elizabeth fraser commissioner for children and young people and child guardian 24 august 2012
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A case of injustice – 17 year olds in Queensland’s adult prisons. Elizabeth Fraser Commissioner for Children and Young People and Child Guardian 24 August 2012. Overview. The current situation: How did we get here? – The Youth Justice Act 1992 - PowerPoint PPT PresentationTRANSCRIPT
Elizabeth FraserCommissioner for Children and Young People
and Child Guardian
24 August 2012
A case of injustice – 17 year olds in Queensland’s adult
prisons
Overview
• The current situation: How did we get here? – The Youth Justice Act 1992
• Why is this a problem? What 17 year olds are missing out on – Overview from Commission Policy Position Paper
• What is being done or can be done?
• Visits to 17 year olds in adult prisons – What we have learnt?
• Alternatives to detaining young people that could reduce re-offending
• Questions?
The current situation
Youth Justice Act 1992
•Schedule 4: child means —
(a) a person who has not turned 17 years; or
(b) after a day fixed under section 6 — a person who has not turned 18 years.
•Section 6: Child’s age regulation
(1) The Governor in Council may, by regulation, fix a day after which a person will be a child for the purposes of this Act if the person has not turned 18 years.
History
Introduction of the Juvenile Justice Act into Parliament in 1992:
•‘It is the intention of this Government… to deal with 17-year-old children within the juvenile, rather than the adult, justice system… This is consistent with the age of majority and avoids such children being exposed to the effects of adults in prisons, thereby increasing their chances of remaining in the system and becoming recidivists. This change will occur at an appropriate time in the future.’
Sentencing
Adult or child?
•Sentenced as an adult:– Generally where a person commits an offence after they turn
17
– If the person commits an offence before they turn 17 but proceedings do not commence until after they turn 18 (at sentencing the court must consider the fact that they were a child when the offence was committed)
•Sentenced as a child:– Generally where a person commits an offence and is found
guilty before they turn 18
Timeline
•1990: United Nations Convention on the Rights of the Child ratified by Australia•1992: Introduction of the Juvenile Justice Act in Queensland•1998: Tasmania – Youth Justice Act 1997•2000: Northern Territory – Sentencing of Juveniles (Miscellaneous Provisions) Act 2000•2002: Juvenile Justice Amendment Act passed in Queensland•2005: Victoria - Children, Youth and Families Act 2005
The Commission’s Policy Position Paper: ‘Removing 17 year olds from Queensland’s adult prisons and including them in the youth justice system’ - advocates for the removal of 17 year olds from adult prisons
United Nations Convention on the Rights of the Child
Article 1: a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
Article 3: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Why is this an issue?
United Nations Convention on the Rights of the Child
Article 37: State parties shall ensure that:
b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; and
c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances
United Nations Committee on the Rights of the Child
•Reviews countries’ progress in implementing the Convention
Concluding Observations 2012: • The Committee is concerned that… In Queensland, children aged 17
in conflict with the law may be tried as adults in particular cases.
• The Committee recommended that Australia bring its juvenile justice system in line with the Convention and other UN standards including:
– UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)– UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)– UN Rules for the Protection of Juveniles Deprived of Their Liberty, and – Vienna Guidelines for Action on Children in the Criminal Justice System.
• the Committee recommends in particular that the State party… Remove children who are 17 years old from the adult justice system in Queensland
The Commission’s Policy Position Paper highlights that 17 year olds are missing out by not being treated in accordance with the Youth Justice Act 1992 and its Charter of Youth Justice Principles
For example, 17 year olds are missing out on:
•accessing targeted and developmentally-appropriate interventions, supports and services, eg. educational and rehabilitation programs•protections and special considerations such as specific sentencing considerations in section 150•diversionary options, eg. cautions and youth justice conferences, and•the benefit of principle 17 – that a child should be detained in custody for an offence only as a last resort and for the least time that is justified in the circumstances.
What 17 year olds are missing
Unlike young people dealt with under the Youth Justice Act 1992, 17 year olds also:
•are not subject to the requirement for police to notify their parents of their arrest
•do not have access to the provision in section 305 of the Youth Justice Act 1992 regarding their parents’ entitlement to know their whereabouts when in custody
•are not subject to the publication protections in section 301 of the Youth Justice Act 1992 and can be publicly named
•can be required to give DNA samples without a court application
•are not required to have a parent present for police interviews, and
•are subject to less restricted search and seizure police powers.
What 17 year olds are missing
Remand
17 year olds are not subject to principle 18, that a child detained in custody should only be held in a facility suitable for children. As a result, 17 year olds can be placed on remand in an adult prison until they are convicted and/or sentenced.
High rates of remand:• Increase demand in correctional facilities
• Expose those on remand to the detrimental effects of prison before being convicted and/or sentenced
• Do not allow access to programs
Offences
Australian Bureau of Statistics
Prisoners in Australia 2011, 4517.0.
Prisoners, age by selected most serious offence/charge
Age group (years)
Homicide and
related offences
Acts intended to cause
injury
Sexual assault
and related
offences
Robbery, extortion
and related
offences
Unlawful entry with
intent
Illicit drug
offences
Theft and related
offences Other Total
NUMBER
Under 18 0 17 0 4 10 0 0 6 37
18 11 100 12 77 63 0 20 53 33619 17 158 17 139 101 19 18 117 586
20–24 272 1,210 268 755 660 260 152 1,085 4,662
25–29 368 1,221 375 610 694 491 243 1,241 5,243
30–34 436 938 385 526 708 546 237 1,179 4,955
35–39 394 822 420 329 540 530 196 1,061 4,29240–44 424 579 515 179 272 458 133 754 3,314
45–49 318 312 494 108 130 415 52 464 2,29350–54 239 124 357 41 41 271 37 274 1,38455–59 159 61 266 18 15 165 19 176 879
60–64 93 29 242 5 4 87 7 82 54965 and over 102 22 313 3 4 52 4 71 571
Total 2,833 5,593 3,664 2,794 3,242 3,294 1,118 6,563 29,101
Offences
Queensland Police Service Annual Statistics Report 2010-2011
Offences committed by 17 year olds in Queensland 2010/2011:
• offences against the person (901) – eg. murder (0), other homicide, assault, sexual offences, robbery.
• offences against property (5359) – eg. unlawful entry, property damage, theft, and handling stolen goods.
• other offences (5698) – eg. good order, drug, traffic,
• and trespassing offences.
What is being done?• Advocacy
• Judicial commentary:− R v Loveridge [2011] QCA 32: “This Queensland anomaly has
been criticised by commentators who argue that Queensland is in breach of its obligations under the Convention.”
− R v Lovi [2012] QCA 24: “There appears to be no justification in principle for a criminal justice regime which punishes a 17 year old in Coolangatta differently from a 17 year old in Tweed Heads for precisely the same offence against Commonwealth law.”
− R v Gordon [2011] QCA 326: “The circumstances placed before the sentencing court do not suggest his maturity levels were those of an adult when he was sentenced as a 17 year old.”
− R v Gam [2011] QCA 288
• Community Visitor visits
Community Visitor visits
• Since October 2011• CV visits allow us to:
– hear about young people’s experiences
– listen to their concerns
– provide help and support in resolving issues
– help young people to access support people and services
– monitor their wellbeing, and
– inform our advocacy.
• Visits have taken place in October 2011, February, April, May, June and July 2012
Types of issues raised by 17 year olds in adult prisons
Categories Count
Programs and services 12
Reporting and acting on allegations of harm or risk of harm 5
Food and special diets 4
Decision making and information provision 3
Clothing and property 2
Communication 1
Disciplinary breaches 1
Transport and escort 1
Other 4
TOTAL 33
‘Programs and services’ issues raised by 17 year olds in adult prisons
Programs and services - specific categories Count
Education programs 3
Recreation activities 3
Legal services 3
Transition planning and services 2
Health services and medication 1
TOTAL 12
Views survey of young people in detention
Programs and services - specific categories Count
School classes 98%
Sports or fitness 93%
Art classes 86%
Recreation 84%
Work skills 73%
Cultural activities 61%
Drug or alcohol programs 54%
Community programs 45%
Health education 39%
Personal counselling 35%
Personal development 34%
Anger management or other offender programs 33%
Commission for Children and Young People and Child Guardian. (2011). Views of Young People in Detention Centres, Queensland, 2011.
Where to from here?• CV visits are not enough• Continued advocacy is required• Other measures are also required to reduce the number of young people
in detention and address the likelihood of re-offending:– Increasing alternatives to detention– Intensifying intervention programs for young people not suitable for
diversion– Improving transitions back into the community– Reducing the youth remand population, and– Reducing the over-representation of Aboriginal and Torres Strait
Islander young people in the youth justice system.
In summary• Some young people need to be incarcerated, both for the
safety of the community and in the interests of justice
• BUT all children and young people have the right to have their developmental and educational needs met, and this can be better achieved through the youth justice system
• Placing 17 year olds in adult prisons prevents them from accessing critical services that support healthy development and provide opportunities to break the cycle of offending behaviour
• Removing 17 year olds from adult prisons and including them in the youth justice system will deliver better outcomes for the community and for these young people
Further information
Commission for Children and Young People and Child Guardian website: www.ccypcg.qld.gov.au
Elizabeth FraserCommissioner for Children and Young Peopleand Child GuardianT: 3211 6888E: [email protected]
Commission for Children and Young People and Child Guardian
Level 17, 53 Albert StreetBRISBANE Q 4000