Evaluate theeffectiveness of the various elements of the Australian Legal System inachieving justice for victims, offenders and society. In your response you willneed to assess the effectiveness of the different elements of the Australiancriminal justice system. Justice is defined as exerting fairness and impartialityduring a trial. In the Australian Legal System, young offenders are shownsubstantial levels of justice. They are identified as not entirelyunderstanding the ramifications of their actions, and are therefore subject tolower levels of criminal responsibility.
This is seen in the concepts of, age ofcriminal responsibility, the rights of young offenders when questioned orarrested, the procedures and penalties for children and alternatives to court. Need a judgement.The age of criminal responsibility is a key concept in theAustralian Legal System. This concept allows the law to treat childrendifferent in order to prevent children and young people from being exploited, toprotect young people from the consequences of making uninformed decisions andto protect others from being disadvantaged by dealing with a person who is aminor. Doli incapax is a principle of juvenile justice that suggests that infantsare incapable of committing wrong as they have an insufficient knowledge ofgood 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 conclusivepresumption. At 10 – 13 years of age there is a presumption of doli incapax butthere may be rebuttal.
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When an offender reaches 14 – 17 years they are consideredto be criminally responsible for any offence committed which is actus reus andcapable of having mens rea which is criminal intent but there will be somedifferences 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 Davisafter he dropped him into the Georges River knowing he could not swim. Despite thatthe case was initially dismissed by the Senior Children’s Magistrate at theChildren’s Court the New South Wales Director of Public Prosecutions (DDP) persistedand took the case to the Supreme Court. LMW was the youngest person to face theSupreme Court and to be charged with manslaughter in Australia.
After a lengthyprocess LMW was acquitted when it was determined that there was sufficientevidence for the jury to make a decision on doli incapax. Critics argue that justicewas not established for the victim’s family as no one was held responsible andno retribution took place. Need judgement. When children are questioned or arrested they required somespecial protections that are not afforded in ordinary circumstances to adults. The Children’s Court is a specialised court established in1987 under the Children’s Court Act 1987 (NSW). This court deals with cases connected with thecare and protection of children and with criminal matters concerning childrenand young people who are under the age of 18 or who were under 18 at the timeof an alleged offence.
The key difference between the Children’s Court and anyother court is that it is a closed court. This means that the identity of the offenderis protected from the media and the public. This is to ensure that they are notidentified and labelled as a criminal. The Children’s Court is presided over bya magistrate, who plays an active role in the trial and questioning, ratherthan hearing cases from the prosecutor and defence. This is a much lessadversarial system. This allows the court to remain relatively informal, withthe aim of not isolating the juvenile form the legal proceedings, and allows themmore involvement, making the accountable for their actions.
In the case of Police v JM (2011) NSWChC 1, the keyobjective of the sentencing was rehabilitation. JM had breached the conditionsof his parole when he was charged with aggravated break and enter resulting inthe imposing of the most serious sentence available for juvenile offenders, acontrol order. To promote rehabilitation, a condition of his parole was rehabilitationfor his alcohol abuse. Need a judgement. The purposes of sentencing are deterrence, retribution,rehabilitation and incapacitation. Despite this when it comes to youngoffenders the primary weight is given to rehabilitation. This is in line with Article40 of the United Nations Convention onthe Rights of a Child which acknowledges that children and young peoplehave the best chance of any offenders of being rehabilitated and reintegratedinto society. The majority of children’s offences, penalties will be significantlyless severe than in ordinary law and will be considered with the childrehabilitation in mind.
In more serious cases such as manslaughter or murderthat are heard by higher courts, it will be decided whether the ordinary law orchildren’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 manyoffences including possession of drug, breach an AVO and possession of a weapon.CW was given a caution under the YoungOffenders Act 1997 (NSW) and completed a Youth Justice Conference. In 2011CW was homeless and not receiving any government assistance at age 17.
In 2011CW was place on a nine-month control order for intimidation and assault. Thesame day that the control order was received CW was found by the policeintoxicated and they suggested that they return him to his mother. CW did nothave a positive relationship with his mother and became violent, resulting inthe injury of two officers. In 2012 CW had several more charges added during theperiod of his suspended control order. Despite CW’s history the amount andseverity of the charges that he faced the magistrate noted that the offenceswere committed during periods where CW was homeless and suffering from some degreeof psychosis. In addition to this since his last offence CW had engagedservices of health professionals, become medicated and managed to secure employmentand accommodation. In light of the improvements in CW’s situation themagistrate decided that a control order would interrupt his progress and it wasdetermined that he would do through a Youth Justice Conference.
Need a judgement.
