Vulnerable people within the legal system
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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

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Vulnerable people within the legal system

Vulnerable People Within the Legal System

Riverland Community Legal Service Inc.


Overview

Overview

  • Young offenders

  • Alcohol dependence and drug addiction

  • Mental health diversion


Young offenders

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


Young offenders1

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 offenders2

Young Offenders

Avenues available to young offenders

  • Police caution (informal or formal)

  • Family conference

  • Youth Court


Young offenders3

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 offenders4

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 offenders5

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 offenders6

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 offenders7

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 offenders8

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 offenders9

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 offenders10

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 offenders11

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 offenders12

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 offenders13

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 offenders14

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 offenders15

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 offenders16

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 offenders17

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 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 addiction1

Alcohol Dependence and Drug Addiction

Alcohol – initiatives

  • YARN initiative

  • Drink driving – mandatory assessment


Alcohol dependence and drug addiction2

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


Alcohol dependence and drug addiction3

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 addiction4

Alcohol Dependence and Drug Addiction

Alcohol – mandatory assessment

  • Applies to recurrent drink driving offenders

  • Court must order assessment


Alcohol dependence and drug addiction5

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 addiction6

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 addiction7

Alcohol Dependence and Drug Addiction

Illicit drug addiction

  • Police Drug Diversion Initiative

  • CARDS

  • Drug Court

  • Griffith’s remand


Alcohol dependence and drug addiction8

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 addiction9

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 addiction10

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 addiction11

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 addiction12

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 addiction13

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 addiction14

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 addiction15

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 addiction16

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 addiction17

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 addiction18

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 addiction19

Alcohol Dependence and Drug Addiction

Illicit drug addiction – Griffith’s remand

  • Legal development


Alcohol dependence and drug addiction20

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 addiction21

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 addiction22

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 addiction23

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

Mental Health Diversion

Magistrates Court Diversion Program

  • “Mental Health Court”

  • Operating since 1999

  • Metropolitan and regional Magistrates Courts


Mental health diversion1

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 diversion2

Mental Health Diversion

Magistrates Court Diversion Program – eligibility

  • Mental illness

  • Intellectual disability

  • Acquired brain injury

  • Neurological disorder

  • Personality disorder


Mental health diversion3

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 diversion4

Mental Health Diversion

Magistrates Court Diversion Program – referral

  • Magistrate

  • Police

  • Offender

  • Guardian

  • Community services


Mental health diversion5

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 diversion6

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 diversion7

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 diversion8

Mental Health Diversion

Griffith’s remands

  • Same as with drug addiction


Mental health diversion9

Mental Health Diversion

Difficulties

  • Taking instructions

  • Identifying where there is an impairment

  • Medication


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