Family Conferences in the Juvenile Justice System of South Australia

Authors:	Sue Hetzel
	Rosanne McInnes
Subjects:	Restorative Justice (Other articles) Criminal procedure South Australia Juvenile justice - administration of - South Australia Sentences - criminal procedure - South Australia
Issue:	Volume 3, Number 2 (July 1996)
Category:	Comment

PART A: Family Conference as a Sentencing Option - Port Adelaide Youth Court, 1994

Rosanne McInnes

PART B: Family Conference - The Role of the Conference Coordinator

Sue Hetzel

Editorial Note

1. Rosanne McInnes is a stipendiary magistrate in Adelaide, South Australia. In January 1994, the Adelaide Youth Court began to administer the implementation of new juvenile offender legislation in all major metropolitan court areas, with the exception of the Port Adelaide court area. Rosanne McInnes was transferred to the Port Adelaide Magistrates Court, where she was responsible for implementing the new legislation until the Adelaide Youth Court was able to take over, in April 1994. At Port Adelaide, she used Family Conference as a sentencing option.

2. Sue Hetzel was the Senior Youth Justice coordinator who introduced Family Conference into options for dealing with juvenile offending in South Australia, under the new legislation. She has a private social work practice, which provides private counselling and conducts human resources management education programmes. The material for dealing with the role of the conference coordinator is extracted from a chapter Sue Hetzel has contributed to a book about Family Conference around the world, which is being published in the USA in early 1996. The editors are Hudson, Galloway, Morris, and Maxwell, who are based at universities in Canada.

INTRODUCTION

1. From 1993 to late 1994, the Young Offenders Act 1993 and the Youth Court Act 1993 of South Australia were interpreted by the stipendiary magistrate at Port Adelaide Youth Court , to allow the use of Family Conference as a means of diverting young offenders from the court system before the laying of a charge and also as a sentencing option for young offenders. This interpretation was certainly, on one view, in accordance with the recommendations of the Legislative Council Select Committee of Inquiry into the Juvenile Justice System 1992, which led to the enactment of the new legislation.

2. Unfortunately, this interpretation was not shared by the Adelaide Youth Court under the administration of the Senior Judge. That branch of the Court interpreted the same legislation without reference to the Select Committees recommendations. The interpretation which eventually prevailed was that Family Conference were not a sentencing option, but only a system of diverting young offenders away from the criminal justice system in the first place.

3. However the one year Port Adelaide experience of Family Conference as a sentencing option is invaluable in showing that Family Conference are an effective means of preventing recidivism when used as a sentencing option as well as a diversionary system.

4. In this paper, Part A by Roseanne McInnes, considers;
   1. The History of Diversion of young offenders in South Australia
   2. The Select Committee's Review and recommendations
   3. The major provisions of the new legislation
   4. The Port Adelaide Youth Court's interpretation of the legislation and the use of
   5. Family Conference as a sentencing option in practice- including the co-operation achieved between the police, the court, social workers and families
   6. Lessons from the Port Adelaide experience
   7. Reversal of the Port Adelaide interpretation
   8. Reflections on the propriety of the use of Family Conference as a sentencing option.

5. An appendix to this part of the article is provided at the end of the paper and sets out the legislative provisions relating to Family Conference, and a New Zealand Judge's personal reflections on the operation of the Family Group Conference scheme in New Zealand

6. Part B of this paper by Sue Hetzel provides an overview of the role of the conference coordinator and concludes that in spite of the many issues which remain to be resolved, Family Conference have been successful in empowering young people.

PART A
THE HISTORY OF THE DIVERSION OF YOUNG OFFENDERS AWAY FROM SOUTH AUSTRALIAN CRIMINAL COURTS

Diversion- the Aid Panels

7. Diversion of young offenders away from criminal courts was introduced into South Australia in 1972. First offenders and minor offenders were channelled away from criminal courts, if they admitted guilt, and instead of being sentenced in court, these young offenders appeared before Aid Panels. Each Aid Panel consisted of a police officer and a social worker employed in the State welfare department (now known as "Family and Community Services").

8. The main purpose of the Aid Panels was to facilitate crime prevention. It was thought that the number of first offenders who never re-offended might be increased if the cause of the offending behaviour was addressed, as well as the effect. Informal processing of young offenders offered an effective way of identifying and responding to underlying causes triggering a behaviour pattern by a young person which, on at least one occasion, resulted in the commission of an act which constituted a criminal offence. Offences finalised by Aid Panels were not treated as previous offences which were listed on criminal history records of individual young offenders.

9. In 1979, the Aid Panels took over responsibility for the determination of which young offenders should be diverted, and which young offenders should be sentenced in court in relation to the offences they had committed. Courts were not given power to review Aid Panel decisions, either with respect to diversion screening, or with respect to determining penalties for young offenders.

10. Sentencing courts were perceived to have a particular inadequacy; they were not addressing the causes of criminal offending as well as the effects. As a result, Parliament removed from the courts their sentencing jurisdiction, in relation to certain young offenders. This jurisdiction was handed, by Parliament, to police and social workers.

11. The role played by the Aid Panels prior to 1994 has been described in detail by Joy Wundersitz, in "The Net-Widening Effects of Aid Panels and Screening Panels in South Australia" (1992) 25 Australia and New Zealand Journal of Criminology, 115.

12. Section 7 of the Childrens Protection and Young Offenders Act 1979 (the CP&YOA) defined the principles that Aid Panels and children's courts were required to consider whenever a young offenders criminal matter was finalised. The section emphasised rehabilitation of the offender.

    The Legislative Council Select Committee of Inquiry into the Juvenile Justice System, 1992

13. In 1992, the operation of the CP&YOA was reviewed by the Legislative Council Select Committee of Inquiry into the Juvenile Justice System, which reported to the South Australian Parliament in November 1992.

14. The Select Committee was comprised of parliamentarians from every point on the political spectrum. It took evidence for almost a year, from all kinds of organisations and people, from those working in courts and juvenile justice agencies to victims of crime to young people and their families.

15. Despite the diversity of its members, the Select Committee was unanimous in its finding that the juvenile justice system required complete restructuring, and in its recommendations as to how this should be achieved. The Report of the Select Committee was widely published. There was a further period of public consultation before new legislation was enacted in 1993, restructuring the juvenile justice system.

16. The recommendations of the Committee were the basis for the new legislation, the Youth Court Act 1993, and the Young Offenders Act 1993.

    The Select Committee's recommendations - The Abolition of Aid Panels

17. Aid Panels were criticised in submissions to the Committee. Generally, the criticisms were aimed not at the concept of diverting some young offenders away from courts. The criticisms were concerned with the way the Aid Panels were operating.

18. The Committee found that:
    (i) all diversionary systems caused some surrendering of individual rights in exchange for other advantages;
    (ii) that Aid Panellists were not effectively utilising the powers to deal with young offenders, when offences were finalised at the Aid Panel rather than referred to a children's court, and
    (iii) that there were conceptual inadequacies inherent in the legislation setting up the Aid Panels; of particular concern was the fact that there was no provision for any kind of victim involvement in the Aid Panel process at any stage. (Report, Chapter 8).

19. The Committee found that about 3.1% of youths in South Australia were dealt with by an Aid Panel, and that 1.4% came before a children's court, in a single year. Aboriginal children constituted 1.7% of the juvenile population, but they accounted for 9.5% of the appearances before courts and Aid Panels in a single year.

20. The Committee found that one in five children appeared before aid panels and courts between the ages of ten and eighteen; of those, only 5.6% ever appeared in court. Of the total population, 29% of the boys and 12.6% of the girls appeared before either courts or Aid Panels. Only 35% of young offenders had a single appearance before an Aid Panel or a court, and 4.7% appeared more than 5 times. 5% of the total population were the young offenders were responsible for a third of all court and panel appearances. These figures were based on a study of children born in 1972.

21. The Committee was also told that 72% of the people in adult prisons had appeared before either an Aid Panel or a children's court in relation to juvenile offending, before committing offences as adults. (Report, Chapter 2)

22. The Committee also detailed, in chapter 2, statistics concerning aboriginal children that gave rise to very great concern about the way that they were being dealt with in the juvenile justice system. Particulars are noted later in this article. As a result of these findings, the Committee recommended that Aid Panels be abolished.
    

    Sentencing of Young Offenders in Youth Courts

23. Despite the abolition of the Aid Panels, this did not mean that the power to sentence all young offenders, which had been removed from the courts prior to 1972, would be returned to the courts under the new legislation. The Committee recommended increasing court powers in relation to length of sentences of detention, but it simultaneously recommended that courts only be permitted to have jurisdiction to sentence a small range of young offenders.

24. In effect the Committee recommended less sentencing jurisdiction for courts, not more. Recommendation 9.13.7, "That the Youth Court be reserved for the most serious cases" is, when stripped of the language of diplomacy, a finding by the Committee that there are better ways to deal with young offenders than putting them into criminal courts for sentencing.

25. From other material in the Report, it appears that the Committee felt that courts should only be involved with less than a third of all young offenders, and then only if all other options had been tried, and had failed to prevent recidivism.

26. Rather than making any recommendations designed to improve court performance (perhaps, for example, recommendations requiring sentencing courts to take into account the need to identify and address causes of offending behaviour, and to structure penalties to deal with causes as well as effects), the Committee recommended diverting most young offenders away from courts altogether. Indeed they sought to improve the diversionary systems, so that even fewer young offenders came within the group which courts had powers to sentence for criminal offences.

27. Nonetheless, some recommendations were made concerning the operations of the youth courts. Particular recommendations included:
    

    "That procedures be developed to enable the victim to contribute to the sentencing process" (Report, Para 9.13.5); and "The court should have the standard range of sentencing options, including reparation, community service (maximum of 500 hours), change of residence, fines and detention..." (Report, Para 9.13.7)

    New systems of diversion

28. In order to improve diversion of young offenders away from courts, the Committee examined existing diversionary models used in other Australasian jurisdictions.

29. The Committee was impressed with two kinds of diversionary models, and recommended that both be introduced into South Australian juvenile criminal justice, with local modifications.

30. The first of these models, is police cautioning. Formal police cautioning of young offenders can mean young offenders undertake to carry out up to 75 hours of community service work, make apologies, and abide by certain limits , for example curfews, for short periods of time. However, this article is concerned with the second kind of diversionary model, the Family Conference.

31. The Select Committee was very impressed by the New Zealand Family Group Conference system, and this influenced the recommendations which were made concerning Family Conference. It was believed that the New Zealand Family Group Conferences had greatly reduced recidivist offending by indigenous young offenders in New Zealand.

32. However, the final provisions made for Family Conference in the South Australian legislation differ from the New Zealand Family Group Conferences in a number of ways. Significant differences include the following:
    i) Not all young offenders are referred to a family conference. (s.7, YOA)
    ii) The initial decision as to whether a young offender should be referred to a conference or referred to court is vested in police.(s.7, YOA)
    iii) The court can review the exercise of the police discretion to refer a matter to court rather than to conference. (s.17(2), YOA)
    iv) The court does not review conference outcomes.(s.12(10), YOA)
    v) No provision is made to reimburse victims for any costs they incur if they attend conferences.
    

    Improving diversion

33. In their recommendations on improving the diversionary systems through the abolition of Aid panels and the institution of Family Conference and Cautioning, the Committee made clear recommendations on who should determine which young offenders were to be diverted.

34. They recommended;
    

    "That responsibility for the screening process rest with senior police officers. If a senior police officer chooses not to deal with the matter himself/herself, by way of police caution (s)he will: Refer to a family conference except where the young person is a serious offender and the Family Group conference is deemed inappropriate or the young person has previously been dealt with by way of a FGC, but that Conference has failed to redress the offending."
    If a senior police officer refers a matter to the Youth Court, the presiding Magistrate or Judge should "have the power to assess the appropriateness of that referral and, where appropriate, direct that a formal caution be administered or a Family Group Conference be arranged". (Recommendation 8.8.10)

35. The Young Offenders Act 1993 created a definition of "minor offender" rather than a definition of a serious offender. Police powers in accordance with recommendation 8.8.10 were contained in the definition of "minor offender" and in section 7, which is in a Part headed "Minor Offences" (the only use of this term anywhere in the Act other than the definition in the definitions section), in a Division headed "General powers".

36. The court power to review appropriateness of referrals is contained in section 17(2), which is in a Part of the Act headed "Court Proceedings against a Youth", in a Division headed "The Charge."

37. Section 17(2) states:
    

    "The Court may, even though a charge has been laid, refer the subject matter of the charge (after a youth's guilt has been established either by admission or by the Court's findings) to be dealt with by a police officer or by a family conference."

    
    

    Various Select Committee recommendations concerning Family Conference

38. Despite the fact that many of the Select Committee recommendations contained in paragraph 8.8 of the Report were translated into legislation, others were not, particularly recommendations which could be dealt with by administrators without legislation to assist them. Various recommendations of particular interest to the institution of Family Conference include those recommendations concerned with the coordinator, participants and outcome of the conference.
    

    (i) Youth Justice Coordinators

39. The Select Committee recommended that the youth justice coordinators who were not members of the judiciary should be accredited mediators from a wide range of backgrounds, and that special regard should be paid to recruiting members of the aboriginal community. (Recommendations 3,4,5 & 6, Report, Para 8.8)

40. Further it was recommended that the coordinators should have "intensive instruction on the philosophical and implementational components of Family Group Conference, including comprehensive training in mediation techniques." (Recommendation 7, Report, Para 8.8).

41. Finally, (Recommendation 10), "That the role of the youth justice coordinator at the Conference be that of mediator, with the primary task of assisting the key participants to arrive at a mutually acceptable outcome".

42. s. 9 of the Act defines a Youth Justice Coordinator as a Magistrate or a person appointed by the Minister for a period not exceeding three years. s.11(1) requires that a youth justice coordinator "(who will chair the conference)" has to be present at a family conference. The Act does not contain any explicit reference to mediators.
    

    (ii) The "key participants"

43. The "key participants" were defined in recommendation 8.8.9, and the people listed are the same people as are listed in ss.10 & 11 of the Young Offenders Act. Essentially, families of young offenders and victims are invited to attend Family Conference but they are not required to do so. The conference quorum is constituted by a police officer, the young offender, and the youth justice coordinator.
    

    (iii) The outcome of a family conference

44. Recommendation 8.8.12 was "That the police have the power of veto over any agreement proposed at the conference which they consider inadequate". S.11(2) of the Young Offenders Act : "A decision of a family conference is not however to be regarded as validly made unless police and the young offender concur in the decision." Neither the Report nor the Act tried to define what was to be the subject concerning which "an appropriate outcome" (the term used in the Report) was to be reached.
    

    IMPLEMENTATION OF THE YOUNG OFFENDERS ACT AT PORT ADELAIDE IN 1994.

    The local area

45. Port Adelaide Magistrates Court covers the bulk of the western suburbs of Adelaide, which is by far the largest city in the State, and the State capital.

46. Levels of unemployment, particularly youth unemployment, are very high. Both offenders and victims in the Port Adelaide court area are from more diverse cultural backgrounds than those in any other court area. For many years, newly arrived immigrants settled around the migrant hostel which accommodated them when they came to Australia.

47. Young offenders come from indigenous, Asian, Middle Eastern, South American and Polynesian families, and from European families originating anywhere from the Baltic's to the Arctic. There is a very stable population of "blue collar" families who have lived in the area for four generations or more.
    

    Using Family Conference as one aspect of overall sentencing strategy

48. At Port Adelaide, those of us working in the juvenile justice area found, by experience, that the family conference system recommended by the Select Committee is a good system which prevents recidivism. It is not a universal panacea, but it was never anticipated that it would be.

49. It was found that Family Conference of the kind Sue Hetzel describes in Part B of this article work well when they are being held against a background of co-operation between the court, police, social workers and parents, and a court system which is treated with respect by young offenders.

50. Maintaining the necessary levels of co-operation and respect requires constant work. The role of the magistrate has to be extended, in a way which is very similar to the role of the "key worker" in public sector management in the State of Victoria.

51. A detailed strategy was used with respect to youth court administration and sentencing. It lies outside the scope of this article. It suffices to say that the basic principles were:
    a) attempting to deal with identified types of offender behaviour patterns when structuring penalties; and
    b) dealing with criminal charges with speed and certainty; and
    c) setting limits on behaviour at a limit short of criminality; warning of the consequences of breaching limits; and ensuring the limits were enforced.
    d) releasing parents of alleged young offenders from the obligation to act as monetary guarantors, and placing responsibility for compliance with bail conditions on the alleged young offender.

52. In practice, if a young offender had received a detailed warning about the consequences of breach when a bail or bond condition was imposed, and the young offender was later found to be breaching the bail or bond condition, the young offender immediately spent five days remanded in custody, as a direct consequence of the breach. Warnings were noted by using $99 in the monetary amount of the bail or the obligation, and this too was explained to the young offender when it happened. Particularly dire warnings resulted in $499 bails.

53. Use of this kind of detention is quite different to the "clang of the prison gate" philosophy of scaring young offenders in the hope they will desist from further offending. It empowers police, social workers and parents to intervene after "at risk" behaviour becomes apparent but before a victim gets hurt.

54. Many young offenders diverted from court to conference were on $99 bail with stringent conditions. Those who breached bail and spent five days in custody (awaiting a bail report as to how best to reduce the risk of re-offending) were then referred to conference in respect of the breach bail charge as well.

55. In connection with this strategy, the Young Offenders Act 1993 was construed as follows:
    (a) Family Conference were treated as bringing mediation to the resolution of the sentencing dispute between police and the young offender, ie. the dispute as to the punishment to be borne by a young offender as a result of the commission of a criminal offence.
    (b) Family Conference were treated as an option which could be incorporated into a sentencing package by the sentencing court, provided regard was had to the principle that the overall penalty for commission of multiple sentences should reflect the totality of the offenders. In this way, disparity in sentencing of co-offenders could be reduced.
    (c) the appropriateness of police decisions to divert young offenders to court was reviewed in most cases coming before the court, from March 1994.
    

    The effect of empowerment

56. At Port Adelaide in 1994, the view was taken that if participation and empowerment was needed by Aboriginal families trying to cope with children who had become young offenders as recommended by the Select Committee, then it was probably also needed by the families of non-Aboriginal children appearing in court, to prevent their young offenders becoming recidivist offenders.

57. The view was also taken that if families were feeling disempowered, the cloak of authority might also be hiding similar feelings of disempowerment among front-line police officers and social workers dealing with young offenders. Consequently, penalties imposed in court sought to reinforce the setting of behaviour limits on young offenders by all of the adults around the young offender.

58. At an early stage a sentencing principle was developed that, where possible, no sentence of detention would be imposed on a young offender who had never been to a family conference.

59. Initially, this policy increased rates of referral to Family Conference rather than the court. It then became clear that when diversion had been used, it rarely became necessary to impose a sentence of detention. The sources of the statistics are less than ideal; notes jotted on cause lists were put into a spreadsheet after working hours.

60. In the vicinity of 1000 separate charges were finalised at Port Adelaide court in 1994, including those in a substantial backlog carried over from 1993 (because of uncertainty surrounding the new legislation that was to be introduced in 1994).

61. About ten sentences of immediate detention were imposed during the whole of the year (one per hundred charges finalised). One sentence of detention was for six months and another was for four months. The rest were for three months or less.

62. More and longer sentences would have been imposed if young offenders had continued to offend, however, they did not appear in court charged with fresh offences and showing such blatant disobedience for the law and for the rights of other people in the community that long sentences of detention were called for.

63. It was also found that it was not necessary to impose sentences of detention in order to raise morale amongst police patrol officers. Quick and effective enforcement of the authority of adults to set behavioural limits on young offenders, and the resulting reduction in frequency and severity of offending committed by individual young offenders was just as (if not more) effective in raising the morale of parents, police and social workers working with the young offenders.

64. I have been shown police figures which indicate that within nine months of implementing all aspects of the strategy, the number of young offenders reported or apprehended for offences per month went from about 100 per month to about 180 per month.

65. The number of charges laid in court during the year was about the same number as the number laid in the previous year. Increased use of diversion protected the court from being swamped by young offenders when patrol police stopped taking the attitude that "he's only a juvenile; nothing is going to happen so it's a waste of time bothering with the paperwork." That attitude had done little to assist either young offenders or the victims of their offences.

66. No statistics were kept concerning the personal details of young offenders appearing in court, such as race, gender, or previous offending histories. However, in early 1994, aboriginal young offenders were appearing in court in numbers disproportionate to the rest of the juvenile population, as they had done under the old legislation.

67. Yet by the end of 1994, aboriginal young offenders rarely appeared in court charged with offences. If those who had been recidivist offenders were committing further offences, they were not doing so within the Port Adelaide court area. Nor were they being replaced by a new generation of aboriginal young offenders.

68. The strategy depended on co-operation between police, parents and social workers, with the court coordinating this co-operation. No-one could have asked for more co-operation than I received from the Port Adelaide, Hindmarsh and Henley Beach police, particularly the constables on patrols; the Port Adelaide Prosecutions Unit; the parents of children living in the Port Adelaide court area; and the community service work and adolescent offender teams at the Woodville office of the Department of Family and Community Services.

    A snapshot of court outcomes for drug, public order, dishonesty, violence and serious traffic offences

69. The following statistics detail the recorded outcomes of charges laid in court in respect of young offenders in the third quarter of 1994; the third quarter is used as the figures contain fewest inaccuracies. The number of individual young offenders dealt with is probably about 150, but this figure is not reliable.

70. Port Adelaide youth court 1/7/95-30/9/95
    finalisation orders- numbers;
    Without further penalty 13
    Community service work 28
    Fine 15
    Detention (nb. includes 10
    some remands in custody
    without finalisation)
    Suspended detention 5
    Referrals
    - to Family Conference 54
    - to higher court (with 8
    sentencing jurisdiction)
    - to police caution 2
    - to trial court 22
    Resolved at pretrial
    conference eg apology 1
    Dismissed/withdrawn 20
    Obligation
    - social work supervision 9
    - parent/guardian supv/n 5
    - other 4
    TOTAL: 196
    --------------------------------
    UNFINALISED, ORDERS:
    Warrant/Mandate (non-appearance);
    Fresh summons to issue; Remand.
    TOTAL: 196
    ================================
    TOTAL ORDERS MADE: 392
    ================================
    --------------------------------
    Finalisation orders-%
    of total finalisation orders
    Without further penalty 7%
    Community service work 14%
    Fine 8%
    Detention (nb. includes 5%
    some remands in custody
    without finalisation)
    Suspended detention 3%
    Referrals
    - to Family Conference 28%
    - to higher court (with 4%
    sentencing jurisdiction)
    - to police caution 1%
    - to trial court 11%
    Resolved at pretrial
    conference eg apology 1%
    Dismissed/withdrawn 10%
    Obligation
    - social work supervision 5%
    - parent/guardian supv/n 3%
    - other 2%
    =================================
    TOTAL : 100%
    =================================
    

    LESSONS FROM THE PORT ADELAIDE EXPERIENCE

71. The use of Family Conference as a form of alternative dispute resolution, bringing mediation to the criminal sentencing dispute, and active review of police utilisation of screening discretions as practised in the Port Adelaide Youth Court was held to be not in accordance with the wishes of Parliament as expressed in the legislative provisions (see section 4 below)

72. The fact that Family Conference were used in this way for a year, without objection being raised by police, parents, youth justice coordinators, victims, defence counsel or defendants, means that lessons were learnt which could not have been learnt anywhere else.

73. As Family Conference were not being used as a form of ADR in sentencing at any other court, nor were police exercises of discretion being closely scrutinised and since about 28% of the matters coming before the Port Adelaide court were being referred from court to conference, the Port Adelaide experience provides valuable information about the effectiveness of Family Conference.
    

    Policy and Legislative Intent

74. The first lesson is this: policy makers cannot assume that courts will apply the legislation incorporating a policy in the way that the policy makers intend, if policy makers do not clearly analyse their intentions and include clear statements of intention in the legislation they enact.

75. Only the parliamentarians of the day know how they intended Family Conference to be used. Because they did not clearly state how they wanted Family Conference to be used, two very different schemes operated in the same court system, using the same legislation and the same conference coordinators.
    

    The Police "three strikes" Guidelines

76. In South Australia, Family Conference were never viewed as some kind of utopian solution that would work in every case, before the conference legislation came into operation, or afterwards.

77. From the outset, police guidelines endeavoured to distinguish between young offenders who might benefit from attending conferences and young offenders so hardened that a conference was a waste of time. The police department developed a "three strikes guideline" which was based on the department's experience with the successes and failures of the pre-1994 Aid Panels.

78. The "three strikes" guideline precluded juvenile prosecutors from referring young offenders to Family Conference if:
    - the young offender had committed more than 3 offences on one occasion; or
    - the young offender had committed more than three offences on separate occasions. Juvenile prosecutors stepping outside this guideline did so at their own risk.

79. It soon became clear that after Aid Panels were abolished, young offenders similar to those who were previously dealt with by Aid Panels were now being referred to court by police. These young offenders were not only not being diverted away from courts but they were acquiring criminal records they would not have had if the old diversionary system had still been in place. Worse, some of them had offended when the old system was in operation but they were being dealt with under the new system because of delay between investigating police reporting the offending and prosecutors laying charges.

80. It became clear that prosecutors needed court support, because in order to refer many suitable young offenders to conferences, the individual prosecutors carried the burden of stepping outside very cautious departmental guidelines. Once charges had been laid in court, the guidelines precluded juvenile prosecutors from exercising any discretion to divert the alleged young offender to a family conference. As a result, all charges before the court at Port Adelaide were examined to see if referral to caution or conference was appropriate.

81. Once the Police knew they had court support for making referrals, the Port Adelaide juvenile prosecutors went into over-drive. The young offenders who would have been diverted under the old system began to be diverted under the new one. Having been among the first to test the conference process, the Port Adelaide prosecutors became convinced of its value, and perhaps its biggest advocates.

82. One of the difficulties with the "three strikes rule" was that the number of offences sometimes depended upon circumstances unrelated to the offending: the young offender who steals 4 items from a department store is not easily distinguished from the young offender who steals one item from the premises of each of 4 independent retailers in a single shopping arcade.

83. There was also a problem related at looking at the number of offences over time without considering either the time interval or the seriousness of the offence. Are three offensive language charges on three occasions indicative of a recidivist offender when one house break offence is not?

84. Successful conferences were held with children who had committed more than three offences, with significant time intervals between each offence. A few of these had appalling criminal offending histories, but they were the exceptions rather than the rule. A "successful" conference was one which resulted in an apparently long term cessation of offending behaviour occurred.

85. There were also a number of young offenders whose offending noticeably diminished, both in frequency and in severity, after they had attended Family Conference

86. With older offenders, the frequency and severity of offending may have diminished, but the effect seemed to be more likely to wear off in the ensuing weeks or months, especially if drug abuse played a part in the original offending and the offender either continued or resumed that drug abuse.

87. Defining the frequency and severity of previous offending which means a family conference has little prospect of success has proved to be an art, rather than a science. Mechanical application of numbers can be relied upon. In court demeanour has proved to be a guide which is as reliable as the "three strikes" guideline, but it is much harder to define.

88. It is unfair to be too critical of the early police guidelines. The police department had no experience of Family Conference which it could draw upon. As their experience grows they will undoubtedly continue revision of the guidelines, but in the meantime they have provided an excellent foundation for other agencies, including courts, to work
    

    Cases appropriate for consideration of referral to a family conference

89. Assuming there were no prosecutorial "system breakdowns" of the types discussed above, consideration of diversion was found to be useful in the following situations:
    

    Crimes where individuals have been the victims of the offence

90. There are victimless crimes, there are crimes which impact on organisations, and there are crimes which cause suffering to individuals. Estimates vary, but it seems that about 70% to 80% of the victims invited to attend Family Conference do attend and participate in the Family Conference.

91. There is one person affected by any decision as to whether or not a matter should be referred to a family conference, who has neither the right to be heard, nor the right of appeal, and that is the victim of a particular crime. Actually seeing the offender sometimes helps individual victims to recover from trauma caused by the offending. Sometimes recovery from this type of trauma can be assisted if the victim gets the opportunity to tell the offender just what the result of the crime has been, and what the victim thinks of the offender's behaviour. Being able to "put a face" to the offender may mean individual victims no longer feel as if they are grappling with a supernatural evil. That is a common reaction to a crime committed by a stranger.

92. The inherent danger is that confronting the offender will be very distressing for the victim, aggravating the trauma reaction. In many cases, the victim is probably better placed than a court to determine whether seeing an offender will do more harm than good. A family conference gives a victim this option. Courts do not. Victims have no right of audience when an offender is sentenced in court. They are merely members of the public the prosecutor represents.

93. In addition courts may order an offender to do community service work, but courts cannot order an offender to do work for the victim in recompense. Nor can courts extract apologies from offenders, or pass them on to victims if apologies are tendered in court. In contrast, section.17 of the new legislation does not exclude any potential benefits for the victim from the considerations relevant to the exercise of the referral discretion.

94. There is a good deal to be said for having young offenders who have "tagged" public transport using spraycans to do some work for the public transport operator in recompense. Organisational victims are often well equipped to arrange for a young offender to undertake voluntary work for their organisation which has suffered loss as a result of the young offender's behaviour.

95. Family Conference can and do arrange for offenders to do work for victims in recompense for the harm that has been caused, and Family Conference provide venues where heart felt apologies can be made by offenders to victims.
    

    Where the Family conference is used as one element of a sentencing package

96. The 'totality principle' applies to young offenders as well as adult offenders. The 'totality principle' means that sentences for individual offences are not merely totted up into some kind of total which becomes a head sentence. Rather, the overall sentence must be proportionate to the totality of the offending, and the offender. This principle is discussed in detail in Mill v The Queen 166 CLR 59.

97. The Supreme Court has ruled that under South Australian juvenile sentencing legislation, sentences of detention cannot be backdated (Police v E, February 1995). The line of reasoning that was adopted also means that sentences of detention cannot be made cumulative, one upon another.

98. In order to ensure young offenders understand the overall sentence imposed on them, when they are sentenced for a number of different offences, youth courts frequently use "roll up penalties". A single sentence is recorded on one charge which "rolls up" the penalty for the totality of the offending. No penalty is recorded in respect of the other charges that are finalised. Sometimes the totality is recorded across more than one charge, as when an order of suspended detention is made on one charge and a community service work order is made in respect of another.

99. If a victim of an offence is told that no penalty was imposed in respect of the offence, it is unlikely that the victim will also be told about the totality principle and the "roll up penalty" which was recorded on a charge for an unrelated offence.

100. At Port Adelaide, in cases where "roll up penalties" would normally be imposed, referral to family conference was considered as an alternative to creating a complete sentencing package. This was usually achieved by refraining from imposing up to 100 hours of community service work as part of the overall sentencing package. Instead of recording "no penalty" on the charges other than the main charge, these other charges were referred to a family conference.

101. Use of sentencing packages like this is not attractive to police. There is no criminal record of the commission of the offence which can be referred to if the offender offends again. The weakness in this argument is that in many cases where a "roll up penalty" is appropriate, the offender has committed so many offences of such variety that the offences being referred to family conference are never going to be of anything more than academic interest.

102. If the matter proceeds in court in the usual way, using a "roll up penalty", the victims of other charges receive no apology, no compensation and no satisfaction from being told that a court has imposed a penalty for the harm the offender has caused them. For these reasons, Family Conference were used as components of sentencing packages at Port Adelaide in 1994.

103. Despite these advantages, in May 1995, Police v W disapproved of the practice of using Family Conference as one component of a sentencing package, primarily because the court did not see Family Conference.
     

     When an offender is a first offender

104. If an offender was before the court who could have been diverted to a conference, even under the "three strikes guidelines", but diversion had not occurred, consideration was given to making a s17 referral to a family conference before in-court sentencing occurred.

105. In most cases, there is little justification for a genuine first offender to be referred to court, rather than diverted away from court. A genuine first offender is a young offender who has never before been accused of committing a criminal offence. Some of these young offenders are very frightened by the experience. In extreme cases, they vomit when they appear at court. With these young offenders, a relatively public "dressing down" in court does little good and it can do a lot of harm. Some feel that as they have been told off for so little reason, they should do something they deserve to be told off for.

106. On the other hand, treatment in court which is too sympathetic can backfire, with the result being further offending. It is better to divert first offenders to a more private forum where they gain some insight into their actions and reactions, which helps the overwhelming majority avoid future repetition of criminal behaviour.

107. It is difficult to accurately foretell which young offenders are unlikely to offend again, and which ones are going to become recidivists, during a first short court appearance, although sometimes their demeanour makes it possible to do so.

108. Whenever a genuine first offender appeared, if the crime had no victim the court usually invited police whether a police caution was a more appropriate way to finalise the matter. It was normally found that it was more appropriate, once police examined the file and spoke briefly with the first offender. If the crime did have a victim, the first offender was usually referred to a family conference.

109. The new legislative system is very different to the old legislative system, in that under the old system it usually took at least three offences before a child appeared in court as a "first offender". Under the new system, many "first offenders" really are first offenders, who would have been diverted under the old system.

110. It should not be forgotten that under the old system, some 80% of those diverted away from court not only never re-offended, but in addition they have no criminal record of ever having been criminal offenders.
     

     Special categories of offence

111. Two particular situations were identified in which mediation at a conference seemed to be a better way of resolving the sentencing dispute than using the traditional court imposed penalty solution.

112. One of these was where there was a relationship between the victim and the defendant, independent of the nexus created by the offending, which would continue to exist after the criminal proceedings ended. Court imposed penalties are designed to destroy relationships, not to repair them. Destroying relationships does more harm than good if the people in the relationship cannot end the relationship.

113. One form of domestic violence is the commission of vicious assaults by young offenders on parents, siblings, or other family members. Some of these assaults are hideous. But whatever happens in court, the young offender and the victim are still blood relatives who have lived together for the whole of the young offender's life.

114. A family conference cannot deal with deep-seated and long standing problems in the course of an hour, or an afternoon. Family Conference are designed to reconcile the differences between police and the young offender, not the young offender and the victim. However, in the course of reconciling the police and young offenders, Family Conference could, and did, explore peaceful ways of ending the pre-existing relationship between the victim and the offender (eg through housing transfers, in neighbour cases).and they also explored ways of restoring formerly harmonious relationships within families.

115. Some of the reconciliations within members of family units, after Family Conference, were nothing short of extraordinary. It is impossible to know how much of a role the Family Conference played in these reconciliations. What is clear, though, is that court imposed sentencing solutions would have increased rather than diminished the tensions in the relationships, which would have been of little benefit to any of the people involved.

116. Another "special category" are cases where both the victim and the young offender are deserving of more sympathetic consideration than is usual.

117. In colloquial terms, there are some cases when there are "two good guys" pitted against each other in court, and no "bad guys". These are "no win" situations for courts. Whatever a court does, either one side or the other will consider that the merits of their case were ignored, not balanced, by the court when it imposed sentence.

118. For example, in the case of J, he was a genuine first offender living with his father who was dying of cancer at the time when J got drunk and smashed half of the shop windows in Port Adelaide. The overwhelming factor in favour of a conference was that there was so much to be said for J and there was so much to be said for the shopkeepers who over the years have been plagued with more than their fair share of troublemakers, given their geographic proximity to a certain hotel.

119. For a court to make the shopkeepers feel they had been fairly dealt with, it would be necessary to impose a penalty on J that was far in excess of that which ought properly be imposed. To deal with J in court in such a way that he felt he was fairly treated would exacerbate any existing hostility of the traders towards the courts and the police.

120. Yet both the shopkeepers and J and his family were happy with the conference outcome, which was about the same as the penalty which would have been imposed if the matter had been finalised in court. However, the victims received the benefit of the community service work, done by J, that was agreed upon at the conference. A no win situation for the court was averted by the conference.

     Special categories of offender

     (i) where the cause of offending behaviour has not been identified, and is unlikely to be identified in court

121. No-one ever expected Family Conference to cure heroin addiction. But a family conference may be the quickest way to identify the young offender whose heroin addiction is resulting in dishonesty offending. Heroin addiction is not likely to be identified when a first offender appears in court for a sentencing process which is usually completed in less than five minutes.

122. It is much easier for those at a conference to realise a young offender has "track marks" than it is for a court to see the same scars while a young offender is in court for a brief appearance. particularly as most users are adept at hiding the scars from officialdom.

123. Sexual abuse and other forms of post traumatic stress are not easily picked up in a formal courtroom. They may not be picked up at a conference either, but there is more chance that it will happen.
     

     (ii) Peer group pressures

124. Family Conference are not a soft option. If presented as role play, they can be seen as a circle of people standing and pointing accusing fingers at a child curled up on the ground. At a successful conference, after the pointing of fingers, hands reach out and help the child up to join the group. As a result, Family Conference seem to be an effective way to combat offending which is occurring because of peer group influences.
     

     (iii) Cultural considerations

125. Some young offenders come from a background where matriarchal or patriarchal child training techniques in the home differ from school and community norms. Furthermore, Australian courts, including youth courts, are the products of Christian societies in Western Europe. Procedures, principles and penalties reflect this heritage. The values of this system differ from those of other cultures. For example, punishment such as exile from the family group was, and often still is, the ultimate punishment within the Indo-Chinese family and within the Aboriginal family. Within many Aboriginal families, ridicule serves the same purposes as "blame" serves within families of Western European origin.

126. Within the Aboriginal communities, there has been detribalisation, and urbanisation has occurred, but maternal techniques for managing children during early childhood have never been totally destroyed or replaced with Western European techniques.

127. Indo-Chinese families are a relatively new phenomenon in Australia, but the maternal management of young children is different to Western European techniques. For example, great effort goes into teaching anger management and anger suppression.

128. It makes more sense to use a behaviour management system which is familiar to a young offender in order to try to end criminal behaviour patterns. It is very difficult to do this during sentencing in a youth court, because so many cultural assumptions about behaviour management are embedded in the law relating to sentencing of young offenders.

129. These assumptions begin at the outset of the hearing, when the charge is read. How is it to be explained to a young offender that when he says "guilty" he is meant to feel guilty? For the bulk of young offenders, there is no need to explain this. But when the young offender is from a family where shame is related to the effect on the family rather than the effect on the individual, the ritual reading of the charge becomes an exercise without meaning. And it gets no easier, as the sentencing process proceeds along an ancient and semi-ritualised path.

130. When it comes to successfully intervening with Aboriginal young offenders, Australian courts, adult and juvenile, do not have an impressive track record. What is clearly more appropriate to deal with offenders from these cultures is a system which accommodates and takes their cultural experience into account. It must be noted here that the New Zealand family group conference had its origins not in Europe but in the cultures of the families who had migrated to Polynesia from Asia, hundreds of years earlier.

131. The policy adopted at Port Adelaide was that there was little to be lost by trying to use Family Conference to deal with young offenders who came from families using non-Western European behaviour management within the home, whereas the potential gains were enormous.

132. Apart from behaviour management considerations, there are other reasons to use Family Conference in some cases. Some children take advantage of cultural differences in child raising techniques. They try to play their parents and school teachers and police and courts and social workers off against each other, sometimes with outstanding success. Children of migrant families may have become expert in controlling their parent's access to information, taking advantage of language barriers. Some come to court with their parents, ready to act as interpreters for their parents during their own sentencing. In some cases the young offender has every intention of translating only what he considers the minimum his parents need to know about his activities outside the home.

133. In such cases, the sharing of information about both behaviour, and behaviour management techniques, between those being played off, may be sufficient to end the manipulation, even in the case of apparently hardened offenders. The longer it continues, the harder it is to stop this kind of manipulation. It is virtually impossible to do this in court, but it is possible to do it at Family Conference.

134. As such, at Port Adelaide, the family conference became the option of first resort whenever it appeared that there might be cultural reasons for thinking that traditional sentencing might not be an effective method of managing the behaviour of a young offender. Indeed, the Family Conference appeared to be more successful with young Aboriginal offenders and young Indo-Chinese offenders than with any others. This may have been a distorted impression, but it seemed that traditional court sentencing, as a form of behaviour management, was too different to the forms of behaviour management used within their families to work effectively at an early stage in the criminal offending cycle.

135. What was obvious, from the faces of the young offenders appearing in court, was that what began as a black children's court ended up as a white youth court by the end of the first year.

     Cases which were unsuitable for Family Conference

136. The conference process, like other court processes, is set up to deal with consequences, not causes. It deals with events, not the behaviour pattern which on one occasion led to the occurrence of an event. This is inherent in the legislation setting up the conferences which deal with "the subject matter of" a criminal charge.

137. While conferences may identify causes of offending behaviour, that is not to say they can address them. Care has to be taken not to raise false hopes about what will occur at a conference or what a conference can achieve.

138. If the cause of the offending behaviour is known, and it cannot be addressed by a conference, there is no point in having a conference. There are a number of cases where it would be unsuitable to have a Family Conference.
     

     (i) Where the young offender is psychologically dysfunctional

139. The conference process appears to make it possible to more quickly identify the child at risk of recidivism because of a psychological disfunction which is triggered by trauma. On the one hand it would seem to be expecting too much of conferences and coordinators for them to conduct mental health group therapy sessions which will address mental health issues such as unresolved grief syndrome or forms of Post Traumatic Stress Syndrome. However, the conference does appear to work to some degree as a preventative for this type of psychological dysfunction.

140. In some cases, the stress of a conference may do more harm than good and result in greater disturbance and almost immediate re-offending. Yet a conference did succeed in reintegrating one psychologically disturbed child back into his extended family. However, he later left the extended family, returned home for a period and then suicided. The conference was never able to get medical treatment for him or get him to medical treatment.

141. Whether the trigger trauma is sexual abuse, death of a sibling or a caregiver, or related to educational institutions or accommodation, if severe psychological disfunction is suspected, a mental health report should be obtained as quickly as possible, ideally before making a decision about whether the matter should be referred to conference, as Family Conference are not a mental health service substitute. Particularly since, the most recalcitrant recidivist offenders are often children who are suffering an abnormal psychological disturbance of this kind.
     

     (ii) Drug addiction

142. Conferences can help to identify drug addiction which is leading to offending behaviour but drug addiction cannot be cured in an hour or an afternoon spent discussing "the subject of" a criminal charge.
     

     (iii) The hardened offender

143. Some hardened offenders will be sobered by a conference; most will not. The attitude of these offenders will be affected by the fact the conference can only impose non-custodial penalties. The "three strikes guideline" was developed to try to deal with this, but it falls far short of being an accurate way to identify the young offender who is too hardened to benefit from a conference.

144. As a rule of thumb, the maximum detention for breach of a conference penalty is 14 days; any child who has been in the system long enough to think 100 hours community service work or 14 days detention in lieu is a penalty which is a joke should not be referred to a family conference.
     

     General remarks about the experience

145. By 1995, individual juvenile prosecutors were far more confident about making appropriate conference referrals, having regard to both the offence and the offender. Referral of sexual assault offences to Family Conference is relatively common. Prosecutors seem to have identified which of these kinds of offences are best dealt with by Family Conference rather than courts.

146. Family Conference have found a niche, whether because of, or in spite of, the original prosecution guidelines. The offences being referred to conferences are not merely cases concerned with victimless crimes such as disorderly behaviour, or offensive language. Serious criminal offences are being dealt with, with the victims of the offences both present and participating in the police-young offender negotiations concerning the appropriate outcome. Sometimes even armed robbery charges go to conference rather than to court.

147. The paper, Victims and Family Conference by Timothy Goodes, unpublished, May 1995 indicates that 87.9% of victims agreed with conferences outcomes and 93% of victims had not changed their mind about the outcome several weeks later. 45% were individuals and 55% were organisations.

148. Figures will be published later this year concerning the rate of victim attendance at conferences. The suggestion has been made that about 70% of victims are accepting the invitation to attend the conference but as yet there is no firm data. Similarly, there are no statistics as yet published concerning the number and nature of the offences referred to conferences.

149. If and when such information is published, it will be very interesting to compare the ways in which juvenile prosecutors have learnt to use their diversion discretion and the guidelines they were given when they were learning to use it.
     

     DIFFERENT INTERPRETATIONS OF THE SAME LEGISLATION

     Two youth courts

150. The Adelaide Youth Court (AYC), under the leadership of the Senior Judge, dealt with the implementation of the new legislation and with sentencing young offenders in all of the metropolitan areas except the Port Adelaide court area.

151. In January 1994, I was transferred to the Port Adelaide Magistrates Court (PAC), and directed to deal with implementing the new legislation for three months, by which time it was thought someone else could take over from me. The AYC eventually took over, in April 1995, some fifteen months later. Unlike most people working in any area of juvenile justice, my involvement in the area has always been as a conscript, rather than as a volunteer.

152. A Youth Court was held at Port Adelaide once a week, which dealt with general matters such as pleas and sentencing. I also dealt with juveniles when they were arrested and made application for bail on other days. The bulk of my time was devoted to normal civil and criminal work in the adult courts.

153. The Port Adelaide Youth Court worked in parallel with the AYC. Although both were under the administrative direction of the Senior Judge of the AYC, those directions, (with two written exceptions unrelated to this article), took the form of an administrative circular forwarded to all magistrates by the Chief Magistrate at the request of the Senior Judge of the Youth Court. This was in accordance with the doctrine of stare decisis. Decisions of the Supreme Court of South Australia are binding upon the Port Adelaide Youth Court. while decisions made in the AYC are not.
     

     Statutory Interpretation in South Australia

154. Section 22 of the Acts Interpretation Act (SA) states:
     "(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or the object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
     (2) This section does not operate to create or extend any
     criminal liability."

155. The Act is silent as to use of extrinsic aids. The common law as to use of extrinsic aids such as Select Committee Reports, is stated in Barker v The Queen
     (1983) 153 CLR 338; see in particular the remarks of the then Mr. Justice Mason (later Chief Justice Mason) at page 346.

156. In South Australia, the common law applies- see, for example, the remarks of Mr. Justice Zelling when determining the case In the Estate of Kelly deceased, (1983) 34 SASR 370, at pages 379-380, where he uses a Law Reform Committee Report as an aid to construction.

157. Essentially, where the Acts Interpretation legislation is silent as to the use which may be made of extrinsic aids, and the legislation is consequent upon a report, courts can use the report itself as an extrinsic aid to interpretation, in certain circumstances. The report can be used to order to ascertain the "purpose or object" of the legislation if the legislation does not substantially depart from the recommendations made in the report, as the report can be consulted in order to identify the deficiency in the law which the legislature intended to remedy. In addition, the report can be used to understand the background to the recommendation which has been enacted.

     Different interpretations by the Youth Courts

158. What occurred in South Australia was this; The AYC only used the provisions of the Act to interpret the legislation. The other court, operating in isolation from the main court system (at Port Adelaide), used extrinsic aids to interpret the legislation. The extrinsic aids included both the Report, where recommendations had been enacted in the new juvenile justice legislation, and case law concerning general matters of sentencing principle. Most of this case law is to be found in the decisions of the High Court of Australia. It is on the basis of the authority outlined in the preceding section that this extrinsic material was used to assist in interpreting the new young offender legislation at Port Adelaide.

159. At the Port Adelaide Youth Court in 1994, whenever there were two possible ways to interpret the Young Offenders Act 1993, and one interpretation was consistent with the Select Committee recommendations this interpretation was preferred and implemented, so long as it was in accord with general sentencing principles.
     (In a different article, I have addressed general sentencing principles and the sentencing of women and children using general sentencing principles. That article is to be electronically published by Lawnet)

     The effect of the different interpretations

160. This difference in statutory interpretation led to very different use of the same legislation, particularly the legislation relating to Family Conference.

161. At Port Adelaide as outlined earlier in this paper,
     -Family Conference were treated as bringing mediation to the resolution of the sentencing dispute between police and the young offender, ie. the dispute as to the punishment to be borne by a young offender as a result of the commission of
     a criminal offence.
     -Family Conference were treated as an option which could be incorporated into a sentencing package by the sentencing court, provided regard was had to the principle that the overall penalty for commission of multiple sentences should reflect the totality of the offenders. In this way, disparity in sentencing of co-offenders could be reduced.
     -the appropriateness of police decisions to divert young offenders to court was reviewed in most cases coming before the court, from March 1994.

162. In the AYC;
     -Family Conference were treated as an alternative "diversionary process" which did not sentence offenders.
     -Family Conference were seen as dealing not with the charge but with "the subject of the charge".
     -Family Conference were seen as a system which in appropriate cases brings the family, the victim and the police representative together to decide upon an appropriate sanction to be imposed upon the youth for his or her offending behaviour."
     Two Cases which reject the Port Adelaide Interpretation

163. It was not known that the AYC, working under the direction of a new Senior Judge, were using very different interpretations of the Young Offenders Act to the interpretations used at Port Adelaide until late 1994. This came to light when, towards the end of 1994, a copy of the Senior Judge's reasons for decision in CLM v SA Police reached Port Adelaide. In that case, the Senior Judge clearly held that the Family Conference system is not a sentencing option at all.
     The decision in CLM v S.A. Police (1994) 178 LSJS 390.

164. CLM was an aboriginal youth living in a country town, who was charged with assaulting another non aboriginal juvenile, occasioning actual bodily harm. Defence counsel alleged the assault occurred after the victim used certain words, which amounted to a form of racial vilification, and that attack was a form of pre-emptive strike, the defendant having heard that the victim intended to amount a physical attack on the defendant.
     CLM had previously been dealt with, presumably in court, for the offence of assault occasioning actual bodily harm.

165. CLM applied to the local magistrate in the town, seeking that the matter be referred to a family conference. The magistrate refused, and CLM appealed to the Adelaide Youth Court which has jurisdiction to hear appeals against interlocutory orders. From the affidavit evidence, it appeared that the youth admitted guilt after the charge was laid in court.

166. It was held:
     (i) that the court referral power only relates to minor offences as defined in the definitions section of the YOA
     (ii) that the court referral power was in effect a safety valve to be used when a new material fact arose which was not known to the police officer who laid the charge in court.
     (iii) that charges properly before the court need not be subject to further scrutiny each time they come before the court to determine whether on a plea of guilty the matter should be "diverted back to a family conference."
     (iv) that there is "no suggestion in the Act that the family conference system should be generally used for the disposition of court matters".
     (v) that the family conference system is not a sentencing option at all. "To the contrary, the family conference system...is a diversionary option"... "It should clearly be seen as a diversionary process and not an alternative sentencing option for matters which have been properly brought to the Youth Court on a charge."
     (vi) that "there is a mechanism in the Act to allow the 'subject matter' of the charge and not the charge itself to be referred to...a family conference in appropriate cases."
     (vii) that appropriate cases are cases where "the youth has failed to admit the commission of the offence in the first place and has now changed his or her plea or because the systems set up to divert appropriate matters away from court
     has miscarried for some reason."
     (viii) that "the police officer who is in charge of the case is the gatekeeper of the system".
     (ix) that "The Act does not incorporate mediation concepts into disputes as to appropriate penalties when a charge has been properly laid."
     (x) that "on the face of it", the matter was "far removed from a matter which would normally be referred to a family conference";..."The first matter to be considered in categorising an offence as a minor matter is 'the limited extent of the harm caused' the second is the antecedents of the alleged offender. Both criteria in this case clearly direct that such a matter would not be appropriate for referral to a family conference. The police officer in charge of the matter did not see fit to refer the matter to... a family conference."
     (xi) that "There is much to be said for the new family conference system which in appropriate cases brings the family the victim and police representative together to decide upon an appropriate sanction to be imposed upon the youth for his or her offending behaviour. "Family participation" "in the decision making process which imposes the sanction for offending behaviour" "encourages the family to be part of the process and is to designed to allow the family...of youths to play a significant role. This is a process to be encouraged in all families including those of aboriginal culture."
     (xii) "The powers of the Youth Court enable a range of sentencing options quite apart from the power to refer to ...a family conference. The Court can encourage rehabilitation and programs to assist the youth in controlling his anger and frustration and to aid him in proclaiming his aboriginality in a more positive way by considering the options of an obligation imposed with conditions such that he attend suitable programs; do community service work or in appropriate cases order detention, suspended or not suspended".
     

     S.A. Police v W

167. In the only other reported case on the interpretation of the South Australian Family Conference provisions, S.A. Police v W (1995) Judgement No. S5105, Mr. Justice Cox, of the Supreme Court of South Australia held that Family Conference are not an additional sentencing option.

168. In this case concerning a non-aboriginal young offender, the Judge only used the words contained in the Act in order to interpret the Act.

169. The case concerned a police appeal in relation to a young offender (W), who had been involved in a large number of thefts of equipment from schools over a one month period. W was a member of a small group involved in this offending. He was not a ringleader. The ringleaders were adults.

170. W had had one previous brush with the law, in relation to a minor larceny charge which had been finalised in Adelaide Youth Court some months earlier. W had never been dealt with by a diversionary system of any kind. At first instance, in relation to some charges, W was placed on an obligation with "stringent conditions" which, it was explained to him, amounted to a de facto suspended detention order. W was also ordered to carry out 120 hours of community service work. The remaining charges were referred to family conference. After the police appeal was allowed, W received a lengthy suspended detention order in Adelaide Youth Court and he had to enter into an obligation to comply with certain specified conditions.

171. Mr. Justice Cox held:
     (i) That Family Conference and court hearings are fundamentally different
     (ii) That s17(2) does not provide courts with an additional sentencing option
     (iii) That section 17(2) provides an opportunity to retrieve from the court system cases which should never have reached court
     (iv) That "one would expect that courts would generally confine the application of section 17" to cases that meet the requirements of the definition of minor offence and which" appear to be cases that may suitably be handled by a family
     conference."
     (v) That these were very serious offences and "it is not easy to see how any police officer could ever hold the opinion that these nine breaking offences could suitably be dealt with as minor offences and referred to a family conference."

172. It is unfortunate that police did not inform either the magistrate or the judge that police had referred at least one of W's companions in the thefts to family conference, rather than to a youth court. Consequently the judge was never in a position to consider disparity in the treatment of the young offenders who were co-offenders.
     

     IN CONCLUSION-REFLECTIONS ON WHETHER A FAMILY CONFERENCE OUTCOME IS A "SENTENCE" FOR A CRIMINAL OFFENCE?

173. In the justice system, the word "sentence" has carried two distinct meanings for almost a thousand years. It means both the punishment and the act of pronouncing the punishment (see the Shorter Oxford English Dictionary, for detailed expositions of the meanings cited). "Punishment" has also carried two meanings. It may be the act of punishing, or it may be the fact of being punished, of suffering a penalty imposed to ensure the enforcement of a law. "Penalty" is imposed for breach of law, rule or contract; a loss or disability or disadvantage of some kind, either fixed by law or agreed upon in case of violation of contract.

174. When artificial insemination was developed, to overcome the problems created by male infertility, for the first time it became necessary to distinguish between "biological" fathers and "social" fathers. The word father could no longer carry both meanings in every context. With respect to adoptions, the social father had always been treated, in law, as being the biological father.

175. Family Conference have had the same effect on "sentence" as artificial insemination had on "fathers." The term "Sentence" can no longer carry two meanings in every context.

176. The effect of a family conference is that a loss or disability or disadvantage of some kind, for a young offender, is agreed upon, as a direct result of the commission of a criminal offence. From this perspective, it is a "sentence." For the young offender, fifty hours of community service work is fifty hours of community service, whether the fifty hours is agreed with police at a family conference or whether it is ordered by a court.

177. But the outcome of a family conference is not imposed by a court; there is no "act of pronouncing" a punishment. From this perspective, the outcome of a family conference cannot be a sentence. There is no-one imposing the punishment.

178. The Young Offenders Act and the Youth Courts Act did not define "sentence". It was left to the courts to determine what meaning should be adopted.

179. At Port Adelaide Youth Court in 1994, family conference outcomes were treated as sentences, sentences arrived at by agreement between the young offender and police, with the assistance of a youth justice coordinator acting as a mediator, on neutral ground. "Sentence" was viewed from the standpoint of the young offender.

180. If a young offender breached the undertaking given to the conference, and the matter was referred to court, the sentence imposed in court, in respect of the original offence, was usually identical to the penalty which would be imposed for breach of a court imposed penalty in identical terms.

181. The failure to comply with the conference undertaking was treated not as an offence but as an antecedent, to be weighed in sentencing in the manner prescribed by the High Court, in Veen v R (No.2), 164 CLR 465, at p477.

182. The 'Port Adelaide' approach to the meaning of "sentence" was used because there were three perceived advantages in adopting such a meaning.

183. Firstly, Family Conference became another arrow in the quiver of options open to the court; using mediation to resolve disputes between parties occurs daily in the magistrates courts, and Family Conference could be treated as extending mediation beyond trials and into criminal sentencing. It was easy for the court to incorporate Family Conference into an existing understanding of the legal system.

184. Secondly, it coincided with self oriented world view of most adolescents, including young offenders. Who determined the outcome seemed likely to be less important to young offenders than the effect of the outcome on them, in their everyday lives.

185. Thirdly, if it was necessary to sentence the offender in court because a conference undertaking had been breached, it was not difficult to use ordinary sentencing principles when determining penalty.

186. There is an inherent difficulty in using the approach that a "sentence" can only be imposed by a court, and cannot be agreed to at a Family Conference. If a young offender does not comply with an undertaking given to a family conference, a charge alleging the original offence is laid, in a youth court exercising criminal jurisdiction. The young offender is sentenced in the youth court, for the original criminal offence which was "the subject of the charge" dealt with at the conference. If there was no "sentence" agreed upon at the family conference, then it is necessary to disregard the breaching of the conference undertaking when sentencing for the original offence. If the breach of undertaking is taken into account in relation to the offence, the young offender is being sentenced for an offence for which not only has no charge ever been laid, but no charge can ever be laid because there is no such offence known to law.

187. There is a fundamental sentencing principle that a defendant is to be punished solely for the offence of which he stands convicted. To punish him for charges with have never been laid amounts to nothing less than a denial of natural justice because the defendant cannot plead not guilty to a charge which has never been laid. The High Court has recently reaffirmed this principle, in Savvas v The Queen (1995) 69 ALJR 564

188. Such basic sentencing principles apply not just to adult offenders, but to young offenders as well. If the court treats the conference outcome as irrelevant, how should the young offender perceive the court outcome? Why should the young offender see a court consequence as any different to the conference consequence, a consequence which can be ignored?

189. Juvenile sentencing has never been easy. Family Conference have made the tasks confronting sentencing courts even harder. Family Conference raise new and important matters of principle.

190. It will take a long time for courts to work them through.

     PART B
     FAMILY CONFERENCE IN SOUTH AUSTRALIA:
     THE ROLE OF THE CONFERENCE COORDINATOR

     Sue Hetzel

     PREPARING FOR A FAMILY CONFERENCE

     The role of the coordinator

191. It is the Youth justice coordinator who contacts and prepares all potential participants, clearly explaining the process, asking who else should attend, and assuring them of their right to legal advice before and during the conference. Telephone is the usual means of contact due to limited staffing resources and the need to convene a conference within 28 days of referral if possible.

192. The amount of time needed to prepare for a conference varies according to the number of victims and offenders, how easily they can be located, and the cultural background of the participants.

193. While all participants play a role in the decision making, and a Youth Justice Coordinator must be present, it is the police officer and the young offender who must agree if the conference is to reach an outcome.

194. If the conference does not reach an outcome, the matter must be referred to a Youth Court judge or a Youth Court magistrate.
     

     The young offender

195. The young person is always asked whom they would like to support them at the conference. A parent or guardian must be invited but there is no statutory requirement that they must to attend. where culturally appropriate a community elder is invited. The coordinator is able to use his/her discretion to invite other persons who have a particular interest in the welfare of the young person, or skills which are likely to be useful at the conference.

196. The young offender's lawyer can attend the conference, to advise the young offender, but the lawyer cannot represent the young offender, by speaking for the young offender, during the conference.

     The victim

197. The victim is a key participant, if there is a victim. It can make an enormous difference if the conference can hear at first hand about how the offence has affected the victim, and what they think should be done to make up for the harm. No reimbursement is offered to victims for their participation, which is voluntary, but times and venues are planned to suit them. Victims frequently provide placements if community service is an outcome of the conference; some victims have offered paid employment, meals and follow up support to the young offender.

     The Police

198. A Police Youth Officer must be present at a conference. The Police Youth officer provides the police viewpoint, and represents the victim's interests if the victim is unable to be present.

     Venue

199. The choice of venue is important. It must not be seen to favour any participant or group of participants. It must also make participants feel at ease. For the most part, more "neutral zones" such as community centres, Youth services,
     local councils or buildings adjacent to court complexes are preferred to police stations or the homes or workplaces of either victims or offenders. In tribal lands in northern South Australia, conferences are often held under trees, in dry creek beds.
     

     THE CONFERENCE

200. There are three distinct phases during a conference: the introductory phase, the stage at which impact of the offence is discussed, and the resolution stage.

     The first stage, the introductory phase

201. A conference usually begins with participants being shown to their places within a circle of chairs. To try to create a more casual atmosphere, no table is used.
     The atmosphere is invariably tense.
     The coordinator, as convenor, introduces participants and reminds the group of the structure and purpose of the process they are about to embark upon. It is essential to gain everyone's agreement, at this point, to ground rules and a common agenda. Later, especially during stage two, it may be necessary for the coordinator to remind the participants of this agreement.

202. Because the young person's input is crucial, various strategies are used by the coordinator to increase their willingness to speak out. These include making sure that they know that they can seek legal advice at any time, that they have the right to leave or to stop the conference if they think that what is happening is not fair, and that they are legally entitled to disagree with outcomes.

     The second stage; discussing the offence

203. At the beginning, the police officer briefly outlines the details of the offence. The young person is then asked to tell their story of what happened, followed by the victim, and other participants.

204. Next, the coordinator then encourages victims, family members and supporters to speak freely about the offence and its impact. The young person is then asked to respond to their statements and feelings. During this, the coordinator seeks to set up an atmosphere of respect in which the young person's input is taken seriously, while at the same time ensuring the pother participants feel free to challenge statements made by the young person.

205. The atmosphere can become very emotional at this time, as the effects of the offence are revealed. Much of this may come as a surprise to the young person. Tears often flow.

     The third stage; discussing resolution

206. The goal of the third stage is to achieve a fair outcome which takes into account the victim's needs for restitution and reparation; community expectations; and the young person's needs.

207. There is a statutory requirement that the outcome must "have regard for" possible court penalties for such an offence. Resolution often, but not always, involves the young person agreeing to undertake specific tasks such as performing community service work, paying for damage, or writing an apology. The coordinator first calls on the young person, then on participants other than the police officer, for suggestions. Negotiations continue until there is agreement within this group.

208. It is a crucial part of the coordinator's function to ensure that, as far as possible, the young person does not agree to anything they cannot achieve, whether to make amends or just to get the conference over and done with. If a young person fails to carry out an undertaking without there being very good reasons for this, the breach of the undertaking will be referred to police and charges may be laid in court, in respect of the original offence and in respect of the breach of the undertaking. The police officer is then asked for an opinion, and if necessary discussion continues until the whole of the group is in agreement.
     

     AFTER THE CONFERENCE...

209. Post conference, the Youth justice coordinator's role is to follow up the undertakings which have been made, by arranging voluntary work placements, or referrals for counselling or training or employment.

210. The coordinator also has to be available to supervisors and young people when compliance is threatened, as for example when a work placement breaks down, or when a change in circumstances means the young offender cannot comply with an agreement to pay the agreed compensation within the agreed time. A young person's life may change dramatically and suddenly, so it is not unusual for times and placements to have to be renegotiated. Decisions must be made in consultation with police about whether undertakings have been complied with or whether a matter must be referred to court because an undertaking has been breached.
     

     EMPOWERMENT..?

211. Juvenile justice family conferencing in South Australia is now in its second year of operation.

212. There have been considerable successes.

213. There are many issues yet to be resolved.

214. It is almost impossible to avoid the dilemmas which arise in a justice system that aims, as the South Australian juvenile justice system does, to incorporate both restorative and retributive justice processes.Family Conferences set out to empower both victims and young people. Conference participants can expect to speak for themselves, and to have their concerns taken seriously. But how freely can a young person speak, when often they are the only person in the circle who is not an adult? When the police are present? When parents are present?

215. What about a victim's fear of reprisals, which is sometimes well founded? What about an offender's fear of reprisals, which is sometimes well founded?

216. The young person can choose not to attend. The young person can choose to walk out, or to disagree with a proposed conference outcome. Once the young person exercises this right, their right to be involved in any decision making is taken away from them.

217. It remains to be seen whether a system that is undeniably coercive is also capable of being empowering.
     

APPENDIX

As South Australian legislation is only available in hard copy or in commercial electronic databases which charge fees for accessing information, all of the provisions of the Young Offenders Act 1993 relating to Family Conference are set out in this appendix.

This Appendix also contains a short description of the New Zealand Family Group Conference system, written by Judge David Harvey of the New Zealand Youth Court.

THE YOUNG OFFENDERS ACT (SOUTH AUSTRALIA) 1993
(1) The legislative provisions relating to Family Conference

Part 1 Preliminary

Section: 3
(1) The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
(2) The powers conferred by this act are to be directed towards that object with proper regard to the following statutory policies:
(a) a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(b) the sanctions imposed against illegal conduct must be sufficiently sever to provide an appropriate level of deterrence;
(c) the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(3) Effect is to be given to the following statutory policies so far as the circumstance of the individual case allow:
(a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b) family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;
(c) a youth should not e withdrawn unnecessarily from the youth's family environment
(d) there should be no unnecessary interruption of a youth's education of employment;
(e) a youth's sense of racial, ethnic or cultural identity should not be impaired.

Section: 4
..."minor offence" means an offence to which this Act applies that should in the opinion of the police officer in charge of the investigation of the case, be dealt with as a minor offence because of-
(a) the limited amount of harm caused through the commission of the offence; and
(b) the character and antecedents of the alleged offender; and
(c) the improbability of the youth re-offending; and
(d) where relevant- the attitude of the youth's parents or
guardians.
"youth" means a person of or above the age of ten years but under
the age of eighteen years"...

Part 2 Minor offences

Division 1 -General powers
Section: 6 [Informal police cautions]
Section: 7
(1) If a youth admits the commission of a minor offence, a police officer may deal with the matter as follows:
(a) The officer may deal with the matter under Division 2
(b) the officer may notify a youth justice Coordinator of the admission so that a family conference may be
(c) the officer may lay a charge before the Court.
(2) [procedural]
(3) [procedural]
(4) a charge may only be laid-
(a) if the youth requires the matter to be dealt with by the Court; or
(b) if, in the opinion of the police officer, the matter cannot be adequately dealt with by the officer or a family conference because of the youth's repeated offending or some other circumstance of aggravation.

Division 2- Sanctions that may be imposed by a police officer

Section: 8 [Cautions "requiring the youth to enter into an undertaking" "that may be appropriate in the circumstances", which can include apologies, compensation and up to a maximum of 75 hours of community service work.]

Division 3- Family Conference

Section: 9.
(1) The following are to be Youth Justice Coordinators:
(a) the Magistrates...
(b) the persons who are appointed by the Minister
(2) [YJC appointments not to exceed 3 years]
(3) [ consultation re YJC appointments]
(4) [YJC responsible to Senior Judge of Youth Court]

Section: 10 Convening of Family Conference
(1) When a police officer notifies a Youth Justice Coordinator of an offence so that a family conference may be convened to deal with the matter, the officer must supply the Youth Justice Co- ordinator with the names and addresses of -
(a) the guardians of the youth; and
(b) any relatives of the youth which may, in the opinion of the officer, be able to participate usefully in the family conference; and
(c) any other person who has had a close association with the youth and may, in the opinion of the officer, be able to participate usefully in the family conference; and
(d) the victim of the offence and, if the victim is a youth, the guardians of the victim.
(2) The Youth Justice Coordinator-
(a) will fix a time and place for the family conference; and
(b) will issue a notice requiring the youth to attend...; and
(c) will invite the persons referred to in subsection
(1)...[including victim's associates]; and
(d) will invite other persons [thought to be appropriate after consultation with the youth]

Section: 11 Family conference, how constituted
(1) A family conference consists of -
(a) a Youth Justice Coordinator (who will chair the conference); and
(b) the youth; and
(c) such of the persons invited to attend the conference as attend in response to that invitation; and
(d) a representative of the Commissioner of Police.
(2) A family conference should act if possible by consensus of the youth and such of the persons invited to attend who attend in response to that invitation.
(3) A decision of a family conference is not however to be regarded as validly made unless the youth and the representative of the Commissioner of Police concur in the decision.
(4) A youth is entitled to be advised by a legal practitioner at a family conference.
(5) If a family conference fails to reach a decision , the Youth Justice Co ordinator must refer the matter to Court and the Court may decide any question, and exercise any power, that could have been decided or exercised by the family conference.

Section: 12 Powers of the family conference
(1) A family conference has the following powers:
(a) the conference may administer a formal caution against further offending;
(b) the conference may require the youth to enter into an undertaking to pay compensation to the victim of the offence;
(c) the conference may require the youth to enter into an undertaking to carry out a specified period of (not exceeding 300 hours) of community service work;
(d) the conference may require the youth to enter into an undertaking to apologise to the victim of the offence or to do anything else that may be appropriate in the circumstances of the case.
(2) In exercising the powers under this section, the family conference must have regard to the sentences imposed for comparable offences by the Court
(3) [administrative provision, concerning documentation]
(4) An undertaking will have a maximum duration of 12 months.
(5) [administrative provision, concerning documentation]
(6) [administrative provision, concerning documentation]
(7) [administrative provision]
(8) If a youth-
(a) fails to attend...; or
(b) does not comply with a requirement of the family conference; or
(c) does not comply with an undertaking under this section, a police officer may lay a charge before the Court for the offence in relation to which the conference was convened.
(9) [waiver of time to lay proceedings, re (8)]
(10) if-
(a) a youth is cautioned, and no further requirements are made of the youth, under this section; or
(b) all requirements made of the youth under this section (including obligations arising from an undertaking given by the youth) are complied with, the youth is not liable to be prosecuted for the offence.
(11) [providing information to victims who do not attend
conferences]

Other relevant sections:

Part 4- Court proceedings

Court Proceedings against a youth

Division 1- the charge
Charge to be laid before the Court
Section: 16 If a youth is to be charged with an offence to which this Act applies, the charge must be laid before the Court.
Proceedings on the charge
Section: 17(1) Subject to this Act the Court will deal with a charge in the same way as the Magistrates Court deals with a charge of a summary offence.
(2) The Court may, even though a charge has been laid, refer the subject matter of the charge (after guilt has been established either by admission or by the Court's findings ) to be dealt with by a police officer or by a family conference.
(3) [Circumstances in which a child may be tried as an adult in an adult court]

Division 2 [trial and committal procedures to be the same as the procedures in the Magistrates Courts]

Division 4- Sentence

Power to sentence
Section: 22
(1) Subject to this division, a court has the same powers to sentence a child for an offence-
(a)...(summary offences)...as the Magistrates Court
(b) ...(indictable offences)...as the District Court.
[obligations( in lieu of bonds), detention (in lieu of imprisonment) fines, etc, dealt with in the remainder of the Division]

THE NEW ZEALAND FAMILY GROUP CONFERENCES

Judge Harvey of the New Zealand District Court has kindly provided, by email, the following outline of the New Zealand Family Group Conference scheme, which diverts young offenders away from criminal courts in New Zealand. Judge Harvey is a judge of the New Zealand Youth Court. He also chairs the Committee responsible for introduction of Information Technology into New Zealand courts.

"Our Children and Young Persons and Their Families Act 1989 contains two major foci - one is towards the 'welfarist' model which deals with the care and protection of children... The other is towards the Youth Justice model which is directed towards criminal behaviour of young people between 14 and 17.

The Youth Justice model focuses upon responsibility - of the young person for his/her offending and of the family, for their young person.

The Family Group Conference (FGC) is an essential part of this, and underpins the policies and principles that are set out in the Act and which guide us in case of doubt.

Many cases of offending never get to Court. They are the subject of a pre-trial FGC conducted by the Police, the family and the Youth Justice Co-Ordinator and are diverted - a resolution is reached and is enforced by the family. The aim is to keep young people away from Court.

Where cases do come to Court, the matter may be denied, in which case a hearing of the evidence takes place, or it is not denied. In all cases where there is a "not denied" or liability is established, the matter is referred to a FGC for consideration by the participants. The victim may be present and must be consulted where not present so that his/her/their views may be ascertained. In 90% of the cases the FGC will arise at a suitable resolution which is implemented by the Court.

We are required, where possible, to implement the recommendations of the FGC. There have to be very good reasons for going beyond those recommendations.

Thus ALL cases go to an FGC at some stage.

If you want to look at the issue of detention of young people against the background of the principles of the Act, see my paper on "Secure Detention of Young People in Residence in New Zealand", Australian Institute of Criminology Conference Proceedings No.25 - National Conference on Juvenile Detention

The fundamental goal of the process is to empower families to find solutions for dealing with their young, to have them and their young take responsibility. Families know their children better than I do. They are more qualified to make an appropriate recommendation.

Recidivism on the part of those who have gone through Youth Justice is falling. The system...has received a considerable amount of support from the Police, who see the long-term advantages."

Source:
Personal comment 1995, Judge David Harvey, New Zealand.