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
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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
5000
4000
3000
2000
1000
08
07
-2
0
07
20
06
-2
0
06
20
-2
0
05
20
-2
0
20
03
20
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05
0
-2
0
•
6000
04
•
The numbers of young people in
custody has increased steadily
since 2006 - 2007 (NSW
Department of Juvenile Justice
Annual Report 2007-2008)
The average daily numbers of
young people in custody has
also increased
This has coincided with
changes to bail legislation in
NSW
04
•
Young people on
remand (con’t)
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Young people on
remand (con’t)
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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)
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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 reoffending 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.
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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
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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:
•
•
•
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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.
“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
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Available at:
www.yjconline.net
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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.
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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)
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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%
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Reasons for being
in custody
Reason for custody
Breach bail condition
Fresh offences1
Bail condition unmet
Administrative errors
Total
1 Not on bail when the offences were committed
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Number
80
42
7
4
133
Percentage
60
32
5
3
100
Bail Conditions
that were breached
…
Bail conditions breached
Committed new offence(s) while
on bail
Breached curfew
Non-association (place/person)
Fail to reside as directed or in
specified address
Fail to appear at court
Fail to report to police
Fail to obey reasonable
direction
(Carer/DoCS/DJJ/Parent)
Others4
Total
Number
Percentage2
19
34%
Percentage of
cases3
44%
13
5
5
23%
9%
9%
30%
12%
12%
5
4
3
9%
7%
5%
12%
9%
7%
2
56
4%
100%
5%
-
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.
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Court outcomes in
relation to bail
Bail outcome
Bail granted1
Bail not applied for
Bail refused
Bail granted, but unable to enter
N/A - matter finished
Total
1
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Number
71
29
20
12
10
142
Percentage
51
20
14
8
7
100
Bail granted includes cases where bail conditions were continued or varied
Type of bail
conditions
imposed
Bail Conditions
Curfew
Reside as directed or as specified
Obey reasonable direction
Non-association
Report to police
Attend school/program
Pay surety
Not to consume drugs or alcohol
Supervision of DoCS/DJJ
Other
Total
1Percentage
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Number
53
45
45
24
21
12
7
5
3
24
239
Percentage receiving
condition1
68
58
58
31
27
15
9
6
4
31
of the 78 young people granted bail who received this condition.
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.
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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.
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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.
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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.
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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.
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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
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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)
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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
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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).
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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?
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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
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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
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