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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-11-22 Daily Xml
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STATUTES AMENDMENT (YOUNG OFFENDERS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 November 2007. Page 1363)

The Hon. S.G. WADE (11:38): I rise to speak on this bill and indicate opposition support for it. One of the matters to be remembered by the council is that the objective of section 3 of the Young Offenders Act 1993 is:

...to secure for youths who offend against the criminal law the care, correction and guidance necessary for the development into responsible and useful members of the community and the proper realisation of their potential.

Most young people responsibly progress to adulthood without drama. Most have only a brief encounter with the justice system while others become entrenched in criminal behaviour. In this context it is relevant to consider a paper issued by the Office of Crime Statistics and Research from Skrzypiec & Wondersitz entitled 'Young People Born in 1984—Extent of Involvement with the Juvenile Justice System'. The study looked at South Australians born in 1984.

The significance of this group is that it was the first cohort to pass through the new juvenile justice system. I point out that 20,902 individuals were born in 1984 and living in Australia between 1994 and 2001 at a time when they were aged between 10 and 17 years of age. As an aside, I note that I have a niece who was born in South Australia in 1984; she is part of this cohort. Of this cohort, 3,489 (16.8 per cent) were apprehended by police at least once as a juvenile. I can advise the council that, as far as I know, my niece is not one of that 16.8 per cent.

Of the young people apprehended the majority had only one contact with the juvenile justice system and only 2 per cent of those South Australians were apprehended on more than five occasions. These statistics highlight that, in these crucial formative years, it is vital that we take the opportunity of contact with the criminal justice system to encourage young people to divert their energies to constructive activity. For such interventions to be effective they need to be sustainable and cost effective.

There is no point wasting time and money on trying to divert young people who are resolutely committed to criminal behaviour. The opportunity cost of such waste is that young people who would respond to diversionary interventions will not get it. The Cappo report noted that studies consistently find that a small subgroup are likely to continue offending into their 20s and 30s. Many jurisdictions acknowledge that the only way to protect the community from this group of offenders is to remove them and place them in detention.

On this basis, the opposition considers that the third group—the serious recidivist offenders—indeed warrant a different and fresh approach. In this context we welcome the fact that this bill makes it easier for the Director of Public Prosecutions to elect to take an offender directly to the Magistrates Court. This new provision is aimed primarily at recidivist young offenders. Accordingly, both the DPP (in deciding whether to take the matter straight to the Magistrates Court) and the magistrate (in making a determination of further hearing) must determine whether a youth poses an appreciable risk to the safety of the community.

In order to assess this they must consider five factors, which are mostly concerned with prior behaviour and recidivism. The bill also deals with aggravated offences and child witness provisions, which the opposition also supports. The opposition's main concern in relation to this bill is in fact the delay in seeing it. This bill highlights the government's lack of action on juvenile justice. In July 2005 (2½ years ago) the House of Assembly Select Committee on the Juvenile Justice System reported, yet it took an outbreak of youth crime for the government to act.

Through 2006 and 2007 South Australia has been subjected to sustained criminal activity by the so-called 'Gang of 49'. Only then has the Attorney-General acted to address issues highlighted in the select committee report. He introduced this bill in October 2007. Amongst an extensive range of community consultation highlighted by his recent report on juvenile justice, Monsignor Cappo said:

In particular, the recent report of the select committee on the youth justice system (2005), chaired by the Hon. R.B. Such MP, provided a wealth of material, and is an important foundation for this report.

It was extremely useful in formulating the directions and recommendations of this report and many of its recommendations are reinforced by the recommendations below. I hope that this report and its recommendations will be seen as an indepth response to the Such report.

It is evident from the statements by Monsignor Cappo that the government has been failing to act on the select committee report. It seems that yet again the government is not willing to recognise wisdom as wisdom unless it comes from within the government. The shadow attorney-general noted that both the Cappo report and the juvenile justice select committee highlight that the key to nearly everything in relation to juvenile justice is early intervention. The government's tardiness in addressing these recommendations has been far less pro-active—hardly early intervention.

The Hon. SANDRA KANCK (11:45): I rise to speak against what is yet another mean spirited, short-sighted and ill considered piece of legislation. This is the government's legislative response to the investigation into a group of young men and boys, a number of whom are Aboriginal people, some of whom have broken the law more than once and who are subject to the police's Operation Mandrake and who are known in the media as the Gang of 49.

The Law Society opposes this bill, and I thank it for providing a copy of its recent letter to the Attorney-General about the bill. In early April it also emailed to MPs its submission made by its Children and the Law Committee to the Social Inclusion Unit's consultation on serious repeat juvenile offenders. This very effective submission effectively argues the case against this legislation even before it was drafted. It states:

Our young people are a product of the society that we as adults create. They are not outside, but rather are directly affected by the choices and decisions that our community makes. They are our children, our family, our grandchildren and they do not exist in a vacuum.

The amendments envisaged in this bill will marginalise an already highly disadvantaged group of young people, clog our courts and prisons and soak up millions of taxpayer dollars. The Law Society reminds us that this group is a very small group within our population when it further states:

They cannot and should not be 'labelled' as serious repeat offenders, but rather be recognised as people with complex needs and, in many cases, significant disadvantage.

The Law Society backs this up with an analysis of the backgrounds of some of these offenders, as follows.

An analysis of their lives reveals a childhood history of family conflict, being victims or witnesses of domestic violence, being the subject of care and protection notification proceedings, school truancy and exclusion, developmental delay, drug and alcohol use (their own and their families), and issues associated with experiencing intergenerational unemployment and poverty (e.g. lack of positive role models to encourage personal success, poor health and nutrition, low sense of self worth). Thus, to address the root causes of repeat offending, the South Australian government must fund a raft of interventions that address each and every one of the above listed factors, a list that is by no means exhaustive.

Parts 2 and 3 of the bill would introduce harsher penalties for those offenders who commit an offence in company with children by categorising these offences as aggravated and potentially classifying them as major indictable offences. These offences would apply equally to a 15 year old who commits an offence in company with his 16 year old peer as a 30 year old who offends in the company of a 14 year old. This is a cruel and stupid amendment. It is stupid because it is too rigid. There is a world of difference between the power and therefore responsibilities of a 30 year old in relation to a 14 year old and a 16 year old who is a peer of a slightly younger person.

This law would treat the Artful Dodger, the boy who led Oliver Twist into crime as a means of survival, as harshly as it would Fagan, the adult mastermind of the gang of child pickpockets. The central issue should surely be whether an adult is abusing their power over a younger person, and we already have laws to deal with this.

Section 10(1)(5) of the Criminal Law (Sentencing) Act requires the court to have regard to the circumstances of the offence which, as the Law Society points out, can include the element of encouraging another to commit an offence. Section 10(1)(j) of that same act allows the court to impose a sentence that has a deterrent effect on the defendant or other persons so, again, one has to ask why we have this bill before us.

Clause 5 of part 3 of the bill makes it a relevant factor in sentencing if an offence was committed in circumstances where it could be seen or heard by a child other than a child victim. This could result in a longer sentence, even if there was no connection between the offending behaviour and the fact that it could be seen or heard by a child. The Children and the Law Committee of the Law Society gives a very simple example that highlights the stupidity of this amendment. If a child who lives in the same street heard a window being broken in the course of an offender breaking into a neighbouring property, should the offender therefore receive a higher sentence? I think not, but under this legislation they could.

Offending that occurs in the presence of a child, for example, in circumstances of domestic violence or at facilities designated for the care or use of children, is relevant to penalty and is already covered under section 10 of the Criminal Law (Sentencing) Act; thus, the need for part 3 is redundant. Clause 5 is not needed in this bill.

Part 4 of the bill seeks to amend the Young Offenders Act by requiring community safety to be taken into consideration when dealing with young people. The report by Monsignor Cappo 'To Break the Cycle' states at page 43 that both community safety and the rehabilitation of young offenders need to be assertively pursued and that amendments to the objectives to the Young Offenders Act should only ever occur in the context of a stronger focus on rehabilitation. There is nothing in the bill to address this.

In clause 7 we see the references to repeat offenders, and the Law Society points out how easy it is to become a repeat offender:

Young people tend to hang out in groups, in public spaces, stay out at night, rebel against their parents and generally engage in risk taking behaviours. It is these behaviours that are often made the subject of bail agreements or undertakings. When young people engage in these behaviours, usually under the influence of their peers, they breach their judicial obligations and are charged with a criminal offence.

Thus, judicial responses to what are essentially social issues (e.g. lack of youth leisure and recreational venues) and cognitive limitations (not having the maturity to make sensible decisions in the face of peer pressure) place young people at greater risk of reoffending.

Monsignor Cappo also recommends purposeful and tailored interventions for those who repeatedly offend. This accords with recommendations 25 and 5 of the 'To Break the Cycle' report, but the bill fails the Cappo test in regard to those two recommendations.

This bill would also permit the DPP to lay charges directly in the Magistrates Court. Just because a child has repeatedly offended does not mean they should be denied the right to be treated as a child and should be fast-tracked into the adult system. The discretion as to whether a young offender should be tried as an adult ought to remain with the Youth Court, which has expertise in the issues of youth offending and the professional guidance of Families SA court liaison and related staff. If the DPP is permitted to lay charges directly in the Magistrates Court there ought to be a residual power vested in the court to refer the matter of the charge back to the Youth Court for sentencing or resolution by a family conference—but that would be too sensible!

On a procedural level, permitting the DPP to lay charges before the Magistrates Court where a youth is charged with a major indictable offence would further clog the already overburdened court system. It can take at least 18 months for matters to be resolved in the Supreme or District Court, whereas in the Youth Court a trial date can be secured within a couple of months of the date of the offence. For those young people not released on bail, the bill would result in their being held in detention for significantly longer periods at greater expense to taxpayers—and, I suggest, most likely in the company of adults. That will hardly result in their rehabilitation.

In contrast, programs that reduce reoffending can save a lot of money. It has been estimated that each placement of a young offender on a multi-systemic therapy program can, in the US, save about US$9,622 in criminal justice costs alone. The Law and Justice Policy and Advocacy Group of the South Australian Council of Social Services (SACOSS), in their 'Policy Framework on Criminal Justice Issues', draws attention to a project in Canberra that this government ought to investigate.

The project was called RISE, and was a reintegrative shaming experiment that began in 1955. It sought to measure the impact of restorative policing on the perception of procedural justice and on rates of recidivism subsequent to the process. The experiments demonstrated that youth who had been charged with violent offences who were assigned to a conference subsequently offended at substantially lower levels—38 fewer offences per year per 100 offenders—than the youth offenders who were assigned to court.

Part 4 section 10 of the bill, pursuant to the proposed section 17A, would have the effect of permitting the court to remand a youth defendant in custody to await trial or sentence. In no circumstances should section 112 of the Summary Procedure Act be applied to youth offenders with the effect of remanding them in adult custodial institutions. This is putting young offenders straight in with older hardcore criminals.

In summary, this bill would see young people locked up for longer periods, yet the research says that this does not deter juvenile crime; it wants to treat a 30 year-old the same as a 16 year old; it will clog up our courts and our prisons; it will mix young offenders with adult offenders; and it will not be supported by any extra resources for rehabilitation. One has to wonder why this bill is before us. This is particularly underlined, again, in the Law Society's submission earlier this year, which states:

A snapshot of data from the Office of Crime Statistics and Research shows:

in 2005 South Australia had the lowest number of juveniles apprehended in the past nine years;

the number of cases finalised by the Youth Court has remained steady; and

87.4 per cent of family conferences were finalised successfully—that is, all undertakings were complied with.

So why do we have this bill before us? SACOSS says:

Australia has been inextricably drawn to incarceration as the preferred method of punishment for criminality. This is despite the general lack of evidence to support its positive contribution to a safer community, rehabilitation or recidivism rates.

This bill just does not add up. The only way to understand it is as yet another use of criminal law as a public relations strategy. As I have said before, crime is Rann's Tampa. Just as John Howard used the Tampa, so Mike Rann uses crime to create a sense of threat and then presents himself as our protector.

The Democrats' view is that the best guarantee of community safety comes from an approach that combines crime prevention, rehabilitation and law enforcement. Courts and prisons are important but they are the most expensive and least effective part of the system, and I cannot ignore the fact that we are talking about young people who deserve extra protection and consideration. I know that many of these young people are no angels, but locking the door and throwing away the key will not solve the problem. The Law Society observes, 'Law is not the vehicle to solve social issues.' This bill would not make us safer and it will further damage young people. I indicate that the Democrats cannot support it.

The Hon. M. PARNELL (11:57): I have added myself to the list because I can see that the government is keen to push this bill through today. I cannot support the bill in its current form, and I have come to that conclusion after careful consideration of a number of submissions—most importantly, the submission of the Children and Law Committee of the Law Society of SA. It has written to me, as it has to other members, expressing some very serious concerns about this legislation. The opening paragraph of the society's submission states:

The Committee is opposed to the Bill as the imposition of longer sentences on young people and circumventing the expertise of the Youth jurisdiction will not bring about the desired effect of deterring young people from offending, nor rehabilitating those that are currently in detention or custody or under the surveillance of police.

That is the bottom line: if this legislation is not going to work it does not deserve to be supported in its current form. The Law Society points out that imposing harsher penalties will not rehabilitate the effects of a childhood riddled with trauma and the breakdown of families.

When we look at criminal justice bills such as this, and bills that increase the penalties, we always have to be mindful of the different objectives of the criminal justice system. It does include punishing wrongdoers but it also includes deterring others from committing offences, and rehabilitation. It would seem to me that the hierarchy of those objectives is reversed when it comes to very young offenders: that is, that rehabilitation should be at the top. With older people, maybe punishment has a higher priority, but rehabilitation has to be the objective when it comes to people whose entire lives are before them.

The Law Society points out that many of the things that the government seeks to achieve in this bill have already been achieved under the current provisions of the Criminal Law (Sentencing) Act 1988. For example, the current act already provides sentencing courts with the ability to impose a sentence that not only more harshly penalises adults who offend with youths, or encourage youths to offend, but also has the power to sentence in a way that deters other adults from engaging in the same behaviour. If that is one of the objectives—to deal with the situation of older people offending with young people or encouraging young people—the Law Society points out that it is already dealt with.

Another particularly worrying aspect of the bill is that it does remove the discretion of the Youth Court in relation to whether a young offender should be treated as a child or as an adult. The Young Offenders Act, in its current form, recognises the fact that children and young people need special protection, they need special measures and they need understanding. We point out that that is not just a provision of South Australian state law; it is also included in the Convention on the Rights of the Child. That is a convention that I have raised in this place before when we have had reports that that international convention is breached routinely in South Australia in places like the Magill Training Centre. In fact, in the last session, I introduced a bill to try to improve the status of these international treaties when it comes to their application by state bureaucrats.

The issue of threatening, if you like, young people with being treated as adults as a form of deterrent is not borne out by any of the evidence that I have seen. In fact, research that I have been pointed to by the Law Society shows that the threat of adult criminal sanctions has no effect on the levels of serious juvenile crime, and that juveniles who receive harsher penalties when tried as adults tend to re-offend sooner after their release and more often than those dealt with by the juvenile system. That is a point that has been made already by the Hon. Sandra Kanck.

In conclusion, I note that, in another place, Mr Kris Hanna (member for Mitchell) made the observation at the conclusion of his speech on this bill that he was confident that his opposition to the bill would be used against him and that he would be labelled as 'soft on crime'—I guess that is what he was getting at. At the end of the day, that is a charge that may well be levelled at those of us in this place who seek to stand up for the best interests of our children when they are engaged in the criminal justice system.

The overall objective should be that we need to care for our young people whether they be offenders or the victims of offenders. Locking people up without the additional resources to ensure their rehabilitation will not achieve the objectives stated by the government, and that is why the Greens cannot support this bill in its current form.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (12:05): I thank honourable members for their contribution to this debate. I should respond to some of the comments that have been made, particularly by the Hon. Sandra Kanck and the Hon. Mark Parnell.

First, in relation to the need for early intervention that was outlined by the Hon. Sandra Kanck, I think probably all of us would agree with her that, of course, we need early intervention for young people who drift into crime. The better the levels of early intervention that we have, the better it will be for the individuals and society. However, the whole point of this bill is to deal with a small group of young people who have become serious repeat criminal offenders, and they are risking the lives of South Australians. In many cases, some of these young individuals have the highest number of convictions behind them, in some cases going into hundreds. As Minister for Police I know that some of them have hundreds of convictions for offences, even by the time that they are in their early to middle teens.

Often, their favourite form of criminality is to steal motor vehicles and drive around, trying to bait the police to become involved in a high-speed chase. They put lives at risk and people have died, including some of the people in these stolen cars. Tragically, there are a number of cases of this. I do not disagree with the fact that locking up these people does not change their behaviour because, in some cases, they are out there doing it within minutes or hours of being let out. The point is that, for the protection of the public, if someone has committed hundreds of crimes and stolen dozens of cars (perhaps wrecking them to the tune of millions of dollars in damage) and they are still in their teens, is it not time, for the protection of the public, that something is done with such individuals?

Whereas Monsignor Cappo in his report made many recommendations in relation to improvements that need to be made in a number of ways with early intervention and other changes to address the causes of crime, he also came to the conclusion that a large share of youth offending is attributable to a small group of serious repeat offenders. For whatever reason—and the government accepts Monsignor Cappo's findings—while a background of abuse or neglect may play a part, some of these young people fail to respond to the cautionary and diversionary measures that characterise the youth justice system. Some of these youths have been through the system dozens of times and they present a serious risk to public safety. That is where we have no option but to ensure that, for the safety of the public, those people are locked up.

They comprise a relatively small number of people in a population of 1.5 million. Yes, we should do more in terms of early intervention to keep out of custody these children potentially in that group; we should do what we can. That is certainly the cheaper option, as the Hons Mark Parnell and Sandra Kanck have said, if we are successful in a diversionary sense. But, what if it fails? What if it does not work and we have these serious repeat offenders? Sadly, we have no option but to protect the public by ensuring that these provisions are implemented. If the children concerned have, for whatever reason, decided that they are locked into this path of criminality, for the good of society we cannot just keep letting them out on bail time and again to repeat these crimes and present such a high risk to public safety. For that reason the government makes no apology for this measure.

We are just dealing with the tip of the iceberg of criminal justice. For the great majority of young people, even those who come into contact with the youth justice system, the measures envisaged here are not necessary. For most the diversionary schemes, cautions, family conferences, and the like, work; but for those concerning whom those measures do not work and there is a huge risk to public safety we need, for the protection of the public, to lock up these people. That is why the government has put forward these measures, and I commend the bill to members.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. SANDRA KANCK: I have some questions about what is effectively the guts of the bill. In terms of what Monsignor Cappo recommended, because it appears (maybe you cannot see it in a bill such as this—and I made the accusation in my second reading speech that it is the case) that this is simply a legal response to the problem, and the resourcing necessary to deal with these young people before it gets to this stage is not there. I refer to the paper released in April from the Law Society and want to quote some of the things that it says are lacking:

It is currently difficult for members of the legal profession to source services and programs for clients to undertake while matters progress through the Youth Court. The committee is aware that CAMHS and IDSC have extremely long waiting lists and that services offered by non-government organisations are often limited in scope due to the stringency of funding guidelines. We suggest greater resources be provided to government departments, such as Families SA (Wraparound, Remand Incorporated, Metropolitan Aboriginal Youth and Family Services, Special Programs for Youth, Youth Adventure Recreation Services, Panyappi and non-government agencies such as Kumangka Aboriginal Youth Service, Service to Youth Council and OARS) that have a proven track record of proving evidence-based therapeutic interventions for young people at risk, young offenders and young adult offenders.

Resources must permit such departments and organisations to support young people during times of high need and crisis, as well as during the times when things are going well for families. Due to the current limitations on funding, committee members find it difficult to refer families to services to access supports when there is no current crisis to be fixed, but a general need for additional supports for the family unit to prevent further or future background.

I would like some feedback from the minister (he may have to provide it in a letter subsequent to this committee stage) regarding what sort of resources are being given to both these government and non-government organisations that might be able to intervene to stop the situation being aggravated to the point provided for in these parts contained in clause 3 and onwards.

The Hon. P. HOLLOWAY: We do not have that information here because it is not directly relevant to the bill, which really deals with the legal aspects or changes to legislation suggested by Monsignor Cappo and others in the 'To Break the Cycle' report.

The Youth Justice Cabinet Committee has set up a task force, and John White, a former deputy police commissioner, has been involved in looking at the implementation of other aspects of the Cappo report. However, there are also other initiatives, of course, in relation to youth justice, and I will have to correspond with the honourable member in relation to the specifics of those initiatives. As I have said, they are not really relevant to this bill but, obviously, they are relevant to dealing with the problem of youth offending more generally.

Clause passed.

Clause 4.

The Hon. SANDRA KANCK: Clause 4 deals with this issue of the older person influencing a child. If you have a 19 year old—therefore, an adult—in the company of a 17 year old, it is unlikely to be an adult influencing a child: it is two people in a peer group. In fact, the chances are that one will be egging the other one on. How is the court, under this provision, able to make that distinction?

The Hon. P. HOLLOWAY: All this amendment does is ensure that the offending is treated as an aggravated offence in the circumstances set out in the provision. However, the actual penalties that are applied are obviously up to the judiciary to implement. All this clause does is describe the aggravated circumstances, and it is then up to a judge to determine the penalty.

Clause passed.

Remaining clauses (5 to 11) and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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