Vulnerable People Within the Legal System Riverland Community Legal Service Inc.

Overview  Young offenders  Alcohol dependence and drug addiction  Mental health diversion

Young Offenders Ages of criminal responsibility  Persons under the age of 10 years cannot commit an offence  Persons between generally cannot be guilty  Offences committed between the ages of fall within the Young Offenders Act

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

Young Offenders Avenues available to young offenders  Police caution (informal or formal)  Family conference  Youth Court

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

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

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)

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

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

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

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

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

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

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

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

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

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

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

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

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

Alcohol Dependence and Drug Addiction Alcohol – initiatives  YARN initiative  Drink driving – mandatory assessment

Alcohol Dependence and Drug Addiction Alcohol – YARN initiative  Youth Alcohol Referral Network  Pilot program available in certain regions  Diversion of young offenders who had committed alcohol related offences

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

Alcohol Dependence and Drug Addiction Alcohol – mandatory assessment  Applies to recurrent drink driving offenders  Court must order assessment

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

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

Alcohol Dependence and Drug Addiction Illicit drug addiction  Police Drug Diversion Initiative  CARDS  Drug Court  Griffith’s remand

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

Alcohol Dependence and Drug Addiction Illicit drug addiction - CARDS  Court Assessment and Referral Drug Scheme  Operates out of the Magistrates Court and Youth Court

Alcohol Dependence and Drug Addiction Illicit drug addiction – CARDS referral  Self referral  Court referral (pre-sentencing)  As a condition of a bond

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

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

Alcohol Dependence and Drug Addiction Illicit drug addiction – Drug Court  For more serious drug offences  Held in the Adelaide Magistrates Court

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

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

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

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

Alcohol Dependence and Drug Addiction Illicit drug addiction – Drug Court outcomes  Review conducted in 2006  Around 25% completion rate  Around 55% termination

Alcohol Dependence and Drug Addiction Illicit drug addiction – Griffith’s remand  Legal development

Alcohol Dependence and Drug Addiction Illicit drug addiction – Griffith’s remand  Must plead guilty  Must be on bail conditions  Up to 12 month remand

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

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

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

Mental Health Diversion Magistrates Court Diversion Program  “Mental Health Court”  Operating since 1999  Metropolitan and regional Magistrates Courts

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

Mental Health Diversion Magistrates Court Diversion Program – eligibility  Mental illness  Intellectual disability  Acquired brain injury  Neurological disorder  Personality disorder

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

Mental Health Diversion Magistrates Court Diversion Program – referral  Magistrate  Police  Offender  Guardian  Community services

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

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

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

Mental Health Diversion Griffith’s remands  Same as with drug addiction

Mental Health Diversion Difficulties  Taking instructions  Identifying where there is an impairment  Medication