The Program Plan for the YDC (AGD, 2000) outlines the eligibility requirements that a potential participant must fulfil to be considered for admission to the YDC program.
The main requirements are:
• a plea of guilty (since amended to a plea of guilty to the main offence for which charged);
• the possibility of a control order being imposed;
• an offence which is not a ‘serious criminal offence’;
• an offence which cannot be appropriately dealt with through another diversionary program; and
• a connection with the catchment areas of the Cobham and Campbelltown courts.
The rationale for the first two requirements seems clear. A guilty plea is necessary to enliven the Court’s power to punish. Therapeutically, it may also be important for the participant to ‘accept’ their wrongdoing. The possibility of a control order is said to be important in order to target the program (and its resources) at those young people more enmeshed in the criminal justice system, and to ensure a participant does not face a harsher penalty than might otherwise be imposed.
Apart from the policy question of whether these requirements are necessary (some stakeholders held the view that the program was not originally intended to focus only on ‘hardened’ offenders, but had been compelled to do so because of the eligibility requirements), several legal issues arise. The first of these concerns the requirement for a guilty plea.
16 Note that this was a supposition raised in the course of stakeholder interviews but there is no evidence available on whether it is the case.
Does the requirement for a guilty plea create a possible inducement?
There was a widespread view amongst the stakeholders interviewed for this review that the requirement for a guilty plea in order to access the program introduced a possibility of 'inducement'. That is, there appeared to be a reward (in the form of hard-to-access resources and drug rehabilitation services) for pleading guilty that could induce or overly encourage a person to plead guilty to an offence when in fact innocent. Leaving aside the reality of the expectation of a 'reward', the inducement was seen as a serious possibility, and there was some evidence from the participant interviews to support this concern. One participant, for example, reported being in custody for three months with an outstanding charge before entering the program. The participant reported pleading guilty to the charge (despite having been advised of a good chance of being found not guilty) in order to hasten his entry to the program.
Although guilty pleas may be important in order for the criminal justice system to function, the possibility of inducement threatens the finality of judicial decisions by raising doubts about the truth of the verdict or underlying statement of fact. This is one reason why the courts in Australia consistently refuse to accept plea-bargaining.
Several issues including concerns about inducement in the YDC were expressed by the Children's Legal Issues Committee of the Law Society in a letter to the Attorney General in October 2000, and the rules were subsequently amended to require only a guilty plea to the major offence listed. Some stakeholders still felt that the risk of inducement remained.
This makes it important to ensure that potential participants are fully informed of both the onerous requirements of the program and the consequences of a (child) criminal record (although in practice most young people referred to the YDC come with substantial previous records, as discussed in Section 3.4 above). Another solution proposed by stakeholders was to require defence lawyers to make a statement to the Court, in the best interests of the child, when there are reasonable grounds not to accept a guilty plea. However, this proposal conflicts with the role of the defence lawyer to advocate for the client as advised by them, within the confines of ethical behaviour. Their role is not to decide what is in the best interests of a child: in the event of a client electing to plead guilty when they are not, the duty of the lawyer would be to withdraw from the case on the basis that they would be misleading the Court.
Does the requirement to plead guilty make eligibility too restrictive?
The requirement for a guilty plea also places some restrictions on the pool of young people eligible to join the program. Those potentially ineligible because of this criterion include young people on long-term bail or remand awaiting a hearing and those who have pleaded not guilty but have subsequently been convicted. The exclusion of these groups is perhaps appropriate for a pilot program, but the options may need to be reviewed if the program were to be extended. Young people on remand may be in a similar position to those on bail within the program and could benefit from the access to rehabilitation services. The differences between the two are that the Court does not have a power to impose program requirements on the former, as s33 of the Children (Criminal Proceedings) Act does not apply where a defendant has neither pleaded guilty nor been found guilty of an offence. This lack of power is a relevant concern, although rehabilitation bail is already available to the Court directly
under s36A of the Bail Act 1978. On guilty pleas, the real issue is whether the YDC is a program focused on ‘penalty’ or ‘need’. Other eligibility criteria, such as the charge or antecedents, may be sufficient when a plea is not possible on legal grounds.
‘Facing a control order’
There were also differing interpretations, amongst the stakeholders interviewed, of the intended meaning of the requirement for potential participants to be 'facing a control order'. The range of meanings extended from ‘possible’ to ‘likely’. A proper understanding of this requirement is important for the lawful function of the program.
At the ‘possible’ end, the YDC is open to a large range of young people, as many offences include control orders as a possible penalty. At the ‘likely’ end, the program applies to a significantly narrower pool of young people.
The onerous nature of the YDC is relevant here. There may be a concern about accepting those onto the program who are unlikely to face a ‘heavy penalty’, such as custody. This leads to the question of whether the YDC should be viewed more directly as an alternative to control orders, in a similar way to community service orders.
Eligible offences
Some stakeholders also expressed concern about the offences regarded as ‘too serious’ to allow access to the YDC. These are outlined in the Program Plan and include offences usually involving violence. Several respondents noted that there do not seem to be strong legal or therapeutic reasons for excluding these offences from the program and expressed the view that these young people may have particular need for the services provided by the YDC.
The main reason for the offence criterion is that ‘serious children’s indictable offences’ are effectively excluded from the jurisdiction of the Children’s Court by s28 of the Children (Criminal Proceedings) Act. This only allows the Children’s Court to hold committal hearings for such offences, which must be determined in a higher court. Serious children’s indictable offences include homicide and armed robbery.
Some stakeholders argued that such offences need not be excluded and that the YDC may have a stronger claim to jurisdiction because of its rehabilitative function, which is particularly important in juvenile justice.
There was also reference to the important role of the police in determining what offences young people are charged with, and therefore whether they would become eligible for the YDC. It was suggested by one stakeholder that in some instances police are not aware that charges could be laid which reflect the objective seriousness of the offence but still permit access to the program. However, in a trial program there seemed to be limited scope for influencing police in this manner.
The counter argument to including young offenders with offences of violence, however, is that first that the community could be at risk by their being allowed out of custody and, more immediately that program staff may have difficulties coping with them and could be at risk. This raises issues of occupational health and safety liability for the relevant departments and agencies. Staff reported that, for a time, a number of young people were being referred who had high levels of associated violence. This added another specialist layer to the treatment necessary for this group. Decisions had
to be made about the appropriateness of a community-based order for young people with violence issues and it was reported that there on occasions there was a serious risk of violence to program staff and to the community.
Some young people with significant anger management issues reported high levels of cannabis use. This is often used to suppress anger rather than necessarily being directly connected with their offending behaviour. Members of the Court Team indicated that young people with significant anger management problems are now being screened out at the assessment stage, in recognition of difficulties in the past of working with this group.
Interaction with the Young Offenders Act 1997 and 'net widening'
An interaction between the YDC and the Young Offenders Act 1997 arises because of the eligibility requirements of the YDC and because both are important juvenile diversionary schemes. The Young Offenders Act (YOA) provides for diversionary schemes of cautioning or 'conferencing' for young offenders as an alternative to criminal convictions. The Program Plan (AGD, 2000) states that a participant must not be eligible for a caution or conference under the YOA to be eligible for the YDC.
The main justification for this requirement is that the Young Offenders Act is directed at less serious offenders while the YDC is targeted at offenders with a more entrenched criminal background.
One of the questions posed for this review was whether there was any evidence of 'net widening'. The danger of net widening is that the YDC program might be used as an alternative to other diversionary programs (such as cautioning or conferencing) rather than as an alternative to the more serious court interventions. Stakeholders generally agreed that the eligibility requirements for the YDC have been applied in a fairly consistent way and there seems no evidence of net widening taking place so far. The danger of net widening is clearly reduced if the program is viewed specifically as an alternative to a control order. On the other hand, the magistrates interviewed saw the criteria as having been relaxed to some extent since the Court began in order to increase the level of participation, and also saw themselves as having some flexibility and discretion.
Although stakeholders saw the eligibility criteria as being applied consistently, opinions were more mixed on whether they were all appropriate. There was some feeling that both types of programs should be available to all offenders and, in particular, that young people with serious drug problems should not be denied access to services just because their degree of criminality only deserved a caution. Other stakeholders, however, saw reasons to maintain the ‘exclusive’ operation of the programs. First, counselling and rehabilitation services are already available through conferencing under the Young Offenders Act, including some specifically designed to be shared across different programs (although some interviewees saw these as very limited), and the YDC does not give privileged access to these services. Second, there was a perception that the danger of 'contamination' is real in the YDC program for first time or young offenders, because participants regularly mix with each other.
Third, the YDC program could be seen as too onerous for possible first time offenders.
It is this eligibility requirement that illuminates most clearly the differing conceptions of what the YDC is or should be. One view sees the program as a rehabilitation service administered by the courts (with a small element of custody). The other view sees it as a custodial sentence with therapeutic purposes.
Whatever the validity of these differing views, there are some important legal implications. If the former view is correct, then the YDC should be an alternative to the Young Offenders Act programs, as its requirements and obligations do not raise serious concern, especially for those granted bail. If the second view is true, then access should be limited to when a control order would otherwise be imposed.
The implications of Regina v. SDM
R v SDM [2001] NSWCCA 158, and a related decision R v Blackman and Walters [2001] NSWCCA 121, were decisions of the New South Wales Court of Criminal Appeal and concern the application of guideline judgments to juvenile offenders.
Guideline judgements are designed to encourage consistency and make potential offenders aware of the likely sentence for particular offences. As the NSW Law Reform Commission has defined them in a recent paper, “Guideline judgements are judgements formulated by appellate courts that go beyond the facts of a particular case to suggest a sentencing scale, or appropriate sentence for common factual situations, to trial courts.” (NSW Law Reform Commission, 2001: 17). Since 1998, a system for formulating guideline judgements has acquired statutory recognition.
These judgments are not wholly binding, but if judges do not apply the guideline they have to provide reasons for their decision.
The decision in SDM emphasised that guideline judgments do apply to juveniles, even though concerns were raised during the consultation period that they could run contrary to the rehabilitative focus of sentencing young offenders. The Court in SDM noted that youthfulness was a relevant consideration in sentencing, but that children are not excluded from the application of guidelines.
The relevance of the decision for the YDC is in its potential effect on eligibility for the program, because the relevant guideline judgment (R v Henry [1999], NSWCCA 111) made imprisonment more likely for armed robbery. The decision in Blackman is relevant in considering the significance of rehabilitation in juvenile justice when identifying exceptional circumstances to justify the imposition of a non-custodial sentence.
SDM was identified as having an initial impact on the type of young people accepted onto the YDC program because young people charged with armed robbery were looked at more cautiously. However, it appears that SDM and Blackman do not radically impact on the operation of the YDC. They merely emphasise the importance of considering the subjective features of the young person very closely when assessing eligibility, in order to determine whether admission to the program is appropriate. Interviews suggested that the Court is not rigid in its approach to those charged with armed robbery and is accepting referral where it feels it is appropriate to provide an opportunity for rehabilitation. One young person charged with armed robbery has graduated from the program and was in employment at the time of the review. However, there were still concerns expressed that young people with more
serious offences may have difficulties getting onto the program and that this would reduce the potential pool of participants.
Requirement to reside within a limited catchment area
A few of those interviewed, mainly from the Legal Aid service, saw this eligibility criterion as having sometimes been applied too rigidly or inconsistently. The current policy states that to qualify a participant must reside in Western Sydney or be able to demonstrate a substantial connection with the area. One example was given of a young person who was otherwise suitable and had an uncle in the catchment area.
Because no evidence of the connection was available for a time, the young person was refused entry onto the program. Another young person was, however, accepted onto the program despite not fulfilling the geographical eligibility criteria (although they lived close to the boundary of the catchment).
The restricted availability of YDC services to those in a particular geographical area could be argued as raising questions of fairness, but it is hard to see how this can sensibly apply to a pilot scheme. It could, however, be a more serious issue if the program becomes established as an ongoing service.