Proposed Amendment of Young Offenders Act, 1997 (NSW) for Youth Justice Conferencing in Sexual Offenses

This briefing paper analyzes the proposed amendment of the Young Offenders Act, 1997 (NSW) with a view to introduce the option of youth justice conferencing in case of sexual offenses. The paper provides background information on conferencing schemes and analyzes the research and analysis of the proposed change. The paper recommends that the Young Offenders Act, 1997 (NSW) should be amended, and the option of youth justice conferencing should be produced for the juvenile sex offenses.

Assessment 3: Professional Task (Briefing Paper)
Introduction
The purpose behind writing this briefing paper is to analyze the proposed amendment of the
Young Offenders Act, 1997 (NSW) with a view to introduce the option of youth justice
conferencing in case of sexual offenses. Youth justice conferencing has been provided by the
Young Offenders Act, 1997. The scheme was introduced by this legislation in the form of an
alternative to court proceedings in New South Wales. The youth Justice conference can be
described as the decision-making forum. Here the younger brother and his or her family or
support group come face-to-face with the victim of the offense or their family. The basic role
played by the conferences to discuss the offending as well as the harm caused to the victim
and to encourage the acceptance of responsibility by the offender due to his or her behavior
and to negotiate certain type of restitution to the victim and at the same time to reinvigorate
the victim into the community and family network. In this way, youth Justice conference is a
informal meeting. This meeting takes place in a non-threatening environment. It is facilitated
by a convener who is particularly recruited and trained for this purpose.
Background
Conferencing schemes have been used in several different countries and also in various
jurisdictions and Australia to deal with issues concerning juvenile offending and also with a
large number of other issues. For example, New Zealand, Sweden and Victoria have used
conferences for dealing with issues related with the care and protection of abused children. In
Queensland, conferences have taken place after serious incidents in schools like bullying,
assaults, drug-related incidents and damage to property. Conferences have been used in
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Northamptonshire (England) for dealing with some other offending. In Labrador and
Newfoundland, the subject matter of conferences is family violence. In this way during the
90s, NSW, as well as South Australia, Australian Capital Territory, Queensland, Tasmania
and Victoria have taken recourse to some type of conferencing schemes in order to deal with
juvenile offending. Although there were several differences present between these
conferencing schemes including if the scheme as the legislative ways or if the scheme
operated in a particular site or throughout the jurisdiction (Heenan, 1997). Differences were
also present regarding the offenses that were eligible for conferencing and the agency was the
responsibility regarding the control and administration of the scheme. However, despite the
presence of these differences, in case of most of the conferencing schemes related with
juvenile offending, have followed the New Zealand's model of family group conferences. The
introduction of The Children, Young Persons and Their Families Act, 1989 had helped in the
creation of this model. This legislation has provided new principles and procedures that can
be used for dealing with huge justice and also child protection issues in New Zealand. As was
the case with the legislation subsequently introduced in New South Wales, the legislation
introducing New Zealand also encouraged the police officers to follow the least restrictive
response while dealing with juvenile offending (Hazlitt, Poletti, Donnelly, 2004). But it needs
to be noted that the most innovative feature of the legislation was the designated them that
was made for incorporating elements of traditional pre-colonial dispute resolution practices
that were present with the Maori people. These regiments have also been adopted by the
scheme in NSW, including the active participation by the offender, victims and their families
by making decisions related with offending. Other such features include the examination of
reasons behind the offending instead of merely apportioning blame, consensual decision-
making, healing the damage that is the result of offending and the restoration of harmony
between the offender and the victim, as well as their families.
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Research and analysis of the proposed change
Recent research has shown that the popularity of conferencing schemes is rising
continuously. Particularly in the field of juvenile offending, this rising popularity shows the
interplay taking place between civil courses including a shift in emphasis from merely
punishing the offender to holding the offender accountable for his actions and their
dissatisfaction with the present juvenile justice system and at the same time, involving the
families of offenders in decisions regarding the children and fulfilling the needs and rights of
the victims (Cossins, 2004). In NSW, the law provides that the offenses that can be dealt with
by youth justice conferences include summary offenses or indictable offenses and regarding
which neither warning nor formal police caution can be described as the appropriate
intervention (Kerstetter, 1990). Examples of these offenses, that can be the subject matter of
conferences include assault, break, enter and steal, robbery, damage to property, handling
proceeds of crime or disorderly conduct. But in this regard, it needs to be noted that in case of
certain offenses committed by juveniles, they are not eligible for conferences and should be
dealt with in the court (Kingsnorth, MacIntosh and Wentworth, 1999). These offenses include
sexual offenses as well as certain drug offenses, the offenses that result in the death of a
person and the offenses that are prohibited by Part 15A, Crimes Act, 1900.
In this context, it can be stated that the young people who are involved in indecent assault and
had also admitted their guilt, should not be made to face the court and they should be dealt
with youth Justice conference (Cashmore, 2005). At present, if a young person goes to court
for a sexual offense, the person faces a jail term of up to five years. Therefore in this regard,
it can be stated that the young offenders who have committed a sexual offense should be dealt
with by youth justice conferencing (McConachy, 2002). For example, the act of indecency
carries a maximum penalty of a jail term for two years if the victim is less than 16 years of
age and 18 months when the victim is 16 years or more. It is also worth mentioning in this
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regard that in South Australia and New Zealand already the juveniles responsible for sexual
offenses are dealt with police cautions or youth justice conferences (Lacey, 1998). In the
same way, the option of using cautions is also available in Britain and Canada.
Under these circumstances it can be stated that by excluding the sexual offenses from the
regime of youth justice conferencing, the needs of the victims are being ignored, which
include the need for having acknowledgment of the wrong if they have to suffer by the
offender and also the need for having other people know regarding the wrong (Bronnit and
Henning, 1998).
Recommendation and conclusion
In the end it becomes clear that significant benefits are available in case of youth justice
conferences. These benefits are available to the vendor and also to the victim. The admission
by the perpetrator of the offense provides vindication for the victim. On the other hand,
incentives were present for the offender is an early admission of the offense is made which
can avoid conviction and jail for the offender. Under these circumstances it is clear that you
justice conferences provide a chance to the offenders, victims and their families to come for a
meeting where the impact of the time can be described by the victim and at the same time,
remorse can be expressed by the offender for the offense and make amends with the help of
agreed actions (Boniface, 2005).
It is also worth mentioning in this regard that only a small part of the offenses handled by the
courts in Australia are the juvenile sex offenses. It is also the related by core data that the
defendants who have been adjudicated for offenses related with sexual assault, tend to be
older than the defendants of all the other categories of offenses. Under these circumstances,
these effects should reinforce the perception that sexual offending by juveniles is an unusual
type of sexual offending. Another significant fact in this regard is that the substantive
criminal law has complex and at certain times, contradictory responses to juvenile sexual
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offenders (Blackwell, 2005). The perennial problem that is present in case of sexual offenses
of what is and what is not consensual has been exaggerated by the questions related with the
age of criminal responsibility, the age of consent as well as the appropriate boundaries related
with criminal law.
Generally the law also provides that the children, who offend should be treated differently
from adults. It has also been provided by the UN Standard Minimum Rules for the
Administration of Juvenile Justice, all the jurisdictions in Australia have provided laws that
are particularly applicable to the administration of juvenile Justice, that have been designed
with a view to fulfill the different needs of juvenile offenders and at the same time protecting
their basic rights.
Under these circumstances, it can be recommended that the Young Offenders Act, 1997
(NSW) should be amended, and the option of youth justice conferencing should be produced
for the juvenile sex offenses.
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References
Blackwell S., 2005, ‘Expert Psychological Evidence in Child Sexual Abuse Trials in New
Zealand’, Paper delivered at the Children and Courts Conference, National Judicial College
of Australia
Boniface D., 2005, “The Common Sense of Jurors v The Wisdom of the Law: Judicial
Directions and Warnings in Sexual Assault Trials, 28 (1) University of New South Wales Law
Journal 261
Bronitt S: “Rape and Lack of Consent” (1992) 16(5) Criminal Law Journal 289
Bronnit and Henning T., 1998, “Rape Victims on Trial: Regulating the Use and Abuse of
Sexual History Evidence” in Easteal P (ed) Balancing the Scales: Rape Law Reform and the
Australian Culture, Federation press, Sydney
Cashmore J., 2005, An Evaluation of the NSW Child Sexual Assault Specialist Jurisdiction
Pilot
Cossins A., 2004, “Is there a case for the legal representation of children in sexual assault
trials” 16(2) Current Issues in Criminal Justice 160
Hazlitt, Poletti, Donnelly, 2004 Sentencing Offenders Convicted of Child Sexual Assault,
Judicial Commission NSW
Heenan M., 1997, “Sex Crimes and the Criminal Justice System”, 9 The Australian Feminist
Law Journal 90
Kerstetter W.A., 1990 “Gateway to Justice: Police and prosecutorial response to sexual
assaults against women”, 81(2) Criminology
Kingsnorth R.F, MacIntosh, R.C, and Wentworth, J., 1999, “Sexual Assault: The role of prior
relationship and victim characteristics in case processing”, 16(2) Justice Quarterly
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Lacey N., 1998, “Unspeakable subjects, Impossible Rights; Sexuality, Integrity and the
Criminal Law”, 11 Canadian Journal of Law and Jurisprudence 47
McConachy, 2002, Evaluation of the Electronic Recording of Children’s Evidence: Final
Report, May 2002
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