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Evaluate the
effectiveness of the various elements of the Australian Legal System in
achieving justice for victims, offenders and society. In your response you will
need to assess the effectiveness of the different elements of the Australian
criminal justice system.

 

Justice is defined as exerting fairness and impartiality
during a trial. In the Australian Legal System, young offenders are shown
substantial levels of justice. They are identified as not entirely
understanding the ramifications of their actions, and are therefore subject to
lower levels of criminal responsibility. This is seen in the concepts of, age of
criminal responsibility, the rights of young offenders when questioned or
arrested, the procedures and penalties for children and alternatives to court. Need a judgement.

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The age of criminal responsibility is a key concept in the
Australian Legal System. This concept allows the law to treat children
different in order to prevent children and young people from being exploited, to
protect young people from the consequences of making uninformed decisions and
to protect others from being disadvantaged by dealing with a person who is a
minor. Doli incapax is a principle of juvenile justice that suggests that infants
are incapable of committing wrong as they have an insufficient knowledge of
good or bad. This Latin term means ‘incapable of wrong’ and as the Children (Criminal Proceedings) Act 1997
(NSW) states, is applied to children under 10 years old as a conclusive
presumption. At 10 – 13 years of age there is a presumption of doli incapax but
there may be rebuttal. When an offender reaches 14 – 17 years they are considered
to be criminally responsible for any offence committed which is actus reus and
capable of having mens rea which is criminal intent but there will be some
differences to the adult system. At the age of 18, they reach full criminal responsibility.
In the case of R v LMW (1999) NSWSC 1343,
a 10-year-old boy was charged with the manslaughter of 6-year-old Corey Davis
after he dropped him into the Georges River knowing he could not swim. Despite that
the case was initially dismissed by the Senior Children’s Magistrate at the
Children’s Court the New South Wales Director of Public Prosecutions (DDP) persisted
and took the case to the Supreme Court. LMW was the youngest person to face the
Supreme Court and to be charged with manslaughter in Australia. After a lengthy
process LMW was acquitted when it was determined that there was sufficient
evidence for the jury to make a decision on doli incapax. Critics argue that justice
was not established for the victim’s family as no one was held responsible and
no retribution took place. Need judgement.

 

When children are questioned or arrested they required some
special protections that are not afforded in ordinary circumstances to adults.

 

The Children’s Court is a specialised court established in
1987 under the Children’s Court Act 1987 (NSW).  This court deals with cases connected with the
care and protection of children and with criminal matters concerning children
and young people who are under the age of 18 or who were under 18 at the time
of an alleged offence. The key difference between the Children’s Court and any
other court is that it is a closed court. This means that the identity of the offender
is protected from the media and the public. This is to ensure that they are not
identified and labelled as a criminal. The Children’s Court is presided over by
a magistrate, who plays an active role in the trial and questioning, rather
than hearing cases from the prosecutor and defence. This is a much less
adversarial system. This allows the court to remain relatively informal, with
the aim of not isolating the juvenile form the legal proceedings, and allows them
more involvement, making the accountable for their actions. In the case of Police v JM (2011) NSWChC 1, the key
objective of the sentencing was rehabilitation. JM had breached the conditions
of his parole when he was charged with aggravated break and enter resulting in
the imposing of the most serious sentence available for juvenile offenders, a
control order. To promote rehabilitation, a condition of his parole was rehabilitation
for his alcohol abuse. Need a judgement.

 

The purposes of sentencing are deterrence, retribution,
rehabilitation and incapacitation. Despite this when it comes to young
offenders the primary weight is given to rehabilitation. This is in line with Article
40 of the United Nations Convention on
the Rights of a Child which acknowledges that children and young people
have the best chance of any offenders of being rehabilitated and reintegrated
into society. The majority of children’s offences, penalties will be significantly
less severe than in ordinary law and will be considered with the child
rehabilitation in mind. In more serious cases such as manslaughter or murder
that are heard by higher courts, it will be decided whether the ordinary law or
children’s penalties apply. Police v CW
(2012) NSWChC 16 was the case of CW, a minor with many prior convictions.
By the age of sixteen CW had appeared before the Children’s Court for many
offences including possession of drug, breach an AVO and possession of a weapon.
CW was given a caution under the Young
Offenders Act 1997 (NSW) and completed a Youth Justice Conference. In 2011
CW was homeless and not receiving any government assistance at age 17. In 2011
CW was place on a nine-month control order for intimidation and assault. The
same day that the control order was received CW was found by the police
intoxicated and they suggested that they return him to his mother. CW did not
have a positive relationship with his mother and became violent, resulting in
the injury of two officers. In 2012 CW had several more charges added during the
period of his suspended control order. Despite CW’s history the amount and
severity of the charges that he faced the magistrate noted that the offences
were committed during periods where CW was homeless and suffering from some degree
of psychosis. In addition to this since his last offence CW had engaged
services of health professionals, become medicated and managed to secure employment
and accommodation. In light of the improvements in CW’s situation the
magistrate decided that a control order would interrupt his progress and it was
determined that he would do through a Youth Justice Conference. Need a judgement.

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