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					Youth and Policing
Bail Me Out – Young People
      and Bail in NSW

  Presented by Katrina Wong, Marrickville Legal
  Centre at the NSWCLC State Conference 2010
Who are the YJC ?

• The Youth Justice Coalition (YJC) is a network of
  youth workers, children‟s lawyers, policy workers and
  academics who work to promote the rights of children
  and young people in NSW and across Australia.

• The YJC was formed in early 1987 under the
  auspices of the Council of Social Service of New
  South Wales (NCOSS) to contribute to the
  development of new legislation for juvenile justice
  and child welfare.

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         Our aims

• To promote the rights of children and young people,
  including their rights under the UN Convention on the
  Rights of the Child and other international human
  rights instruments
• To promote appropriate and effective initiatives and
  responses in juvenile justice, child welfare and other
  areas of law affecting children and young people.
• To ensure that children‟s and young people‟s views,
  interests and rights are taken into account in law
  reform and policy debate.

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What is Bail and its
    purpose?

• A grant of liberty to a person on the undertaking that
  they will appear at court at a later date
• Conditions can be attached to ensure that a person
  returns to court and to ensure that they do not
  engage in further offending (e.g. non association and
  place restrictions)
• Purpose is not to punish a young person




5/5/10
  What we know about
 bail and young people

• Courts will often adopt a “welfare approach” when imposing bail
  conditions, quite unrelated to the offence with which the YP was
  charged (NSWLRC, Young Offenders Report No 104).
• Conditions are more onerous - eg:
     •   Curfew
     •   Accept supervision of government departments
     •   Reside as directed
     •   Obey reasonable directions of carer
• But, the risk of YP absconding on bail is very low (1.6% of those
  granted bail fail to appear - Children‟s Court Statistics 2008)



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    Young people on
        remand

•   The numbers of young people in   6000
    custody has increased steadily
    since 2006 - 2007 (NSW           5000
    Department of Juvenile Justice
                                     4000
    Annual Report 2007-2008)
•   The average daily numbers of     3000
    young people in custody has      2000
    also increased
•   This has coincided with          1000
    changes to bail legislation in      0
    NSW
                                     20 004

                                     20 005

                                     20 006

                                     20 007

                                             8
                                           00
                                         -2

                                         -2

                                         -2

                                         -2

                                         -2
                                       03

                                       04

                                       05

                                       06

                                       07
                                     20




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  Young people on
   remand (con’t)




5/5/10
  Young people on
   remand (con’t)




5/5/10
  Why the increase of young
    people on remand?


1. Changes in NSW Bail Legislation

2. Lack of comprehensive government response

3. Police practices

4. Lack of current resources in community (eg: for
   accommodation and other residential support
   services)

5/5/10
    1. Changes to the
       NSW Bail Act
•    Section 22A of the Bail Act 1978 (NSW) was introduced in
     December 2007
•    Previously, a person could make unlimited bail applications (as
     long as it was not vexatious/frivolous)
•    Now, can only make a subsequent application for bail if the person
     was not legally represented; information relevant to the issue of bail
     was not presented in the previous application, or new facts or
     circumstances have arisen since the previous application.
•    Impact on young people? They are more likely to be arrested on
     minor/technical breaches, and stay in custody for longer periods of
     time due to difficulties in making a subsequent bail application.
•    Situation is worse for those young people who are unable to meet
     their bail conditions due to lack of community resources (such as
     accommodation).

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   2. Lack of comprehensive
     government response

• The NSW State Plan has “Keeping people safe” as one of its
  eight priorities. The strategies include a focus on re-offending,
  with a target of a ten percent reduction by 2016. The policies
  implemented to achieve this outcome includes:
          Extending community monitoring of those at high risk of re-offending.
          For example, more random home visits, and electronic monitoring 24
          hours a day, seven days a week for very high risk individuals.
• However, the State Plan also recognises that reducing re-
  offending requires more than police monitoring:
          Breaking the cycle of re-offending must start early, with schools,
                 health, justice agencies, police, family services and community
                 groups working together to reduce the risk factors associated
          with   juvenile involvement in crime.




5/5/10
         3. Police Practices

• Anecdotal evidence from community groups of young people
  being unnecessarily arrested and detained for minor breaches
  of bail;
• Anecdotal evidence of pro-active monitoring of young people on
  bail (such as curfew checks at the young person‟s home at 3am
  in the morning)
• Practices that see a departure of principle of detention as a last
  resort
• Failing to comply with bail is not in itself an offence, and as such
  police are not mandated to consider alternatives to arrest, or
  utilise other diversionary options


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 4. Lack of current resources

• A significant group of young people who are
  considered „homeless‟ and unable to meet bail
  conditions due to lack of resources in the community
• Conditions of bail will often include a “Reside as
  directed by the Department of Community Services,
  or Department of Juvenile Justice”
• Unless such accommodation or programs are
  available in the community, a young person remains
  in custody


5/5/10
         The YJC’s
         Research

• NSW Bureau of Crime Statistics and Research reported that
  „breach of bail conditions‟ was the most common reason for
  appearing in court
• Significant lack of research around breaches of bail
• We wanted to explore:
     •   The circumstances in which a young person was likely to be breached on
         their bail;
     •   What were the court outcomes when these young people then made an
         application for bail;
     •   Cases where lack of community resources impacted on a young person‟s
         stay in custody.




5/5/10
 “Minor” breach of
       bail

• Wanted to distinguish between types of breaches of
  bail
• Definition of “minor breach” included:
     • No new offence was committed
     • No harm to young person or community
     • Not intentional - or the breach that occurred was
       beyond the control of young person




5/5/10
         Available at:
         www.yjconline.net




5/5/10
          The YJC’s
          research -
         methodology
• Researchers attended Parramatta Children‟s Court from 25
  August 2008 to 31 August 2008 and again from 18 January and
  24 January 2009.
• Researchers completed a survey form for each case which met
  the study criteria.
• Criteria for selection of cases: the young person must have
  been included on the custody list on the day of survey recording.
  All of the young people on the custody list were in the custody of
  either the police or Department of Juvenile Justice
• Researchers also collected case studies (54) where the young
  person was not able to meet bail conditions, or where the nature
  of the breach was minor.

5/5/10
     Data collected

• Demographic data
• Type of bail conditions imposed
• Nature of the breach
• Conditions which prevented release on the day of
  hearing
• Living arrangements (eg homelessness)




5/5/10
       Results -
     demographics

•   Number of young people surveyed: 145
•   Male: 106 (73%), Female: 35 (27%)
•   Indigenous: 42 (29%), CALD 54 (37%)
•   Statutory care or at risk: 28%
•   Homeless: 19%




5/5/10
 Reasons for being
    in custody

Reason for custody                               Number   Percentage
Breach bail condition                               80        60
Fresh offences1                                     42        32
Bail condition unmet                                7         5
Administrative errors                               4         3
Total                                              133       100
1 Not on bail when the offences were committed




5/5/10
   Bail Conditions
 that were breached
          …
 Bail conditions breached                                Number                       Percentage2           Percentage of
                                                                                                               cases3
 Committed new offence(s) while                              19                            34%                  44%
 on bail
 Breached curfew                                             13                            23%                    30%
 Non-association (place/person)                              5                             9%                     12%
 Fail to reside as directed or in                            5                             9%                     12%
 specified address
 Fail to appear at court                                      5                             9%                    12%
 Fail to report to police                                     4                             7%                     9%
 Fail to obey reasonable                                      3                             5%                     7%
 direction
 (Carer/DoCS/DJJ/Parent)
 Others4                                                     2                             4%                      5%
 Total                                                       56                           100%                      -
1Codes of bail conditions breached were recorded differently for sample 1; thus, these data could not be collated with sample 2
2 ‘Percentage’ represents the proportion for each condition of the total number of bail conditions breached (e.g. 19/56=34% of
all conditions breached were ‘committed new offence while on bail’)
3 ‘Percentage of cases’ refers to the percentage of the 43 young people who breached that bail condition.




 5/5/10
Court outcomes in
 relation to bail

         Bail outcome                                       Number            Percentage
         Bail granted1                                        71                  51
         Bail not applied for                                 29                  20
         Bail refused                                         20                  14
         Bail granted, but unable to enter                    12                  8
         N/A - matter finished                                10                  7
         Total                                               142                 100
         1
             Bail granted includes cases where bail conditions were continued or varied



5/5/10
         Type of bail
         conditions
          imposed
    Bail Conditions                             Number         Percentage receiving
                                                                    condition1
    Curfew                                         53                  68
    Reside as directed or as specified             45                  58
    Obey reasonable direction                      45                  58
    Non-association                                24                  31
    Report to police                               21                  27
    Attend school/program                          12                  15
    Pay surety                                     7                    9
    Not to consume drugs or alcohol                5                    6
    Supervision of DoCS/DJJ                        3                    4
    Other                                          24                  31
    Total                                         239
    1Percentage   of the 78 young people granted bail who received this condition.



5/5/10
    Other key stats

• Of the young people who were in custody for breaching their
  bail, 56 percent did not commit a new offence;
• Of the young people who were in custody for breaching their
  bail, nearly 60 percent were granted bail again;
• Almost 10 percent of young people surveyed were granted bail
  but remained in custody because they could not meet the
  conditions of their bail;
• Of the females who were granted bail, 20 percent remained in
  custody because they could not meet the conditions of their bail;
• Four young people (3%) had been arrested in error.



5/5/10
         Case studies



    John – 13 years old

    John’s bail condition stopped him from entering
    the next suburb from his home. He was allowed to
    visit his aunt even though she lived in the suburb
    from which he was banned. He was arrested while
    on a visit with his family to his aunt’s home.



5/5/10
 More case studies



    Jack – 17 years old

    One of Jack’s bail conditions was to report to police
    each day. He had reported everyday until one
    Saturday when he was sick. He lived some distance
    from a police station, he did not have a landline
    telephone or credit for his mobile phone. He was
    arrested the next day when he reported to police.


5/5/10
 More case studies




    Two 13 year old girls were granted bail with a
    condition not to associate with each other. They went
    to the same school and had similar classes. They
    were arrested when they attended school. The court
    amended the bail conditions so they could attend
    school.



5/5/10
 More case studies



    Jill – 14 years old

    Jill was homeless because of the violence she
    experienced at home. She was granted bail with a
    condition to reside as directed by DoCS. DJJ made a
    declaration to DoCs that she was homeless. There
    was no DoCS officer available to find her
    accommodation, so she remained in custody.


5/5/10
     What we can
  conclude from this?

Police practices and technical breaches
• 56% of YP did not commit new offences whilst on
  bail, but were in custody for breaching some other
  condition (I.e. a minor breach)
• More than half (60%) of these YP were released
  again on bail, indicating that the nature of the breach
  was not serious enough to warrant detention
• Indicates a clear problem in relation to police
  practices and a failure to consider other options
  before arrest

5/5/10
         What we can conclude
              from this?

Not able to meet bail conditions
• Females were more likely to be unable to enter into their bail
  (20% vs 5%)
     • More research as to whether there is an assumption that girls would be
       more at risk due to indicators of DV, or if there are less accommodation
       options available
• Young people under the age of 16 were more likely to be unable
  to enter into their bail
     • Points to a welfare focus from courts, with detention considered more
       appropriate where accommodation is unavailable
• From the case studies collected, the reasons for these YP failing
  to meet their bail conditions were generally beyond the control
  of the YP and due to inadequate resources for YP and their
  families (typically: no accommodation available, no transport
  available, no financial resources to pay surety)
5/5/10
         What we can conclude
              from this?

Nature and types of bail conditions imposed on YP
• Conditions are numerous (average of 3 or more conditions),
  prescriptive in nature (curfew, residential direction) and
  confusing for YP and their families. Case studies demonstrated
  situations where YP and their families did not understand the
  bail conditions
     • Bail conditions were imposed without consultation with YP and their
       family as to the appropriateness of the conditions
     • Some conditions impacted heavily on the family, with the onus on
       parents/carers. Likely to negatively affect those families most
       disadvantaged
     • Large proportion of YP surveyed were 16 years or younger (60.3%
       male and 88.6% females). The development of this age group
       makes compliance with multiple and complex bail conditions more
       difficult
5/5/10
                    Costs

• The short and long term costs to families and the community are
  not well documented, but could be calculated to include:
     • Costs to police investigation, interrogation and processing;
     • Legal representation costs - NSW Legal Aid and Aboriginal Legal
       Service;
     • Family costs – travelling, loss of work or social security payments if
       child in detention;
     • Court costs of accommodating bail hearings;
     • Long term costs of young person giving up school, being away from
       families or losing employment;
     • Costs of support services such as youth workers or out-of-home
       care providers;
     • Costs of holding a young person in juvenile detention (calculated at
       $541 per day).

5/5/10
 Further research and policy

     • Do the nature and type of bail conditions imposed on young
       people effectively reduce re-offending?
     • What are the effects on young people and the court system
       of police practices of monitoring and arresting young people
       for „technical breaches‟?
     • Do bail conditions disproportionately disadvantage young
       women?
     • Do the lack of services meeting the needs of young people,
       particularly young women, affect the courts‟ decision to grant
       bail?
     • Are Aboriginal young people less likely to obtain bail?
     • What community services and models of therapeutic
       interventions can support young people whilst on bail?

5/5/10
         Advocacy so far …

• Section 22A was amended in 2009 to allow for the
  consideration of other information relevant to bail that
  was not presented at the last occasion – slightly
  broader
• AG‟s department reviewing Bail Act
• NSW government‟s independent review of the
  Juvenile Justice system (report to be released soon)
• Increased media coverage
• National issue – remand numbers have increased
  across the state
5/5/10
         Question Time



• For more information or to download a copy of
  the “Bail Me Out” Report - go to
  www.yjconline.net
• Email: yjc@clc.net.au




5/5/10

				
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