Youth justice

Youth Justice

A young person provided with every possible opportunity to create a bold and vibrant future, in turn, creates a fearless, confident young adult. While the vast majority of young people have secure and nurturing childhoods that establish a strong foundation for life, there are others who meet significant barriersand disadvantage which lead them into regular or ongoing contact with the justice system.

Young people are not necessarily born criminals, and for a young person convicted of a crime, it can lead to life-destroying consequences including homelessness, diminutive employment opportunities and loss of finance.

PURPOSE OF YOUTH JUSTICE

The purpose of youth justice is to provide a fair and sensible reply to young people in contact with the youth justice system.  This response holds young people accountable for their actions, inspires their reintegration into the community and encourages community safety.  Also, providing optimism to a young person who has offended through community-based programs to reevaluate their actions facilitates a safer and happier community.  Rehabilitation is especially significant when we consider the opportunity that we as members of a community have to intervene early in the life of a young person who has offended.

WHAT ARE THE RISK FACTORS?

Young people who come into frequent contact with the justice system do so as part of a disordered lifestyle. The risk factors for young people include housing and community dysfunction, drug and alcohol use, family and domestic violence, disadvantage and poverty, disengagement from education and social exclusion.  A collaborative, holistic approach to youth justice issues should involve addressing the underlying causes of offending behaviour and delivery of diversionary programs, as well as tackling the offending behaviour itself.  Government and non-government funded youth support programs, access to education, accommodation and robust and engaged leadership are all crucial elements, not just for a young person, their family and the broader community but the local economy and well-being of all Australians.

WHAT IS THE AIM OF THE YOUTH JUSTICE SERVICES?

The operating philosophy in the Youth Justice Services (YJS) division within the Department of Corrective Services (the Department) is responsible for the safety, security and rehabilitation of young people in custody and those engaged with YJS in the community.  The core objective is to reduce reoffending among young people through:

  • programs and services to divert young people away from the criminal justice system;
  • programs and services for young people on orders in the community; and
  • programs and services in custody.

The work of YJS is guided by the principles and functions outlined in the Young Offenders Act 1994 and the Department’s Strategic Plan 2015 – 2018.  The Young Offenders Act 1994 also provides for the administration of juvenile justice.  It sets out the provisions for dealing with young persons who have alleged to have committed offences and to ensure that the legal rights of young persons involved with the criminal justice system are adhered to.  YJS staff will work in the community and in Banksia Hill Detention Centre to improve outcomes for young people in conflict with the justice system.  In line with the Department’s mission to ensure a safer community, YJS will focus on the:

  • security and safety of young people at every stage of the youth justice system;
  • safety of our people; and
  • rehabilitation of young people.

CONTACT LAWSON LEGAL

Should you, or anyone you know, require any assistance in relation to young adults, between the ages of 18 – 25 for criminal matters, contact Lawson Legal for your free initial consultation with our experienced criminal lawyer.

West prison wall walking south

Bail

Bail is a legally binding undertaking that you promise to appear in court on a particular date and time, rather than remain in custody.

When the matter is finalised, the bail undertaking will cease to continue.

BACKGROUND

A large remand prisoner population is a problem. Firstly, a remand prisoner is yet to have their guilt adjudicated by the court. The taking of a person’s liberty, especially when they are presumed innocent, should not be done lightly and only in appropriate circumstances.  Secondly, and perhaps more important politically, detaining people unnecessarily in custody during the criminal process is expensive.

The total net cost of keeping a prisoner in Western Australia per day is $359.35 (this figure was current for 2014-2015 and is taken from the Australian Government, Productivity Commission, Report on Government Services 2016).  Estimates, however, are that keeping people in custody for short periods of time (for example whilst the person secures release on bail) has a higher daily cost, due to the assessment process and additional support needed when an accused is first received in prison.  The Department of Corrective Services estimates that a person kept in custody for less than a week can cost up to $770.00 per day (approximately double the cost than for longer term prisoners) (WA Auditor General’s Report, Management of Adults on Bail, June 2015, p 14).

Being held on remand, when bail has been granted, has a potentially devastating effect on an accused including:

  • loss of income or loss of employment;
  • loss of education or training course opportunities;
  • loss of housing;
  • inability to prepare an adequate defence (particularly if self-represented);
  • disassociation from family and friends; and
  • dislocation from country for Aboriginal accused.

WHAT IS THE BAIL PROCESS?

  1. When an accused is charged, the decision to grant or deny bail is usually decided by the police (commonly referred to as watch house bail).
  2. If bail is refused by the police, then it has to be reviewed by a magistrate at first reasonable opportunity (usually the next day). In this instance, it is highly recommended that you be represented by an experienced criminal lawyer.
  3. Schedule 2 of the Bail Act 1982, provides a list of serious offences. If you are on bail and commit one or more of these serious offences, your current bail will be revoked unless there are exceptional circumstances why you should not be kept in custody (ie the accused is dying of cancer).  An accused in this position is referred to as a Schedule 2 Offender.
  4. If the magistrate refuses to grant bail, the accused can appeal the decision to a single judge of the Supreme Court.

CONDITIONS OF BAIL

Common conditions attached to bail may include that you:

  • require a surety undertaking, whereupon a person agrees to pay money if you do not attend when required;
  • report to police on certain days;
  • abide by a curfew;
  • reside at a specific address;
  • not to contact specified people (either directly or indirectly);
  • not to enter specified areas (ie establishments that serve alcohol); and
  • surrender any passports.

WHAT IS A SURETY?

A surety is a person who enters into an agreement with the court to forfeit an amount of money if the accused fails to attend when required.  A surety’s obligation is to only ensure the accused attends court when required.

The surety is not responsible for the accused adhering to bail conditions.

The surety must be over 18 years and able to prove assets equal to the amount prescribed by the court.  They must also be of good character.

HOME DETENTION BAIL

Home detention bail is a condition that the accused reside at and remain within a particular address at all times.  The accused is only allowed to leave the address for specified purposes such as attending court or medical appointments and is monitored by the Department of Corrective Services (electronic monitoring – tracking device).

Before home detention is considered by the court an assessment of the proposed address must be undertaken and a report prepared by Community Corrections.  The proposed residence must have a landline phone facility and a responsible adult living there who can provide the accused with food and other amenities.

VARIATION OF BAIL

You can apply for your bail conditions to be changed.  The application must be made before a magistrate.  You can make an application on the date when you are next due in court, or if you need it sooner, you can submit a court form to have the application early listed.

BREACH OF BAIL

If you are on bail and fail to appear in court, on your specified date, a bench warrant will be issued by a judicial officer to have you arrested and brought before the court.

Further, if you don’t comply with your bail conditions you are also in breach of bail.  Breach of bail constitutes a criminal offence which may result in bail being revoked.

CONTACT LAWSON LEGAL

Should you, or anyone you know, require any assistance in relation to bail or any other criminal matters, contact Lawson Legal for your free initial consultation with one of our experienced criminal lawyers.

Judge in court

Mandatory Sentencing in WA

Increasingly, Australian parliaments are intervening in sentencing practices. In Western Australia, this includes the recent expansion of the “three strikes” home burglary laws. Politicians enacting mandatory sentencing laws claim to be responding to the public calling for harsher sentences
, with the courts perceived as too lenient on crime.

Unfortunately, the public is largely misinformed about crime and justice matters. Mandatory sentencing regimes are the most concerning of these parliamentary interferences. Such regimes impose unacceptable restrictions on judicial discretion and independence, and undermine fundamental rule of law principles.

BACKGROUND

Car theftIn 1992, the WA Government passed the first mandatory sentencing legislation for car theft, followed by the “three strikes” laws in 1996 for home burglaries. Since then, it has also passed the Criminal Organisations Control Act 2012, and mandatory sentences for people who assault custodial officers. Mandatory sentencing laws have particularly failed WA’s Indigenous community, members of which have been incarcerated in even greater numbers as a result of these laws. Indigenous children in WA are now 52 times more likely than non-Indigenous young people to be in detention – twice the national rate of overrepresentation.

The Law Council has consistently opposed the use of mandatory sentencing regimes, which prescribe mandatory minimum sentences upon conviction for criminal offences. Its opposition rests on the basis that such regimes impose unacceptable restrictions on judicial discretion and independence. The rule of law underpins Australia’s legal system and ensures that everyone, including governments, are subject to the law and that citizens are protected from arbitrary abuses of power. Mandatory sentencing is also inconsistent with Australia’s voluntarily assumed international human rights obligations. In the Law Council’s view, mandatory sentencing laws are arbitrary and limit an individual’s right to a fair trial by preventing judges from imposing an appropriate penalty based on the unique circumstances of each offence and offender. Mandatory sentencing disproportionately impacts upon particular groups within society, including Indigenous peoples, juveniles, persons with a mental illness or cognitive impairment, or the impoverished. Such regimes are costly and there is a lack of evidence as to their effectiveness as a deterrent or their ability to reduce crime.

In particular, the Law Council considers that mandatory sentencing potentially results in unjust, harsh and disproportionate sentences where the punishment does not fit the crime. There are already numerous examples where mandatory sentencing has applied with anomalous or unjust results, including a disproportionate effect on vulnerable groups including Indigenous Australians, juveniles and people with intellectual disabilities.

Mandatory sentencing fails to produce convincing evidence which demonstrates that increases in penalties for offences deter crime. Instead, mandatory sentencing potentially increases the likelihood of recidivism because prisoners are placed in a learning environment for crime, which reinforces criminal identity and fails to address the underlying causes of crime. Mandatory sentencing provides short-to medium-term incapacitation of offenders without regard for rehabilitation prospects. The likelihood of prisoners reoffending once released back into the community; inappropriately undermines the community’s confidence in the judiciary and the criminal justice system as a whole. However, this lack of confidence is not warranted by in-depth studies which demonstrate that when members of the public are fully informed about the particular circumstances of the case and the offender, 90 percent view judges’ sentences as appropriate.

Judge in courtFurther, mandatory sentencing displaces discretion to other parts of the criminal justice system, most notably law enforcement and prosecutors, and thereby fails to eliminate inconsistency in sentencing. There are significant economic costs to the community, both in terms of increasing incarceration rates and increasing the burden upon the already under-resourced criminal justice system, without sufficient evidence to suggest a commensurate reduction in crime. Mandatory sentencing is inconsistent with Australia’s international human rights obligations.

LAW SOCIETY OF WESTERN AUSTRALIA

The Law Society of Western Australia is opposed to mandatory sentencing in any form. The Law Society’s opposition to mandatory sentencing is consistent with the view of the legal profession across Australia as set out in the policy position from Law Council of Australia. Past Law Society President, Matthew Keogh says, “The government has no statistics or evidence to support that mandatory sentencing works to deter criminal behaviour, and no specific evidence to show WA’s three-strike laws have been working up until now.” (Media release: 30/02/2015).

Mandatory sentencing removes discretion from the judiciary and dangerously displaces it to other parts of the criminal justice system, most notably law enforcement agencies and prosecutors. It results in significant economic costs to the community, both in terms of increasing imprisonment rates, and increasing the burden upon the already under-resourced criminal justice system, without sufficient evidence to suggest a commensurate reduction in crime (Media Positioning Statement; Law Society submission to the Attorney General of WA, February 2013).

The Law Society wrote to various members of parliament expressing its serious concern with the proposed new mandatory sentencing under the Criminal Law Amendment (Home Burglary and other Offences) Bill 2014 (WA) and urged that the Bill be opposed (letters 9 April 2014 and 16 February 2015). Notwithstanding the Society’s opposition, the Criminal Law Amendment (Home Burglary and other Offences) Act 2015 (WA) was passed. This Act imposes the following mandatory sentences for serious offences of physical or sexual violence committed in the course of an aggravated home burglary which include a minimum sentence of 75% of the statutory maximum term of imprisonment for adults and where the maximum is life imprisonment, a minimum of 15 years applies and a minimum sentence of three years’ imprisonment for juvenile offenders.

IN TROUBLE WITH THE WESTERN AUSTRALIA POLICE?

Should you, or anyone you know, require any assistance in relation to mandatory sentencing charges or any other criminal matters, contact Lawson Legal for your free initial consultation with one of our experienced criminal lawyers.

Australian Dollar Seized by Police

CONFISCATION OF MONEY AND PROPERTY IN CRIMINAL LAW

In Western Australia, there are very harsh laws regarding proceeds of crime and confiscation of property.  They were implemented to prevent individuals benefitting from crime.

Under the Criminal Property Confiscation Act 2000 (WA) the police and Director of Public Prosecutions have the power to confiscate property which is:

  • Unexplained wealth
  • Criminal benefits
  • Crime-used property
  • Crime-derived property
  • Property of a person declared to be a drug trafficker

Proceeds of crime are any property, wealth or holdings that have been procured unlawfully.  This includes assets purchased with funds received as the result of criminal activity.  Those who have unexplained wealth may be asked by the court to explain how they obtained their assets.  Australian Dollar Seized by PoliceThe individual whose proceeds may be confiscated (the Respondent) has the onus of proving their wealth and property were obtained lawfully.  If the court funds there are unexplained assets, they may be confiscated and forfeited to the State.  Confiscated funds are used by the police to fund numerous operations.

Under this legislation, a convicted drug trafficker may have all their assets seized, regardless of whether they were obtained lawfully, after an application to the court.  The section of this legislation dealing with drug trafficking relies on a conviction before confiscation may occur.  Whereas, no conviction is required to confiscate wealth that cannot be reasonably explained.  In such cases, the State only have to establish a discrepancy in the person’s income, that was lawfully obtained, compared to their actual assets.  The Respondent must then prove the assets were obtained lawfully.

Before confiscation may occur, the police or DPP may apply to a Justice of the Peace for a freezing notice.  This document notifies the Respondent that the State will seek to confiscate it and subsequently stop any further dealings with that property.  A freezing notice may be issued if there are reasonable grounds for suspecting the property is crime-used or crime-derived.  To object, the Respondent must file an objection to the court specified in the notice within 28 days after receiving the notice, or the property may be automatically confiscated.

A successful objection to the notice must establish:

  • The foundation for the State’s application was not sufficient; or
  • The Respondent does not own or control the frozen property and has not given it away at anytime; or
  • The court finds it more likely than not the property was not crime-used; or
  • The Respondent is an innocent party i.e the spouse, partner or dependent of the owner of the property.

DO YOU NEED LEGAL ADVICE?

Should you, or anyone you know, require any assistance in relation to freezing notices or confiscation of property, or any other criminal matters, contact Lawson Legal for your free initial consultation with one of our experienced criminal lawyers.

Man in jail

WESTERN AUSTRALIAN ONE PUNCH LAW

In popular nightlife entertainment areas, such as Northbridge, violent attacks are becoming more prevalent, including the ‘one punch’ attacks or coward’s punches.

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