Vulnerable People Within the Legal System

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

2. Overview • Young offenders • Alcohol dependence and drug addiction • Mental health diversion

3. 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

4. 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

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

6. 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

7. 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

8. 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)

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. Alcohol Dependence and Drug Addiction Alcohol – initiatives • YARN initiative • Drink driving – mandatory assessment

23. 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

24. 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

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

26. 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

27. 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

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

29. 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

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

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

32. 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

33. 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

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

35. 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

36. 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

37. 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

38. 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

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

40. Alcohol Dependence and Drug Addiction Illicit drug addiction – Griffith’s remand • Legal development

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

42. 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

43. 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

44. 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

45. Mental Health Diversion Magistrates Court Diversion Program • “Mental Health Court” • Operating since 1999 • Metropolitan and regional Magistrates Courts

46. 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

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

48. 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

49. Mental Health Diversion Magistrates Court Diversion Program – referral • Magistrate • Police • Offender • Guardian • Community services

50. 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