Juvenile Justice- Short and Sharp - Legal Aid Queensland · Juvenile Justice- Short and Sharp Presented by Christina Russo-Youth Legal Aid and Damian Bartholomew-Youth Advocacy Centre

Juvenile Justice- Short and Sharp

Juvenile Justice- Short and Sharp

Presented by Christina Russo-Youth Legal Aid and Damian Bartholomew-Youth Advocacy Centre

Legal Aid Queensland Lunchtime CLE 17 April 2007

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YOUNG PEOPLE

AS CLIENTS

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Young people as clients

Direct instructions- it is the solicitor client relationship with legal professional privilege attached Lawyers are not mandatory reporters for the purposes of child protectionInterviewing children- with and without adults including parentsInterviewing children-with the Department of Communities or Child SafetyWho is a young person connected with? (can an community agency assist?)

Is a child competentto give instructions?

Gillick (UK) and Marion(Aust High Court)

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(1) There are 2 aspects that have to be considered in determining whether a child is able to make a decision about a matter on their own:the child’s maturity and intelligence andthe nature and seriousness of the decision.

(2) If the child or young person appears to be able to reach a decision and put it into effect understanding the consequences then they are likely to be “Gillick” competent

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How do you assess capacity?

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The factors the lawyer should be looking for include:

An understanding of the basic facts surrounding the case

An understanding of the role of the lawyer

An understanding of the role and views of others involved in the facts of the case e.g. parents, siblings, other family members and the Department

Comprehension of why the child or young person is in the legal system (or questioning of why the legal system is involved)

An ability to consider beyond the present

An understanding of responsibility for making decisions or choices

An ability to comprehend the possible impact of court decisions

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Does the young person have special needs?

Are they enrolled in a special education class?Do they have a learning difficulty?Do they have a diagnosis that is relevant to how you will work with them and whether they have capacity? (Eg ADHD, Autism?)

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Communicating with

children and young people

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Communicating with children and young people

Consider the location and physical environment for the interviewPlan and prepare like for any other clientBe aware of a short attention span and be careful to use plain English at all timesEstablish a rapport

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What is CROC

and the Charter of Juvenile Justice

Principles?

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Convention on the Rights of the Child (Article 12, Article 40)

Schedule 1 of the JJA contains the Charter of Juvenile Justice Principles

Those Principles underlie the operation of the Act (s.3 of the JJA)

CROC and Charter of Juvenile Justice Principles

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Article 12 of the UN Convention on the Rights of the Child

Article 12 of the United Nations Convention on the Rights of the Child (CROC) declares:

(1) State Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

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Relevant Ages 10 – 16 (capacity in issue between 10-13)

Have to be 10 years or older to be charged with criminal offence s.29(1) Criminal Code says a person under the age of 10 years is not criminally responsible for any act or omission

Queensland is the only remaining State/Territory in Australia that still treats 17 year olds as adults for the purposes of criminal law

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Relevant Ages (cont)

If aged 10-13 then capacity (to know that the person ought not to do the act or make the omission) is NOT assumedThe Crown bears the onus of proof of establishing that the child has capacityPresumption of “doli incapax” C’s case and Folling

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Police InterviewsPolice Interviews

Right to silence - s 397 PPRA

For indictable offences a support person must be present for a young person’s statement to be admitted at court (with certain exceptions) - s 29 JJA

Police must not question a suspect young person unless a support person is present to privately speak with the young person before questioning and is also present during the interview - s 421 PPRA

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Hierarchy of Support Persons

A parent or guardian

A lawyer

An employee of a legal agency

If none of those are available then:An adult relative or friend acceptable to the young person

If none of the above then a Justice of the Peace as a last resort Schedule 6 dictionary PPRA

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Diversionary OptionsPolice: Take no action

CautionPolice referred Youth Justice ConferenceDrug Diversion

Court: s.21 JJA Caution/Take No Action Indefinite Youth Justice Conference(Note: option of pre-sentence YJC)Drug Diversion

What is the roleof the

Department of Communities?

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the administration of the Juvenile Justice Actthe supervision of community based ordersthe operation of the youth detention centresYouth Justice ConferencesPolicy matters

The Dept. of Communities is responsible for the following:

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What is the role of Communities in the Children’s Court?

The role of Dept. of Communities at court:Provides information to the Court re the young persons background and prior involvement Prepares Pre-Sentence ReportsIn Bail applications

-Identifies accommodation options-Role in Conditional Bail Program

Has a prosecutorial role in the breach of community based orders

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Applying for BailApplications should be made in most casesHave regard to:

– S.47 & s.48 of the JJA– Principles of JJA where detention is the last resort or should be

for the shortest timeWhere there’s inconsistency between JJA and Bail Act, JJA applies

– Eg. Break of Bail Condition not an offence if committed whilst a juvenile– Children are never in a show cause position.

Information sources for bail: child, parent, Departments of Communities and Child SafetyConsider Conditional Bail Program (CBP)Common conditions on bail (eg address, curfew)Where bail is refused- consider CCQ applicationSolicitors can make direct referrals to YBASS in the South East Qld areaYBASS is the Youth Bail Accommodation Support Service

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Elections on Indictable OffencesThe options to proceed summarily or on Indictment are dependent on the nature of the charge

Where elections can be made- they always lie with the child subject to the approval of the Magistrate

Consider the parent’s position on the election too as the parentcan apply to review the decision about the election (s 71 JJA)

The Prosecution do not have a right of election on any indictable charge

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Serious OffencesIf Serious Offence – hearing of charge must be on indictment in the higher court (CCQ or Supreme Court) either by way of a committal or ex officio indictment

Serious Offence is defined in s.8 JJA:(1) if Life Offence; or (2) an offence where an adult would be liable to imprisonment for 14 years or moreUNLESS it can be dealt with under:- s.552B(1)(e) Criminal Code (Burglary; Break and Enter Premises and Commit I/O) or -s.13 of Drugs Misuse Act (summary provisions)

Eg of Serious offences: GBH, Torture, Robbery, Att. Murder, Manslaughter, Murder, Trafficking

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Non Serious Offence

If Not a Serious Offence (e.g. AOBH with a circumstance of aggravation, wounding, affray) then the child has the election to have the matter dealt with summarily in the Children’s Court or in the CCQ (via committal proceedings)

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Judge Alone or Jury?

If committed up to CCQ then there is an election for it to be heard by CCQ judge alone or with jury. This election may be changed anytime before the Child enters a pleaIf committed up to the Supreme Court the only option is trial by jury not judge alone

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Committal Proceedings

S.106 JJA – If a child enters a plea at a committal hearing, that plea can be changed before arraignment in the CCQThe fact that a different plea was entered at the committal is not admissible at trial.S.93(2) JJA – After a committal hearing, the child can be sentenced in the Children’s Court (provided not a Serious Offence)

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Sentencing Options

s.150 JJA – Sentencing Principles– In particular note s.150(2)(a) – (e) re: emphasis

on non custodial and rehabilitation orders

s.175 JJA – sentencing orders:reprimand, GBO, fine, probation, community service, intensive supervision order, conditional release order, detention (last resort)

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Sentencing Options (cont)

Age limitations with some orders (s175 JJA)

Restrictions on when Community Based Orders can be made (s 175,176,178 JJA)

Court jurisdiction limitations on probation and detention (s 179, 180 JJA)

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Sentencing Options (cont)

Pre-sentence reports (PSR- s151 JJA)

Detention – 70% served unless otherwise ordered

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Sentencing on Serious Offences

(s.176 JJA): -Probation orders (up to 3 years)-Detention Orders (up to 7 years

unless a life offence)-Life Offences – up to 10 years unless

a particularly heinous offence involving violence

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Sentencing on Non Serious Offences

(S 175 JJA)In the CCQ:Probation Orders (2 years)Detention Orders (up to 5 years or half the adult max penalty-whichever is shorter)In the Children’s Court (with Magistrate):Probation Orders (1 year)Detention Orders (up to 1 year)

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Other Orders

Other Orders worth remembering:– s. 181 JJA: restitution, compensation,

disqualifications- s.218 JJA: regarding pre-sentence

custody declarations

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Criminal Histories Recording of convictions (s 183 and 184 JJA)

Cautions not to be recorded on history (s.15 JJA) and are not generally admissible

Juvenile convictions that are not recorded are not admissible in adult proceedings (s.148 JJA)

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Juvenile to Adult

Turning 18 during proceedings for child offences prior to a finding of guilt – sentenced as an adultException to that rule s.140(4) JJA – where there is undue delay on the part of the prosecutor in starting or completing a proceeding, a child who has since turned 18 can still be sentenced as a child.May have to show no undue delay on the part of the defendant.

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QUESTIONS?

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Useful WebsitesYouth Advocacy Centre

http://www.yac.net.au/

Logan Youth Servicehttp://www.yfs.org.au/legal/

Legal Aid Queenslandhttp://www.legalaid.qld.gov.au/

National Children’s Law Centrehttp://www.lawstuff.org.au/

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Cases Mentioned

Gillick’s Case: Gillick v. West Norfolk and Wisbeth AHA [1986] AC 112 Marion’s Case: Secretary Dept of Health & Community Service –and- JWB & SMB (1992) 175 CLR 218 Folling’s case: Queen v F [1998] QCA 97C’s case: C (a minor) v DPP [1996] 1 AC 1

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Acknowledgement

We thank Kerry Bichel Coordinator of Legal Aid Queensland’s Youth Legal Aid Unit for her

permission to use a presentation she developed as a basis for this CLE