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Legal Studies > 2.2 Children and Young People - The Juvenile Justice System > Flashcards

2.2 Children and Young People - The Juvenile Justice System Flashcards

1
Q

what is the juvenile justice system?

A

the way in which the law responds to the behaviour & criminal activity of young people.

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2
Q

what is the welfare model?

A

an informal legal response with a focus on rehabilitation rather than retribution, that considers reasons and causes of crime, recognises the impact of psychological factors, focuses on care & protection of children & young people

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3
Q

what is the justice model?

A

a punishment/retribution focus for criminal actions of young people, that promotes zero tolerance to crime, introduced youth justice conferencing, and is often supported by the media

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4
Q

what is the restorative model?

A

aims to bring about reconciliation, not to exact/enact punishment, encouraging offenders to accept responsibility for their behaviour & its consequences, and is often integral in diverting youth offenders from formal court systems

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5
Q

what are the key features of the restorative model?

A

the involvement of victims in dealing with offence

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6
Q

what case study relates to the juvenile justice system (case citations [x2 dates])

A

R v SLD (2002/2003)

2003 = appeal

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7
Q

what occurred that resulted in the R v SLD (2002/2003) case?

A

13 yr old boy abducted and killed a 3 yr old girl, stabbing her because he was told to “keep off their (the parents of the victim) grass”, and her brothers were boasting about their computer games → he originally intended to use her as ransom

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8
Q

what was SLD (2002/2003) sentenced with?

A

imprisonment of 20 years, non-parole period of 10 years

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9
Q

what was the reason for the appeal for the SLD (2003) case?

A

request made that the sentence was excessive & the judge was mistaken in assessing the risk that the offender would pose to the community → dismissed

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10
Q

what were the mittigating circumstances in the R v SLD (2002/2003) case?

A

age, mental capacity, family upbringing (foster care, ect.), chromosomal abnormality (intellectually impaired)

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11
Q

what were the aggrivating circumstances in the R v SLD (2002/2003) case?

A

nature of the crime, intent to kill again, original movie (ransom), criminal history

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12
Q

what is the update from 2023/2024 in the R v SLD (2002/2003) case?

A

SLD was diagnosed with a severe personality disorder with anti-social and psychopathic features, further driven by his attitude of self-importance and entitlement. SLD taken out of prison & put under ESO (extended supervision order), despite high chance of him re-offending.

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13
Q

when and why was SLD arrested again in 2023?

A

arrested in October for approaching 3 women with their young daughters

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14
Q

what is an ESO?

A

an Extended Supervision Order, only applied to certain high-risk sex and violence offenders, that allows them to be closely supervised in the community

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15
Q

what act established youth justice conferencing across NSW?

A

Young Offenders Act 1997, Part 5

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16
Q

following the introduction of court referrals on 1 July 2016, what % increase in referrals to restorative justice conferencing occurred?

A

151% - 839 (police referrals) in 2015-16, to 2100 referrals in 2016-17 (police & court)

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17
Q

what % of victims reported that the conference process helped them to ‘manage the effects of the crime’?

A

70%

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18
Q

what are the key objectives of youth justice conferencing?

A

focus on repairing harm caused by offending behaviour; restoring relationships within family & community; reducing incarceration rates

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19
Q

what is step 1 of youth justice conferencing?

A

introduction and relationship to offence

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20
Q

what is step 2 of youth justice conferencing?

A

offender tells story of events, conveyor asks questions to ensure full story

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21
Q

what is step 3 of youth justice conferencing?

A

victim tells offender impact/effect of offence

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22
Q

what is step 4 of youth justice conferencing?

A

invites others to tell thoughts

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23
Q

what is step 5 of youth justice conferencing?

A

victim asked what the offender could do to repair harm

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24
Q

what is step 6 of youth justice conferencing?

A

offender given time to decide of appropriate proposal for outcome plan

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25
Q

what is step 7 of youth justice conferencing?

A

victim responds to proposal, talks about what should happen and how.

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26
Q

what is step 8 of youth justice conferencing?

A

final agreement written into plan

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27
Q

what is step 9 of youth justice conferencing?

A

nominated participants to monitor and provide support for the offender

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28
Q

what is step 10 of youth justice conferencing?

A

finish with signing of the outcome plan

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29
Q

what case study relates to the youth justice conference (media article), and what did he do?

A

“Racist attack on bus: offender’s Youth Justice Conference”, SMH, 2014 → a teen was involved in anti-semitic attack on Jewish school bus full of students aged 5-12

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30
Q

what was the outcome of the youth justice conference

“Racist attack on bus: offender’s Youth Justice Conference”, SMH, 2014

A

rather than facing imprisonment, the offender is being educated on the Jewish and their past → visiting Sydney Jewish Museum, as well as enrolling in a school harmony project run by the NSW Jewish Board of Deputies.

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31
Q

what is the most common offence committed by those 11-17 years?

A

25% of young offenders proceeded against for acts intended to cause injury (11,860 offenders) → common assault

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32
Q

what is the most common offence committed by those aged 10 years?

A

unlawful entry with intent (30% - 127 offenders)

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33
Q

what is the difference in the youth offender rate for illicit drugs from 2014-15 to 2021-22? has it increased or decreased? by how much?

A

the youth offender rate for illicit drugs was 265.7 per 100,000 in 2014-15, which decreased by 127.9 in 2021-22, with a rate of 137.8 per 100,000 persons aged 10-17 years

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34
Q

what rights do you have if you have been arrested?

A

the right to remain silent; the right to a support officer; the right to legal representation

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35
Q

when can the police arrest a young person, and what must the young person do once placed under arrest?

A

if the police have reasonable suspicion a young person has committed a crime, they may arrest them → if placed under arrest, cooperate with the police to avoid possibility of further charges

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36
Q

what are warnings? can they have strings attached? what are they given for?

A

warnings serve as a cautionary example. these cannot have conditions or sanctions attached/imposed. warnings are not given for violent offences and are destroyed upon turning 21

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37
Q

what are cautions, and when can they be issued?

A

a FORMAL way of dealing with an offender without the use of the court system if the police believe it to be appropriate, and if the young offender agrees to the terms (usually an interview regarding the offence).

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38
Q

can cautions have conditions attached?

A

yes, cautions can have conditions attached to them. however, once a caution is given, no further action can be taken against them

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39
Q

what types of searches can police conduct?

A

frisk search, strip search, internal search

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40
Q

what does The Law Enforcement (Powers & Responsibilities) Act 2002 (LEPRA) give the police the power to do?

A

gives police the power to conduct searches before or after making an arrest

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41
Q

under what section of LEPRA do police have the right to strip-search individuals?

A

Section 33 of LEPRA

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42
Q

what does Section 33 of LEPRA give the police the right to do?

A

police have the right to strip search individuals as young as 10 at a police station, a place of detention, or in the field, as long as there is a parent, guardian, or representative present, when it’s suspected to be “necessary for the purposes of the search and that the seriousness and urgency of the circumstances”.

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43
Q

does Section 33 of LEPRA uphold the rights of children & young people, and why?

A

this does not uphold the rights, needs, and privacy of the young person and can have significant psychological consequences and impact on the young person due to the vulnerability of the individual

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44
Q

when can strip searches be conducted?

A

only if it is believed on reasonable grounds to be necessary

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45
Q

when can frisk searches be conducted?

A

any time a search is allowed

46
Q

when can internal searches be conducted?

A

if you are reasonably suspected of internally concealing something illegal

47
Q

what is bail, and what is remand?

A

bail is the conditional release of freedom from custody, given when pending trial, and remand is when an alleged offender is in custody, awaiting trial, and denied bail appeal.

48
Q

what is the legislation (and amendment) that sets out the rules regarding bail & remand?

A

The Bail Act 2013 (NSW), and The Bail and Crimes Amendment Bill 2024

49
Q

what procedures does the Bail Act 2013 (NSW) set out?

A

sets our procedures for those applying for bail

50
Q

if bail is granted to a young offender, what is there the possibility of?

A

there is a possibility for conditions that restrict what the offender can do once released (e.g. restricted movements, payment of security, attending to the police station, curfew, limited interaction with the public, etc.)

51
Q

what does the introduction of The Bail and Crimes Amendment Bill 2024 in NSW entail?

A

makes it harder for children aged 14-18 to get bail, due to the rise of youth crime

52
Q

who does the Bail & Crimes Amendment Bill 2024 target?

A

targets 14-18-year-olds who have been charged with a serious breaking & entering offence, or a motor vehicle theft offence whilst on bail for the same offence

53
Q

what is the aim of the Bail & Crime Amendment Bill 2024?

A

it aims to reduce rising youth crime rates in regional areas, and to see a “positive impact of prevention and intervention measures … to see fewer young people entering the criminal justice system”

54
Q

what are the KEY ISSUES of the Bail & Crime Amendment Bill 2024?

A

it doesn’t uphold the presumption of innocence. young people are more vulnerable

55
Q

as of March 2024, what fraction of young offenders on remand were sentenced?

A

52/69 - 75%

56
Q

bail upholds the offender’s rights to the presumption of innocence, however, who does it limit justice for, and why?

A

this limits justice for the victim and society, especially if the offender was charged with a violent offence.

57
Q

with increased difficulty in achieving bail, more young people will be held in custody, despite the lack of a trial. what does this infringe?

A

it infringes the rights of the offender, as their presumption of innocence is not upheld, and disrupts the community

58
Q

the introduction of the Bail and Crimes Amendment Bill 2024 in NSW does infringe the offenders’ right to the presumption of innocence. however, what is a positive?

A

it only targets specific people who have committed crimes of certain criteria, which increases the safety of the community

59
Q

what does prison NOT equal?

A

successful rehabilitation.

60
Q

what is the jurisdiction and procedure of the trial process covered?

A

Children’s Court Act 1987 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW)

61
Q

how is the Children’s Court different from other courts?

A

closed to the public, the name of the child not to be published, less formal proceedings

62
Q

what must not be published in the media without consent regarding Children’s Court proceedings?

A

name or any identifiable details of the child involved in the proceedings may not be published without the consent of the child (16+), or consent from the court (under 16)

63
Q

what are the principles of juvenile justice?

A

children have the rights & freedoms equal to those offered to adults; children bear responsibility for actions, but due to age and vulnerability, require guidance and assistance; it is desirable that education/employment remains uninterrupted and the child is allowed to stay at their own home; and finally penalties imposed for the offence cannot be greater than that imposed on an adult convicted of a similar offence.

64
Q

what is the primary principle/aim of the trial process?

A

rehabilitation rather than retribution/deterrence

65
Q

what elements of CROC (1989) are a part of the trial system in juvenile justice?

A

maintain the best interests of the child, and the imprisonment of children should be a measure of last resort

66
Q

what is the purpose/aim of rehabilitation regarding children & young people?

A

aims to discourage future offences by offenders by encouraging to eliminate factors that contributed to the conduct

67
Q

what is the purpose/aim of deterrence regarding children & young people?

A

discourages or intends to discourage future offences due to passing a higher sentence to create fear

68
Q

what are the two types of deterrence?

A

specific deterrence and general deterrence

69
Q

what is specific deterrence?

A

punishment against an individual offender aiming to deter them from committing crimes in the future

70
Q

what is general deterrence?

A

punishment attempting to make an example of an offender in order to send a message to the rest of the community

71
Q

what is the purpose/aim of retribution regarding children & young people?

A

punishment considered to be morally right of deserved because of the nature of the crime, making the offender accountable for their actions & denouncing their conduct → society seeking retribution on behalf of the victims in an impartial manner through the court system

72
Q

what is the purpose/aim of incapacitation regarding children & young people?

A

involved making the offender incapable of committing further offences (e.g. community work, licence cancellation, imprisonment)

73
Q

incapacitation cannot prevent further offences, but what does it restrict?

A

restricts freedom to reduce recidivism probability.

74
Q

what is the aim of The Young Offenders Act 1997 (NSW)?

A

aims at diverting juveniles away from the criminal justice system, reducing recidivism, and promoting efficiency

75
Q

what does The Young Offenders Act 1997 (NSW) only apply to?

A

applied to summary offences, providing for diversionary options including police warnings, formal cautions, and youth justice conferencing.

76
Q

what is Section 10 (1)(A) Dismissal of Charge?

A

gives the court power to deal with ‘guilty’ persons by dismissing the charges completely

77
Q

what is the Section 10 (1)(A) Dismissal of Charge available for?

A

available for all criminal charges & driving charges, except when a person has been guilty of a second major traffic offence within a 5-year period

78
Q

what must the court consider when suggesting a Section 10 (1)(A) Dismissal of Charge?

A

person’s character, history, age, health, mental capacity; nature of the offence; extenuating circumstances

79
Q

a Conditional Release Orders (CRO) is a way for a person guilty of a criminal or major traffic offence. what does this avoid?

A

avoid harsh penalty or criminal conviction by complying with the conditions of the order.

80
Q

why/how are fines imposed?

A

imposed by themselves, as an additional penalty, or as an alternative penalty to imprisonment

81
Q

what is a Community Correction Order?

A

replaced good behaviour bonds, imposed instead of a prison sentence in NSW

82
Q

what is an Intensive Correction Order?

A

alternative to imprisonment, only imposed after a court has determined that a prison sentence is appropriate

83
Q

are Intensive Correction Orders applicable to children?

A

not applicable for children & young people (those >18 years)

84
Q

what is imprisonment?

A

going to prison for a certain time period, sentenced with the full-term sentence and a separate ‘non-parole period’ (minimum term the offender must serve).

85
Q

what does The Crime (Sentencing & Procedure) Act 1999 outline?

A

outlines sentencing for adults and children

86
Q

when were the R v DM & R v DS cases?

A

2018

87
Q

what is the media citation for the R v DM (2018) & R v DS (2018) case?

A

“Two teenagers charged with crime rampage refused bail” SMH, 2017

88
Q

what is the summary of the R v DM (2018) & R v DS (2018) case?

A

15 and 16-year-old youths were charged with murder, robbery, wound with intent, carjacking and aggravated break and enter. case heard in Parramatta Children’s Court with bail formally refused; 16-year-old offender has a criminal history including drug crime & on bail for aggravated sexual assault with a weapon.

89
Q

what is the media citation for the R v DM (2018) & R v DS (2018) appeal case?

A

“Jail time reduced for Queanbeyan teen murderers” Canberra Daily, 2024

90
Q

who appealed the R v DM (2018) & R v DS (2018) case, and on what? was it successful?

A

the defence appealed on the harshness of the punishment of both DM & DS → successful

91
Q

what was DM (16) originally sentenced to?

A

originally sentenced to 35 years, 6 months, 27 years, 6 months non-parole

92
Q

what was the reduced sentence DM (16) was given?

A

reduced to 27 years, 20 years non-parole

93
Q

what was DS (15) originally sentenced to?

A

originally sentenced to 18 years, 4 months, 13 years, 9 months non-parole

94
Q

what was the reduced sentence DS (15) was given?

A

reduced to 14 years, 6 months, 10 years non-parole.

95
Q

what was R v Blessington (1990) convicted of?

A

convicted of the abduction, rape (sexual assault), and murder of Janine Balding (20) at the age of 14.

96
Q

what issues are raised by the use of a life sentence for a child in the R v Blessington (1990) case?

A

contradicting the current focus on rehabilitation rather than retribution, the fact that children’s pre-frontal cortex has not been fully developed means young people are impulsive risk-takers

97
Q

what arguments are made against the punishment imposed against Blessington?

A

issues involving retrospective legislation passed by NSW Parliament to ensure he remains locked up; the imposition of the life sentence of a juvenile, limiting/abolishing prospects of rehabilitation; Blessington having the mental age of a 9-year-old; past trauma – sexual assault, poor upbringing

98
Q

what international treaty did the R v Blessington (1990) case break and what did this do?

A

the UN saying that it broke international treaties, ratified by AUS, such as the Convention on the Rights of the Child (CROC) (1989), limited justice for the offender

99
Q

what are Royal Commissions?

A

a special investigation ordered by the state/territory or federal govt. into important matters of public concern

100
Q

what are the powers of Royal Commissions?

A

to investigate & make recommendations post-public hearing, gather information for inquiry, request evidence, & summon witnesses

101
Q

what did the Royal Commission into the Protection and Detention of Children in the Northern Territory aim to uncover?

A

where the systems had failed, and recommend improvements to improve laws, policies, and practices in the NT for the safer future of children

102
Q

when was the Royal Commission into the Protection and Detention of Children in the Northern Territory established and why?

A

1 August 2016, following the Four Corners episode, ‘Australia’s Shame’

103
Q

what was the Royal Commission into the Protection and Detention of Children in the Northern Territory an inquiry into?

A

inquiry into the extent of Don Dale and other NT juvenile detention centres’ infringement of basic human rights and rights as stated under the Convention of the Rights of the Child (CROC) (1989).

104
Q

what article of CROC (1989) were the procedures at Don Dale found to be inconsistent with, and what does this state?

A

Article 37 (C) of CROC (1989) which states that “every child … shall be treated with humanity and respect”,

105
Q

what did the Royal Commission into the Protection and Detention of Children in the Northern Territory suggest after investigation, and what evidence supports that this is still being infringed?

A

suggesting the closure of Don Dale, however is still being infringed as leaked documents show a 94% increase in young people entering Don Dale

106
Q

however, post-Royal Commission, what did a ruling from the High Court in Binsaris v NT (2020) HCA 22 declare, and what media article is this supported by?

A

that tear gas is prohibited for use in juvenile detention under the Youth Justice Act (NT), as supported in “High Court ruling on unlawful use of force… Don Dale” Law Council of AUS, 2020

107
Q

what does this ruling and “High Court ruling on unlawful use of force… Don Dale” Law Council of AUS, 2020, uphold

A

it upholds children and young people’s rights to safety, and fair and humane treatment whilst incarcerated

108
Q

how can Royal Commissions operate as an effective legal method to resolve disputes & achieve justice?

A

by investigating & making recommendations to the govt. regarding changes. however, this is limited in enforceability but can lead to legal disputes and reform to achieve justice for individuals.

109
Q

how can the media lead to law reform to recognise & promote individual rights?

A

through accurate representation of events to allow citizens to pressure the govt. regarding injustices in the protection of individual rights → e.g. Four Corners episode ‘Australia’s Shame’, led to the Royal Commission

110
Q

what are the criticisms of the progress in the protection of children’s rights following the Royal Commission?

A

youth bail crackdown reversed Royal Commission changes, and more children & young people were held in Don Dale, despite the Royal Commission recommendation of closure

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