]  P Delfabbro and A Day, Programs for anti-social minority youth in Australia and New Zealand — A literature review, Centre for Evaluation of Social Services, Stockholm, Sweden, 2003, at p 47.

[32]  Australian Institute of Criminology, “Approaches to understanding crime prevention”, Crime Reduction Matters, no 1, Canberra, 2003, at p 1.

[33]  J Bargen, “Embedding diversion and limiting the use of bail in NSW: a consideration of the issues related to achieving and embedding diversion into juvenile justice practices”, paper presented at the National Juvenile Justice Summit, 25–26 February 2010, Melbourne.

[34]  R Loeber, D Farrington and D Petechuk, “Child delinquency: early intervention and prevention”, Child delinquency bulletin series, US Department of Justice, Office of Juvenile Justice and Delinquency Prevention, May 2003, p 9.

[35]  Convention on the Rights of the Child, above n 8, Art 12.

[36]  J Cashmore, “The link between child maltreatment and adolescent offending”, (2011) 89 Family Matters 1, at https://aifs.gov.au/publications/family-matters/issue-89/link-between-child-maltreatment-and-adolescent-offending, accessed 9 April 2019; see also K McFarlane, Care-criminalisation: the involvement of children in out of home care in the NSW Criminal Justice System, Doctoral dissertation, University of New South Wales, 2016; Commonwealth of Australia, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Final Report, vol 3B, ch 35, 2017, at 277 (Recommendation 25.12), at https://issuu.com/ntroyalcommission/docs/2b-final?e=31933818/55836163, accessed 6 April 2019.

[37]  Children’s Court Submission to the NSW Legislative Inquiry into the adequacy of youth diversionary programs in NSW, 8 February 2018, at www.parliament.nsw.gov.au/ladocs/submissions/59799/Submission%2019.pdf, accessed 13 June 2019.

[38]  Commonwealth of Australia, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, above n 36.

[39]  ss 32 and 33.

[40]  DPP v El Mawas (2006) 66 NSWLR 93 at [79].

[41]  P McGorry, R Purcell, I Hickie and A Jorm, “Investing in youth mental health is a best buy” (2007) 87(7) Medical Journal of Australia 187.

[42]  T Gotsis and H Donnelly, “Diverting mentally disordered offenders in the NSW Local Court”, Monograph 31, Judicial Commission of NSW, March 2008 at p 22, at https://jirs.judcom.nsw.gov.au/publish/mono31/monograph31.pdf, accessed 13 June 2019.

[43] See above p 2.

[44]  L Steinberg, “Adolescent Development and Juvenile Justice” (2009) 5 Annual Review of Clinical Psychology 459.

[45]  K Nunn, “Decision-making of out-of-home-care children who offend”, presentation to the Children’s Court s 16 meeting, 1 November 2013, Westmead, Sydney.

[46]  K Nunn, “Bad, mad and sad: rethinking the human condition in childhood with special relevance to moral development” (2011) Journal of Pediatrics and Child Health 624 at 625.

[47]  K Nunn, above n 45.

[48]  Aboriginal and Torres Strait Islander Social Justice Commissioner, “Chapter 2: Justice Reinvestment — a new solution to the problem of Indigenous over-representation in the criminal justice system”, Australian Human Rights Commission, Social Justice Report 2009, 2009, p 9 at www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/social-justice-report-1, accessed 13 June 2019.

[49]  Australian Institute of Health and Welfare, “Youth detention population in Australia 2015”, Bulletin 131, Canberra, 2015 at www.aihw.gov.au/reports/youth-justice/youth-detention-population-in-australia-2015/data, accessed 4 July 2019.

[50]  Australian Institute of Health and Welfare, “Young people in child protection and under youth justice supervision 2014–15”, Data Linkage Series No 22, Canberra, 2016 at www.aihw.gov.au/reports/youth-justice/young-people-in-youth-justice-supervision-2014-15/data, accessed 4 July 2019.