Indicador Funcionalidad – pretest y postest

This Section has presented a review of the legal issues arising in the YDC pilot program. Our general conclusion is that the Court is operating effectively within the bounds of the legislative framework applying to it and no major problems or legal challenges have arisen so far. However, there are several areas that are problematic in terms of lawfulness and fairness, and would need to be addressed, possibly by legislation, if it is decided that the program should be continued beyond the pilot period or extended to other geographical areas. In addition, there are certain operational areas that would benefit from the development of further practice directions and/or policy guidelines.

These concerns are summarised below, and we also address the specific questions posed in the evaluation framework.

Eligibility criteria

The Court appears to be applying the eligibility criteria as laid down in the AGD's Program Plan and there is no evidence to suggest that 'net widening' is taking place, such that young offenders are being taken on to the program who might otherwise be

eligible for cautioning or conferencing under the Young Offenders Act 1997. What is less easy to determine is whether any young offenders are falling between the two levels of treatment. Some YDC stakeholders regard the eligibility criteria as too restrictive, both in terms of the exclusion of young people in otherwise similar circumstances but who have pleaded innocent and then been found guilty, and in terms of those with more serious ineligible offences but similar needs.

The eligibility criteria might need to be reconsidered on these grounds in terms of the purpose and scope of the program if it is decided to retain or expand it. Some current restrictions may not be necessary or justifiable outside of a pilot scheme, but there may still be valid arguments for restrictions that limit the numbers eligible for the program to a level consonant with available resources.

A more immediate problem is the possibility of inducement created by the requirement to plead guilty. There is a concern, with some limited supporting evidence from participant interviews, that the attraction of the program for some clients might lead them to plead guilty to an offence of which they were either innocent or that they would at least have otherwise defended.

Bail and custody

The uses of bail and custody are perhaps the most difficult legal issues facing the YDC. The Bail Act has certain advantages for enforcing compliance with the YDC program, in that it has widely-understood and accepted procedures that allow swift recovery of participants who have absconded from placements or otherwise breached bail conditions. Arguably the Bail Act does allow the imposition of custody through bail refusal in these circumstances within a Griffiths-type scheme, even though it is not meant to be used as a means of invoking punishment. However, there is a question about whether extensive periods of custody can be lawful, bearing in mind the limitations on powers of detention imposed on the Children's Court by the Children (Criminal Proceedings) Act, as well as international conventions on the treatment of children. These problems are compounded where custody is used because no suitable alternative accommodation is available, or when waiting for places in rehabilitation, and where there has been no direct breach of bail conditions on the part of the young offender.

Another difficulty with the use of bail as the power under which participants are held on the program is that recorded breaches of what are often deliberately onerous and intensively-policed bail conditions may have longer-term consequences for future bail applications. There is a good argument that the consequences may be disproportionate to the breaches and that breaches in these circumstances (particularly those of a therapeutic program) should be seen as irrelevant to future applications.

Although the majority of stakeholders interviewed did not see new legislation as necessary for the effective operation of the YDC program, some clarification is needed of the ways in which bail and custody are used, whether through legislation or through practice directions, especially if the program is expanded.

The Bail Amendment (Repeat Offenders) Act 2002 came into effect after the legal issues review was carried out and it is not clear as yet how it will affect the YDC program. However, there are some potentially serious implications for the program’s

clientele and court decisions under the Act concerning young offenders will need to be monitored.

Sanctions for non-compliance

Although there are currently procedures for sanctioning non-compliance with individual program plans, there is a view that these are inconsistently applied and ineffective. Most respondents interviewed for this review accepted the need for a system of effective and graduated sanctions as necessary to promote compliance with program requirements. One difficulty is that sanctions can be seen as unlawful or unfair, in imposing a double punishment on participants who will later be sentenced for their original offence.

If a codified system of sanctions were to be introduced, there is a strong argument for putting this in legislation in order to clearly delineate the court's powers and to allow an appeal mechanism. Some stakeholders, however, argued that legislation was unnecessary and preferred a schema of sanctions operated by the court under a set of clear Practice Directions.

Some of the problems of possibly unlawful punishment could also be avoided by incorporating a reward system (withdrawal of which would constitute one form of sanction), which also fits better within a therapeutic regime. If detention becomes one form of sanction, there is an argument for creating a separate YDC unit within the main juvenile detention centres, but this has clear resource implications.

Sentencing

Sentencing patterns in the pilot period indicate that these are in line with the program requirement that sentences should be no more severe than if the participant had not taken up the YDC option. It appears that the practice emerging is for magistrates at the time of sentencing to inform the participant of the minimum likely sentence applicable to the offence and then to apply specific discounting for achievements on the program and time already spent in custody. This is the intention of the pre-sentence model and has the advantage of allowing the Court substantial flexibility to reflect participants' progress towards rehabilitation. However, it can be difficult for magistrates, when passing final sentences, to avoid being influenced by their knowledge of the participant's behaviour while on the program.

One disadvantage of the pre-sentence model is that it does not allow participants certainty about what they can expect at the end of their involvement in the program, and can lead to some seeing the program itself as the sentence, thus involving a perception of 'double punishment'. Amongst the stakeholders interviewed there was some support for a two-stage, 'indicative sentencing' model that would potentially combine a degree of certainty for participants with sufficient flexibility for the court in varying final sentences. Indicative sentencing, however, has an ambiguous position in law and may not be binding on magistrates.

It is suggested that sentencing policy needs to be reviewed once there is a greater accumulation of cases.

Conflicts of interest

There are potential conflicts of interest in the Court Team structure because information can become available to members through group case meetings that would not normally be afforded to all parties in an adversarial court setting. Court Team members are aware of the need for careful management of the shifts between team consensus and individual professional responsibility. However, in order to avoid future problems (especially if the program is expanded) and to reduce personal stress for staff, there is a need for clearer guidelines on the use of privileged information. It may also help to specify the key points (assessment of eligibility; termination hearings; final sentencing) when an adversarial framework of justice should take precedence over consensual decision making.

Legal advice, participants' awareness and informed consent

Knowledge of procedures, rights and punishment is a fundamental part of any criminal justice system. This is magnified in the YDC since it seeks to be a voluntary program. The assumption of voluntariness can only be upheld if participants exercise a choice to join the program from a position of clear knowledge and obvious awareness. The knowledge of possible consequences, limited rights and alternative punishments is critical.

Interviews carried with participants so far suggest that they are mainly satisfied with the quality of both legal advice and general information they receive about the YDC program. The level of detailed understanding of the program and of the court procedures involved seems to be fairly low, but this is likely to be the case for most court procedures.

This is not surprising given the youth and circumstances of participants, and they themselves often recognise that they are at fault in not paying attention or taking care to absorb information. However, it does raise questions about the validity of informed consent, especially in two areas; the potential consequences of breaches of program requirements for future bail applications; and the uncertainty about final sentencing in a pre-sentence program.

Special needs and discrimination

There is no evidence of discriminatory treatment emerging within the YDC program on the basis of age, ethnicity, culture, gender, family status or disability. There are some practical difficulties with service provision for female and Indigenous participants, but these appear to reflect a more general shortage of appropriate resources within the juvenile justice and social welfare systems.

There are some concerns about whether it is appropriate to exclude young offenders with severe mental health problems, as well as those of drug use, from participation in the YDC program. At present the program lacks the specific resources necessary to meet this need properly, but there are few other sources of support for these young people. This is a question that should perhaps be considered at a policy level in discussion about the program's possible extension and expansion.

The need for legislation

There is a strong argument that the YDC needs a new legislative basis within the Children (Criminal Proceedings) Act. This is particularly the case if it is determined that a more formal system of sanctions, including detention, is needed. Although the content of such legislation is largely a policy question, the aim would be to codify a sanction scheme for the YDC. In this respect, some stakeholders thought that the Adult Drug Court could be a useful guide. While many stakeholders argued the need for a clear legislative basis in general for the YDC, it is the question of sanctions that most clearly requires a legislative solution. Some stakeholders noted, however, that any such extension in the powers of the Children’s Court should be restricted to the YDC only.

Overall, the need for legislation should be considered in relation to the possible transition of the YDC scheme from its pilot status to a permanent program. Most stakeholders thought that the Court does not need specific new legislation to operate, although better guidelines were needed. There were seen to be few advantages in having a separate legislative basis, unless it involved access to additional resources.

Current legislative powers, perhaps augmented and clarified by the greater use of Practice Directions, seemed to provide sufficient guidance for the Court’s day-to-day operation. However, this is not the case once the possibility of sanctions is considered, particularly if the concerns about the operation of the Bail Act are to be addressed.