Prevention the only hope for young offenders, because cure is failing

Gino Vumbaca | SMH | May 02, 2012

In the aftermath of the Kings Cross police shooting of Aboriginal teenagers driving a stolen vehicle, the Herald has published an investigation into juvenile justice and how we deal with children that get into serious trouble.

It's sometimes too easy to look for someone to blame for youth crime - be it parents, government departments or others. What is harder to find are effective solutions, especially when they challenge the prevailing political and media orthodoxy.

Tonight, however, in what may be the start of some long overdue reform in NSW, the Governor, Marie Bashir, will launch a campaign to reduce the staggeringly high rate of young indigenous people in detention centres. It is led by the Aboriginal Legal Service and includes Michael Kirby, Mick Dodson, Bob Debus, Adam Goodes, Mick Gooda, Marcia Ella Duncan, Naomi Mayers, Nick Cowdery and other prominent Australians who want to make ''justice reinvestment'' the new norm.

If the current trajectory continues we are in real danger of losing a generation of young indigenous people. In NSW, they make up more than half of the detention population yet just 2.2 per cent of the general population. An Aboriginal youth facing the court system is 28 times more likely to be placed in juvenile detention than their non-indigenous counterparts. This is a shameful indictment of our current approach, which routinely consigns young Aboriginal people to detention. It cries out for a new approach that includes early intervention, prevention and diversion with incarceration as a last resort only - in short, what is becoming known around the world as ''justice reinvestment''.

Justice reinvestment is not about spending more of our taxes; it is about redirecting the current ineffective investments we are making in the justice system into areas and programs that can provide better, safer and healthier communities. It also reduces the extraordinary costs each time we put a juvenile in a detention centre or an adult in prison.

In NSW, the Auditor-General has revealed that the average annual cost of supervising and caring for juvenile offenders last year was $237,980 a person - a quarter of a million dollars a year for each young person locked up, and what do we get in return? The Australian Institute of Criminology has estimated that more than 30 per cent of adult prisoners were actually first incarcerated within the juvenile detention system. Given there are about 30,000 adult prisoners in the country and fewer than 1,000 juveniles in detention in any given year, that is a lot of juveniles going from detention to adult prison. It is also a system in which just under 60 per cent of NSW prisoners have previously served a sentence. In effect, our juvenile detention centres have become the learning centres for a cycle of offending and imprisonment.

The choices facing NSW today as the jurisdiction with the largest prison and juvenile detainee population are quite stark. We can continue on what is called the tough-on-crime path and replicate what is now known as the American disease. The US is home to 5 per cent of the world's people and 25 per cent of the world's prisoners. The prominent New York-based public health physician Ernie Drucker's recent book describes in epidemiological terms how this prisons ''plague'' has led to more than 2 million people being incarcerated, 800,000 on parole, and more than 4 million on probation. The ancillary effect of this type of justice means millions of children and family members of those incarcerated also come into regular and potentially damaging contact with the justice system.

The US, Russia and China lead the world in imprisonment. They show us the inevitable outcome of such tough policies. Enormous resources are being sucked out of other budget priorities, such as education and health, and they have high re-offending rates as people are churned through a brutal penal system and returned to the community.

NSW has not reached this point but finds itself on a similar path. I am not sure when developing policy based on evidence became synonymous with being soft rather than smart, but I think we should ask the next journalist, commentator or politician who portrays options other than prison as being ''soft'' what their view would be if their family member were facing incarceration. I would bet London to the proverbial brick they would stop at nothing to have them spared. This is because deep down they know, as does anyone who works or has been in prison, that it is an intimidating and violent system, and the last place where we can expect rehabilitation.

In contrast, justice reinvestment is about prevention rather than cure - about creating alternative pathways for young people who may otherwise be destined to lifelong offending, drug and alcohol misuse and suicide. When young people offend, there are likely to be other issues at play that are contributing. Justice reinvestment is our best option to target these causes and factors.

A think tank called Australia 21 recently called for a rethink on drug policy based on a review of the evidence and current approaches. One can only wonder how we can keep ignoring the evidence of our law and order policies. Just as a war on drugs can descend into a war against its citizens, a tough on crime approach can degenerate into a war against its most disadvantaged.

Gino Vumbaca is the executive director of the Australian National Council on Drugs and a member of the Campaign Committee. www.justicereinvestmentnow.net.au

Chief law officer eschews a law-and-order auction for young offenders

Imre Salusinky | The Australian | 21 April 2012

THERE have been some under-performers in the one-year-old NSW Coalition government, and a couple of star turns as well - but for sheer surprise value, nobody has outdone the government's chief law officer, Greg Smith.

As a former high-ranking prosecutor in the office of the Director of Public Prosecutions, and coming from the Liberal Party's Right faction, the state's new Attorney-General could have been expected to ramp up the "law-and-order auction" that has been a feature of NSW politics for decades.

Instead, he has done the opposite. Under Smith, the government has begun to explore way of dealing with crime that address causes, rather than simply imposing tougher penalties on perpetrators. In particular, Smith has flagged measures to reduce the number of young people on remand, one of the ugliest features of the criminal justice system in NSW. He's also asked the Law Reform Commission to clean up the dog's breakfast that has become sentencing law in NSW after successive state governments legislated mandatory sentences and non-parole periods to burnish their "tough on crime" credentials.

Smith's judicial appointments have not met any ideological standard but appear to be based on merit and due consultation with key stakeholders. And he's paying the predictable price, being accused of "going soft" on criminals by influential sections of the electronic and print media.

At a youthful 64, Smith is a devout Catholic, plays in a folk group called the Tokens that visits nursing homes, and is a proud grandfather. For him, recent months have been a repeat baptism of fire. During his first months in parliament, in 2007, Labor, disgracefully, trawled through his record as a prosecutor in an effort to portray him as soft on pedophiles.

"I always expected there to be an attack," the Attorney-General tells Inquirer. "The fact that, as a prosecutor, I had experience running some very difficult trials, that made me tougher. Your witnesses may be hostile but that's not the end of it. You can recover your position, as long as you keep calm and keep smiling."

AG Greg Smith's speech to Public Defender's Conference

Speech by Greg Smith SC MP, Attorney General and Minister for Justice to 

open the Public Defender’s Conference, Saturday 24 March 2012 at Taronga 

Park Zoo Conference Centre. 

This Monday marks the first anniversary of the election of the O'Farrell Government.  

For the past week we have had the pleasure of getting up at 5.30 and going out to 

railway stations handing out  little cards telling people what good things we’ve done 

and they are saying: what’s up?, Is there an election on? But we have had a very 

good reception. 

I am pleased to say the firm agenda I set in opposition – with the backing of the 

Coalition –which was that there would be no law and order auction at the last 

election, has been honoured by us. And I think Labor was becoming weary of it. 

They didn’t try to counter with a one sided auction – no grid sentencing, or more 

maximum life sentences, no extra aggravated offences, no standard non parole 

periods – which had coloured the previous 20 years of elections. 

Unlike previous governments, our State plan does not demand a certain number of 

arrests or prisoners. Take section 22A of the Bail Act; it allowed only one application 

for bail and had a particular impact on young people - especially for those who 

breached curfews. There are now are 150 people a week in juvenile detention 

centres who will never receive a custodial sentence. 

I promised we would open a second metropolitan drug court – I expect that will up 

and running in May – and the first intensive drug treatment facility in a NSW jail. We 

have done that at the John Morony complex at Windsor. In late February the first 62 

prisoners started and within two years I hope we have 300 prisoners – 250 men, 50 

women - undergoing treatment that will last for about six months. They will be linking 

up with the non-government organisations after their release so they can continue 

their treatment. 

Drug addiction can be a lifelong struggle and my hope is that this program will help a 

lot of people to turn their lives around and make a positive contribution to the 

community. If they can get off the drugs, get a job, get somewhere to live and help – 

 rather than just being thrown into jail and let out with the same problems – it will be 

better for the community. We will have more citizens who might have been 

permanent criminals going straight and the community will be safer. And hopefully 

the perceptions of safety will increase because that is one of our big problems. 

Fanned by publicity and sensation, there is a perception out in the suburbs of 

Sydney that it’s dangerous out there, in the night, even in the day.   

Children sue over arrest flaw

Nick Ralston | SMH | March 25, 2012



Class action ... Musa Konneh was the first to sign up to legal action against the NSW government over the database errors. Photo: Ben Rushton

TWENTY-ONE children wrongfully arrested because of a computer error have joined a class action against the NSW government.

The move comes after the government failed to deliver on a promise made last June to fix the problem with the Department of Justice computer system, which police use when making arrests. Solicitors involved in the class action said that since then at least 11 children had been wrongfully arrested because of out-of-date information on the system.

Vavaa Mawuli, a senior solicitor with the Public Interest Advocacy Centre who is co-ordinating the action, said young people continued to be wrongfully detained, despite the class action. The Department of Justice's computer system, known as JusticeLink, did not fully sync with the police computer database. This meant police did not immediately have access to changes in a person's court records after they had appeared before a magistrate and had their bail conditions varied or dropped.

A police source said it was frustrating for officers, who were acting in good faith on the information that was available to them.

Last June, Musa Konneh became the first young person to join the class action seeking compensation over his wrongful detention.

Mr Konneh was arrested, strip-searched and spent a night in jail because the police computer database failed to recognise that all charges against him had been dismissed in the Children's Court four days earlier.

The Sun-Herald can reveal 30 young people have complained to the solicitors involved in the class action about being wrongfully arrested because of the system error, which dates back to 2005. Of the 30, 21 have instructed them that they want to be part of the action.

The law firm Maurice Blackburn, which is involved in the class action, said it believed the number involved could grow to as many as 200.

A young person involved in the class action was arrested at his Caringbah flat at 11.30pm on a Thursday in 2010 because he had not been home when police called at 8pm. But the then 17-year-old's bail conditions had been altered by a magistrate a month earlier, and his curfew had been extended to 9pm - a condition he had complied with. The teenager was taken to a juvenile justice centre, detained overnight and then taken and held in a cell at Parramatta Children's Court until the matter was thrown out by a magistrate.

Last June, the Minister for Police, Mike Gallacher, said the problem needed to be fixed urgently and that he did not believe it would be an issue in a year's time.

A spokeswoman for the minister yesterday said the government was seeking a response from the NSW Police Force and the Department of Justice. NSW Police said new safeguards had been put in place and it was working to fix the problem with the support of the government.

Last financial year, police were forced to pay more than $5 million to compensate people it had falsely imprisoned and assaulted. It was a $1 million increase on the previous year.

NSW poised to revamp bail laws

Waleed Aly | ABC RN Drive | 7 February 2012

Listen to interview here 

The bail laws in NSW are the toughest in the country. The state's bail act has been amended no less than 32 times since it was introduced in 1978 and as it stands now, there is effectively a presumption against bail for many offences.

Now the State Coalition Government is seriously looking at softening these laws. An issue that has been of particular concern for some time is growing numbers of young people who are being denied bail and held in jail, only to stand trial and find out they have no sentence to serve.

The man charged with weighing up possible amendments to the Bail Act is the NSW Attorney General Greg Smith and he spoke with Waleed Aly.

Youth bail laws to be eased in NSW

Imre Salusinsky | The Australian | February 7, 2012 

BAIL laws in NSW will be reformed in a push by the state government to reduce the number of young people in jail.

NSW Attorney-General Greg Smith has confirmed to The Australian the changes are likely to include exempting accused juveniles from tough provisions introduced to the bail act in 2007, which limited the right of accused offenders to make repeated applications for bail once an initial bid was refused.

At about 400, the number of juveniles in detention in NSW is the highest in the country.

About half are on remand -- a proportion that spiked following the new provisions.

"Once they get into detention, their prospects of returning to a normal life are diminished," Mr Smith said said of accused offenders aged under 18.

"There are currently more juveniles on remand than are serving detention. They're being exposed to more serious young criminals while they are there."

He said the 2007 changes "did seem to impact in a more prejudicial way on juveniles than it did on adult prisoners".

Most frequent users of Legal Aid are under 18: study

Anna Patty | SMH | 27 December 2011

PEOPLE under the age of 18 are the most frequent users of Legal Aid services in NSW, research has found.

While the bulk of people who turn to Legal Aid for free legal assistance are adults charged with criminal offences, they usually only use the service once or twice.

Legal Aid NSW has profiled its most frequent users for the first time and has found that 90 per cent are children or young people under the age of 21.

The findings, published in its latest annual report this month, show the average age of young people making their first contact with Legal Aid is 13.

The study looked at Legal Aid clients who were returning for further help and who may not be getting their needs met.

Access to Legal Aid is means- and merit-tested for adults, but not for anyone under 18.

The study, which looked at the 50 most frequent users of the service between July 2005 and June last year, found one young person had used the service 159 times. More than three-quarters of frequent users of the service were Australian-born males.

''Not surprisingly, our high service users were concentrated almost entirely in our criminal law practice,'' the report said.

Three-quarters of the young people in frequent use of Legal Aid had been victims of neglect or had experienced violence in the home as children.

Almost half had been diagnosed with mental illness, a third had cognitive impairment and two-thirds had experienced being homeless.

''Too often, court is the critical and common intervention point,'' the report said.

''We share our high service users with many other agencies involved in the criminal justice and human services systems.''

The researchers suggested agencies including the Department of Community Services and Legal Aid could be working together more effectively to help resolve the complex needs of youth requiring frequent use of legal services.

The researchers said other studies had shown the number of children in out-of-home care had doubled between 2005 and 2010.

A review of the NSW juvenile justice system had said the increasing number of children and young people involved in child protection and out-of-home care systems suggests there will be an increasing number of children and young people at risk of entering the juvenile justice system in coming years.

Is Prison Culture Killing Our Children?

A. Scott Washington, J.D. | Hip Hop Justice | December 2010

A factor that cannot be ignored when discussing urban violence is over reliance on incarceration in this country. To ignore the causal connection between contemporary criminal justice policy and the rise in youthful urban violence is turning a blind-eye to factors that are rotting the foundation of contemporary urban society.

There are nearly 2.4 million persons incarcerated in state or federal prisons in this country. Half of those persons are African Americans. Obviously, identifiable behavior patterns are associated with African Americans being disproportionately incarcerated. On the other hand, the intersection of public policy and poverty has collided with the forces of history, race, economic theory and human vulnerability to create a social pathology like none seen before in this country. As a result, “prison culture” is now firmly embedded in inner city America.

Following 35 years of tough on crime policy, the affect of generational incarceration and recidivism has created an environment ripe for this new subculture within the inner city. This subculture is fueled by the extremely violent and brutal customs and values that were born within the concrete walls of this country’s correctional institutions.

Prison culture, which is now abundantly present in the inner city, is directly connected to the extreme and pervasive violence we are experiencing in the African American community. These conditions grow exponentially, parallel to the prison population in this country. This phenomenon is cyclical and, as the statistics suggest, actually increase violent criminal activity in both the inner city and suburban communities. Therefore, community safety is significantly compromised by the tough on crime mentality associated with contemporary criminal justice policy; particularly, this country’s drug control efforts that have become the fundamental premise of our national crime policy.

Our children have become the collateral damage of contemporary American criminal justice policy. For many inner city residents and African American children in particular, criminal justice policy and poverty have contributed to a blurring of cultural, as well as social values. During the welfare reform era we spoke about children raising children. What prison culture has resulted in today is children raising themselves. A significant proportion of our inner city youth today are the children of prisoners that inhabit this nation’s prisons. When these children reach adolescence they are typically raising themselves in the bowels of contemporary urban America.

What criminal justice policy and poverty have perpetuated in this country is the social disenfranchisement of African American children. The forces of public policy, poverty, and human vulnerability have conspired to create this new and peculiar universe within the inner city. The apparent evolving nature of this new inner city subculture and its intersection with poverty and social pathology has created an environment ripe for youthful urban violence to flourish.

The questions that must be raised here are: 1) what are we going to do with the massive numbers of unskilled, undereducated, and often, recalcitrant felons that will be returning to our communities over the next several decades (98% of the 2.4 million prisoners in this country will be released)? 2) When will policy be implemented to deal with the flaws and inadequacies in current drug control policy? 3) When are our lawmakers going to present concrete solutions for problems that cannot be conquered by locking up millions of Americans?

A. Scott Washington, J.D. is a formerly incarcerated person who has earned a Bachelors Degree in Urban Studies with an emphasis on contemporary urban problems and a Juris Doctor Degree from the University Of Dayton School Of Law. Also, he is Assistant Professor of Criminal and Social Justice at the University of St. Francis in Joliet, Illinois. A. Scott Washington also co-hosts a radio program entitled, “Hip Hop Justice Radio” which airs Tuesdays & Wednesdays from 6-8 PM CT on Party 934 and 94.9 FM, Hudson Valley New York.

Aboriginal crime and punishment: spending on jails but not outcomes

Inga Ting | Crikey | 16 December 2011

The rise of a punitive "law and order" culture in Australia has had a profoundly racial dimension, manifested in soaring rates of indigenous incarceration. The number of indigenous adults held in the nation's jails has increased for the 11th year in a row -- as Crikey revealed in part one yesterday -- while over the past decade the indigenous imprisonment rate has outstripped the non-indigenous rate by a factor of 11, ballooning more than 47%. The non-indigenous rate grew 4% in the same period.

This shift towards the use of crime and punishment as a tool of social control -- known as "governing through crime" -- has led to the rise of a "risk agenda" that concentrates on the risk of crime occurring, not just actual crime. In this society of heightened fear and increased surveillance, punishment is increasingly targeted at those on the periphery. And no group lies more at the periphery than indigenous Australians.

That outcomes for Aboriginal Australians are deteriorating in all but a select few areas has been confirmed by virtually every government report released this year. Here is an extract from just one -- the Productivity Commissions latest Closing the Gap report, Overcoming Indigenous Disadvantage: Key Indicators, released in August:

"Nine years after this series was commissioned, there is still a considerable way to go ... Wide gaps in average outcomes remain across most indicators. Of the 45 quantitative indicators in the report, for example, available data show improvement in outcomes for only 13 indicators ... For 10 there has been no real improvement, while for another seven, including social indicators such as criminal justice, outcomes have actually deteriorated."

Some of the most shocking indicators are in the area of health, where hospitalisation rates are vastly higher for indigenous men and women than for other Australians.

Ratio of indigenous to non-indigenous rates of hospitalisation

Reason for hospitalisation                                            Women               Men

Injuries caused by assault                                             31                        7

(i.e. hospitalisation rate for indigenous women 

31 times higher than the rate for 

non-indigenous women) 

Injuries caused by non-fatal family violence assault      31                        25

Mental and behavioural disorders                                  1.5                      2.2

Chronic disease:

End-stage renal disease                                                 15                        8
Diabetes                                                                        5                         3.5
Circulatory                                                                    2                         1.5

According to the same report, indigenous adults indicate having a disability that profoundly or severely restricts core activity at around twice the rate for non-indigenous people. They are also twice as likely to be recent users of illicit substances as other Australians and four times as likely to be homeless.

David Woodroffe, managing solicitor in criminal law at the North Australian Aboriginal Justice Agency in the NT, says the Northern Territory intervention has invested heavily in institutions focused on punishing criminal behaviour, while providing minimal services to help those who turn to crime in the first place.

"There’s more policing in communities -- more police stations and police posts -- so more people will come to the attention of police, will be charged, get into the [criminal justice] process. But there’s no corresponding in relation to other services ... there’s no youth diversion programs, there’s no rehabilitation services, etc. So basically, government’s providing an impetus for detecting crime and prosecuting crime but there’s not the services there for reducing crime or turning people away from it. And that’s why we see, with the lack of services like that, people becoming entrenched in the criminal justice system."

Age of criminal responsibility is too low, say brain scientists

Alok Jha | The Guardian | 13 December 2011

Parts of the brain responsible for decision-making and impulse control are still developing during a person's teens

The age of criminal responsibility in England, Wales and Northern Ireland could be "unreasonably low" given the emerging understanding of how slowly the brains of children mature, according to a report by the Royal Society. Widespread differences between individuals also mean that the cut-off age at which children are deemed fit to stand trial, at 10 years old, might not be justifiable in all cases.

The comments are part of an assessment carried out by a panel of scientists, lawyers and ethicists of how developments in neuroscienceand brain imaging should inform the future practice of law. Neuroscience and the Law, published on Tuesday, examines how scientific understanding of the brain has advanced in recent decades and the light this has shed on behaviour. The report also assesses the reliability of lie detector tests.

In England, Wales and Northern Ireland, a child is deemed fit to stand trial at the age of 10, but in recent years it has been shown that important changes in the brain's neural circuits go on well into a person's teens. In Scotland children cannot be convicted until they are 12.

"A number of psychologists have already shown that adolescents are not wholly responsible individuals and are inclined to take risks and behave in irresponsible ways," said Nicholas Mackintosh, an emeritus professor in the department of experimental psychology at the University of Cambridge and chair of the Royal Society panel. "What neuroscience has shown in the last 10 years is that this is at least associated with the fact that the brain continues to develop throughout adolescence."

In particular, the prefrontal cortex, which is responsible for decision-making, impulse control and cognitive control, is among the slowest parts of the brain to mature and is not fully developed until around the age of 20. "Neuroscience adds to the evidence that a 10 or 12 or 15-year-old does not have a fully adult brain in many important respects," said Mackintosh.

AG at Estimates: Bail

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

The Hon. TREVOR KHAN: Attorney, I think the final question asked by Mr David Shoebridge related to the Bail Act. Are you able to indicate to the Committee what the current trends are with regard to bail and whether the Government is considering any reform of the bail laws in New South Wales? 

Mr GREG SMITH: It is a very topical issue; there was an excellent piece in the Sydney Morning Herald today by Geesche Jacobsen in which she referred in some detail to a submission by the Chief Magistrate to the bail review, setting out the magistrate's perspective on problems. A Bureau of Crime Statistics and Research report on trends in bail and sentencing outcomes in New South Wales criminal courts between 1993 and 2007 revealed that in local courts the proportion of defendants refused bail doubled during those years, from 3.6 per cent to 7.6 per cent. In the District and Supreme courts the proportion of defendants refused bail during that period also doubled, from 23.8 per cent to 47.6 per cent. 

A Bureau of Crime Statistics and Research report on the use of unconditional bail before trial in New South Wales between the years 1999 and 2008 found that over the past decade there has been a marked reduction in the number and percentage of cases where bail is dispensed with, from 60.3 per cent in 1999 to 44.9 per cent in 2008; and that, while there has been some increase in the percentage, 3 per cent, and number of defendants refused bail, the main change has been a rise in the number of defendants placed on bail rather than released unconditionally. 

Another trend has been the increase in the number of juveniles being held in custody pending a court 

outcome—that is, being held on remand. Between 2007 and 2008 the juvenile remand population in New South Wales grew by 32 per cent, from an average of 181 per day to 239 per day. In 2009 there was a downward trend in the juvenile remand population, and this continued to the end of 2010. Remand numbers spiked in March 2011, to 261, and in July of 2011, to 241. On Saturday night 23 October 2011 there were 197 young people held on remand. The average number of juvenile remandees per day in 2010-11 was 193, and this is still higher than the daily number in 2007. 

The juvenile remand rate continues to be characterised by significant fluctuations and remains at an unacceptably high level. Fifty to 60 per cent of young people in detention centres are held on remand; 90 per cent of admissions to detention centres are remand admissions; and approximately 82 per cent of young people remanded in custody do not receive custodial sentences. Pressure is being placed on the remand population by an increase in both the number of juveniles placed on remand and the average length of stay on remand. 

Increases in the remand population are also occurring among adults. As at 16 October 2011, 2,671 people were in full-time custody on remand, awaiting trial or sentence. This is an increase of 86 per cent over 10 years since 30 June 2010, when only 1,433 people were in full-time custody on remand. 

We have commenced the Bail Act review, and on 8 June I asked the Law Reform Commission to undertaken a review of bail law in New South Wales. I am concerned that the Bail Act may have moved away from the spirit and intent of the original legislation—as was reflected in the comments made by the Chief Magistrate, Graeme Henson, reported in the newspaper today. This was to ensure attendance at a hearing or trial, to stop defendants from committing further offences and to prevent interference with witnesses. In announcing the review I was also conscious of the number of people on remand, especially juveniles. I also have concerns about the complexity of bail law in New South Wales and I know these concerns are shared by members of the legal profession and the bench. Bail laws should be as clear and straightforward as possible. 

The terms of reference for the review incorporate issues such as: the objects of the Bail Act; the factors to be considered and presumptions to be applied in bail determinations; the consequences of breaching bail; the desirability of maintaining section 22A of the Bail Act; and the application of bail laws to young people and Aboriginal people and Torres Strait Islanders. The Law Reform Commission can also consider the bail laws of other jurisdictions and any additional bail-related matter. A retired Supreme Court judge, the Honourable Hal Sperling, QC, is leading the New South Wales Law Reform Commission project, with the assistance of its chair, former Justice James Wood, and is due to report next month. 

I would like to make a few comments on the juvenile remand population. I am advised that the heads of justice agencies were asked to look into the issue of increases in the number of juveniles being held in remand, and to identify the causes of the increase. As part of this process, advice was sought from the Bureau of Crime Statistics and Research, which identified two major correlating factors: increased policing of bail conditions, which I think is due to the old State Plan, which we have ditched; and changes made to the Bail Act 1978 in 2007 to prevent the making of repeat bail applications in the same court. I might continue with more comments on that matter later, if that is the end of this period.

Crack appears in juvenile detention plan

Farah Farouque | The Age | 10 November 2011

A CHINK has emerged in the Baillieu government's law and order crackdown as it confirmed plans to defer mandatory minimum custodial sentences for youths aged 16 and 17 convicted of ''gross violence'' offences.

While the government says it is still committed to the controversial laws to incarcerate teenagers, legislation introducing four-year minimum prison terms for adults convicted of the violence offences will proceed first.

Laws tackling adults will be introduced in the first tranche next year, leaving time to consult further on two-year minimum youth detention terms for juvenile offenders - a concession welcomed by the legal profession.

Attorney-General Robert Clark was responding yesterday after a key expert body said that when teenagers were charged with gross violence offences such cases should be automatically transferred out of the Children's Court into the jurisdiction of a higher court where they would be afforded more rights.

Professor Arie Freiberg, chairman of the Sentencing Advisory Council, said it was important ''not to compromise the operation of sentencing'' in the Children's Court, which included rehabilitation.

Professor Freiberg said the council had not been asked to assess the merits of the government's election commitment to introduce statutory minimum sentences for gross violence offences, subject to limited exceptional circumstances.

But the council's report noted most submissions it had received on children from bodies ranging from the Victorian Bar and the Law Institute to the Uniting Church argued that a minimum sentence should not be applied to juveniles.

Incoming Law Institute president Michael Holcroft said he hoped to persuade the government to abandon the plans to incarcerate more juveniles.

"We will be working with the government to do all we can to ensure that the focus for dealing with juvenile offenders is on rehabilitation rather than ensuring they follow a life of crime beginning in a youth justice centre," he said.

In the report, which Mr Clark has been considering since September, the council proposed that two new offences be created to cover circumstances involving ''gross violence''.

The proposed offences are: intentionally causing severe injury and recklessly causing severe injury.

The council has urged that ''severe'' injury be defined in the legislation to cover ''injuries of a long-term nature involving serious impairment to, or loss of, a body function or serious disfigurement''. Such injuries would also cover loss of a foetus.

Professor Freiberg noted that at present the gradation between causing ''injury'' and ''serious injury'' was vague. The Court of Appeal had held that injuries such as two black eyes and a grazed forehead could constitute ''serious injury'' and, given the potential for loss of liberty under the new laws, there should be a higher injury threshold for gross violence.

The Baltimore of The Wire and the doctor trying to change the brains of those who grow up there

Richard Glover | 702 ABC Radio | 10 November 2011

Professor Robert Blum is a world expert on the adolescent brain.

Here he explains to Richard Glover how dysfunction is built into the brains of those depicted in The Wire.

Download the audio file

Juvenile Justice reviews

Liz Keen | ABC Mid North Coast | 8 November, 2011

Listen to interview with Anne Marr, Regional Director Northern Region of Juvenile Justice

The NSW Government is conducting a review of the laws governing juvenile offenders.

NSW Attorney General, Greg Smith has released a consultation paper looking at whether the laws are effective and consistent with the Government's commitment to cutting re-offending rates.

The Deputy Premier, Andrew Stoner, has organised an invitation only consultation with business members in Kempsey this Wednesday looking into Juvenile Justice locally.

Anne Marr is the Regional Director of the Northern Region of Juvenile Justice, Attorney General and Justice Department and she said the Kempsey meeting will sit alongside other community consultations to feed recommendations to the current reviews.

She says that while it is important that young offenders understand the impacts of the crime they have committed, it is also important the system looks at ways to stop the young person from reoffending.

"When you're locking up a 14 year old, you've got to do something to turn that young person around and make them a positive member of society."

Juvenile of Justice studies have shown that 60% of young offenders have a history of child abuse and trauma, 27% have been placed in care before the age of 16, 8% have a child of their own and 12% have a deceased parent; Ms Marr says that these issues need to be addressed.

A recent pilot project in Kempsey, The Kempsey Family Inclusion Project, had some success working alongside the family of a young person who has been found guilty of an offence and Anne Marr says that these sorts of projects could come out of the reviews.

"When we work at those different levels with a young person that's offending we have a much better chance of success than when we work with the young person just in isolation,"

AG at Estimates: Graffiti

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

Mr DAVID SHOEBRIDGE: I turn to the graffiti laws that the Government has been attempting to get
through Parliament. Was there any consultation with your department or with you about the proposed terms of those graffiti laws?

Mr GREG SMITH: I think I took advice. They took part in a Cabinet minute process. I am not sure that we discussed it in any great detail. There has been discussion about the setting up of the graffiti hotline. There has been discussion about the retention of Graffiti Action Day and discussion about assisting local councils that previously had not been assisted. When we were in the drafting stages there was some discussion about the implementation of the P-plate provisions and that sort of thing. That is all I recall. There was no brawl, no argument.

Mr DAVID SHOEBRIDGE: Do you accept that the pattern of laws, putting more juveniles before the courts, is contrary to your oft-repeated statements about removing juveniles from the criminal court system and taking a different and fresh approach to juvenile justice in New South Wales? It is directly contrary.

Mr GREG SMITH: I do not accept it is directly contrary. I think the graffiti situation is in plague proportions. It is a very serious area of potential criminality. It is a bad crime in itself and it leads to worse crimes—that is my belief. By putting them before the court, in a sense, we are helping to save them from a life of crime.

Mr DAVID SHOEBRIDGE: It is directly contrary to your work development order

AG at Estimates: Mental Health in custody

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

Mr DAVID SHOEBRIDGE: Attorney, in the 2011-12 budget do you know the amount allocated to mental health care services for people in New South Wales correctional centres?

Mr GREG SMITH: No, I do not.

Mr DAVID SHOEBRIDGE: Does either Mr Glanville or Mr Woodham know the amount allocated?

Mr WOODHAM: I cannot tell you the exact dollar figure, but I can relate to the programs that we have, which are very expensive and very intense.

Mr DAVID SHOEBRIDGE: Could you give the dollar figure on notice?

Mr WOODHAM: Yes, I can give you that.

Mr DAVID SHOEBRIDGE: Could you include whether any recurrent funding has been allocated for that purpose?

Mr WOODHAM: It is there every year, because large sections of our remand jails are involved with mental health.

Mr DAVID SHOEBRIDGE: Mr Hubby, could I ask you to provide the same figures and details in relation to young people in Juvenile Justice centres?

Mr HUBBY: I will. I would note though that health services in Juvenile Justice centres are generally provided by NSW Health. So some costs are incurred directly by our agency, but some are incurred by NSW Health.

Mr DAVID SHOEBRIDGE: Could you give the NSW Health figures to the extent they are available to you?

Mr HUBBY: I will take that on notice.

Mr DAVID SHOEBRIDGE: Mr Woodham, could you give the same figures for the amount allocated for mental health care services for people in privatised correctional centres in New South Wales, and include the recurrent figures?

Mr WOODHAM: Yes.

Mr DAVID SHOEBRIDGE: So that is a separate figure for the privatised centres.

Mr WOODHAM: What the whole facility costs?

Mr DAVID SHOEBRIDGE: No. The amount allocated to mental health services.

Mr WOODHAM: Our main programs are not there.

Mr DAVID SHOEBRIDGE: Which is why I am asking can you give the amount allocated in those privatised centres, including by centre, so Parklea and Junee.

Mr WOODHAM: Yes.

Plucked from poor villages, boys land in jail

Natalie O'Brien and Cosima Marriner | SMH | 6 November 2011

Homecoming ... Faisal Arysad's mother and grandmother await his return. Photo: Rebecca Henschke

FAISAL ARYSAD was 16 when he was offered a job as a kitchen hand on what he was told was a fishing boat. The offer of $500 was a fortune - almost one year's pay - for the boy who lived with his mother and grandmother in a dirt-poor fishing village in West Timor.

When passengers boarded the boat, he was told it was for a sightseeing tour of the surrounding islands. The next he knew, he told his lawyers, their boat was picked up by an Australian navy ship and he was put in detention, then jail.

''The people smugglers simply get naive people, and the youths fall into that category,'' said Faisal's Brisbane lawyer, David Svoboda.



Sent home ... Ako Lani, 16, back fishing on Roti Island. After six months in an Australian adult jail, he was led into court in manacles. Photo: Rebecca Henschke

''These kids sit in villages with no work. Recruiters walk into the village offering $500. They tell them they'll be met by a ship to pick these people up at their destination. When a ship rolls in and it's full of cannons it's really surprising. These kids are genuinely surprised it's the Australian navy.''

Despite Faisal telling Immigration officials he was 16, the federal police did not believe him. They gave him a widely discredited wrist X-ray test which estimated his age to be about 19. The police charged him with people smuggling and he was put in the Arthur Gorrie maximum-security jail in Brisbane, which houses paedophiles including Robert John Fardon and Brett Peter Cowan, the accused killer of Daniel Morcombe.

But eight months later the charges have been withdrawn after Mr Svoboda flew to Indonesia to gather proof of Faisal's age.

O’Farrell’s ineffective graffiti legislation

David Shoebridge MLC | 25 August 2011

Legislation passing through the NSW Parliament that sends more children to court for graffiti will do nothing to reduce graffiti and is a step backwards, according to the Greens NSW and the submission of the Law Society of NSW.

This legislation will push more children into our courts system and is not supported by any evidence that it will reduce graffiti vandalism. The Greens NSW continue to advocate non-punitive community-based solutions, such as those instituted in the Balmain electorate by Leichhardt Council.

The legislation

The Graffiti Legislation Amendment Bill 2011 amends the Children (Community Service Orders) Act 1987 and the Crimes (Sentencing Procedure) Act 1999 to compel courts to impose community service orders for graffiti offences that require young people to remove graffiti (unless it is not reasonably practicable).

It also changes the Graffiti Control Act 2008 to allow courts to make orders concerning drivers’ licenses of those found guilty of committing graffiti offences of owning graffiti implements. These include increasing probationary periods by 6 months and limiting the number of demerits that can be accrued.

However the fundamental change in the Bill is that it compels young people to attend court. It does this by removing power from the police to deal with young offenders by way of an on the spot fine or youth justice conference instead of court proceedings.

Once passed police will have just two options, send the child to court or let them go.

Ray Denning and lessons unlearnt in our justice system

Jack the Insider Blog | The Australian | 24 August 2011 

NSW Premier Barry O’Farrell deserves a round of applause. One of his election commitments was to examine the failures of the Bail Act (2007). In June of this year, the O’Farrell Government announced a judicial review into the Bail Act.

Retired NSW Supreme Court judge Hal Sperling QC will oversee the review which will report in November.

A promise made has been kept and Premier O’Farrell and his government gets a big tick.

The Bail Act was a flawed piece of legislation, driven largely by an appalling state Labor Government too eager to promote itself as being “tough on crime”.

Changes to the Bail Act created some very nasty unintended consequences. The policy wonks call it getting the settings wrong. But in human terms the costs are immeasurable or at least we won’t be able to measure them for some years to come.

Rates of youth detention skyrocketed in NSW; up by a third. Of those remanded in custody, only one third had committed subsequent offences. The overwhelming majority had been incarcerated awaiting trial for breaches of bail conditions, most commonly failing to comply with curfews. Many will await trial in custody for a year or more. Hopefully, the review will put a stop to this madness.

In Victoria, the Baillieu Government has run a “tough on crime” agenda. Ask the premier a question on transport, health or education and his brow quickly furrows but mention crime or God forbid, youth crime and he’ll go on for hours.

Now the Baillieu Government is moving forward with its plan to introduce mandatory minimum two year sentences for offenders between the age of 16 and 17 convicted of crimes involving violence.

It smacks of a stunt because sentencing data from the Children’s Court in Victoria shows that young violent offenders are not getting off easily. Secondly, a report from the Sentencing Advisory Council of Victoria reveals empirical evidence that longer sentences don’t act as a specific deterrent to offenders regardless of age.

In researching and creating the subjects and their histories for the documentary series, Tough Nuts on Foxtel’s CI Channel, one overwhelmingly common theme was the criminogenic effects of incarceration. In other words, that prisons and youth detention centres themselves are a major determinant of recidivism.

Our subjects were the worst of the worst: career criminals, mass murderers, drug dealers, people at the very top of the criminal hierarchy. They are the most notorious figures in Australian criminal history: Chris “Rentakill” Flannery, Dennis “Mr Death” Allen, Len “Mr Big” McPherson and John “The Magician” Regan.

Almost invariably they were products of a juvenile detention system where they were subjected to protracted physical and sexual abuse. Grafton Boys’ Home was the alma mater of any serious crook you could name from the 1970s and 80s; Stan “The Man” Smith, George Freeman, “Neddy” Smith and Len McPherson himself.

Kids in limbo: Australia's growing reliance on juvenile remand

Daniel Feher | The Drum | 17 August 2011

Limbo:

1. An uncertain period of awaiting a decision or resolution;

2. A state of oblivion;

3. The feeling experienced when held on remand.

Throughout Australian jurisdictions detention is considered an option of last resort in combating juvenile offending, with custodial sentences imposed only when other diversionary measures have failed.

Despite this principle, the number of youths remanded in detention has nearly tripled since 1981, with 60 per cent of young people in Australian detention centres held without sentencing. This figure points to a need for better youth justice programs to keep kids out of lockup, and underlines the greater problem of how to combat chronic juvenile offending by at-risk youths.

According to the recently released Doing Time – Time For Doing report, there are currently over 1,300 minors in detention around Australia, with over half identifying as Aboriginal or Torres Strait Islander. For many it is not their first time "in" and sadly, it may not be their last either. In 90 per cent of juvenile offence cases, the kids learn from their mistakes and exit the system, however it is the remaining 10 per cent who continue as chronic reoffenders that are the main cause for concern. These youths return to custody because of gaps and inconsistencies in post-release service provision that see them released back into the community without the adequate support they need to take control of their lives.

The media frequently leads us to believe that these so-called "hardened" youths are pathological criminals - villainous, defiant and perpetually "up to no good". However research spurred by these reports shows that the reality of these children's situations is far more complex, sad and unfortunate. Most have experienced some form of poverty, abuse or neglect, and many have been exposed to criminal behaviour and drug use from an early age, frequently through immediate family or close relatives. Suffering from a lack of care and positive role models, juvenile detainees often describe being forced to grow up quickly from an unreasonably early age and in some cases take care of younger siblings. In many cases this leads to a prematurely heightened sense of independence that causes a disconnect with the child's social and behavioural development and schooling. Aboriginal and Torres Strait Islander detainees in particular describe a loss of culture and identity, and subsequently a feeling of not belonging and alienation.

Over half of the young people in custody have mental health issues and more than two-thirds have a substance abuse problem that, in many cases, began before they were teenagers. Comorbidity in mental health and substance abuse problems is particularly prevalent, and the majority of detainees with a mental health problem will also have a history of drug use and self-medication. This is just a brief snapshot of the challenges this cohort of kids face in turning their lives around. It also highlights the appallingly negative progress that has been made in combating Aboriginal overrepresentation in the justice system since the Royal Commission into Aboriginal Deaths in Custody 20 years ago.

Compounding these challenges is the strain of incarceration. Results from a recent study by the Australian Institute of Criminology mirrored overseas findings that juvenile detention has no specific deterrent effect, and also pointed to other findings indicating a negative long-term impact on employment prospects. Led by veteran director of the NSW Bureau of Crime Statistics, Dr Don Weatherburn, the study cited a considerable body of research indicating that custodial environments are in themselves criminogenic, serving to harden young detainees and make them increasingly difficult to rehabilitate.

The financial costs of juvenile detention are also substantial, amounting to hundreds of millions of dollars spent each year for very little gain. Tasmania allocates the most on its juvenile inmates at $800 per child, per day, while Victoria is the thriftiest, at $408, with the other states and territories falling in between. Whichever figure you back, it remains a considerable sum to keep a youth in limbo for just one day.