Youth Justice - The New Act and Bail

Presented by Rachel Smith and David Caughlin Legal Aid Queensland

Overview

Part 1: Legislative Update A summary of the recently introduced amendments to criminal law affecting young people

Part 2: BailArrest, bail, re-arrest and variation of bail for young offenders

Part 1:Legislative Update

References to Legislation

Unless otherwise stated all references in the presentation are to sections in the Youth Justice Act 1992.

Part 1:Overview of Legislative Update

Name change

Power of Arrest

Bail

Curfews

Increase on minimum mandatory sentence for murder

Publication

Youth Justice Conferences

Transfer to Adult Prisons

Breach Proceedings – Supervised Release Orders

Information Sharing with QPS

Legislative Update- Commencement

The Juvenile Justice and Other Acts Amendment Act 2009 was passed in Parliament on 2 September 2009 and received Royal Assent on 17 September 2009.

The legislation came into force by proclamation on 29 March 2010.

Legislative Update- Name Change

Amendment to section 1 changes the name from Juvenile Justice Act 1992 to Youth Justice Act 1992.

‘Youth’ is “more reflective of the contemporary language used by our stakeholders and the general community, and is in keeping with similar legislation in other Australian states.” Honourable KL Struthers, Hansard Speech, 2nd reading, 19 May 2009.

Legislative Update: Warrants

Under the previous legislation, the court had no power to issue a warrant to arrest a young offender who failed to comply with a conference agreement or drug assessment and education session, and did not voluntarily return to court.

Amendments to s 164/165/166/174 allow the court to issue a warrant to arrest young offenders who have:

Contravened an agreement made on a court’s referral (s164)

Contravened an agreement made on a court’s referral before sentence (s165)

Contravened an agreement made where no further action was taken by the court (s166)

Failed to attend drug assessment and education session (s174)

Legislative Update: Warrants

The young offender must be given notice that they may be arrested by police if they do not comply with the above orders.

The notice must:

include a warning that the court may issue a warrant for arrest if they fail to attend court to answer the notice; AND

state that if the court issues a warrant and the young person is arrested they will be treated as if arrested for an offence.

Legislative Update: Bail

Section 48 outlines the factors the court must consider when determining bail.

eg nature of offence and criminal history

Courts must now consider “the likely sentence that may be imposed if the youth is found guilty” (s48(3)(A)).

Codifies common law considerations: see Lacey v DPP [2007] QCA 413 at 13.

Legislative Update: Bail

Under the previous legislation, the court must remand a young person in custody if satisfied that the young person’s safety would be in danger if released (s 48(7)).

Amendment clarifies that this will apply if the young person’s safety is in danger because of the alleged offence.

Clarifies that greater social welfare reasons (ie breakdown in home placement) are not grounds to refuse bail.

Legislative Update: Curfews

Courts now have specific powers to impose curfews on young offenders:

Section 52 - curfew as a bail condition

Section 193 - curfew as a probation order condition

Section 204 - curfew as an intensive supervision order condition

Section 221 - curfew as a conditional release order condition

“Curfew” is defined in Schedule 4 as “a requirement to remain at a stated place for stated periods.”

Implications - breaching curfews

Breaching a curfew bail condition:

A young person cannot be charged for breaching a bail condition (s29(2)(a) Bail Act).

Police can make application to the court to vary or revoke bail based on non-compliance (s30 Bail Act).

This may result in a youth being arrested and brought before the court (must be served with a Notice of Exercise of Power s367 PPRA).

Implications - breaching curfews

Breaching a community-based order curfew condition:

It is not an offence to breach a community-based order.

If breached, the young offender must be given a warning and further opportunity to comply.

If still non-compliance, the Department can commence breach proceedings by way of complaint and summon.

Increase of minimum mandatory sentence for multiple murders

Generally, mandatory sentence provisions do not apply to young offenders (s155).

Amendments to s176 allow an exception for young offenders who are:

convicted of murder; and

sentenced to detention for life; and

sections 305(2) and 305(3) Criminal Code Act 1899 apply.

Increase of minimum mandatory sentence for multiple murders

Sections 305 Criminal Code Act 1899 punishment of murder(2) If the person is being sentenced—

(a) on more than 1 conviction of murder; or(b) on 1 conviction of murder and another offence of murder is taken into account; or(c) on a conviction of murder and the person has on a previous occasion been sentenced for another offence of murder;

Section 305(3) adds that it is irrelevant whether the crime for which the person is being sentence was committed before or after the conviction mention in subsection 305(2)(c).

Increase of minimum mandatory sentence for multiple murders

The amendment:

Increases the minimum mandatory detention period from 15 years to 20 years.

Only applies where a young offender is sentenced to life imprisonment.

Does not effect the court’s discretion to impose a sentence other than life imprisonment for murder.

Legislative Update: Publication of youth offender details

Section 234 allows the court to order the publication of identifying information of young offenders who are found guilty of a serious offence that is:

a life offence; AND

involves violence against a person; AND

is regarded as particularly heinous when considering all the circumstances; AND

is in the interests of justice.

Legislative Update: Publication of youth offenders details

The amendment defines “interests of justice”:

the need to protect the community; and

the safety or wellbeing of a person other than the child; and

the impact of the publication on the child’s rehabilitation; and

any other relevant matter.

The amendment adopts the test set out in R v Rowlingson [2008] QCA 395.

Legislative Update: Transfer to Adult Prison

A new Division 2A has been inserted.

Prior to the amendments, the court could only consider making a transfer order after an application was made to a Children’s Court judge.

Amendments require all courts to consider setting a date for the transfer of offenders from youth detention to adult prison at time of sentence.

Amendment At time of sentence:

If young person is 16 or over at time of sentence and will be in custody when 18 the sentencing Judge or Magistrate must consider making an order that the young person be transferred to an adult prison from the time they:

are 18; or

if they are 17 if they have previously spent time in a prison or sentenced to period of imprisonment (s276B)

Application procedure retained

By application:Unserved period of youth detention may be transferred to an order of adult imprisonment upon application to a Children’s Court Judge if a young person is:• over 18 or• 17 and has previously spent time in a

prison (s276C)

Transfer of Detention Orders to Adult Prisons

If no transfer order was made at the time of sentence or a prior application was refused application can only be made if ‘material change in circumstance’ (s276C(3)).

Transfer of Detention Orders to Adult Prisons

Matters to be considered by the Court include:

the length of the period of detention

the earliest day the person may be released from detention and the person’s age at the time

the length of any period of community supervision after release from detention and the person’s age at the end of the supervision period

any particular issues relating to the vulnerability or maturity of the person known at the time of the decision

the availability of relevant services and programs during a term of imprisonment

any time the person has spent serving any term of imprisonment

likely impact on a detention centre if transfer order is not made

any other relevant matter

Implications for practitioners

Practitioners will need to advise their clients of new court powers.

Practitioners will need to be prepared to argue the matter at sentence – including calling witnesses/presenting evidence to support their case.

Transfer of Detention Orders to Adult Prisons

Only period of actual detention may be transferred (Department of Communities v S. [2005] QCA 360).

If transferred must be released (on parole) no later than would if in detention (s276D(9)).

Decisions may be appealed as if a civil decision(S276D(6)) therefore unlikely to be reviewable on a section 118 review.

Youth Justice Conference Participants

Amendments to section 34 enables victims to have the same number of support persons present in a conference as young offenders.

Legislative Update: Youth Justice Conference Agreements

Amendments to section 165 attempt to clarify how a conference agreement may be incorporated into sentence orders.

Also clarifies breach proceedings:

contravention of a conference agreement included in a community-based order may proceed under division 12 (general breach of community-based orders)

means a young offender must be given a warning and an opportunity to comply before breach proceedings commence.

Contravention of Supervised Release Orders (SRO)

A new Division 12A has been added which deals with offenders who breach a SRO.

For general non-compliance, a youth must be warned and given further opportunity to comply before breach proceedings can commence (s252B).

The court may take immediate action when a youth is convicted of an indictable offence while on a SRO (s252E).

Childrens Court Breach Options Youth appears

- complaint & summons orconvicted of indictable

offence

Unexpired period

of sentence< 1 year

Unexpired period

of sentence> 1 year

Take no action

Take no action

Send to original

sentencing court

Serve part of unexpiredsentence

Serve all of unexpiredsentence

Higher/Original Sentencing Court (s252F) Options

Take no further action - give the youth a further opportunity to satisfy the order; or

Order the youth serve part of the unexpired sentence – and set a day for another SRO which releases the youth from detention; or

Order the youth serve all the the unexpired sentence.

Information Sharing to Queensland Police Service

The Act clarifies that information may be disclosed to the Queensland Police Service where disclosure is for the purpose of the functions of the police service and is deemed to be in the public interest (e.g. young person discloses involvement in the commission of a serious offence).

Young people, their parent/s or carer should be fully informed of the Department’s ability to release confidential information, at their initial interview through the provision of a privacy notice that must be read to the young person, their parent/s or carer.

Understanding will be verified and confirmed with a signature from the young person, their parent/s or carer.

Information Sharing to Queensland Police Service

A ‘public interest’ test will be applied about:

release of the information would serve the interests of the broader community

public safety would be increased through the disclosure of the information (i.e. the information suggests a threat to the good order, and/or protection of the broader community).

Delegation for approving disclosure of confidential information rests with Regional Directors/Assistant Regional Directors in Department of Communities who must provide verbal and/or written approval to disclose to the Youth Justice Service Centre Manager.

Part 2: Bail

Some views on bail

“Bail is granted all too freely these days and the public and officers are often bewildered as to the reason some criminals are granted their liberty.For a first time offender, a few hours in the cells may do them a favour with a less than subtle reminder that there are consequences for your actions …Perhaps a little time to contemplate life with the clang of the cell door ringing in their ears might be just the ticket to steer some wayward young folk back on track.”

- Ian Leavers, QPU PresidentMay 2010 Police Union Journal

Views on bail (cont’d)

“A bail application is not concerned with determining the issues which the jury must decide, nor is it concerned with punishing a person in advance of that adjudication by a jury.”

- Per Eames JDPP v Ghiller [2000] VSC 435

Powers of Arrest

Special provisions apply in relation to the charging of children

Police must consider alternatives to commencing proceedings – s11

NTA or complaint and summons preferred – s12

Powers of Arrest (cont’d)

Power of arrest preserved in certain circumstances – s13

Also informed by guidelines in OPMs

See 5.7.1 “Taking children into custody”

Police may arrest a child to question in relation to an indictable and/or “serious” offence; or

They hold a reasonable suspicion an offence has been committed, and that the arrest is necessary to: prevent destruction or fabrication of evidence, continuation or repetition of the offence, ensure appearance before a court, or they reasonably suspect the person is an adult

Unlawful arrest?

Failure to comply with these provisions may render an arrest unlawful

Police also limited in circumstances in which they can handcuff children – OPMs 5.7.14

Applying for bail

Application for bail governed by Pt 5 Youth Justice Act

Broadly speaking, same considerations as for adults except:

No “show cause” ever

Sch 1 principles underpin the exercise of the discretion

New provisions

Amendments codify common law position

s48(3A) – Consideration of likely penalty against time in custody if bail refused – Lacey v DPP [2007] QCA 413; Sica v DPP [2010] QCA 18

s48(7) – Clarification of refusing bail because of “safety concerns”

Bail conditions

s52 – As for adults, court has power to impose conditions on bail

Conditions not to be more onerous than necessary – s52(5)

A practice more honoured in the breach

Conditions ought not be targeted at addressing peripheral concerns

CCQ Bail

CCQ has jurisdiction to hear bail applications for all offences (including Murder) – s59

CCQ bail application process effectively replicates Supreme Court bail (affidavits, outlines, draft orders)

Youth Legal Aid specialises in CCQ bail

CCQ Bail (cont’d)

No requirement for application to be brought first before magistrate

No need to demonstrate change of circumstances

No geographical limit on application for CCQ bail

Breaching bail

s29(2)(a) Bail Act – Not offence for child to breach bail conditions

s30 – On application, the court may vary or revoke the child’s bail

s30 application only able to be made by a party to the proceedings, not the Court

May only be varied or revoked by court which granted bail

Breaching bail (cont’d)

If application made under s30 is to be heard ex parte, notice must be given to the defendant specifying the date set for hearing of the application

Unless the court is satisfied that the defendant has, or is likely to abscond or breach a bail condition

Right to be heard on application

Notice of Exercise of Power

PPRA s367 – A police officer may exercise a power of arrest where police officer reasonably suspects:

The person has contravened a condition or failed to appear

The person is likely to fail to appear

s367(4) before undertaking this process, officer must consider proceeding under s30 Bail Act

s367 Notice

The notice must state:

The basis for the officer’s belief in one of the s367(3) factors; and

Why it is not appropriate to proceed instead with an application under the Bail Act to vary or revoke

Where this is not done, the Notice will be defective, and can be struck out

s367 Powers

s367 only confers the power to arrest

Notices under this section only explain the circumstances of the exercise of this power, and provide a basis to bring the defendant before a competent court

Notices do not comprise an application for variation or revocation

s29A Bail Act

s29A requires a defendant arrested under s367 PPRA to be brought before a Magistrates or Children’s Court promptly to be dealt with according to law.

If the court is satisfied a breach of conditions has occurred, the court may, of its own motion, revoke bail

s29A (cont’d)

Does this confer a power in a Magistrates Court to revoke Supreme Court or CCQ Bail?

Words “according to law”

CCQ also referred to as “Children’s Court”

Must mean to be dealt with in a court of competent jurisdiction

No lawful power in magistrates court to revoke bail from higher court in s30

Proper procedure

Child arrested under exercise of s367 power must be brought before a competent court

Proper process to bring child before CCQ if child on CCQ bail

Otherwise, if no application made, and court not inclined to revoke of its own motion, child should be released

Questions?