Vulnerable People Within the Legal System

Vulnerable People Within the Legal System

Riverland Community Legal Service Inc.

Overview

Young offenders Alcohol dependence and drug addiction Mental health diversion

Young Offenders

Ages of criminal responsibility Persons under the age of 10 years

cannot commit an offence Persons between 10-14 generally cannot

be guilty Offences committed between the ages of

10-17 fall within the Young Offenders Act

Young Offenders

Police questioning

Youths must be informed of their rights Have the right to legal representation and to

consult with a lawyer Police are obligated to take reasonable steps to

make sure the offender’s guardian, lawyer, social worker or parent is present

Police are obligated to identify the offence and explain the charge

Young Offenders

Avenues available to young offenders Police caution (informal or formal) Family conference Youth Court

Young Offenders

Informal cautions Minor offences Available only when an admission of

guilt is made No further proceedings can be made

against the youth for this particular offence

No conviction is recorded against the youth

Young Offenders

Formal cautions Formal procedure by which offenders must be

made aware of their rights Minor offences only First time offences only The allegations must be reduced to writing Caution must be signed The allegations must be admitted by the youth No formal conviction is recorded but the police

officer can impose a range of penalties

Young Offenders

Formal cautions – undertakings Required to compensate the victim Apologise to the victim To make amends to the victim in some

other way Community service (up to 75 hours)

Young Offenders

Formal cautions Victims have a right to be informed of the

outcome Failure to comply with a formal caution

results in the matter being referred to family conference or the Youth Court

Records of a formal caution are kept even after the offender becomes an adult

Young Offenders

Formal cautions – other options If the offender is unwilling to admit to the

allegations, formal charges are laid and the matter is sent to the Youth Court

The matter can be sent to the Youth Court at the request of the offender

The matter may be sent to the Youth Court by the police officer

Young Offenders

Family conferences Youth must be given the opportunity to

seek legal advice Available where the allegations are

admitted Can have a lawyer present Matters can be referred back to family

conferences by the Youth Court

Young Offenders

Family conferences – composition Youth Justice Coordinator The offender Specialist Youth Justice police officer The victim and their friends/family The offender’s parents, guardians,

support persons The offender’s legal representation

Young Offenders

Family conferences – outcomes Apologise to the victim Pay compensation Carry out up to 300 hours community

service Anything else that may be appropriate Youth Justice Coordinator may refer

matter back to formal caution

Young Offenders

Family conferences – referral to the Youth Court

Where the Police exercise their veto Where the offender refuses to sign undertaking Where the offender fails to attend the

conference Where the offender fails to complete the

undertakings reached Where disputes arise concerning the admission

of allegations

Young Offenders

Family conferences It is an offence to identify the youth Undertakings must be written and signed

by the youth in the presence of his or her guardian/parent

Young Offenders

The Youth Court Sits in the Magistrates Court Comprised of two District Court judges

(one is designated as Senior Judge of the Youth Court) and two specialist Magistrates

No jury

Young Offenders

The Youth Court - composition Officers of the Court Representatives of Families SA The offender and his or her legal representation Witnesses (when giving evidence) The parents/guardians of the offender The alleged victim Media representatives

Young Offenders

The Youth Court – matters heard Where the allegations are contested

(trial) Where the offender elects for the matter

to be heard in Court Where matter is referred to the Court by

Police Where a matter has otherwise been

referred to the Court

Young Offenders

The Youth Court – penalties Home detention (up to 6 months) Up to two years detention by a Magistrate Up to three years detention by a Judge Suspended sentence Obligation Up to 500 hours community service Fine of up to $2500 Disqualification from holding a driver’s license Compensation to the victim

Young Offenders

The Youth Court – matters transferred to higher courts

Decisions of the Court can be appealed Homicide offences are automatically transferred Upon receiving legal advice a youth may elect

to be tried as an adult On application from the police prosecutor or

DPP youth may be tried as an adult

Alcohol Dependence and Drug Addiction

Alcohol Large number of offences linked to use

and abuse of alcohol No diversion programs in general

practice at this time

Alcohol Dependence and Drug Addiction

Alcohol – initiatives YARN initiative Drink driving – mandatory assessment

Alcohol Dependence and Drug Addiction

Alcohol – YARN initiative Youth Alcohol Referral Network Pilot program available in certain regions

2006-2008 Diversion of young offenders who had

committed alcohol related offences

Alcohol Dependence and Drug Addiction

Alcohol – YARN initiative Could be referred to program by the Police,

Family Conference or by self-referral Program involved diversion of young offenders

towards health treatment Assessment of alcohol dependency and abuse

of offender Focus on harm minimisation Community education regarding alcohol

consumption

Alcohol Dependence and Drug Addiction

Alcohol – mandatory assessment Applies to recurrent drink driving

offenders Court must order assessment

Alcohol Dependence and Drug Addiction

Alcohol – mandatory assessment Court refers offender to an assessment

clinic for examination Clinic determines whether the offender is

dependent on alcohol or other drugs Provides a report to the Court indicating

findings

Alcohol Dependence and Drug Addiction

Alcohol – mandatory assessment If the Court receives a report indicating

dependence it must disqualify the offender

The license can then only be restored by Court order

Alcohol Dependence and Drug Addiction

Illicit drug addiction Police Drug Diversion Initiative CARDS Drug Court Griffith’s remand

Alcohol Dependence and Drug Addiction

Illicit drug addiction – PDDI Similar in nature to YARN Referral for assessment by an accredited

healthcare worker Application limited If offender attends the appointment with the

healthcare worker no further Police action is taken

If offender fails to attend criminal proceedings are initiated

Alcohol Dependence and Drug Addiction

Illicit drug addiction - CARDS Court Assessment and Referral Drug

Scheme Operates out of the Magistrates Court

and Youth Court

Alcohol Dependence and Drug Addiction

Illicit drug addiction – CARDS referral Self referral Court referral (pre-sentencing) As a condition of a bond

Alcohol Dependence and Drug Addiction

Illicit drug addiction – CARDS eligibility Must have allegedly committed the

offence whilst under the influence of an illicit drug; or

Allegedly committed the offence to support an illicit drug habit; or

Charged with possession or use of an illicit drug

Alcohol Dependence and Drug Addiction

Illicit drug addiction – CARDS treatment At least four meetings with qualified

counsellors Withdrawal management, detox,

methadone treatment, group therapy, rehabilitation programs, referrals to Narcotics Anonymous, etc

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Drug Court For more serious drug offences Held in the Adelaide Magistrates Court

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Drug Court personnel

Department of Correctional Services The Legal Services Commission The DPP Drug and Alcohol Services SA

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Drug Court eligibility

Over 18 Charged with an offence related to drug

use Likelihood of imprisonment Willingness to complete the program Guilty plea Cannot be a violent offence

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Drug Court procedure

12 month period Fortnightly court appearances Initial home detention conditions Regular urinalysis Mandatory drug treatment sessions Counselling

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Drug Court sanctions

Breach of bail conditions Failure to attend required sessions Positive test for drug use Re-offending

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Drug Court outcomes

Review conducted in 2006 Around 25% completion rate Around 55% termination

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Griffith’s remand Legal development

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Griffith’s remand Must plead guilty Must be on bail conditions Up to 12 month remand

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Griffith’s remand eligibility

Generally not available for offences of violence

Circumstances where imprisonment would otherwise occur

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Griffith’s remand Requested by defence lawyers At the end of the remand period the

offender must furnish reports and other evidence demonstrating their rehabilitation

Imprisonment may then be suspended

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Griffith’s remand issues

Allows for flexibility where no diversion program available

May be of detriment to offender Burden on defence lawyers

Mental Health Diversion

Magistrates Court Diversion Program “Mental Health Court” Operating since 1999 Metropolitan and regional Magistrates

Courts

Mental Health Diversion

Magistrates Court Diversion Program – eligibility

Available only for summary and minor indictable offences

Must plead guilty to charges Must have some mental or intellectual

impairment

Mental Health Diversion

Magistrates Court Diversion Program – eligibility

Mental illness Intellectual disability Acquired brain injury Neurological disorder Personality disorder

Mental Health Diversion

Magistrates Court Diversion Program - stats 30.9% – Major depressive disorder 15.2% – Schizophrenia 9.6% – Personality disorder 7.1% – Post-traumatic stress disorder 6.4% – Bipolar disorder 6.4% – Anxiety disorder 4.6% – Acquired/organic brain dysfunction 4.3% – Other 3.5% – Intellectual disability 3.5% – Psychotic disorder 3.5% – Mood disorder 2.5% – Developmental disorder 1.4% – Substance related disorder 0.7% – Impulse disorder 0.4% – Not known

Mental Health Diversion

Magistrates Court Diversion Program – referral

Magistrate Police Offender Guardian Community services

Mental Health Diversion

Magistrates Court Diversion Program – procedure

Must be accepted into the program On application matter is adjourned for offender

to see a clinical advisor Matter is brought before the Court again and

report is tabled If Magistrate accepts the offender, criminal

proceedings are adjourned for six months Clinical liaison officer is appointed

Mental Health Diversion

Magistrates Court Diversion Program – procedure

Clinical liaison officer arranges for treatment, makes appointments, etc

Clinical liaison officer monitors progress and prepares reports for the Court

Court date every two months for progress checks

At six months final report is prepared for Magistrate

Mental Health Diversion

Magistrates Court Diversion Program – outcomes

Suspended sentence Dismissal of charges Bond (supervised or unsupervised) Failure to cooperate is not taken into

account during sentencing

Mental Health Diversion

Griffith’s remands Same as with drug addiction

Mental Health Diversion

Difficulties Taking instructions Identifying where there is an impairment Medication