The Aboriginal Youth Sentencing Court: A pathway to support

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

The 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 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

2016 – 2026,

9 Stakeholder Partnerships and Collaboration is essential to the continued success of the AYSC Program.

BACKGROUND TO THE AYSC PILOT PROGRAM

The AYSC Program is designed to be an intensive court-supervised intervention program, broadly based on the Griffiths remand.10 In terms of the legislative power underpinning the Program, s 22 of the Sentencing Act 2017 (SA) provides sentencing pathways for Aboriginal and Torres Strait Islander offenders and s 29 empowers the Court to defer sentence for rehabilitation and other purposes.

An Aboriginal or Torres Strait Islander youth is eligible for the AYSC Program if they plead guilty to an offence and, due to the nature of their offending, may receive a custodial sentence. A referral can be made by an Aboriginal Youth Justice Officer, Youth Justice or the young person’s solicitor.

Following a referral, an Assessment Report is prepared identifying criminogenic factors and outlining key services the Youth may benefit from engaging with. If the Court accepts the referral, the Youth is referred to services designed to support them address specific challenges, such as drug and alcohol abuse, and arrangements are made to review the Youth’s progress and engagement with support services. The AYSC is convened monthly at the Adelaide Youth Court to review and support the Youth’s progress and a condition of referral is that the Youth undertakes not to reoffend whilst taking part in the Program. If a Youth successfully completes the AYSC Program, their sentence is delivered in court and their efforts and progress are taken into account when a final sentence is imposed.

The Program aims to celebrate small achievements, encouraging participants to actively engage with support services and facilitating this engagement. Key services include educational and vocational training, health services, organisations providing access to mentors and services encouraging engagement in extracurricular activities such as sporting programs.

KEY PROGRAM PARTICIPANTS

In addition to the child or young person, attendees at AYSC sessions include a Respected Person (from the same Indigenous community as the young person), the Judge or a Magistrate of the Youth Court, the family of the young person and their solicitor, the Program Coordinator (from the Treatment Intervention Court), an Aboriginal Youth Justice Officer, service providers, representatives from the Department of Education, Department of Health, Department for Child Protection (if involved) and Youth Justice. The Program Coordinator is responsible for facilitating the engagement of services identified in the Assessment Report. The Aboriginal Youth Justice Officer documents the Youth’s progress, with key measures including school attendance, access to services and service engagement.

RECENT DEVELOPMENTS IN THE PROGRAM

The Program has recently adopted a number of recommendations based on stakeholder feedback, including reducing the length of the Program from 12 months to three to six months. The Aboriginal Youth Justice Officer has liaised extensively with community to help bring on board highly-motivated individuals who are committed to playing a central role in the new AYSC Program.

CASE STUDY

(Please note: An example only, based on what the Program aims to achieve) John is 15 years of age and has been charged with multiple offences over the last 2 years. He was originally charged with x1 count of theft but has on this occasion been charged with aggravated robbery x3 counts and theft of a motor vehicle. John has been using methamphetamines after first receiving drugs from peers when he was 14 years of age. John’s family has tried to encourage him to quit drugs and focus on his schooling, but John is disengaged and remains in the same peer group. John has pleaded guilty in the Youth Court and John’s solicitor has referred him to the AYSC Program. After discussions with John, the Aboriginal Youth Justice Officer has learned that John loved playing soccer but was kicked out of his local team due to his escalating behaviour. The AYSC members refer John to a local drug support service and a local Indigenous organisation facilitating access to young mentors. John gains motivation to re-engage with school, sport and family life. John does not reoffend during his 6 month AYSC Program and receives a Certificate of Completion. John is sentenced to a 6 month obligation and a conviction is recorded. One year later, John has not been charged with any new offences and remains drug-free. SUMMARY: THE PATH AHEAD - RAISING AWARENESS AND MAKING REFERRALS

This article aims to promote awareness of the AYSC Program, outline the key features of the Program and illustrate the benefits of referring an eligible child or young person. The AYSC Program aims to provide culturally-sensitive, inclusive and community-focused support tailored to a Youth with the aim of addressing underlying issues which contribute to a Youth’s reoffending. The success of this initiative is highly dependent on the continued support of stakeholders and a commitment in the legal community to realise the potential of young offenders referred to the Program. It is hoped that referrals increase over the next year to enable more positive outcomes to be realised for Aboriginal and Torres Strait Islander children and young people. Early indications suggest that there are strong benefits of engaging in the Program in terms of a reduction in reoffending. B

Endnotes 1 Youth Court Act 1993 (SA) s 7(b). 2 Young Offenders Act 1993 (SA) s 3(1). 3 South Australia, Parliamentary Debates, House of Assembly, 30 March 2021, 4787 (Katrine

Hildyard). 4 Australian Institute of Health and Welfare,

‘Youth Justice in Australia 2018-19’ (Report,

Cat. No. JUV 132, 2020) p. vi. <https:// www.aihw.gov.au/getmedia/a5a364b9-fe694d02-9c93-1965a69a3d93/aihw-juv-132.pdf. aspx?inline=true>. 5 Australian Government Productivity

Commission, ’Report on Government Services 2021’ (Report, Part F: Community Services,

Chapter 17 Youth Justice Services, 20 January 2021) 3 <https://www.pc.gov.au/research/ ongoing/report-on-government-services/2021/ community-services/youth-justice/rogs-2021partf-section17-youth-justice-services.pdf>. 6 Youth Court of South Australia (Internal

Statistics), February-March 2021. 7 Aboriginal Legal Rights Movement, (Annual

Report 2018-19) 44 <https://www.alrm.org.au/ wp-content/uploads/2020/01/AR-8.pdf>. 8 Department of Human Services, ‘Young People

Connected, Communities Protected: South

Australia’s Youth Justice State Plan 2020-2023’ (Report, n.d.), 6 <https://dhs.sa.gov.au/__data/ assets/pdf_file/0008/89774/DHS-1322-YJ-

State-Plan-2020-23_FA.pdf>. 9 Australian Health Ministers’ Advisory Council’s

National Aboriginal and Torres Strait Islander

Health Standing Committee, ‘Cultural Respect

Framework 2016-2026 For Aboriginal and

Torres Strait Islander Health’ (Report, n.d.) 6, 18. <https://nacchocommunique.files. wordpress.com/2016/12/cultural_respect_ framework_1december2016_1.pdf>. 10 See Griffiths v The Queen (1977) 137 CLR 293.