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Current stage 2008-9

Young people are our future, so when they turn down the path of deviancy it is our responsibility to pick them up and get them on the right track. If we invest in the interests of our children it will make our communities brighter places in times to come.

Early intervention with regards to crime is a much better solution to the problem. Effective government policies that treat young people fairly and understand the problems of young people will naturally lead to effective adult government policies.

OBJECTIVES
The youth crime analysis seeks to critique the juvenile justice detention system in NSW. The main focus at the moment is to uncover how much money is spent by the DJJ and whether their methods are effective. What is also important to discover is alternatives of detaining young offenders such as community-based intervention (such as the mentoring workshops mentioned above).  Much of the legislation for young offenders is extremely unfair both in Australia and worldwide. For some serious offences children can be imprisoned for life when it is a known psychological fact that at a young age their cognitive abilities have not fully developed.

Another major problem in current NSW legislation are the changes made to the bail act. These changes are making it increasingly difficult for young offenders to be granted bail and therefore many more of them are being detained under remand. This is causing overcrowding in the juvenile justice centres and some of the detainees have to be transferred to adult prisons. This decision is completely unjust and an atrocious violation of their rights. There is also a gross over-representation of aboriginals in juvenile justice system. Even though the aboriginal community only represents less than 5% of the total population, over a third of all detainees are of an indigenous background.  All these problems raise the issue whether this legislation is fair and also what can be done to spark a greater realisation of this unfairness to the wider public, research in this area is therefore also necessary.


JUVENILE JUSTICE CENTRES
There are currently ten juvenile justice centres in NSW. Nine of them are under the control of the NSW Department of Juvenile Justice (DJJ); they are Acmena (Grafton), Broken Hill, Cobham (St Marys), Frank Baxter (Kariong), Juniperina (Lidcomb), Keelong (Unanderra), Orana (Dubbo), Reiby (Airds) and Riverina (Wagga Wagga).  Kariong Juvenile Justice Centre is under the control of the NSW Department of Correctional Services. The reason for this is because it is a maximum-security centre. There are plans in place to convert the Emu Plains detention centre (currently a women’s detention centre) into a juvenile justice centre.


GOVERNMENT RESPONSE
The NSW Department of Juvenile Justice (DJJ) openly claims in their 2007- 08 budget outline that the number of juveniles in detention is increasing. Admissions into detention centres have increased from 3403 in 2003-04 to 4220 in 2006-07 with approximately 630 (15%) of those being female.  This statistic shows that their previous approaches have been ineffective. What is of interest is what their current approach is and whether it is effective. The DJJ is planning to spend a total of $156.1 million on juvenile justice this financial year, which is a ten percent increase on last years budget.  This is a massive expense. The easiest way to highlight the expense spent by the DJJ would be to calculate the amount of money spent per detainee however this is a problem because one cannot simply divide the amount of money in the budget by the number of young people detained. This is because the money is not evenly spread among them and also because there are other expenses to take into to account other that the young people detained.

INTENSIVE SUPERVISION PROGRAM
A big part of the increase has been devoted to the Intensive Supervision Program (ISP) that is being implemented for juveniles who commit serious offences. The ISP seeks to provide parents with the skills needed to assist their children in correcting their anti-social behaviour. The focus is to help the offenders adjust to the stresses linked to their deviancy. The program employs specialist teams that directly intervene in the lives of the juveniles concerned including at school and home. The teams generally consist of around six to eight members. Although this method has been proved to work it is a very top-down approach to the problem. It is a direct invasion of the offender’s life that doesn’t only affect them but their whole family.

YOUTH CONFERENCING
Another program the DJJ employ is that of Youth Conferencing. Youth conferencing connects the offender and his/her family with the victim of the offence. Together with a supervisor and often the police officer involved the conference attempts to reconcile all members and look for possible outcomes such as an apology and suitable reparations. There has been major alterations to the conferencing program that seems to have had a detrimental consequences. One of these was making the director of youth conferencing redundant and sharing the responsibility to several people in the respective areas. The director has a good knowledge base and was committed but is now no longer involved at all. The focus is currently spread which has a negative effect. Many other persons actively involved in the program have also been excluded and there have been amendments to its structure. Why the program has been changed has not been sufficiently answered and those people involved are unhappy. This problem must be attended to. 

RECIDIVISM
One of the major questions is whether methods utilised by the DJJ are effective? A statistic that shows that this is not the case is that of the recidivist level of juvenile offenders. An estimated 60% of juvenile offenders re-offend within 2 years of their first offence . If the DJJ were a successful unit then this figure should surely be much less than it is. As we can see above another juvenile justice centre is planning to be established which indicates that the number of young people being detained is increasing. Some juvenile detainees in Kariong juvenile justice centre have had to be relocated to adult detention centres due to overcrowding. This raises questions about the apparent supportive stance that is meant to be adopted in the juvenile justice system. It is clear to see that the increase in funding is ineffective as it is being used in the incorrect manner. More focus should be placed on coming up with new programs that support young offenders and that it doesn’t marginalise them.

MISSION AUSTRALIA
Mission Australia approached Justice Action and requested that they hold several mentoring workshops for young people who are regarded as being at risk of becoming offenders. These people all reside in or around the suburbs of Campbelltown and/or Hornsby. The Justice Action mentors begun giving the presentations to the young people at risk, the presentations commenced in April this year. They are structured in such a way as to help the young people understand the consequences of detrimental actions through the personal experience of the mentors. The aim is to stop the young people from offending in the future and to assist them in developing social and personal skills so that they can mobilise into a more positive and productive way of life. This work led to Justice Action wanting to conduct more research on the issue of youth crime and the NSW juvenile justice system.

YOUTH NAMING & SHAMING
There is currently before the NSW Parliament a proposal, which if passed into law would allow the names of all children who have committed offences to be published by the media. The object of the legislation is to discourage children from committing offences by knowing they will be publicly named and shamed. Justice Action has taken a very strong view that the legislation should not proceed. We were invited to make a submission to the Legislative Council Law and Justice Committee.

Justice Action appeared before that committee on 20 February 2008 to present our submission in person and answer questions from committee members. Our major submission was that the emphasis in dealing with juvenile offenders should not be on naming and shaming but be placed on restorative programs and, in particular, JA Mentoring. The committee showed considerable interest in our mentoring program and we were able to describe in detail how it worked and its many successes.

COREY BROUGH CASE
Corey Brough, a young 16-year-old Aboriginal man with a mild intellectual disability, was transferred from a youth detention centre to an adult correctional facility in 1999. The subsequent outline of events demonstrates why the United Nations (UN) Human Rights Committee determined in 2006 that the Australian government breached Brough’'s inherent dignity and his right to protection as a minor. Corey was among a group of detainees who participated in a riot in an attempt to draw attention to the mistreatment and brutalisation of inmates by Kariong Juvenile Detention Centre staff. He, along with other boys involved in the protest, was charged with a number of offences. The charges against all the young rioters were later dropped. Following the event, the Ombudsman conducted an inquiry into the conditions at Kariong and recommended a complete set of changes for staff to implement.

On 21 March 1999, Corey and three other juveniles were transferred to Parklea Correctional Centre in Sydney, an adult correctional facility, pursuant to Section 28(A)(3) of the Children (Detention Centres) Act 1987. Corey protested against the transfer and wanted to remain in the juvenile detention facility. The human rights violations that were condemned by the UN took place during Corey's extended confinement in an isolated cell at Parklea during the period between 1 April and 25 April 1999. Specific events are as follows:

•    1 April 1999 - Solitary confinement
•    7 April 1999 – Continued isolation; removal of clothes and blankets; continued exposure to artificial light
•    13 April 1999 – Continued isolation; second removal of blanket
•    15 April 1999 – Continued isolation; second removal of clothing; administered anti-psychotic medication without proper assessment
•    20 April 1999 – Continued removal of clothing and blankets
•    25 April 1999 – Temporary permission to leave solitary confinement
•    7 May 1999 – Solitary confinement concludes

In the circumstances, Corey's extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of this clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position. Corey has a mild intellectual disability. He has significant impairments in his adaptive behaviour as well as his cognitive functioning. His communication skills are severely impaired, largely because he is functionally illiterate. He was diagnosed with an Attention Deficit Disorder in 1993.

The 1991 Report by the Royal Commission into Aboriginal Deaths in Custody demonstrates the extent to which Aboriginal people are over-represented in New South Wales’ prisons. Furthermore, segregation, isolation and restriction of movement within prisons have systemically had more deleterious effects on Aboriginals then on other inmates, given the importance they attach to a high degree of mobility and access to their family and community.
Corey thus required special care by state officials due to his status as a minority in need of protection; this responsibility was not fulfilled by the state. As a consequence, the hardship of the imprisonment was manifestly incompatible with his condition, as demonstrated by his inclination to inflict self-harm and his attempt to commit suicide.


Under the UN’s International Covenant on Civil and Political Rights, to which Australia is a signatory, the state was required to uphold Corey’s fundamental human rights. The UN Human Rights Committee specifically concluded that Corey's treatment by the State party was in violation of Article 10, Paragraph 1 and 3, which requires the state to accord Corey with treatment that was appropriate to his age and legal status. These rights also correlate with Article 24, Paragraph 1 of the Covenant which additionally stipulates the need for protection of minors.

The Australian government has since responded to the United Nations ruling on Corey's case. In an official communication concerning the case released by the Attorney General's office, the Australian government in no uncertain terms finds their actions in regards to Corey as reasonable to the situation. The government finds that Corey "was dealt with in a manner appropriate to his age, indigenous status and intellectual disability." Accordingly, the government does not find that compensating or reducing Corey's jail time is appropriate.

Corey’s case cannot be viewed in isolation. Systemic reform needs to be implemented for child detainees at large. In 2006, approximately 4500 young people went through custodial services. New legislation, the Children (Detention Centres) Amendment Act 2006, now permits adult corrections officers to use attack dogs in juvenile detention centres, allows for indefinite segregation of a detainee and extends isolation of a detainee to 24-hours as a form of punishment. This legislation both offends international human rights standards and contravenes several recommendations of the Royal Commission into Aboriginal Deaths in Custody. Furthermore, unequivocal evidence suggests that Australian prison officials are administering drugs with dangerous side effects to prisoners to manage behaviour. Corey’s incident demonstrates merely one example of a situation where an inmate has been sedated against his will without a proper diagnosis preceding the administration of harmful medication.

CASE STUDY: PC & JH
As part of my Youth Crime Analysis and also for personal education there are plans being put in place for me to visit JH with his father PC. JH is an 18-year-old man who is currently being detained at Kariong Juvenile Justice Centre, which is under the control of the Department of Correctional Services (DCS). It is a maximum-security juvenile justice centre, which is why the DCS and not the Department of Juvenile Justice (DJJ) control it. The DJJ controls all juvenile justice centres except Kariong and the DCS controls all adult detention centres in NSW. My tasks include lodging an application to visit JH and also finding out if and under what conditions PC can visit JH (as he has had some trouble in the past). PC has also had some matters in the children’s court that he has needed help with. I have been appointed as one of his caseworkers to assist him with these matters. 

ORGANISATION OF VISIT
One of the highly esteemed principles of our culture is to help people in need. The generosity of our communities should enable this principle at all times, especially when it pertains to our youth. The ethic of the “Good Samaritan” is one that is highly valued and it binds the community together. There is also a legal requirement to help a person when they need legal advice. Visiting persons in prison is a good example of the principle mentioned above. People who are detained and institutionalised need as much support as possible and easily organised visits are imperative to this. 

With the abovementioned principle in mind I expected PC and I to be answered with a welcoming attitude from Kariong Juvenile Justice Centre in regards to JH’s visit. This however was not the case at all. The amount of time it took not only to get the visit prepared but also for our applications to get approved was unacceptable. This was more applicable to PC than me for some reason. When calling the centre and asking for assistance I often received an uncertain answer with the person on the other end not attempting to establish report with me. Most of the people who spoke to me did so with a presumptuous attitude and were eager to get the conversation over with. When they agreed to fax over the application forms to me, on several occasions I received the wrong forms along with the correct ones. This problem created a lot of confusion. The forms also had horrendous spelling errors which is unacceptable.

DAY OF THE VISIT
Getting to Kariong Juvenile Justice Centre wasn’t difficult at all. Besides missing one turn that delayed me for five minutes, I managed to get there with the instructions given to me. Upon arrival there was a boom gate with an intercom on the right. I pressed the button after which PC and I were briefly identified and allowed entry into the centre. There was ample parking space and before long we were walking towards the entry. The first thing I noticed was that amidst the pristine surroundings there was a massive steel fence surrounding the centre. I was at least 15m high. The time was 9:45am and our visit was scheduled for 10:00am. At the door there was another intercom and so I pressed the button. We were told that we would have to wait outside until approximately 10:10am as the other visitors were still inside.

Half an hour later we finally got inside, a man in an adjacent room separated by thick glass greeted us and requested that we fill in a visitors form. We handed these in and he checked our ID cards on the computer. We were told that none of our possessions were allowed past that point so we had to empty our pockets and place our belongings in a locker. Subsequently PC and I walked through a metal detector and after there were no apparent problems we were escorted to the visiting rooms. In order to get to the room where JH was seated we had to leave the first room we were in, walk along an outside path an then enter another building. The doors were not opened by keys but rather by our escorts using hand held radios. They would request a certain door be unlocked after they had assessed whether it was safe or appropriate to do so.

PC and I were on box visits as there were some prior complications that forbid him from having contact visits. The room we were led into was quite small and also separated by a thick sheet of glass with a metal grate so that we could hear each other clearly, there was no telephone. JH was already seated there and waiting for us. After an hour we were told that the visit was over and we said our last goodbyes. The routine was the same leaving the complex as it was entering it except on our way out we were joined by several other visitors that had contact visits. We collected our belongings from the locker and walked back to the car. I pressed the intercom button and the boom gate was opened soon afterwards.

LIFE INSIDE KARIONG
I had prepared a few questions for JH so that I could get a better understanding of what it is like to live inside Kariong Juvenile Justice Centre. I wanted to know about subjects such as education, leisure activities, hygiene, food etc. In terms of education JH told me that they were able to choose what they wanted to do. He was currently studying Art, Horticulture and Maintenance and he said that the teachers had a good knowledge of the topics. Other than school there were various other activities the detainees could do. These include watching television, playing table tennis or pool, running or playing sports on the oval and also going to the gym which consisted only of cable equipment. JH said that he was not allowed back into the gym yet for reasons unknown to me, he was however looking forward to using it again shortly.

The hygiene inside Kariong is apparently good. JH explained that everywhere you go inside the centre it is clean; this includes the bathrooms and shower areas. The food however is appalling. According to JH it is “prison food” which from my understanding is not good at all. He said that apart from the chicken most of the food is cooked on a mass scale and then reheated. They apparently do not get newly cooked meals every day. Most of the staff are friendly towards the detainees but some of them are violent. If a fight happens to break out in the centre then those involved are dealt with severely. The staff do not hesitate to answer violence with violence. In some cases JH advised me that if a detainee is insubordinate then they will wait for that individual to attack one member of staff after which another two to three will retaliate with violence in order to subdue him. Some other useful facts I obtained were that the detainees were allowed appliances in their rooms such as toasted sandwich makers, rice makers etc. but only if they could afford it themselves. In fact it seems that most items have to be bought by the detainees whether they are luxuries or not. They are not even provided with stationary and writing materials in order to write letters. I was disgusted when JH told me this.

THE NSW YOUNG OFFENDERS ACT 1997
The NSW Young Offenders Act (YOA) was implemented in 1997. Its main goals are to standardise police discretion at the entry level, introduce youth conferencing as a restorative means of justice and divert young offenders from court by using children’s court as a last resort.  Its philosophy is one that lies between “legal rationalism” and legal nihilism, with the former based on the notion that rule making will always ensure the practical abidance of the law by the police and the latter based on the belief that no matter how many rules created the police will always find a means to oppose them. The problem with rules however is that they are constantly open to personal interpretation and those who make them cannot predict when and how they are going to be applied. This can make a certain issue relevant in one case and irrelevant in another.  The goal of the YOA then was to overcome this problem by creating an “interpretive community” between rule-makers and rule appliers. This means that those who make the rules and those who apply them are in constant communication so that there is a shared interpretation of the rules.

The Act regulates police discretion by utilising a system of warnings, cautions and youth justice conferences and clearly defines which offences should be dealt with in which manner. Criminal measures that go to the children’s court only occur if there are no other alternative diversionary options.  Warnings are given for summary offences where violence is not involved and an admission of guilt is not required. Cautions are given for summary offences and indictable offences and the young person must admit to the offence, they must be told that they have the right to get legal advice. If the offender is not entitled to a warning or caution then the matter is referred to a Specialist Youth Officer (SYO) who will ask the young person to participate in a youth justice conference. If SYO and conference administrators disagree on the matter then it is referred to the Director of Public Prosecutions (DPP) who will make the final decision of warning, caution or conference.

The YOA required that a number of bodies be created that were independent of the police. The first of these was the Youth Justice Advisory Committee (YJAC). It consists of members from the community, legislative authorities and government departments. The role of the YJAC is to give advice to the Director General of Juvenile Justice and the Attorney General on the legislation and regulation of the YOA.  They are in essence the YOA “watch dog”. The second body was the Youth Justice Conferencing Directorate (YJCD), which is an independent entity within the Department of Juvenile Justice. The YJCD is responsible for the smooth operation and organization of all youth justice conferences.

Evidence shows that the since its implementation the YOA has been largely successful. Use of the children’s court has declined and the use of warnings, cautions or conferences has increased. The transition to the new legislation was widely accepted by all but there remained a small contingent of resistance in the police service.  The YOA had definitely fulfilled its goal of regulating police decisions at the entry level by combining different rule structures effectively. It sets out general principles for the guidance of its operation and other detailed rules that apply to warnings, cautions and conferences. It also requires the intervention by the (DPP) if there are disagreements between SYO’s and conference directorate which is a good means of compromise.  Another major strength is the use of an “interpretive community” with representatives from all the relevant agencies including the police. This ensures that there is continuous discussion, partnership and cooperation between all who are involved however lawyers and police officers still fail to reach similar understandings which means further work is still needed between them.

Even though the YOA has been a success there are still ways in which it can be more successful in the future. It should be promoted further to the new generation of lawyers, police officers and legislative subjects etc. so that the philosophy that it was created on is never lost. Further promotion will also help to reduce many of the disparities in the application of the YOA.   The “interpretive community” should be maintained in future by creating more forums for successful dialogues and exchanges of ideas to take place. There are fears that the day-to-day managerial concerns of the YOA will become a greater concern than the constant analysis of the policy. The way this fear can be averted is by creating a data collection system that will serve as a form of constant re-examination of the YOA.  One last thing that needs to be addressed that of the fundamental issues that affect those offenders who still end up in court. These serious offenders are more than likely to be faced with problems including drug addiction, mental health issues, etc. The DJJ should now utilise their resources in order to help these young people overcome their problems before they re-offend and cause further detriment to themselves.


Bibliography
Bargen. J, Luke. G, Chan. J and Clancey, G (2005). Regulating Police Discretion: An Assessment of the Impact of the New South Wales Young Offenders Act 1997, Paper presented at "Building a Global Alliance for Restorative Practices and Family Empowerment, Part 3", co-hosted by the International Institute for Restorative Practices (IIRP) and Real Justice Australia, March 3-5, in Penrith, NSW, Australia: http://www.ihhr.unsw.edu.au/images/Publications/Related Publications/Chan_2004_regulating.police.discretion.pdf

Smith N. E. & Jones C., “ Monitoring trends in Re-offending Among Adult and Juvenile Offenders Given Non-custodial Sanctions” in NSW Bureau of Crime Statistics and Research Crime and Justice Bulletin: Contemporary Issues in Crime and Justice, (110), January 2008:
http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/cjb110.pdf

www.aihw.gov.au/publications/index.cfm/title/10645  <accessed 18/09/2008>

www.treasury.nsw.gov.au/__data/assets/pdf_file/0020/6266/bp3_14jjust_n.pdf <accessed   14/08/2008>

Other useful Documents:
http://www.aihw.gov.au/publications/juv/jjia06-07/jjia06-07.pdf

http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/r36.pdf/$file/r36.pdf

http://www.graffiti.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/r42.pdf/$file/r42.pdf

http://www.cso.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB54.pdf/$file/CJB54.pdf

http://www.cso.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB33.pdf/$file/CJB33.pdf

http://www.treasury.nsw.gov.au/__data/assets/file/0018/11475/bp3_14jjust_n.rtf

http://www.aic.gov.au/conferences/juvenile/cain.html

http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB103.pdf/$file/CJB103.pdf       

 

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