USQ Law Society Law Review Winter Edition 2021

Page 59

USQ Law Society Law Review

Eddie Fraser

I

Winter 2021

INTRODUCTION

Research has provided clear indications that obtaining a criminal record significantly impacts the ability for ex-offenders in general to reintegrate into society, particularly as it relates to employment outcomes.1 Research also demonstrates that most young offenders ‘grow out’ of crime as they transition into adulthood.2 Nevertheless, for young offenders who eventually desist from crime, the association between having a criminal record and limited employment outcomes may well persist, given the demonstrated propensity for this as it relates to exoffenders in general. For this reason, alternative responses to juvenile offending should be explored and geared towards strategies aimed at preventing punitive sanctions and the imposition of criminal records upon young offenders. The 1997 Australian Law Reform Commission report3 indicates that during the inquiry it examined the processes that are associated with sentencing and outlined recommendations to make sentencing options consistent with the basic rights of juveniles.4 These recommendations promoted the need for national standards on sentencing, a wider range of options based on rehabilitation, and minimum intervention in the formal justice system. In addition, this report emphasised ‘the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society’.5Furthermore, the report outlines that children must be given a voice in any decision that may affect them. As well, that most jurisdictions’ accept that rehabilitation should be the goal for juvenile justice and detention is not preferred as such.6 As it currently stands the Youth Justice Act 1992 (Qld) allows for/compels punitive sanctions to be imposed upon young offenders, as well as the imposition of criminal records for particular offences. In this paper the author addresses this component of the law as it relates to young offenders with regards to the potential social implications of serving a detention sentence or receiving a criminal record, as it relates to employment outcomes. As such, the author will employ a social scientific theoretical approach to examining these legal issues. Two theoretical perspectives govern the approach in this paper to examining the benefit of alternative options for responding to young offenders. The first draws from a life course theory of offending. According to this perspective, there are three types of offenders – “life-course persistent” offenders; “adolescent-limited” offenders; and “non-offenders”. This paper centres on the propositions relating to the adolescent-limited offenders, which suggests that offending behaviour or delinquency is a feature of a young person’s adolescent years. As well, most young offenders are characterised as adolescence-limited offenders and eventually grow out of crime as they transition into adulthood and take on adult responsibilities, such as employment. The second, labelling theory, suggests that by applying the label “deviant” or 1

Devah Pager, Lincoln Quillian ‘Walking the walk? What Employers Say Versus What They Do’ (2005) 70(3) American Sociological Review 335-380. 2 John Laub, Robert Sampson ‘Understanding Desistance from Crime’ (2001) 28 Crime and Justice 1, 5. 3 Australian Law Reform Commission, Seen and herd: priority for children in the legal process (1997) 84. 4 Ibid. 5 Ibid. 6 Ibid.

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USQ LAW SOCIETY LAW REVIEW

2min
pages 1-3

INDIGENOUS SENTENCING COURTS IN AUSTRALIA: A THERAPEUTIC JURISPRUDENTIAL MODEL OR A CATEGORY OF THEIR OWN?

13min
pages 123-129

THERAPEUTIC JURISPRUDENCE SEEKS TO ACHIEVE A CULTURAL AND POLITICAL TRANSFORMATION OF THE LAW. HOW DO THE INDIGENOUS SENTENCING COURTS IN AUSTRALIA CONTRIBUTE TO THAT AIM?

15min
pages 115-121

INDIGENOUS SENTENCING COURTS: ‘WHO WILL I BELONG TO NEXT, WHAT LAWS WILL THEY MAKE FOR ME NOW?’

16min
pages 107-113

INDIGENOUS SENTENCING COURTS ENLARGE THE DISCRETION OF JUDGES, LAWYERS AND THERAPISTS. WHY (OR WHY NOT) IS SUCH A DISCRETION BENEFICIAL TO AUSTRALIAN SOCIETY?

17min
pages 99-106

THE IMPACT OF SETTLER SOVEREIGNTY ON INDIGENOUS CUSTOMARY LAW AND ITS CONTRIBUTION TO THE DISPOSSESSION OF INDIGENOUS AUSTRALIANS

14min
pages 91-97

STUCK BETWEEN A ROCK AND A HARD PLACE: RECOGNIZING INDIGENOUS LAND CLAIMS IN A WESTERN LEGAL SYSTEM.

15min
pages 83-89

YOUTH BOOT CAMPS A COMPARATIVE EVALUATION: A PUNITIVE MEASURE OF AN OPPORTUNITY TO AVOID JUVENILE CRIMINAL RECORDS?

53min
pages 59-82

LEGAL REALISM’S ANALYSIS OF JUDICIAL BEHAVIOUR AND ITS CONTRIBUTION TO JURISPRUDENCE

13min
pages 51-57

INDIVIDUALS HAVE CONSTITUTIONAL RIGHTS BUT CAN JUDGES ALSO CONSIDER NATURAL RIGHTS?

14min
pages 45-50

DEMOCRATIC PEACE THEORY

17min
pages 37-43

THE CARRY OVER EFFECT OF BRENTON TARRANT ON AUSTRALIAN ANTITERRORISM LEGISLATION.

11min
pages 31-36

SHOULD AUSTRALIA FOLLOW THE BRITISH MODEL AND ADMIT BAD CHARACTER EVIDENCE AS SET OUT IN SECTIONS 98-113 OF THE CRIMINAL JUSTICE ACT 2003 (UK)?*

20min
pages 21-29

NATIONHOOD POWER & INTERGOVERNMENTAL IMMUNITIES: WHERE DOES THE POWER VEST*

24min
pages 9-20

EDITOR-IN-CHIEF’S ADDRESS

1min
page 8

LAW REVIEW VICE PRESIDENT’S ADDRESS

1min
page 7

FEMINIST APPROACHES TO SUBSTANTIVE EQUALITY

17min
pages 161-168

CONSTRUCTION DELAYS, EOT’S, TIME BARS, LIQUIDATED DAMAGES AND THE SUPERINTENDENT’S OBLIGATIONS – UNDERSTANDING THE IMPLICATIONS OF DELAYS CAUSED BY THE PRINCIPAL AND THE OPERATION OF THE ‘PREVENTION PRINCIPLE’

19min
pages 183-195

IS FEMINIST LEGAL THEORY ENACTING CHANGE OR IS IT SIMPLY AN EXPLANATION OF THE ROLE THAT LAW HAS PLAYED IN THE SUBORDINATION OF WOMEN?

20min
pages 153-160

BUKTON V TOUNESENDE: HOW MODERN CONTRACT LAW BEGAN ON THE HUMBER

6min
pages 169-172

SMART CONTRACTS – THE FUTURE OF CONSTRUCTION CONTRACTS, OR MERE HYPE?

18min
pages 173-182

INDIGENOUS SENTENCING COURTS: HOW ENLARGED DISCRETION BY JUDGES, LAWYERS AND THERAPISTS CAN BENEFIT AUSTRALIAN SOCIETY

15min
pages 131-138

BARRIERS TO WOMEN IN LAW

12min
pages 145-152

HOW DID THE MARRIED STATE LEAVE A WOMAN VULNERABLE UNDER ENGLISH LAW?

10min
pages 139-144
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