Vulnerable People Within the Legal System
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Transcript of Vulnerable People Within the Legal System
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Vulnerable People Within the Legal System
Riverland Community Legal Service Inc.
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Overview
Young offenders Alcohol dependence and drug addiction Mental health diversion
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Young Offenders
Ages of criminal responsibility Persons under the age of 10 years
cannot commit an offence Persons between 10-14 generally cannot
be guilty Offences committed between the ages of
10-17 fall within the Young Offenders Act
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Young Offenders
Police questioning
Youths must be informed of their rights Have the right to legal representation and to
consult with a lawyer Police are obligated to take reasonable steps to
make sure the offender’s guardian, lawyer, social worker or parent is present
Police are obligated to identify the offence and explain the charge
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Young Offenders
Avenues available to young offenders Police caution (informal or formal) Family conference Youth Court
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Young Offenders
Informal cautions Minor offences Available only when an admission of
guilt is made No further proceedings can be made
against the youth for this particular offence
No conviction is recorded against the youth
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Young Offenders
Formal cautions Formal procedure by which offenders must be
made aware of their rights Minor offences only First time offences only The allegations must be reduced to writing Caution must be signed The allegations must be admitted by the youth No formal conviction is recorded but the police
officer can impose a range of penalties
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Young Offenders
Formal cautions – undertakings Required to compensate the victim Apologise to the victim To make amends to the victim in some
other way Community service (up to 75 hours)
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Young Offenders
Formal cautions Victims have a right to be informed of the
outcome Failure to comply with a formal caution
results in the matter being referred to family conference or the Youth Court
Records of a formal caution are kept even after the offender becomes an adult
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Young Offenders
Formal cautions – other options If the offender is unwilling to admit to the
allegations, formal charges are laid and the matter is sent to the Youth Court
The matter can be sent to the Youth Court at the request of the offender
The matter may be sent to the Youth Court by the police officer
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Young Offenders
Family conferences Youth must be given the opportunity to
seek legal advice Available where the allegations are
admitted Can have a lawyer present Matters can be referred back to family
conferences by the Youth Court
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Young Offenders
Family conferences – composition Youth Justice Coordinator The offender Specialist Youth Justice police officer The victim and their friends/family The offender’s parents, guardians,
support persons The offender’s legal representation
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Young Offenders
Family conferences – outcomes Apologise to the victim Pay compensation Carry out up to 300 hours community
service Anything else that may be appropriate Youth Justice Coordinator may refer
matter back to formal caution
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Young Offenders
Family conferences – referral to the Youth Court
Where the Police exercise their veto Where the offender refuses to sign undertaking Where the offender fails to attend the
conference Where the offender fails to complete the
undertakings reached Where disputes arise concerning the admission
of allegations
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Young Offenders
Family conferences It is an offence to identify the youth Undertakings must be written and signed
by the youth in the presence of his or her guardian/parent
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Young Offenders
The Youth Court Sits in the Magistrates Court Comprised of two District Court judges
(one is designated as Senior Judge of the Youth Court) and two specialist Magistrates
No jury
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Young Offenders
The Youth Court - composition Officers of the Court Representatives of Families SA The offender and his or her legal representation Witnesses (when giving evidence) The parents/guardians of the offender The alleged victim Media representatives
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Young Offenders
The Youth Court – matters heard Where the allegations are contested
(trial) Where the offender elects for the matter
to be heard in Court Where matter is referred to the Court by
Police Where a matter has otherwise been
referred to the Court
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Young Offenders
The Youth Court – penalties Home detention (up to 6 months) Up to two years detention by a Magistrate Up to three years detention by a Judge Suspended sentence Obligation Up to 500 hours community service Fine of up to $2500 Disqualification from holding a driver’s license Compensation to the victim
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Young Offenders
The Youth Court – matters transferred to higher courts
Decisions of the Court can be appealed Homicide offences are automatically transferred Upon receiving legal advice a youth may elect
to be tried as an adult On application from the police prosecutor or
DPP youth may be tried as an adult
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Alcohol Dependence and Drug Addiction
Alcohol Large number of offences linked to use
and abuse of alcohol No diversion programs in general
practice at this time
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Alcohol Dependence and Drug Addiction
Alcohol – initiatives YARN initiative Drink driving – mandatory assessment
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Alcohol Dependence and Drug Addiction
Alcohol – YARN initiative Youth Alcohol Referral Network Pilot program available in certain regions
2006-2008 Diversion of young offenders who had
committed alcohol related offences
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Alcohol Dependence and Drug Addiction
Alcohol – YARN initiative Could be referred to program by the Police,
Family Conference or by self-referral Program involved diversion of young offenders
towards health treatment Assessment of alcohol dependency and abuse
of offender Focus on harm minimisation Community education regarding alcohol
consumption
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Alcohol Dependence and Drug Addiction
Alcohol – mandatory assessment Applies to recurrent drink driving
offenders Court must order assessment
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Alcohol Dependence and Drug Addiction
Alcohol – mandatory assessment Court refers offender to an assessment
clinic for examination Clinic determines whether the offender is
dependent on alcohol or other drugs Provides a report to the Court indicating
findings
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Alcohol Dependence and Drug Addiction
Alcohol – mandatory assessment If the Court receives a report indicating
dependence it must disqualify the offender
The license can then only be restored by Court order
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Alcohol Dependence and Drug Addiction
Illicit drug addiction Police Drug Diversion Initiative CARDS Drug Court Griffith’s remand
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – PDDI Similar in nature to YARN Referral for assessment by an accredited
healthcare worker Application limited If offender attends the appointment with the
healthcare worker no further Police action is taken
If offender fails to attend criminal proceedings are initiated
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Alcohol Dependence and Drug Addiction
Illicit drug addiction - CARDS Court Assessment and Referral Drug
Scheme Operates out of the Magistrates Court
and Youth Court
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – CARDS referral Self referral Court referral (pre-sentencing) As a condition of a bond
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – CARDS eligibility Must have allegedly committed the
offence whilst under the influence of an illicit drug; or
Allegedly committed the offence to support an illicit drug habit; or
Charged with possession or use of an illicit drug
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – CARDS treatment At least four meetings with qualified
counsellors Withdrawal management, detox,
methadone treatment, group therapy, rehabilitation programs, referrals to Narcotics Anonymous, etc
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Drug Court For more serious drug offences Held in the Adelaide Magistrates Court
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Drug Court personnel
Department of Correctional Services The Legal Services Commission The DPP Drug and Alcohol Services SA
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Drug Court eligibility
Over 18 Charged with an offence related to drug
use Likelihood of imprisonment Willingness to complete the program Guilty plea Cannot be a violent offence
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Drug Court procedure
12 month period Fortnightly court appearances Initial home detention conditions Regular urinalysis Mandatory drug treatment sessions Counselling
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Drug Court sanctions
Breach of bail conditions Failure to attend required sessions Positive test for drug use Re-offending
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Drug Court outcomes
Review conducted in 2006 Around 25% completion rate Around 55% termination
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Griffith’s remand Legal development
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Griffith’s remand Must plead guilty Must be on bail conditions Up to 12 month remand
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Griffith’s remand eligibility
Generally not available for offences of violence
Circumstances where imprisonment would otherwise occur
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Griffith’s remand Requested by defence lawyers At the end of the remand period the
offender must furnish reports and other evidence demonstrating their rehabilitation
Imprisonment may then be suspended
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Alcohol Dependence and Drug Addiction
Illicit drug addiction – Griffith’s remand issues
Allows for flexibility where no diversion program available
May be of detriment to offender Burden on defence lawyers
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Mental Health Diversion
Magistrates Court Diversion Program “Mental Health Court” Operating since 1999 Metropolitan and regional Magistrates
Courts
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Mental Health Diversion
Magistrates Court Diversion Program – eligibility
Available only for summary and minor indictable offences
Must plead guilty to charges Must have some mental or intellectual
impairment
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Mental Health Diversion
Magistrates Court Diversion Program – eligibility
Mental illness Intellectual disability Acquired brain injury Neurological disorder Personality disorder
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Mental Health Diversion
Magistrates Court Diversion Program - stats 30.9% – Major depressive disorder 15.2% – Schizophrenia 9.6% – Personality disorder 7.1% – Post-traumatic stress disorder 6.4% – Bipolar disorder 6.4% – Anxiety disorder 4.6% – Acquired/organic brain dysfunction 4.3% – Other 3.5% – Intellectual disability 3.5% – Psychotic disorder 3.5% – Mood disorder 2.5% – Developmental disorder 1.4% – Substance related disorder 0.7% – Impulse disorder 0.4% – Not known
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Mental Health Diversion
Magistrates Court Diversion Program – referral
Magistrate Police Offender Guardian Community services
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Mental Health Diversion
Magistrates Court Diversion Program – procedure
Must be accepted into the program On application matter is adjourned for offender
to see a clinical advisor Matter is brought before the Court again and
report is tabled If Magistrate accepts the offender, criminal
proceedings are adjourned for six months Clinical liaison officer is appointed
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Mental Health Diversion
Magistrates Court Diversion Program – procedure
Clinical liaison officer arranges for treatment, makes appointments, etc
Clinical liaison officer monitors progress and prepares reports for the Court
Court date every two months for progress checks
At six months final report is prepared for Magistrate
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Mental Health Diversion
Magistrates Court Diversion Program – outcomes
Suspended sentence Dismissal of charges Bond (supervised or unsupervised) Failure to cooperate is not taken into
account during sentencing
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Mental Health Diversion
Griffith’s remands Same as with drug addiction
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Mental Health Diversion
Difficulties Taking instructions Identifying where there is an impairment Medication