FEATURE
The Aboriginal Youth Sentencing Court – A Pathway to Support with Community, Access to Services and Diversion to an Alternative Sentencing Program JULIA GRIGONIS-GORE, LEGAL RESEARCH OFFICER (2020-21) – YOUTH COURT OF SOUTH AUSTRALIA
T
he Youth Court of South Australia is empowered to determine civil and criminal proceedings in accordance with the Young Offenders Act 1993 (SA) (the YOA).1 The Youth Court is also vested with jurisdiction under the Adoption Act 1988 (SA), Surrogacy Act 2019 (SA) and Children and Young People (Safety) Act 2017 (SA). Significant legislative change has been proposed in relation to the Youth jurisdiction. Examples include the Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020 (SA), which proposes to introduce Adoption into the Care and Protection framework, and the Controlled Substances (Youth Treatment Orders) Amendment Act 2019 (SA), which proposes to allow individuals to apply to the Court for an Assessment, Treatment or Detention order in respect of a child. In addition, the Young Offenders (Age of Criminal Responsibility) Amendment Bill 2020 (SA) proposes to raise the age of criminal responsibility. Against this backdrop of significant legislative change, this article aims to raise awareness in the legal and broader community of the Aboriginal Youth Sentencing Court (AYSC), a Pilot Program designed to support eligible Aboriginal and Torres Strait Islander children and young people access services tailored to the individual and provide a pathway for diversion to an alternative Sentencing Program. The AYSC Program is established in recognition of the primary Object of the YOA ‘to secure for Youths who offend against the criminal law the care, correction and guidance necessary for their development…’2 The primary aim of the Program is to reduce reoffending in young people who are repeatedly charged before the Youth Court with offending which is escalating in seriousness and frequency over time. The ability for a child or young person to benefit from this Program rests heavily on their solicitor being open to referring
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eligible clients upon the recommendation of an Aboriginal Youth Justice Officer. In recent years, there have been only very limited numbers of Aboriginal and Torres Strait Islander Youths referred to the Program, however there is significant potential for the Program to be expanded with the support of key stakeholders including Aboriginal and Torres Strait Islander communities, Youth Justice, SAPOL, support service providers and, crucially, leading organisations and practitioners in the legal sector. As stated recently in the Hansard in the context of new legislative amendments:3 One of the greatest responsibilities of government, and indeed of every person in our community, is to ensure that every child, no matter their background or circumstance, is safe and supported… Both the legal community and the courts play an essential role in achieving this responsibility. The AIHW has found that Indigenous children and young people are, on average, younger when they enter Youth Justice supervision compared to non-Indigenous Youths, with 38% being supervised between 10 and 13 years of age.4 Recent data shows that 4266 young people were under supervision on any
given day in 2019-20, with over 14% in detention.5 Individual appearances in relation to Indigenous children and young people in the Youth Court are reported to have increased from 117 to 138 between February and March, 2021.6 Further, the ALRM reports that the ‘10 most prevalent matters’ in the Adelaide Office from 1 July, 2018 to 31 June, 2019 related to charges including breach of bail, theft, aggravated assault, property damage and driving whilst disqualified.7 These statistics reveal the importance of prevention, diversion and the reduction of reoffending being fully explored in the criminal justice system. As recognised in South Australia’s Youth Justice Plan 2020-2023: 8 “A child or young person who is guilty of an offence must be provided with the opportunity to make restitution and learn from their mistakes in ways that promote their development and full potential.” The AYSC is well-placed to assist in achieving this goal as the Program is designed to facilitate a responsive diversion from incarceration and support the rehabilitation of young offenders. In achieving this aim, the Youth Court has consulted widely with stakeholders and is committed to continual Program reform. As articulated in the health context of Domain 5 of the Cultural Respect Framework
