Juvenile Offenders To Be Named and Shamed Under New Laws

Imprisonment no longer a sentence of last resort for childhood offenders in Qld

Imprisonment no longer a sentence of last resort for childhood offenders in Qld

New criminal laws have been passed for juvenile offenders in Queensland with a substantial overhaul of the Qld Childrens Court process.  These changes are substantial in that they remove the requirement for a sentence of imprisonment to be a sentence of last resort and open up the children’s court for repeat offenders.  They go further in that the prohibition against reporting children’s names before, during and after proceedings has been removed for alleged repeat offenders.

Changes to Qld Childrens Court

The changes to Qld Childrens Court include:

  1. Permit repeat offenders’ identifying information to be published;
  2. Open the Childrens Court for youth justice matters involving repeat offenders;
  3. Create a new offence where a child commits a further offence while on bail;
  4. Permit childhood findings of guilt for which no conviction was recorded to be admissible in court when sentencing a person for an adult offence;
  5. Provide for the automatic transfer from detention to adult corrective services facilities of 17 year olds who have six months or more left to serve in detention;
  6. Provide that, in sentencing any adult or child for an offence punishable by imprisonment, the court must not have regard to any principle, whether under statute or at law, that a sentence of imprisonment (in the case of an adult) or detention (in the case of a child) should only be imposed as a last resort;
  7. Allow children who have absconded from Sentenced Youth Boot Camps to be arrested and brought before a court for resentencing without first being given a warning; and
  8. Make a technical amendment to the Youth Justice Act 1992.

Naming repeat offenders

The amendments limit the application of the existing prohibition on publishing identifying information about a child the subject of proceedings to first-time offenders only.

This means repeat offenders who have been found guilty of another offence will be able to be identified and reported in the media, both during and after proceedings against them.  In the past children charged with criminal offences, have been able to escape the public scrutiny of their identities being published or reported on the media.  This has been said to reflect the important principle that children make mistakes, and should be given an opportunity to learn from them.  These new changes will remove that privilege and expose repeat offenders to media exposure.

The Qld Childrens Court can make an order at any time during a proceeding prohibiting publication of a repeat offender’s identifying information where it considers this to be in the interests of justice. This power may be exercised on the court’s own discretion or on application by a specified party. 

Opening the Childrens Court

The Qld Childrens Court will remain closed when hearing matters in relation to first- time offenders.  The legislation provides that Qld Childrens Court proceedings under the Youth Justice Act 1992 which involve repeat offenders are to be held in open court.  Childrens Court proceedings are currently only required to be held in open court where a judge is exercising jurisdiction to hear and determine a charge on indictment.  The court will have the discretion to hold some or all of a proceeding in relation to a repeat offender in closed court where it considers this to be in the interests of justice.

Imprisonment no longer a sentence of last resort

The amendments remove the principle that detention or prison is a sentence of last resort from both the Youth Justice Act 1992 and the Penalties and Sentences Act 1992. 

New offence of committing an offence while on bail

There is a new offence of committing a further offence while on bail. This new offence will be taken to have been committed where a finding of guilt is made against the young person in relation to that further offence.

The maximum penalty for the new breach of bail offence will be 20 penalty units or one year’s imprisonment.  This is half the maximum penalty under section 29 of the Penalties and Sentences Act 1992 for breach of a condition of bail by an adult

Transfer to adult prisons for offenders when they turn 17 years.

The  Youth Justice Act 1992, currently provides for a court to order in certain circumstances that an offender be transferred to an adult correctional facility on turning 18 (or on turning 17 where they have previously been held in prison under a sentence or on remand). The ammendment provides that all offenders sentenced to a period of detention must be automatically transferred to an adult correctional facility on turning 17 if, at that time, they have at least 6 months left to serve in detention. If an offender is already 17 at the time of sentence to a period of detention of six months or more, that sentence will automatically be taken to be a sentence to a period of imprisonment to be served in a corrective services facility.

Retrospective effect

In a proceeding against an adult for an offence, any childhood finding of guilt for which no conviction was recorded will be admissible for the purposes of sentencing. This includes where the adult offence was committed or the proceeding against the adult started before commencement of the legislation.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Proposed toughening for Juvenile Justice.

juvenile justice

Juvenile Justice Laws

The Queensland Government is proposing a raft of changes to the Juvenile Justice Act when Parliament resumes on 11 February this year.

Proposed Juvenile Justice Changes

These changes include:

  1. Removing detention as a sentence of last resort.
  2. Making breach of bail an offence if a young person commits a crime while on bail.
  3. Naming and shaming of repeat offenders.
  4. Making all juvenile criminal histories available in adult courts to give a magistrate or judge a complete understanding of a defendant’s history.
  5. Transferring juvenile offenders to adult correctional centres when they reach 17 years of age if they have six or more months of their sentence remaining.

Education and rehabilitation

We maintain that the  preferable approach to the majority of those appearing in the Juvenile Justice system is to provide stability and education.  The effect of many of these changes will, in our view, further alienate the young person from mainstream society.

The current regime is said to acknowledge that young people make mistakes and should be afforded opportunity in their future efforts to obtain employment etc.  This proposed approach will make rehabilitation for the young person even more difficult.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

BANNING ORDERS – WHAT ARE THEY AND CAN I DEFEND THEM?

BANNING ORDER
A banning order is a order that prohibits an offender, until a stated date, from doing or attempting to do any of the following:
  1. Entering or remaining in a stated licensed premises ; or a stated class of licensed premises;
  2. Entering or remaining in, during stated hours, a stated area that is a particular distance from the licensed premises;
  3. Attending or remaining at a stated event, to be held in a public place, at which liquor will be sold for consumption.
Banning orders can prohibit entry to stated places.

The Court has a wide discretion in relation to the terms of the Banning Order. It may for example prohibit a person from entering or remaining in, between hours of 10pm and 6am, in an area that is within 10 metres of a stated licensed premises. In practice such orders are generally made in relation to a stated “drink safe precinct” under the Liquor Act. The Court can impose an Order, with such conditions as it considers necessary, upon application by the Prosecution where :

  1. The offender has been convicted of an offence that involves that use, threatened use or attempted use of unlawful violence to a person or property.
  2. The offence was committed in licensed premises or in a public place in the vicinity of licensed premises.
The prosecution needs to satisfy the Court that unless the Order is made the Respondent would pose an unacceptable risk to :
  1. The good order of licensed premises and areas in the vicinity of licensed premises; or
  2. The safety and welfare of persons attending licensed premises and areas in the vicinity of licensed premises.
In considering the risk the Court must have regard to all the circumstances of the case, including for example the following :
  1. Whether the respondent has been the subject of another banning order under this legislation, section 11(3) of the Bail Act or a Civil Banning Order imposed under section 173X of theLiquor Act;
  2. The respondent’s Criminal History;
  3. The offenders person circumstances and the likely effect of the order on those circumstances;
  4. Anything else that the Court considers relevant

 

The Court has discretion to impose the banning order for not more than 12 months. Where the respondent is sentenced to a period of imprisonment the banning order commences at the conclusion of the sentence. Those facing a banning order need to consider whether the unacceptable risk exists for the whole of the 12 month period or whether it is probable that such risk will be reduced within a shortened time frame.
The banning order may not restrict a respondent from the entering or remaining within the respondents residence, place of employment or place of education. In addition the order must not cause undue hardship on the offender or the offenders family. It is incumbent upon the respondent to establish such hardship.
The legislation also envisages that the order will not be breached were the person is utilising a mode of transport required to be used by the offender. The order must describe the mode of transport in sufficient detail to identify the mode of the transport and state that the respondent is not stopped from entering or remaining in the mode of transport.
While the legislation is wide in its discretion, those who are respondents to an application need to carefully consider the implications of the order upon their ability to enter the particular location. If the unacceptable risk threshold test is reached they need to consider whether undue hardship will be caused and have evidence of such hardship, or in the case of transport requirements, particulars of the mode of transport.
A banning order is not trivial, a contravention carries a maximum penalty of $4,000.00 or 12 months imprisonment.  We recommend that anybody who is the subject of a Banning Order Application, seeks advice from an experienced Criminal Lawyer, before appearing in Court.

EVADING POLICE – MANDATORY FINES AND DISQUALIFICATION. WHAT ARE MY OPTIONS?

The Queensland Government in reaction to a number of police pursuits has imposed mandatory fines and disqualification periods for all offences of Evade Police.  While this may seem appropriate for substantial offences involving dangerous, high speed, police pursuits, the reality is that minor infringements will also see the imposition of these mandatory sentences.
Section 754 of the Police Powers and Responsibilities Act 2000, makes it an offence for a driver of a motor vehicle to fail to stop if a police officer, using a police service vehicle, gives the driver a direction to stop the motor vehicle.
A police officer will usually give a driver a direction to stop the motor vehicle by activating the standard red and blue flashing lights and/or siren.
The driver is then compelled, under section 754(2) of the  Police Powers and Responsibilities Act 2000, to stop the motor vehicle as soon as reasonably practicable, if a reasonable person, would do so in the circumstances.
The penalty for failing to stop was recently amended by the Criminal Law Amendment Bill 2012, to include a  mandatory minimum sentence.
A driver who fails to stop when directed, or evades police, faces a minimum fine of 50 penalty units. In dollar terms, that is a minimum fine of $5500.00.
In addition to this fine, if a person is convicted of the offence, the court must also impose a minimum disqualification period of two years.
To be found guilty of this offence, the legislation states that it is sufficient evidence that, in failing to stop, the driver “took action” to avoid being intercepted by police.
Evading Police
Evade police – $5,500 & 2 years loss of licence.
A minimum fine of $5500 and  mandatory two-year disqualification is a significant penalty for this offence considering the following scenario:
  1. John Doe, a provisional licence holder is intercepted driving along the Gold Coast Highway, at night, with more than one passenger in the vehicle, contrary to the restrictions on his licence.
  2. He sees the flashing blue and red lights behind him, and in a moment of foolishness accelerates away to avoid police and the potential loss of licence.
  3. He quickly sees the foolishness of his situation and pulls over allowing police to catch up with him. He has, albeit for an instant “taken action” to avoid police detection.
  4. Police charge him with an offence of “evading police”.
  5. He now faces a minimum $5500 fine and a mandatory two-year disqualification of his licence, causing him severe financial hardship, the loss of his employment and the inability to transport his young children to school.

 

If John Doe contacted Gatenby Criminal Lawyers immediately, our experience solicitors would explore a number of avenues to reduce the severity of the charge.  We routinely make submissions to the prosecution asking them to proceed on a lesser allegation thereby enabling the Magistrate to utilise their discretion as to both the duration of any disqualification period and the amount of any fine.
If you have been charged with evading police, call Gatenby Criminal Lawyers now on (07) 55  800  120 and speak with one of our experienced criminal solicitors. The first consultation is free.
We will sit down with you and provide professional advice along with an obligation free estimate of the cost of our representation with respect to your matter.

SENTENCING CONSIDERATIONS

It is an important sentencing principle that parity exist in sentences imposed for like offences.  In a diverse state such a Queensland, with three levels of Courts; Magistrates, District and Supreme, there needs to be an overriding set of guidelines to ensure that sentences imposed upon offenders are consistent.  The Penalties and Sentences Act sets out the parameters within which the courts must operate.

The legislation does this by setting out the purpose of imposing sentences and then establishes the principles that the Court is to apply in achieving those purposes.

The purpose of imposing a sentence can be classified as one or more of the following:

  1. To punish the offender to an extent or in a way that is just in all the circumstances;
  2. To provide conditions will help the offender to be rehabilitated;
  3. Deterrence, both personal and general;
  4. Denunciation of the offending conduct;
  5. Protection of the Queensland community from the offender;

In most non-violent offences the starting point in sentencing is that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.

The Court must also have regard to the maximum and any minimum penalty prescribed for the offence and how serious the offence was, including any physical, mental or emotional harm done to a victim.  Particular regard is to be had to the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence.  The court should also have regard to the prevalence of the offence.

Consideration is also had to the extent to which the offender is to blame for the offence and the presence of any aggravating or mitigating factors such as any damage, injury or loss caused by the offender.

Matters particular to the accused are also relevant such as the offender’s:

  1. character,
  2. age;
  3. intellectual capacity;
  4. assistance given to law enforcement agencies in the investigation of the offence or other offences.
  5. time spent in custody awaiting sentence;
  6. sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing;
  7. compliance with previous community based orders
  8. attendance at a rehabilitation, treatment or other intervention program or course while on bail.

Each of these principles is to be taken into account in determining the appropriate sentence.  What often becomes difficult for the sentencing court is to balancing the various competing interests.  An experienced criminal lawyer is able to highlight the positive features, and mitigate the sentence imposed.

TWO STRIKE LAW FOR SEX OFFENDERS

The Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012 amends the Penalties And Sentences Act 1992 to insert a new major Tory sentencing regime of life imprisonment for certain repeat child sex offenders and further amends the Corrective Services Act 2006 to prescribe a minimum non-parole period of 20 years imprisonment for an offender sentenced to mandatory life imprisonment under the new sentencing regime.

The new regime applies where:

  1. An adult offender is convicted of a relevant serious child sex offence (as defined in the Bill):
  2. Such offences committed after the commencement of the bill:
  3. The offender has a prior conviction as an adult for a relevant serious child sex offence stop paragraph the second offence is committed after the conviction of the first offence.

The court in sentencing the offender on that second occasion, must impose life imprisonment which cannot be mitigated or varied.

In our view the fettering of judicial discretion is unfair, unworkable and contrary to our international treaty obligations. Nonetheless the bill has now passed and mandatory periods of imprisonment apply or possession of weapons as categorised above.