Aboriginal Law Bulletin
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by Steve Sharrat
The WA legislation pertaining to juveniles has recently been amended. This has been achieved by the promulgation of the Children's Court of W.A. Act (Number .2.) 1988 and by amendment to the Child Welfare Act 1947. The most significant amendment provided for the installation of a District Court judge, with Supreme Court sentencing power, as President of the Children's Court. The President also has power to review sentences or to order re-hearings and has additional powers of promulgating directions. The Children's Court now has exclusive jurisdiction to hear and decide criminal charges against a child.
Prior to these amendments more serious matters would be remitted either automatically or as a matter of discretion to the District or Supreme Court for trial or sentence. The legislation preserves the traditional right of election to a superior court for indictable offences.
Under the new legislation a magistrate may not impose jail on a child under the age of 16, and is restricted to a total sentence of up to three months for a child over the age of 16. Adult imprisonment of juveniles is not imposed often in the Perth metropolitan area although it is more widely used in rural areas. Detention is more regularly used in the gazetted detention centres operated by the Department for Community Services. A magistrate may detain a juvenile in one of these institutions after giving the matter serious thought and providing written reasons.
A Children's Court magistrate cannot impose a detention period longer than 6 months either as a head sentence or to be served cumulatively. However, a magistrate's sentencing power may be extended by the granting of a certificate by the President. This has not been used often. Persons committing serious offences in country areas are remanded to Perth for sentence before the President.
Section 19 (4) of the Children's Court Of WA. Act states that the Court shall not be obliged to impose a minimum penalty where it is provided for by any other written law. Section 19(4) is strengthened by Section 24 of the Children's Court of WA. Act, which enables the court to refrain from convicting a child or imposing a penalty . This amendment has helped to correct some of the more farcical aspects of previous legislation. For example, children as young as 8 or 9 faced a compulsory minimum fine of $800.00 for each "joy riding" offence. Some persistent offenders could total fines of over $10,000.00 in one appearance. Many young persons have been banned for life from holding or obtaining a drivers licence, including children as young as thirteen years of age.
A person who is subsequently of good behaviour may apply to the District Court after the expiry of ten years for the restitution of a licence. If a child is convicted of further unauthorised driving, after turning eighteen, they face a compulsory prison sentence. Such examples of legislative harshness towards children have been partially vitiated by the new legislation.
A significant number of offences committed by Aborigines are against the Road Traffic Act, the most common being unlawful use of and unlawful driving of motor vehicles. The common makes of vehicle are notoriously simple to steal. Groups of children steal many cars in succession. There are many police pursuits. Recently a pursuit ended in an accident involving the death of a passer-by and a number of children in a stolen car. Pubic opinion was echoed by a popular radio talk back host who expressed the opinion that the children who died deserved it.
Bills are being put through Parliament to increase the minimum sentences for these offences.
Appeal procedures have been radically altered by the new legislation. The President may on his own motion or upon application review sentences. The procedure is so simple that it is theoretically possible for a sentence to be handed down in the morning and reviewed in the afternoon.
Sentencing options have not been changed significantly by the new amendments. If an offence is punishable by imprisonment the court may:
I will deal briefly with some of the most commonly used sentencing options in Western Australia.
Before placing a child on probation the court must order the Department of Community Services to provide a report setting out the child's antecedents and suitability for probation.
Where a child has been found guilty, the court, with or without proceeding to conviction may order the child to perform community service. The Court must first receive a report from the Department, to determine whether the child is suitable to perform a CSO and if so whether suitable work can be obtained. If a child breaches the requirements relating to the CSO the court can issue a summons requiring that the child appear at court or issue a warrant for the child's arrest.
When a child is sentenced to a term of detention, the court may decide that it is appropriate to order the child's release, conditional upon his/her participation in the Conditional Release Program (CRO). The Court must require the Department to supply a report about; the availability of a programme for CRO, the child's suitability, an outline of the programme and anything else that may be relevant.
If it appears that the child is not complying with any of the conditions of the CRO, a complaint may be made by or on behalf of the Director General of Community Welfare Services. The court can issue a warrant for the child's arrest. If the court finds that the child has failed to comply with the CRO, it may cancel the CRO and direct that the child return to detention or it may amend the conditions of the CRO and give the child another chance to complete it. Previously breach meant automatic detention.
There are only four courts in the Children's Court building. One of these is a Care and Protection Court and one is a Trial Court. The majority of business is conducted in the Remand and Arrest courts. The public waiting area is cramped and tempers often flare as defendants, parents, police, witnesses and representatives of various welfare groups wait for long hours for a court appearance which may only take a few seconds. It is a common occurrence for these courts to run until 5.30pm. It is also common to represent a child with 60 or 70 charges against him/her. Western Australia has a very high rate of criminal charges per capita against children. This trend is accelerating with a per annum increase in charges against children of over 30%. It is not uncommon to see a 25 to 30 page daily court list. The bulk of representation is supplied by legal aid organisations. Private practitioners working regularly in the area can be counted on one hand. As a Solicitor for the Aboriginal Legal Service I represent most Aboriginal children appearing before the court. The sheer deluge of numbers is frightening. I have acted for as many as 35 children in one day. Aboriginal children are grossly over represented in this jurisdiction. I would estimate that nearly a third of all charges are against Aboriginal children, and that two thirds of those detained are Aboriginal.
There may be up to forty persons in custody on any given day. The children are sandwiched tightly in the cells. Unless a solicitor has the good fortune to be the first into court and gets the interview room, the interview is conducted in the corridor by the police sallyport, with a police officer observing and listening to the interview only one metre away. These conditions are due to space restrictions and are not the choice of the police lock-up staff. Conditions are often riotous. There is much confusion. Escapes from police custody are not uncommon. Children have to be led by police escort through the packed waiting room to be brought to the court room. Sentenced persons or persons not successful in a bail application are led into custody back through the public waiting room. The court surroundings are clearly unsuitable.
The child may appear in court on several occasions for one offence or one set of offences. First, a remand is often sought for legal advice and to obtain police particulars of the offence. Upon the next attendance in court a plea may be entered. Further remands are often required for preparation of pre-sentence reports and the attendance of a Departmental officer.
Children often have problems remembering court and interview dates and experience further problems in organising transport to court and departmental offices. The system breaks down if a visit is missed and further remands are necessary. Aboriginal children often fail to attend court and if on bail become the subject of a search warrant. Children who are the subject of search warrants often commit further offences such as failing to supply the correct name and address when required and resisting arrest. Some children who sign false names on bail papers render themselves liable for more serious charges. Police take every opportunity to require the name and address of juveniles found in public places. This is perceived by some children as police harassment and further offences of disorderly conduct, resisting arrest, assaulting police officer, insulting words and the like often result from ensuing confrontations between Aboriginal children and the police. This is an area where contact with the legal system acts to increase the number of charges against children.
The amendments of 1st December 1989 have radically changed the structure of the Court by augmenting its power, streamlining its procedure and increasing its discretion. However, more reform, more government funds and changes in police attitudes are necessary if anything effective is to be done about the over-representation of Aboriginal children in the juvenile justice system in this state.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1990/24.html