Juvenile justice systems

Introduction

2.75 The Australian Institute of Criminology (AIC) has identified a number of deficits in the collection of statistics on juvenile offenders by some States and Territories. In particular, basic information on the numbers of arrests by age and gender is not available in all Australian jurisdictions and comparison between jurisdictions is made difficult by varying definitions, laws and mechanisms for identifying and processing children in the juvenile justice system.^[194]

2.76 The Inquiry also had considerable difficulty gathering statistics that present a national picture of children’s involvement in juvenile justice processes. The statistics presented in this section are drawn mostly from compilations by the AIC. Where possible this information is supplemented by statistics from different annual reports or other documents prepared by various State and Territory children’s courts,^[195] DPPs, family services departments, and crime research bodies, including statistics provided specifically to the Inquiry by these agencies. All statistics should be interpreted with caution, however, in consideration of the different collection techniques, laws and legal definitions.

Involvement with police

2.77 Children’s first contact with the formal juvenile justice system often occurs when they are arrested, summonsed or have other contact with police as a person suspected or accused of a crime. Most States and Territories provide some, although differently defined, statistics on children’s involvement at this entry point into the juvenile justice system.^[196] Differing definitions of ‘police involvement’ mean that these statistics do not accurately represent the numbers of children actually involved with police due to juvenile crime allegations. The figures are not strictly comparable across jurisdictions although they can provide an indication of the numbers of children involved with police.

2.78 In Victoria, in 1995-96, 20 137 children aged 10 to 16 were ‘processed’ by police as offenders in property crimes and 1 947 were ‘processed’ as offenders in violent crimes.^[197] In Queensland approximately 13 422 children aged 10 to 16 were ‘associated with cleared property crimes’ in 1995-96 and 1 371 were ‘associated with cleared violent crimes’.^[198] South Australia included only those children ‘recorded’ by police in its police involvement statistics. In 1995-96, 6 632 children aged 10 to 17 were recorded in property offences and 1 148 were recorded in violent offences.^[199] Western Australia included in its police involvement statistics all children aged 10 to 17 who were arrested, summonsed and cautioned. In 1995-96, 11 355 children were dealt with in these ways for property crimes and 1 141 children were dealt with for violent crimes.^[200] In the Northern Territory, the numbers of children aged 10 to 16 ‘arrested’ by police in 1995-96 were 1 124 for property crimes and 138 for violent crimes.^[201] In the ACT, police involvement was reported as ‘arrest details’. In 1995-96, 409 children aged 8 to 17 were recorded in ‘arrest details’ for property crimes and 132 were recorded for violent crimes.^[202]

2.79 Statistics regarding children’s involvement with the Australian Federal Police (AFP) were provided to the Inquiry for 1994-95: 30 alleged offenders were identified as juveniles in ‘AFP incidents’ that year.^[203]

Diversionary processes

2.80 Children’s involvement with police may not be limited to investigation, formal summons or arrest. Many children’s involvement with police results in a police caution rather than further involvement in the juvenile justice system. Cautioning schemes can be informal and at the discretion of individual police, or formal and connected with formal diversionary processes. The number of informal cautions or warnings issued to children is very hard to estimate because the nature of the caution or warning might mean that no record is kept of the encounter between the child and the police. Some jurisdictions are beginning to keep statistics about the numbers of informal and/or formal cautions issued, along with statistics about other diversionary schemes such as family group conferencing.^[204] Again, the variations in these schemes make it difficult to compare statistics documenting diversionary outcomes for children and not all jurisdictions keep such statistics.

2.81 Queensland counted 15 681 cautions issued to children in accordance with formal cautioning procedures in 1995-96.^[205] In South Australia, out of 14 138 cases recorded by police as involving suspected juvenile offenders in 1995-96, approx-imately 3 161 were dealt with by way of informal police caution, 2 511 by a formal police caution and 1 180 by referral to a family conference.^[206] Western Australian police issued 8 268 cautions to 7 021 children in 1995.^[207] There are no data regarding children’s participation in diversionary programs in Victoria, although it is estimated that approximately 9 000 children receive police cautions annually.^[208] Of the 30 children dealt with by the AFP in 1994-95, only 12 were arrested or summonsed.^[209]

2.82 Routine data comparing the cultural backgrounds or ethnicity of young people given informal or formal cautions are often unavailable. However, the available evidence shows that Indigenous children do not benefit from cautions to the same extent as non-Indigenous children. A study of 14 987 cautions issued in Western Australia between August 1991 and December 1994 showed that only one third of all Indigenous children formally processed by police received a caution compared to two thirds of all non-Indigenous children. These Indigenous children received only 12.3% of all cautions issued despite making up about 69% of all charges.^[210] In Victoria, Indigenous children were significantly less likely to receive a police caution than non-Indigenous children in 1995-96 (11.3% compared to 35.6%).^[211] In South Australia, only 17% of Indigenous youth matters ended with a police caution compared to 36% of non-Indigenous youth matters and Indigenous children accounted for only 6% of all cautions.^[212] In the absence of concrete date from other jurisdictions, anecdotal evidence indicates that this pattern is repeated for Indigenous children throughout Australia.^[213]

2.83 Evidence regarding family group conferencing diversionary schemes also indicates that Indigenous children are not proportionally represented in these systems. For example, in South Australia only 11% of referrals by police to diversionary conferences involve Indigenous children, although they constitute 17% of all referrals to court.^[214] In addition, 36% of the Indigenous children involved with South Australian police are referred to court without the benefit of either conferences or cautions, compared to only 19% of non-Indigenous children.^[215]

Initiating court processes

2.84 When police decide to bring a child to court, they can proceed by way of arrest or court attendance notice. The rate at which police use these mechanisms differs in each jurisdiction. For example in Queensland and NSW, approximately two thirds of all children brought before children’s courts are brought by way of arrest and only one third are brought by way of summons.^[216] In contrast, in South Australia only 25% of children before the courts had been arrested in 1994-95.^[217]

2.85 Indigenous children are more likely to be arrested than summonsed when they are formally processed by police. In Western Australia, for example, Indigenous people of all ages were less likely to be summonsed (12.7% compared to 27.5% for non-Indigenous people).^[218] In South Australia, although only 25% of all children before the courts had been arrested, this figure was 41% for Indigenous children.^[219] In the Northern Territory, Indigenous children comprised 70% of all children arrested and only 53% of all children summonsed.^[220] In addition, in its national survey of youth in police custody, the AIC found that Indigenous and non-Indigenous children were held in police custody at different rates.

Table 2.19 Number and percentage of children aged 10 to 17 held in police custody as at August 1995, by State/Territory^[221]

2.86 These figures show that Indigenous children are 26 times more likely to be held in police custody than non-Indigenous children.^[222] This indicates that these children may have been arrested in far greater numbers than non-Indigenous children, as arrest and subsequent bail determination is generally the only way in which a young person alleged to have committed a crime can be held in police custody.^[223]

Court involvement

2.87 Most jurisdictions keep some statistics on the numbers of criminal matters heard in children’s courts. As children may be charged with more than one offence in a single case, many jurisdictions keep statistics regarding the ‘most serious offence charged’ for each case, rather than the total number of charges. However, this does not present an accurate picture of the numbers of children and young people who are formally involved with juvenile justice systems at the court level. In particular, many juvenile justice matters are heard by magistrates sitting as children’s courts rather than a specialist children’s court, and most jurisdictions exclude these matters from their statistics. In addition, some children’s matters are heard in district courts or a Supreme Court, and these too are often excluded from published data. Again, because of differing definitions, legal schemes and laws across jurisdictions, statistics regarding children’s involvement with courts should be viewed and compared with caution.

2.88 Commonwealth. In the federal jurisdiction, 21 children were prosecuted in children’s courts by the Commonwealth DPP on 45 separate charges during 1994-95.^[224] Five children pleaded not guilty to one or more of the charges against them, and were tried on the issue. Of the remaining children, two had their pleas taken ex parte (most likely because they did not appear) and the charges against them proved, one had the case against him or her withdrawn and a warrant issued and the remaining 14 pleaded guilty to one or more of the charges against them.^[225]

2.89 Queensland. Queensland keeps statistics on the numbers of children involved in criminal proceedings in all its courts. In 1995-96, 6 694 juvenile defendants were charged with 16 413 offences in Queensland courts.^[226] Of the 16 413 separate charges the most common were theft, breaking and entering (8 499 charges), ‘other’ offences such as drug possession and use, drunkenness, offensive behaviour and trespassing (2 996 charges), assaults (1 559 charges), property damage (1 470 charges) and driving, traffic and related offences (1 243 charges).^[227]

Table 2.20 Number of children involved in criminal cases dealt with by Queensland courts^[228]

1. whether the children involved in any of these courts were convicted after guilty pleas or trial was not reported

2. an additional 1 092 children were committed by magistrates courts to higher courts for sentencing or trial

2.90 Queensland also provided unpublished statistics regarding individual characteristics of young people appearing before its courts for 1994-95. Of the 3 652 individual children who appeared before courts from 1 July 1994 to 30 June 1995, 892 (24%) were identified as Indigenous and 55 (1.5%) were identified as having a non-English speaking background.^[229] In addition, 1 097 individual children (30%) were identified as having their usual place of residence in a rural or remote area.^[230] In 1995-96, approximately 83.7% of the children involved in the courts were male. Approximately 22.9% of the children were aged 15, 34.5% were 16 and 20% were 17 or older.^[231]

2.91 Queensland Legal Aid provided some statistics regarding the number of children represented in criminal proceedings. In 1996-97, 2 268 criminal law grants of aid were made to children aged less than 17 years old. Approximately 45% of these matters were handled by in-house legal practitioners and 55% by private practitioners. Most of the 82 applications for legal aid that were refused failed on merit grounds, for example where the applicant was involved in summary proceedings in the magistrate’s court with a fine or community service order the most likely outcome.^[232]

2.92 NSW. NSW keeps statistics on the numbers of criminal cases handled by children’s courts and magistrates’ courts sitting as children’s courts, certain characteristics of the alleged juvenile offenders, the types of offences and the outcomes for these matters. In 1995-96, there were a total of 14 759 criminal cases handled by the children’s courts in NSW, 12 210 involving boys and 2 549 involving girls.^[233] The most serious offence charged in these cases was most commonly a theft offence (charged in 45.4% of all cases) followed by ‘violent’ offences (24.5%).^[234]

Table 2.21 Number of criminal cases involving children handled by NSW children’s courts^[235]

1. includes charges withdrawn or not proved as well as those in which the case was dismissed after the charges were proved

2. includes those outcomes involving a sentence, as well as 22 committals to higher courts.

2.93 In 10 570 cases (71.6%) the outcome was reached after a guilty plea by the child.^[236] The New South Wales children’s court database does not report on the results of cases committed to higher courts or the numbers of children actually involved in criminal matters before those courts. It also does not identify the cultural or ethnic background of the children appearing in the court.^[237] NSW Legal Aid did not supply information to the Inquiry on the numbers of children represented in these proceedings.

2.94 Victoria. The last year for which statistics are available regarding the number of children involved in the children’s court as alleged offenders is 1995. In that year, 5 932 boys and 1 209 girls were charged with offences in the children’s court.^[238] Approximately 36% of all children charged were aged 16, 23% were aged 17 and 22% were aged 15.^[239]

Table 2.22 Number of children involved in criminal cases dealt with by Victorian children’s courts^[240]

2.95 Approximately 6 702 children had at least one charge proved against them (although some of these children subsequently had their case dismissed without a conviction) and the ‘most serious proved offence’ in these cases was most often a property offence, such as theft, burglary and property damage (47% of all proved offences) followed by offences against good order, such as violations of traffic or public transportation regulations, drug or alcohol offences and disorderly conduct (44%). Only 9% of cases had an offence against the person, such as sexual offences and assaults, as the most serious proved offence.^[241]

2.96 In 1996-97, Victorian Legal Aid provided 8 939 duty lawyer services in the children’s court and funded an unspecified number of duty lawyer services by private practitioners in rural areas when magistrates’ courts sat as children’s courts. It also granted additional funding for representation in 3 772 criminal matters where the applicant was a child.^[242]

2.97 Western Australia. 4 156 individual children were dealt with by Western Australian children’s courts during 1995, the latest year for which statistics are available.^[243] Overall, children before the children’s court were charged with a total of 16 232 offences, an average of 3.9 offences for each child.^[244] The most serious offence charged against children in both the children’s courts and the Children’s (Suspended Proceedings) Panel^[245] was most often break and enter (charged in 1 880 cases), followed by driving and motor vehicle offences (usually driving without a licence or under suspension — 1 179 cases), offences against the person (685), good order offences (516), drug offences (mostly use or possession — 303 cases) and damage offences (189).^[246] The large majority of children appearing in the children’s court were boys ( 76.5%) and 15.8% were Indigenous children.^[247]

Table 2.23 Number of children involved in criminal cases dealt with by Western Australian children’s courts^[248]

1. whether these children were convicted after guilty pleas or trial was not reported.

2.98 Legal Aid of Western Australia reported that it funded 640 requests for representation by children in criminal matters in 1996-97, 600 of which were handled in-house. An additional 2 184 grants were made for the provision of duty lawyer services by private practitioners.^[249]

2.99 South Australia. There were 3 856 finalised appearances before South Australian children’s courts in 1995-96.^[250]

Table 2.24 Number of criminal cases involving children handled by South Australian children’s courts^[251]

1. whether these children were convicted after guilty pleas or trial was not reported.

The outcomes for the 3 270 proved cases were ‘proved but not convicted’ (49.1% of all proved cases) or ‘proved and convicted’ (50.1%). The most serious offences proved in cases where at least one offence was proved included offences against good order (511 cases), driving offences (500 cases), ‘other’ larceny (368 cases), burglary, break and enter (363 cases) and larceny or illegal use of a motor vehicle (321 cases).^[252]

2.100 The great majority of children involved in ‘proved’ cases were boys (85.6% of all proved cases) and most were aged 17 (38.4%), 16 (27.3%) or 15 (15.9%).^[253] More than 13% of all proved cases involved Indigenous children. In addition, the younger the child the more likely it was that the child was Indigenous: for example, 25% of 14 year olds, 27% of 13 year olds, 31% of 12 year olds and 50% of 11 year olds in proved cases were Indigenous children.^[254]

2.101 In 1996-97, approximately 1 517 grants of legal aid were made to children for representation in criminal matters, 936 of which were handled in-house. Children were also assisted by a duty solicitor on 1 508 occasions in the same year. These services provide some manner of legal representation to an estimated 85-90% of all children appearing in the children’s court.^[255]

2.102 Tasmania. In Tasmania, 2 096 charges were laid against juveniles in 1995-96, although it is unclear whether this figure corresponds to the total number of charges or the total number of children charged.^[256] The Tasmanian Legal Aid Commission reported that, in 1996-97, 478 grants of legal aid were made to children for representation in criminal matters. This number is said to represent a very small proportion of all young people with criminal matters before the courts.^[257]

2.103 ACT. During the 1996 calendar year, 538 children appeared before the ACT children’s court, 77% of whom were boys and 23% girls.^[258] The outcomes of these cases were not reported. The large majority of the children (80%) were aged 16-18 and 8% were Indigenous children. The most common offences charged were theft (123 children charged), public order/good order offences (105 children charged), acts intending to cause injury (80 children charged) and burglary (67 children charged).^[259] Children also appeared in the ACT’s higher courts. From January 1993 to August 1996 there were 21 matters in the Supreme Court’s criminal jurisdiction where the accused was a child.^[260]

2.104 In 1996-97, the ACT Legal Aid Office represented 274 children in criminal matters and granted an additional 155 applications for funding of representation by private practitioners. It also provided all duty lawyer services for bail applications and mentions. It estimates that its services provided representation for approximately 80-90% of all children charged in the children’s court.^[261]

2.105 Northern Territory. In 1995-96 there were 1 124 cases initiated in magistrates’ courts sitting as a children’s court.^[262]In 1996-97, the Northern Territory Legal Aid Commission granted funding for 314 juvenile justice matters. In addition, 262 duty lawyer services were provided during that year. All juvenile justice matters handled by legal aid were handled in-house.^[263] The percentage of children who are unrepresented when involved in juvenile justice matters in the Northern Territory is unknown.^[264]

Sentencing

2.106 Sentences in most jurisdictions can include fines, community service, probation and other supervision and detention. A child with more than one proved offence in any given case could receive more than one penalty or sentence in most jurisdiction. Some jurisdictions therefore report the ‘most serious penalty’ rather than the total number of penalties given in any one case when reporting sentencing statistics.

2.107 Queensland. The most serious outcomes for the 4 430 children convicted of at least one offence in magistrates’ courts included no penalty (1 170 cases), probation (895), good behaviour orders (755), community service orders (736), fines (426) and detention (206).^[265] The most serious outcomes for the 288 children convicted of at least one offence in the Children’s Court of Queensland included probation (87), followed by community service orders (79), detention (63), no penalty (21), and good behaviour orders (23).^[266] For the 707 children convicted of at least one offence in higher courts the most serious outcomes included probation (254), community service orders (241), detention (158) and good behaviour orders (32).^[267]

2.108 On 30 June 1996, the Department of Families, Youth and Community Care was supervising 1 582 children on juvenile justice orders, including 506 community service orders, 110 detention orders, 53 immediate release orders, 23 fixed release orders, 1 309 orders of probation and 6 ‘other’ orders.^[268]

2.109 NSW. In 1995-96, the most serious outcomes for the 9 662 matters not otherwise dismissed by NSW children’s courts included recognisances without supervision (2 108), fines (2 200), supervised probation (1 119), detention (1 018), community service orders (922), recognisances with supervision (678), unsupervised probation (656), fines with recognisances (5) and 956 other ‘proved’ outcome orders (including committal to higher court, disqualification from driving, drug programs, and compensation).^[269]

2.110 Victoria. In 1995, the most serious outcome for the 6 702 children who had at least one charge proved against them in Victoria’s children’s courts were most commonly: fines (2 239), good behaviour bonds (1 799), dismissals with an undertaking (1 042), probation (780), youth supervision orders (343), dismissals without any penalty or conviction (255), detention in a Youth Training Centre (149), youth attendance orders (83) and detention in a Youth Residential Centre (12).^[270]

2.111 In 1995-96, children’s courts made 119 sentences of detention to be served in Youth Training Centres and 15 sentences to be served in Youth Residential Centres. Adult courts made 343 orders of detention to be served in Youth Training Centres.^[271] In addition, new admissions to juvenile justice services that year (that is, children sentenced to these services) included 268 children sentenced to Youth Training Centres, 12 children sentenced to Youth Residential Centres, 723 children on probation, 85 children on youth attendance orders, 133 children on parole and 307 children on youth supervision orders.^[272]

2.112 On 30 June 1996 in Victoria, there were 110 children and young people in Youth Training Centres, 5 in Youth Residential Centres, 623 on probation, 63 on youth attendance orders, 47 on parole and 219 on youth supervision orders.^[273]

2.113 Western Australia. In its latest statistics, those for 1995, Western Australia reported the sentencing outcomes both for children convicted by the children’s court and those referred to Children’s (Suspended Proceedings) Panels. These proceedings together handled a total of 2 447 children.^[274] The most common outcome was dismissal (2 107 children), which included referral by a court to the Juvenile Justice Team, admission to the offence before the children’s panel and court orders of dismissal or dismissal subject to parental scrutiny or administered punishment.^[275] All other penalties imposed by the children’s court were most commonly non-custodial penalties such as probation, community service orders, good behaviour bonds and suspended sentences (1 173), ‘other’ penalties such as suspension of licence, compensation and restitution (278), detention (243) and fines (234).^[276]

2.114 South Australia. The 4 445 penalties for the 3 270 cases in which at least one charge was proved in 1995-96 included 1 332 fines, 545 orders of detention or suspended detention, 497 licence disqualifications, 480 community service orders, 478 orders of ‘obligations’, 380 discharges without penalty and 371 orders for compensation.^[277]

2.115 Tasmania. There were 267 children subject to supervision and other orders in 1995-96.^[278]

2.116 ACT. Approximately 44% of the 538 children who appeared in the children’s court in 1995-96 were subsequently referred to the Youth Justice Service under court orders requiring supervision.^[279] The supervision orders issued included 78 orders requiring attendance at an attendance centre (equivalent to an order of community service), 135 orders of probation with supervision and 23 orders of committal (detention).^[280]

Children in detention

2.117 Children may be held in custody in juvenile detention centres because they are on remand or because they are sentenced to detention on conviction of an offence.^[281] On 30 June 1996, the AIC counted 782 children aged 10 to 17 in juvenile detention centres Australia-wide.^[282] These figures under-report the actual number of children in detention on that date, as they do not include children being held in police custody, any children in adult detention centres or prisons and children who are being held in facilities not identified as ‘detention’ centres.

Table 2.25 Number of children aged 10 to 17 in juvenile detention centres, on 30 June 1996^[283]

2.118 The majority of these children (62.2%) appear to have been sentenced to detention rather than remanded.^[284] Boys are over-represented in these detention statistics, with 94% of all young people in juvenile detention centres being male.^[285] Indigenous children are also over-represented in juvenile detention centres in every jurisdiction. On 30 June 1996, Indigenous children were 21.3 times more likely to be in detention centres than non-Indigenous children Australia-wide, with the over-representation ratio as high as 41.1 in Queensland and 31.6 in Western Australia.^[286]

2.119 Some jurisdictions provide additional statistics that are not reported on a national basis. For example, NSW reported that there were 456 people in its juvenile detention centres in June 1996 (it included young people over the age of 17 in these statistics).^[287] The cultural backgrounds of these children were recorded as Indigenous in 29% of cases and non-English speaking background in 26%.^[288]

2.120 In Tasmania and Victoria, most children in detention centres during 1995-96 appear to have been on remand rather than detention orders. There were 179 new admissions that year to Ashley Youth Detention Centre in Tasmania, 71% of which were on remand.^[289] In Victoria, new admissions to juvenile justice services during 1995-96 included 268 children sentenced to Youth Training Centres compared to 397 children on remand in these facilities, and 12 children sentenced to Youth Residential Centres compared to 197 on remand in these facilities.^[290]

2.121 South Australia reported that, of the 1 522 children admitted to its two ‘secure care’ juvenile detention facilities during 1995-96, 21% were identified as Indigenous.^[291] Only 212 of the admissions were based on detention orders, while 437 children were on remand, 229 were returned on first instance warrants, 434 were on police custody and 202 were on default warrants.^[292]