Discuss about the Professional Task for Young Offenders Act.
The purpose behind writing this briefing paper is to analyze the proposed amendment of the Young Offenders Act, 1997 (NSW) with a view to introduce the option of youth justice conferencing in case of sexual offenses. Youth justice conferencing has been provided by the Young Offenders Act, 1997. The scheme was introduced by this legislation in the form of an alternative to court proceedings in New South Wales. The youth Justice conference can be described as the decision-making forum. Here the younger brother and his or her family or support group come face-to-face with the victim of the offense or their family. The basic role played by the conferences to discuss the offending as well as the harm caused to the victim and to encourage the acceptance of responsibility by the offender due to his or her behavior and to negotiate certain type of restitution to the victim and at the same time to reinvigorate the victim into the community and family network. In this way, youth Justice conference is a informal meeting. This meeting takes place in a non-threatening environment. It is facilitated by a convener who is particularly recruited and trained for this purpose.
Conferencing schemes have been used in several different countries and also in various jurisdictions and Australia to deal with issues concerning juvenile offending and also with a large number of other issues. For example, New Zealand, Sweden and Victoria have used conferences for dealing with issues related with the care and protection of abused children. In Queensland, conferences have taken place after serious incidents in schools like bullying, assaults, drug-related incidents and damage to property. Conferences have been used in Northamptonshire (England) for dealing with some other offending. In Labrador and Newfoundland, the subject matter of conferences is family violence. In this way during the 90s, NSW, as well as South Australia, Australian Capital Territory, Queensland, Tasmania and Victoria have taken recourse to some type of conferencing schemes in order to deal with juvenile offending. Although there were several differences present between these conferencing schemes including if the scheme as the legislative ways or if the scheme operated in a particular site or throughout the jurisdiction (Heenan, 1997). Differences were also present regarding the offenses that were eligible for conferencing and the agency was the responsibility regarding the control and administration of the scheme. However, despite the presence of these differences, in case of most of the conferencing schemes related with juvenile offending, have followed the New Zealand’s model of family group conferences. The introduction of The Children, Young Persons and Their Families Act, 1989 had helped in the creation of this model. This legislation has provided new principles and procedures that can be used for dealing with huge justice and also child protection issues in New Zealand. As was the case with the legislation subsequently introduced in New South Wales, the legislation introducing New Zealand also encouraged the police officers to follow the least restrictive response while dealing with juvenile offending (Hazlitt, Poletti, Donnelly, 2004). But it needs to be noted that the most innovative feature of the legislation was the designated them that was made for incorporating elements of traditional pre-colonial dispute resolution practices that were present with the Maori people. These regiments have also been adopted by the scheme in NSW, including the active participation by the offender, victims and their families by making decisions related with offending. Other such features include the examination of reasons behind the offending instead of merely apportioning blame, consensual decision-making, healing the damage that is the result of offending and the restoration of harmony between the offender and the victim, as well as their families.
Recent research has shown that the popularity of conferencing schemes is rising continuously. Particularly in the field of juvenile offending, this rising popularity shows the interplay taking place between civil courses including a shift in emphasis from merely punishing the offender to holding the offender accountable for his actions and their dissatisfaction with the present juvenile justice system and at the same time, involving the families of offenders in decisions regarding the children and fulfilling the needs and rights of the victims (Cossins, 2004). In NSW, the law provides that the offenses that can be dealt with by youth justice conferences include summary offenses or indictable offenses and regarding which neither warning nor formal police caution can be described as the appropriate intervention (Kerstetter, 1990). Examples of these offenses, that can be the subject matter of conferences include assault, break, enter and steal, robbery, damage to property, handling proceeds of crime or disorderly conduct. But in this regard, it needs to be noted that in case of certain offenses committed by juveniles, they are not eligible for conferences and should be dealt with in the court (Kingsnorth, MacIntosh and Wentworth, 1999). These offenses include sexual offenses as well as certain drug offenses, the offenses that result in the death of a person and the offenses that are prohibited by Part 15A, Crimes Act, 1900.
In this context, it can be stated that the young people who are involved in indecent assault and had also admitted their guilt, should not be made to face the court and they should be dealt with youth Justice conference (Cashmore, 2005). At present, if a young person goes to court for a sexual offense, the person faces a jail term of up to five years. Therefore in this regard, it can be stated that the young offenders who have committed a sexual offense should be dealt with by youth justice conferencing (McConachy, 2002). For example, the act of indecency carries a maximum penalty of a jail term for two years if the victim is less than 16 years of age and 18 months when the victim is 16 years or more. It is also worth mentioning in this regard that in South Australia and New Zealand already the juveniles responsible for sexual offenses are dealt with police cautions or youth justice conferences (Lacey, 1998). In the same way, the option of using cautions is also available in Britain and Canada.
Under these circumstances it can be stated that by excluding the sexual offenses from the regime of youth justice conferencing, the needs of the victims are being ignored, which include the need for having acknowledgment of the wrong if they have to suffer by the offender and also the need for having other people know regarding the wrong (Bronnit and Henning, 1998).
In the end it becomes clear that significant benefits are available in case of youth justice conferences. These benefits are available to the vendor and also to the victim. The admission by the perpetrator of the offense provides vindication for the victim. On the other hand, incentives were present for the offender is an early admission of the offense is made which can avoid conviction and jail for the offender. Under these circumstances it is clear that you justice conferences provide a chance to the offenders, victims and their families to come for a meeting where the impact of the time can be described by the victim and at the same time, remorse can be expressed by the offender for the offense and make amends with the help of agreed actions (Boniface, 2005).
It is also worth mentioning in this regard that only a small part of the offenses handled by the courts in Australia are the juvenile sex offenses. It is also the related by core data that the defendants who have been adjudicated for offenses related with sexual assault, tend to be older than the defendants of all the other categories of offenses. Under these circumstances, these effects should reinforce the perception that sexual offending by juveniles is an unusual type of sexual offending. Another significant fact in this regard is that the substantive criminal law has complex and at certain times, contradictory responses to juvenile sexual offenders (Blackwell, 2005). The perennial problem that is present in case of sexual offenses of what is and what is not consensual has been exaggerated by the questions related with the age of criminal responsibility, the age of consent as well as the appropriate boundaries related with criminal law.
Generally the law also provides that the children, who offend should be treated differently from adults. It has also been provided by the UN Standard Minimum Rules for the Administration of Juvenile Justice, all the jurisdictions in Australia have provided laws that are particularly applicable to the administration of juvenile Justice, that have been designed with a view to fulfill the different needs of juvenile offenders and at the same time protecting their basic rights.
Under these circumstances, it can be recommended that the Young Offenders Act, 1997 (NSW) should be amended, and the option of youth justice conferencing should be produced for the juvenile sex offenses.
References
Blackwell S., 2005, ‘Expert Psychological Evidence in Child Sexual Abuse Trials in New Zealand’, Paper delivered at the Children and Courts Conference, National Judicial College of Australia
Boniface D., 2005, “The Common Sense of Jurors v The Wisdom of the Law: Judicial Directions and Warnings in Sexual Assault Trials, 28 (1) University of New South Wales Law Journal 261
Bronitt S: “Rape and Lack of Consent” (1992) 16(5) Criminal Law Journal 289
Bronnit and Henning T., 1998, “Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence” in Easteal P (ed) Balancing the Scales: Rape Law Reform and the Australian Culture, Federation press, Sydney
Cashmore J., 2005, An Evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot
Cossins A., 2004, “Is there a case for the legal representation of children in sexual assault trials” 16(2) Current Issues in Criminal Justice 160
Hazlitt, Poletti, Donnelly, 2004 Sentencing Offenders Convicted of Child Sexual Assault, Judicial Commission NSW
Heenan M., 1997, “Sex Crimes and the Criminal Justice System”, 9 The Australian Feminist Law Journal 90
Kerstetter W.A., 1990 “Gateway to Justice: Police and prosecutorial response to sexual assaults against women”, 81(2) Criminology
Kingsnorth R.F, MacIntosh, R.C, and Wentworth, J., 1999, “Sexual Assault: The role of prior relationship and victim characteristics in case processing”, 16(2) Justice Quarterly
Lacey N., 1998, “Unspeakable subjects, Impossible Rights; Sexuality, Integrity and the Criminal Law”, 11 Canadian Journal of Law and Jurisprudence 47
McConachy, 2002, Evaluation of the Electronic Recording of Children’s Evidence: Final Report, May 2002
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