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Youth and Policing
Bail Me Out – Young People and Bail in NSW
Presented by Katrina Wong, Marrickville Legal Centre at the NSWCLC State Conference 2010
5/5/10
Who are the YJC ?
• The Youth Justice Coalition (YJC) is a network of youth workers, children’s lawyers, policy workers and academics who work to promote the rights of children and young people in NSW and across Australia.
• The YJC was formed in early 1987 under the auspices of the Council of Social Service of New South Wales (NCOSS) to contribute to the development of new legislation for juvenile justice and child welfare.
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Our aims
• To promote the rights of children and young people, including their rights under the UN Convention on the Rights of the Child and other international human rights instruments
• To promote appropriate and effective initiatives and responses in juvenile justice, child welfare and other areas of law affecting children and young people.
• To ensure that children’s and young people’s views, interests and rights are taken into account in law reform and policy debate.
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What is Bail and its purpose?
• A grant of liberty to a person on the undertaking that they will appear at court at a later date
• Conditions can be attached to ensure that a person returns to court and to ensure that they do not engage in further offending (e.g. non association and place restrictions)
• Purpose is not to punish a young person
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What we know about bail and young people
• Courts will often adopt a “welfare approach” when imposing bail conditions, quite unrelated to the offence with which the YP was charged (NSWLRC, Young Offenders Report No 104).
• Conditions are more onerous - eg:• Curfew
• Accept supervision of government departments
• Reside as directed
• Obey reasonable directions of carer
• But, the risk of YP absconding on bail is very low (1.6% of those granted bail fail to appear - Children’s Court Statistics 2008)
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Young people on remand
• The numbers of young people in custody has increased steadily since 2006 - 2007 (NSW Department of Juvenile Justice Annual Report 2007-2008)
• The average daily numbers of young people in custody has also increased
• This has coincided with changes to bail legislation in NSW 0
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Young people on remand (con’t)
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Young people on remand (con’t)
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Why the increase of young people on remand?
1. Changes in NSW Bail Legislation
2. Lack of comprehensive government response
3. Police practices
4. Lack of current resources in community (eg: for accommodation and other residential support services)
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1. Changes to the NSW Bail Act
• Section 22A of the Bail Act 1978 (NSW) was introduced in December 2007
• Previously, a person could make unlimited bail applications (as long as it was not vexatious/frivolous)
• Now, can only make a subsequent application for bail if the person was not legally represented; information relevant to the issue of bail was not presented in the previous application, or new facts or circumstances have arisen since the previous application.
• Impact on young people? They are more likely to be arrested on minor/technical breaches, and stay in custody for longer periods of time due to difficulties in making a subsequent bail application.
• Situation is worse for those young people who are unable to meet their bail conditions due to lack of community resources (such as accommodation).
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2. Lack of comprehensive government response
• The NSW State Plan has “Keeping people safe” as one of its eight priorities. The strategies include a focus on re-offending, with a target of a ten percent reduction by 2016. The policies implemented to achieve this outcome includes:
Extending community monitoring of those at high risk of re-offending. For example, more random home visits, and electronic monitoring 24 hours a day, seven days a week for very high risk individuals.
• However, the State Plan also recognises that reducing re-offending requires more than police monitoring:
Breaking the cycle of re-offending must start early, with schools, health, justice agencies, police, family services and community groups working together to reduce the risk factors associated with juvenile involvement in crime.
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3. Police Practices
• Anecdotal evidence from community groups of young people being unnecessarily arrested and detained for minor breaches of bail;
• Anecdotal evidence of pro-active monitoring of young people on bail (such as curfew checks at the young person’s home at 3am in the morning)
• Practices that see a departure of principle of detention as a last resort
• Failing to comply with bail is not in itself an offence, and as such police are not mandated to consider alternatives to arrest, or utilise other diversionary options
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4. Lack of current resources
• A significant group of young people who are considered ‘homeless’ and unable to meet bail conditions due to lack of resources in the community
• Conditions of bail will often include a “Reside as directed by the Department of Community Services, or Department of Juvenile Justice”
• Unless such accommodation or programs are available in the community, a young person remains in custody
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The YJC’s Research
• NSW Bureau of Crime Statistics and Research reported that ‘breach of bail conditions’ was the most common reason for appearing in court
• Significant lack of research around breaches of bail• We wanted to explore:
• The circumstances in which a young person was likely to be breached on their bail;
• What were the court outcomes when these young people then made an application for bail;
• Cases where lack of community resources impacted on a young person’s stay in custody.
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“Minor” breach of bail
• Wanted to distinguish between types of breaches of bail
• Definition of “minor breach” included:• No new offence was committed
• No harm to young person or community
• Not intentional - or the breach that occurred was beyond the control of young person
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The YJC’s research -
methodology
• Researchers attended Parramatta Children’s Court from 25 August 2008 to 31 August 2008 and again from 18 January and 24 January 2009.
• Researchers completed a survey form for each case which met the study criteria.
• Criteria for selection of cases: the young person must have been included on the custody list on the day of survey recording. All of the young people on the custody list were in the custody of either the police or Department of Juvenile Justice
• Researchers also collected case studies (54) where the young person was not able to meet bail conditions, or where the nature of the breach was minor.
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Data collected
• Demographic data• Type of bail conditions imposed• Nature of the breach• Conditions which prevented release on the day of
hearing• Living arrangements (eg homelessness)
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Results - demographics
• Number of young people surveyed: 145• Male: 106 (73%), Female: 35 (27%)• Indigenous: 42 (29%), CALD 54 (37%)• Statutory care or at risk: 28%• Homeless: 19%
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Reasons for being in custody
Reason for custody Number Percentage Breach bail condition 80 60 Fresh offences1 42 32 Bail condition unmet 7 5 Administrative errors 4 3 Total 133 100 1 Not on bail when the offences were committed
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Bail Conditions that were breached
…Bail conditions breached Number Percentage2 Percentage of
cases3 Committed new offence(s) while on bail
19 34% 44%
Breached curfew 13 23% 30% Non-association (place/person) 5 9% 12% Fail to reside as directed or in specified address
5 9% 12%
Fail to appear at court 5 9% 12% Fail to report to police 4 7% 9% Fail to obey reasonable direction (Carer/DoCS/DJJ/Parent)
3 5% 7%
Others4 2 4% 5% Total 56 100% -
1Codes of bail conditions breached were recorded differently for sample 1; thus, these data could not be collated with sample 2 2 ‘Percentage’ represents the proportion for each condition of the total number of bail conditions breached (e.g. 19/56=34% of all conditions breached were ‘committed new offence while on bail’) 3 ‘Percentage of cases’ refers to the percentage of the 43 young people who breached that bail condition.
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Court outcomes in relation to bail
Bail outcome Number Percentage Bail granted1 71 51 Bail not applied for 29 20 Bail refused 20 14 Bail granted, but unable to enter 12 8 N/A - matter finished 10 7 Total 142 100 1 Bail granted includes cases where bail conditions were continued or varied
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Type of bail conditions imposed
Bail Conditions Number Percentage receiving condition1
Curfew 53 68 Reside as directed or as specified 45 58 Obey reasonable direction 45 58 Non-association 24 31 Report to police 21 27 Attend school/program 12 15 Pay surety 7 9 Not to consume drugs or alcohol 5 6 Supervision of DoCS/DJJ 3 4 Other 24 31 Total 239 1Percentage of the 78 young people granted bail who received this condition.
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Other key stats
• Of the young people who were in custody for breaching their bail, 56 percent did not commit a new offence;
• Of the young people who were in custody for breaching their bail, nearly 60 percent were granted bail again;
• Almost 10 percent of young people surveyed were granted bail but remained in custody because they could not meet the conditions of their bail;
• Of the females who were granted bail, 20 percent remained in custody because they could not meet the conditions of their bail;
• Four young people (3%) had been arrested in error.
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Case studies
John – 13 years old
John’s bail condition stopped him from entering the next suburb from his home. He was allowed to visit his aunt even though she lived in the suburb from which he was banned. He was arrested while on a visit with his family to his aunt’s home.
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More case studies
Jack – 17 years old
One of Jack’s bail conditions was to report to police each day. He had reported everyday until one Saturday when he was sick. He lived some distance from a police station, he did not have a landline telephone or credit for his mobile phone. He was arrested the next day when he reported to police.
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More case studies
Two 13 year old girls were granted bail with a condition not to associate with each other. They went to the same school and had similar classes. They were arrested when they attended school. The court amended the bail conditions so they could attend school.
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More case studies
Jill – 14 years old
Jill was homeless because of the violence she experienced at home. She was granted bail with a condition to reside as directed by DoCS. DJJ made a declaration to DoCs that she was homeless. There was no DoCS officer available to find her accommodation, so she remained in custody.
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What we can conclude from this?
Police practices and technical breaches• 56% of YP did not commit new offences whilst on
bail, but were in custody for breaching some other condition (I.e. a minor breach)
• More than half (60%) of these YP were released again on bail, indicating that the nature of the breach was not serious enough to warrant detention
• Indicates a clear problem in relation to police practices and a failure to consider other options before arrest
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What we can conclude from this?
Not able to meet bail conditions • Females were more likely to be unable to enter into their bail
(20% vs 5%)• More research as to whether there is an assumption that girls would be
more at risk due to indicators of DV, or if there are less accommodation options available
• Young people under the age of 16 were more likely to be unable to enter into their bail• Points to a welfare focus from courts, with detention considered more
appropriate where accommodation is unavailable
• From the case studies collected, the reasons for these YP failing to meet their bail conditions were generally beyond the control of the YP and due to inadequate resources for YP and their families (typically: no accommodation available, no transport available, no financial resources to pay surety)
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What we can conclude from this?
Nature and types of bail conditions imposed on YP• Conditions are numerous (average of 3 or more conditions),
prescriptive in nature (curfew, residential direction) and confusing for YP and their families. Case studies demonstrated situations where YP and their families did not understand the bail conditions• Bail conditions were imposed without consultation with YP and their
family as to the appropriateness of the conditions• Some conditions impacted heavily on the family, with the onus on
parents/carers. Likely to negatively affect those families most disadvantaged
• Large proportion of YP surveyed were 16 years or younger (60.3% male and 88.6% females). The development of this age group makes compliance with multiple and complex bail conditions more difficult
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Costs
• The short and long term costs to families and the community are not well documented, but could be calculated to include:• Costs to police investigation, interrogation and processing;• Legal representation costs - NSW Legal Aid and Aboriginal Legal
Service;• Family costs – travelling, loss of work or social security payments if
child in detention;• Court costs of accommodating bail hearings; • Long term costs of young person giving up school, being away from
families or losing employment;• Costs of support services such as youth workers or out-of-home
care providers;• Costs of holding a young person in juvenile detention (calculated at
$541 per day).
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Further research and policy
• Do the nature and type of bail conditions imposed on young people effectively reduce re-offending?
• What are the effects on young people and the court system of police practices of monitoring and arresting young people for ‘technical breaches’?
• Do bail conditions disproportionately disadvantage young women?
• Do the lack of services meeting the needs of young people, particularly young women, affect the courts’ decision to grant bail?
• Are Aboriginal young people less likely to obtain bail?• What community services and models of therapeutic
interventions can support young people whilst on bail?
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Advocacy so far …
• Section 22A was amended in 2009 to allow for the consideration of other information relevant to bail that was not presented at the last occasion – slightly broader
• AG’s department reviewing Bail Act• NSW government’s independent review of the
Juvenile Justice system (report to be released soon)• Increased media coverage• National issue – remand numbers have increased
across the state
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Question Time
• For more information or to download a copy of the “Bail Me Out” Report - go to www.yjconline.net
• Email: [email protected]
