Restorative Justice Series – Part 2. Juvenile Sentencing Principles

Restorative Justice Series – Part 2. Juvenile Sentencing Principles

The first instalment in this series contextualised the series, discussing the current youth justice framework and recent developments. Relevantly, the Charter of Youth Justice Principles (as contained in the Youth Justice Act 1992 (Qld)) highlights that rehabilitation and preventing the institutionalisation of children in the criminal justice system is central to youth justice.

This blog will delve deeper into juvenile sentencing principles and sentencing options. The breadth of available sentencing options for courts is an indication that at the centre of juvenile sentencing is the concept of ‘individualised justice’. Moreover, that rehabilitation and diversion from the criminal justice system is paramount.

 

Criminal responsibility

Under the Queensland Criminal Code, there are limitations for when children can be held legally responsible for committing an offence. Children under 10 years old are not criminally responsible for any act or omission.[1] Children under 14 years old can only be criminally responsible if the prosecution can demonstrate the child had the capacity to know that their conduct was wrong.[2] Recently, there have been calls to raise the age of criminal responsibility.[3]

Where a child is found guilty of committing an offence, the Youth Justice Act 1992 (Qld) (Youth Justice Act) provides guidance regarding the sentencing of a child. It operates in relation to all children under 18 years of age. Prior to 12 February 2018, 17 year olds were treated as adults. However, this was reformed to bring Queensland in line with the rest of Australia and indeed, Australia’s international obligations.

If a person has turned 18 or 19 at the time of being charged or sentenced for an offence committed when they were 18, they will be dealt with in either the Children’s Court (as a child) or the Magistrates Court (as an adult) in accordance with the Youth Justice Act.[4] Regardless, both courts must always have regard to the fact that the person was a child when the offence was committed, and hence the sentence cannot be greater than what the offender would have received if punished as a child. This is especially in relation to imprisonment, fines, and compensation and restitution.[5]

In addition to the important provisions of the Youth Justice Act, the general sentencing principles that apply to the sentencing of adult offenders also applies to children.[6] However, the Youth Justice Act requires that the Charter of Youth Justice Principles contained in the Act be considered when sentencing.[7] The Act further provides the following special considerations when sentencing:[8]

  • That a child’s age is a mitigating factor in determining whether to impose a penalty, and the nature of the penalty imposed
  • A non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community
  • The rehabilitation of a child found guilty of an offence is greatly assisted by the child’s family and opportunities to engage in educational programs and employment
  • A child should not receive a more severe sentence because of a lack of family support or opportunities to engage in educational programs and employment
  • A detention order should be imposed only as a last resort and for the shortest appropriate period

 

Sentencing principles - diversion

The court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing, regardless of whether the child pleads guilty or not guilty.[9] This mirrors Principle 5 of the Charter of Youth Justice Principles contained in the Youth Justice Act.

Note that prior to a court dealing with the matter, there are a variety of diversionary options available to the police that adhere to Principle 5 above, such as the following examples:

  • Administering a caution – where the police officer explains to them what they have done wrong, and may involve an apology to the victim
  • Graffiti removal program – for children aged 12 and above
  • Police drug diversion assessment program – for children found in possession of a small amount of cannabis or a thing used for smoking cannabis
  • Releasing the child at a place of safety
  • Restorative justice process – this will be discussed in Blog 3
  • Infringement notice – where an adult chooses to pay a fine instead of going to court

In all the above, save for certain examples of restorative justice processes, any charge against the child is not proceeded with.

Courts also have further options aside from sentencing a child offender should the matter proceed to the court:

  • Dismissal[10] – where the court dismisses a charge (or issues a caution or directs a police officer to do so) despite a plea of guilty, on the basis that the child should have been cautioned or no action should have been taken
  • Court referred drug assessment and education session – where a child pleads guilty and consents and meets the screening criteria, they are referred to a one-on-one session involving an assessment of their drug use, drug education and identification of treatment options. This is available for possession of small amounts of dangerous drugs for personal use, and/or things used in connection with consuming dangerous drugs.

In either proceeding, children are not liable to be further prosecuted for the offence.

 

Non-custodial sentencing orders

If a court determines that a sentencing order option is required, then there is a broad range of options available. The sheer number of non-custodial options available for children demonstrates the importance of early intervention to prevent incarceration and institutionalisation of children in the criminal justice system.

Similar to the adult sentencing regime, child offenders can be sentenced to a good behaviour order,[11] a fine (provided they can afford it),[12] a probation order,[13] a community service order,[14] or an intensive supervision order.[15] The latter three may only be made against a child found guilty of an offence of a type that, if committed by an adult, would make the adult liable to imprisonment.[16]

Additional non-custodial orders that can be made against a child are:

  • Reprimand[17] – where a child is given a formal warning by the court.
  • Restitution and compensation[18] – an order requiring a child (provided they can afford it) to pay for any property taken, pay compensation (capped amount) for loss of property, and/or pay compensation for any personal injury.
  • Restorative justice order[19] – similar to the police referral process above, to be discussed in Blog 3
  • Graffiti removal order[20] – where a child aged at least 12 years old has committed a graffiti offence, the court must make an order requiring the child to remove graffiti for specified periods of time.

The availability of these orders demonstrates that the legislative intention of ensuring appropriate re-integration of children into the community rather than detention. There are two key benefits of these non-custodial orders. First, the orders are aimed at ensuring children understand the consequences of their actions in a tangible and accessible manner, and learn to take responsibility for their actions. Second, the orders have the benefit of ensuring the child continues to receive the guidance and assistance necessary to rectify their behaviour, without the consequences that come with criminal conviction or imprisonment.

Appropriately seeking and ordering non-custodial community-based orders such as those discussed is the best way to ensure the child involved can rehabilitate, but also to protect the community from re-offending in the long term.

Custodial sentencing orders

As discussed above, a detention order is a response of last resort when sentencing not only children, but adults as well. A court cannot make a detention order unless it has considered a pre-sentence report from the Department of Justice and Attorney-General,[21] all other available sentences and the desirability of not holding a child in detention, and is satisfied that no other sentence is appropriate in the circumstances.[22]

The Youth Justice Act also contains various maximum detention periods depending on the level of the sentencing court and seriousness of the offence. Magistrates can only impose detention orders of 1 year or less. Where the offence committed is not punishable by imprisonment of 14 years or more (if committed by an adult), then a judge can only impose detention orders of 2 years or less. If such an offence has been committed, then the maximum imprisonment that can be ordered by a judge is 7 years imprisonment. If the maximum penalty for an adult would have been life imprisonment, then the maximum imprisonment that can be ordered by a judge is 10 years imprisonment.

While these periods of time may seem short in the context of longer maximum penalties in the adult system, it must be remembered that such a period will have significant consequences for children, who are at a critical developmental stage in terms of mental, social and physical wellbeing. It can have a serious impact on the trajectory of their adulthood. That this important period of a child’s life is spent in detention will have serious implications for their development and future, and hence it is an order taken very seriously by the court.

Similar to adults, conditional release and release after a fixed period are both available options to enhance community reintegration.

 

Recording Convictions

A court cannot record a conviction where the child is found guilty and sentenced to a reprimand or a good behaviour bond.[23] However, a court may consider whether to record a conviction in relation to all other sentences,[24] but must have regard to all the circumstances of the case. This includes the:[25]

  • Nature of the offence
  • Child’s age and any previous conviction
  • Impact of recording a conviction on the child’s chances of rehabilitation and finding or retaining employment

In any event, the starting point is that a conviction should not be recorded against a child.

If a child later goes to court as an adult for offences committed as an adult, the court cannot be told about childhood offending where a conviction was not recorded. This furthers the principle of rehabilitation by allowing children to leave behind any childhood offending dealt with in the Children’s Court where convictions were not recorded.

 

Conclusion

Criminal lawyers must be aware of the full range of available diversionary and sentencing options for the court, as well as the underlying principles of reintegration, diversion and rehabilitation within the youth justice framework. While this is important for all clients, it is especially critical where children are involved.

 

The final blog in the series will provide an overview of restorative justice conferences, how they operate and the role they play in youth justice.

[1] Criminal Code 1899 (Qld) s 29(1).

[2] Criminal Code 1899 (Qld) s 29(2).

[3] See https://www.raisetheage.org.au/.

[4] See Youth Justice Act 1992 (Qld) pt 6 div 11 (‘YJ Act’).

[5] YJ Act ss 144(2)-(3).

[6] For a discussion of adult sentencing, visit the Queensland Sentencing Guide at https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0004/572161/queensland-sentencing-guide.pdf.

[7] YJ Act s 150(1)(b).

[8] YJ Act s 150(2).

[9] YJ Act s 162.

[10] YJ Act s 21. A similar process is undertaken where a restorative justice process should have been ordered under s 24A.

[11] YJ Act ss 175(1)(b), 188.

[12] YJ Act ss 175(1)(c), 190.

[13] YJ Act s 175(1)(d).

[14] YJ Act s 175(1)(e).

[15] YJ Act s 175(1)(f).

[16] YJ Act s 175(2).

[17] YJ Act s 175(1)(a).

[18] YJ Act s 181.

[19] YJ Act ss 175(1)(da)-(db).

[20] YJ Act s 176A.

[21] YJ Act s 207.

[22] YJ Act s 208.

[23] YJ Act s 183(2).

[24] YJ Act s 183(3).

[25] YJ Act s 184.


Restorative Justice Series - Part 1. The Context: Youth Justice and the "Youth Crime Crisis"

Restorative justice series – The Context: Youth Justice and the ‘Youth Crime Crisis’

 The Queensland Government passed the Youth Justice and Other Legislation Amendment Act 2021 (Amendment Act) earlier this year in the wake of recent controversies and debate regarding youth justice and the ‘youth crime crisis’.

This blog is the first in a series that looks at restorative justice for child and youth offenders. This first blog will provide some context regarding the current youth justice framework and recent developments. We will look at key statistics regarding youth offending, the reforms introduced by the Amendment Act, and some key youth justice principles already underpinning our legislation.

 The second blog in the series will focus on youth sentencing and its distinctions from adult sentencing.  The final blog will provide an overview of the restorative justice conferences and the role they play in youth justice.

 

Youth Offending – Key Statistics

 By way of background, although rates of young people in detention have been decreasing,[1] there was increased visibility of youth crime – specifically hooning and related incidents – in the last year.

Other important statistics to keep in mind that contextualise these reforms:

  • On an average night in the June quarter 2020, about 2 in 3 (511 or 64%) young people in detention were un-sentenced.[2]
  • Just 11% of youth offenders were considered chronic offenders who engaged in persistent offending behaviour throughout childhood and into adulthood.[3]
  • 48% of young people received into detention during 2019-20 were received more than once.[4]
  • More than half of young people aged 10-17 under youth justice supervision during 2018-19 had received a child protection service in the five years from 1 July 2014 to 30 June 2019.[5]
  • Just under half (48%) of all young people in detention were Aboriginal and Torres Strait Islander young people, demonstrating a significant overrepresentation as Aboriginal and Torres Strait Islander people make up just 6% of the Australian population aged 10-17.[6]

 

Reforms under the Amendment Act

The main objective of the Amendment Act was to address recidivism in youth offenders and ensure community safety.[7] This was done by expanding the tools accessible to police and courts. Importantly, the Amendment Act:

  • Reverses the existing onus in certain circumstances so that a young person charged with a prescribed indictable offence while on bail may be required to show cause as to why they should get bail
  • Allows police and courts making a bail decision to consider an ‘indication of willingness’ by a parent, guardian or other person to provide support to a young person to ensure they comply with bail conditions and advice relevant authorities on any breach of bail conditions
  • Allows courts to mandate GPS electronic monitoring of young people aged 16 and over as a condition of bail
  • Allows police officers to use hand-held scanners without a warrant

To support the new legislation, the Queensland Government are committed to investing $98.4 million for the purpose of:[8]

  • Trialling GPS monitoring devices
  • Expanding joint police and youth justice co-responder strike teams
  • Enhanced intensive supervision of young people on bail
  • Intensive support for families and children on bail, supplied by non-government organisations
  • Additional court and legal advocacy services

 Although these reforms were said to be in line with the Queensland Government’s Youth Justice Strategy 2019-2023, the Queensland Law Society (QLS) and Human Rights Law Centre (HRLC) made submissions as part of the consultation process criticising the amendments.[9] They argued that the reforms were a ‘knee-jerk’ response to recent tragic events in Queensland,[10] and that they were not appropriately adapted to the aim of reducing youth offending.[11] The laws were criticised as disproportionately impacting at risk young people and Aboriginal and Torres Strait Islander young people, without addressing the drivers of youth crime.[12] Early intervention and diversion were emphasised by the QLS and HRLC as appropriate responses to any real or perceived youth crime crisis.[13]

 

Existing youth justice principles – the importance of diversion and rehabilitation

Relevantly, the Charter of Youth Justice Principles contained in the Youth Justice Act 1992 (Qld) (Youth Justice Act) discusses the importance of diversion and rehabilitation of children in a fair, respectful and appropriate manner.[14] Furthermore, there are a number of important principles. For example:

  • Principle 5 states that children should be diverted from the courts’ criminal justice system where possible.
  • Principle 9 states that children who commit an offence should be held accountable and encouraged to accept responsibility, but be given the opportunity to develop in responsible, beneficial and socially acceptable ways. Their need for guidance and assistance must also be recognised.
  • Principle 17 requires a child to be dealt with in a way that allows them to be reintegrated into the community and to continue their education, training or employment without interruption or disturbance, where possible.

These principles highlight that rehabilitation and preventing the institutionalisation of children in the criminal justice system is central to the Youth Justice Act. Sadly, the focus on rehabilitation is often lost in the political debate around youth justice. However, it is reassuring that in line with the Youth Justice Act, one of the four pillars of the Queensland Government’s Youth Justice Strategy 2019-2023 is to keep children out of court.[15] One aspect of this policy position is the usage of restorative justice conferencing instead of court proceedings in dealing with children who have committed crimes.

The role of a defence lawyer is critical for young people caught up in a criminal proceeding. A detailed knowledge of the different sentencing considerations for children and for restorative justice options is vital. This ensures that the child involved has the best chance to rehabilitate. The often overlooked reality is that this is actually what best protects the community from re-offending.

 

 

 

 

[1] Australian Institute of Health and Welfare, Youth detention population in Australia 2020 (Report, 26 February 2021) 6 < https://www.aihw.gov.au/getmedia/37646dc9-dc6f-4259-812d-1b2fc5ad4314/aihw-juv-135.pdf.aspx?inline=true> (‘AIHW Report’).

[2] Ibid 7.

[3] Queensland Treasury, Youth Offending (Research Brief, April 2021) 6 < https://www.qgso.qld.gov.au/issues/10321/youth-offending-april-2021-edn.pdf>.

[4] AIHW Report (n 1) 24.

[5] Australian Institute of Health and Welfare, Youth Justice (Snapshot, 28 May 2021) <https://www.aihw.gov.au/reports/australias-welfare/youth-justice>,

[6] Ibid 10.

[7] Queensland, Hansard (Record of Proceedings), Legislative Assembly, 25 February 2021, 237-240 (Mark Ryan, Minister for Police and Corrective Services and Minister for Fire and Emergency Services); Explanatory Notes, Youth Justice and Other Legislation Amendment Bill 2021 (Qld) 1.

[8] Rachael Knowles, ‘Queensland tightens youth justice laws’, National Indigenous Times (online, 27 April 2021) <https://nit.com.au/queensland-tightens-youth-justice-laws/>.

[9] Human Rights Law Centre, Submission No 44 to Legal Affairs and Safety Committee, Parliament of Queensland, Inquiry into Youth Justice and Other Legislation Amendment Bill 2021 (March 2021) (‘HRLC Submission’); Queensland Law Society, Submission No 75 to Legal Affairs and Safety Committee, Parliament of Queensland, Inquiry into Youth Justice and Other Legislation Amendment Bill 2021 (19 March 2021) (‘QLS Submission’).

[10] HRLC Submission (n 9) 4.

[11] QLS Submission (n 9) 1.

[12] Ibid 1-2; HRLC Submission (n 9) 5.

[13] Ibid.

[14] Accessible at https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-044#sch.1.

[15] Accessible at https://www.cyjma.qld.gov.au/resources/dcsyw/youth-justice/reform/strategy.pdf.


Legislating against covercive control: Scotland's Domestic Abuse Act

Legislating against coercive control: Scotland’s Domestic Abuse Act

 The first instalment in this series of blogs discussed The Women’s Safety and Justice Taskforce and their investigation into the criminalisation of coercive control. Their final report and recommendations will be released around October 2021; however, the taskforce’s May 2021 discussions paper highlighted Scotland’s 2018 domestic abuse legislation as a potential example upon which Queensland’s offence could be modelled.

This blog will explain the Scottish approach to coercive control and the potential impacts if a similar provision were introduced in Queensland.

The offence

The Domestic Abuse (Scotland) Act 2018 criminalises a course of abusive behaviour by a perpetrator against their current or former partner if two conditions are met:

  1. a reasonable person would consider that the course of conduct was likely to cause the partner or former partner to suffer physical or psychological harm (the objective limb); and
  2. the perpetrator either intends that the behaviour will cause the partner or former partner psychological harm or is reckless as to whether the course of behaviour causes the partner or former partner to suffer physical or psychological harm (the subjective limb).

The Act includes a non-exhaustive list of violent, threatening or abusive behaviours covered by the offence, which must have as their purpose or be reasonably likely to have the effect of:

  • making the partner dependent on or subordinate to the perpetrator;
  • isolating the partner from friends, relative or other support;
  • controlling, regulating or monitoring the partner’s day to day activities;
  • depriving or restricting the partner of freedom of action; or
  • frightening, humiliating, degrading, or punishing the partner.

The offence is treated as aggravated where the behaviour is directed at a child, takes place where a child can see or hear, adversely affects the child, or if the child is made use of to direct abusive behaviour at the victim.

A reverse onus defence is available to the defendant if it can be shown that the course of behaviour was in fact reasonable in the circumstances.

If convicted of the offence, perpetrators face up to 12 months imprisonment on summary conviction or up to 14 years on indictment. Of the 206 people convicted of the offence in its first year of operation, the most common penalty was a ‘Community Payback Order’. Received by 106 people, these are flexible community based orders including conditions of community service, supervision, payment of compensation, participation in programs or treatment, and conditions as to residence and conduct generally. Given that the goal of criminalising coercive control is to prevent the occurrence of an ‘incident-based’ or violent offence, these orders aim to rehabilitate offenders before their conduct escalates and in so doing, provide community protection. The second most common penalty, for more serious cases of domestic abuse, was imprisonment of an average sentence of around one year.

Policing

 Before coercive control matters even reach a courtroom, the policing of such offences will not be without its challenges in Queensland. Scotland is far ahead of Australia in its broad focus on training for domestic violence. As part of their reforms, $1.48 million AUD was spent to train 14,000 officers to ensure consistency and understanding across the criminal justice system in relation to the new offence. Scotland has also had a long history – over two decades – of domestic violence training across the community to effectively deal with cases and to continue to develop efficient support systems.

Extensive work would be required to ensure consistency in policing when it comes to cases alleging a course of conduct involving psychological, emotional, or financial abuse. Police will need to be able to identify behaviours and collect the right information from alleged victims, witnesses, and the accused. Within Queensland, a high level of funding will be required to deliver effective policing across large geographical distances and Queensland’s diverse cultures, including remote First Nations communities. As coercive control legislation emerges across Australia’s states and territories, consistent terminology will be important to ensure incidents requiring cross-border investigation are based upon the same definitions and understandings of domestic abuse.

The placement of the offence itself must also be considered in relation to policing. Scotland’s creation of a standalone Act would be unusual if adopted in Queensland, and may jeopardise the visibility and perspicuity of the offence. Placing the offence in the Criminal Code Act 1899 (Qld) would highlight the seriousness of this conduct within the broader community as on par with acts of physical abuse. Alternatively, recommendations to place the offence in the Domestic and Family Violence Protection Act would place the offence firmly within the paradigm of domestic and family violence, which may guard against the offence being used outside its intended scope. The offence’s placement may have a noticeable effect on community understanding and policing of coercive control.

Given the lack of community understanding regarding coercive control, the policy objectives must afford fairness to each party; thus the evidentiary thresholds for establishing the offence must be examined closely.

Potential evidential challenges

 Scotland’s offence is intentionally designed to focus on offending conduct rather than harm to the victim. This is deliberate to relieve evidential hurdles that the victim may struggle to overcome. The drafting of such an offence in Queensland must take care to appropriately balance the interests of victims and the rights of alleged offenders.

Several elements of the offence have a relatively low evidential burden – the “course of behaviour” referred to requires only two separate incidents. It is not necessary to prove that either of these incidents caused any actual harm (physical or psychological) to the victim or had any of the relevant listed effects.

Given the broad range of (currently) non-criminal behaviours encompassed by definitions of coercive control, a Queensland offence that would criminalise two incidences that were neither intended to cause or did cause any actual harm may disproportionately affect defendant’s rights.

 In relation to the circumstances of aggravation, no evidence of adverse effects to the child is required, merely that a reasonable person would consider adverse effects to the child to be a likely result of the alleged course of conduct. The Act also stipulates that evidence from a single third-party source is sufficient to prove this aggravation. The protection of children who witness domestic abuse is just as important as the protection of victims themselves; however, the fact that the offence can be aggravated based upon a singular source’s testimony that the child may have been negatively affected, where the child need not even be aware of the alleged behaviour, may be problematic.

Overall, legislating against coercive control presents serious evidential issues – a pattern of abusive behaviour often involves unremarkable acts that are not criminal in isolation and do not leave any evidence. The general lack of third-party witnesses to corroborate testimony also presents issues, and that coercive control behaviours often do not warrant attention or recording in the same way that physical abuse incidents do. Scottish cases to date have had to rely on extensive expert evidence to corroborate statements.

Ultimately, the issue of evidence in coercive control presents a hard balancing act. Drafting an offence that is not too difficult to establish for alleged victims, but also does not unfairly burden defendants will be challenging. While cases with clear intent on the part of the offender and demonstrable harm to the victim present few issues, the outcome of cases with limited evidence or unclear intention remains unpredictable. The prevention of coercive control may remain ineffective if perpetrators are not aware of the likely consequences of their course of conduct, and victims are unable to predict the outcome if they are to report their partner. Ultimately, the law needs to be as clear as possible.

Appropriate sentencing will also need to be carefully considered, given that Scotland’s offence leaves much to judicial discretion. Further work may be required to establish a ‘hierarchy of harms’ in order to sentence appropriately, and how such harm can be evidenced without extensive expert opinion, the evidence of the complainant, or the admission of hearsay. Further research, guidance and training may be required to overcome these issues of evidence and sentencing in drafting Queensland’s offence.

Conclusion

The key area where we can prevent coercive control is within our communities - given its definitional, policing, evidence and sentencing challenges, a focus on research, training and education is required. We must take care to appropriately allocate time and resources to this issue before any legislation is finalised. The consequences of an offence that is not supported with adequately trained police, broader community understanding, and clarified principles of evidence and sentencing cannot be predicted.


Legislating against coercive control: The Women’s Safety and Justice Taskforce

In March 2021, the Queensland Government established The Women’s Safety and Justice Taskforce (‘the Taskforce’) to examine two things:

1. coercive control and review the need for a specific offence of commit domestic violence; and
2. the experience of women across the criminal justice system.

This will be a three-part blog series examining the Taskforce, its legislative background and its objectives.

In the first part we will traverse the background of the taskforce and the meaning behind terms like ‘coercive control’.

Secondly, we will look at the particular options for reform, mapping the pros and cons of each model. As part of their proposed reforms, the taskforce highlighted Scotland’s Domestic Abuse Act as the ‘gold standard’. Introduced in 2018, this legislative scheme created a specific offence of domestic abuse, which covered physical, psychological and emotional behaviours. In the first year of its operation, 246 people were prosecuted for the offence and 206 were convicted (an 84% conviction rate). How such a model could be implemented in Queensland will be explored in more depth in our next instalment.

In the third blog of this series, we will discuss the various recommendations made by the Taskforce, when they eventually arrive at a determination. It is anticipated that a report mapping the various recommendations for a standalone offence of domestic violence will be provided in October 2021 and a report on other areas of women’s experiences in the criminal justice system is anticipated to be released by March 2022.

What is coercive control?

As stated, there are two specific objectives of the Taskforce. One of these objectives is the examination of coercive control measures. However, it is evident that the term itself requires elucidation.

Since the 1970s, a great deal of research, policymaking and legal reform concerning domestic violence has focused on the compelling issue of physical violence in intimate relationships. However, it seems that traditionally, less attention, or at least less visible attention, has been given to non-physical aspects of domestic violence.

Over time this has begun to change, as legal representatives, social support services, and victims themselves have called on governments to recognise non-physical manifestations of domestic and family violence.

It is evident there is no single recognised definition of coercive control; however, it generally includes a pattern of behaviour designed to control another person within a domestic relationship. This often includes nonviolent behaviours such as:

> Gradual isolation from friends, family and support
> Degradation, humiliation and threats
> Gaslighting
> Monitoring of movements
> Control of technology and social media use
> Financial control
> Removing reproductive control
> General micro-management (for example, of what one eats and wears or when they sleep and leave the house)
> Coercive control can also include preventing someone from attending English classes for those who may be culturally and linguistically diverse, the withholding of medication from those with disabilities, and threats of ‘outing’ against LGBTIQA+ victims.

The Taskforce

The Taskforce is headed by the former President of the Queensland Court of Appeal, the Honourable Margaret McMurdo AC, as well as various other senior law and law enforcement professionals within the Queensland community.

Guiding principles and considerations for the Taskforce include ‘keeping victims safe and holding perpetrators to account’ and adopting ‘a trauma-informed, and evidence-based approach that takes into consideration the lived experience of women who are involved in the criminal justice system’. With such principles in mind, the Taskforce will consider any submissions made to it as well as any other evidence before it makes its recommendations to the Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence.

On 27 May 2021 the Taskforce released its first discussion paper which outlined their goals and findings surrounding coercive control.

They highlighted a need to supplement the existing legal system which is comprised only of ‘incident based offences’ rather than offences that recognise the psychological damage of an extended pattern of abuse within a relationship.

Support for victims of coercive control was considered particularly relevant during the period of the COVID-19 pandemic, as victims were forced to co-habit with abusers during lockdown. Some domestic violence and family service providers reported an increase in demand for their services during this period.

Conclusion

A focus on legislating against coercive control has arisen from the view that the legal system fails to contextualise abuse within a relationship over time, and rather focuses on isolated incidents of purely physical violence.

It has also been recognised that coercive control behaviours within a relationship often escalate towards eventual acts of violence or homicide, and therefore, legislating against it is an important step towards preventing such violence from even occurring.

The new Queensland Taskforce aims to tackle this issue through the criminal sphere, rather than the civil one. How it recommends to do this remains to be seen.

 


LEGALWISE PRESENTATION ON AML

Our Principal, Dan Rogers, is an expert in money laundering. Today he drew upon this expertise and presented at the Legalwise seminar, White Collar Crime: The Civil and Criminal Risks. From the outset Dan noted that anti-money laundering obligations apply to a wide variety of professions, not only lawyers.

Traditionally, most professions have not really been too concerned with money laundering, or at least they’ve treated money laundering with some level of apathy. However, considerable attention has been cast upon the issue in recent years, especially in light of a spate of recent prosecutions.

Dan began the presentation by noting what constitutes money laundering. Using the definition contained in the Commonwealth Criminal Code as a framework, it is usually seen to mean ‘dealing with’ money in a way that involves:

    • - receiving, possessing, concealing or disposing of money or other property; or
    • - importing money or other property into, or exporting money or other property from, Australia; and
    • - receiving, possessing and concealing money which is the proceeds of crime, or could become an instrument of crime, in relation to an indictable offence.

In addition to the Commonwealth legislation, each State and Territory has their own similar legislative provisions that create such an offence in one way, shape or form.

This expansive definition reflects the fact that modern clients and their methods of money laundering have become increasingly sophisticated. For example, instead of dumping large bags of cash on your desk, clients may create complicated commercial structures, through which Australian legal practitioners may be used to:

    • - conceal proceeds of crime
    • - obscure ultimate ownership through complex layers and legal entity structures
    • - avoid tax
    • - work around regulatory controls
    • - provide a veneer of legitimacy to criminal activity
    • - create distance between criminal entities and their illicit income or wealth
    • - avoid detection and confiscation of assets
    • - hinder law enforcement investigations.

Most importantly, the majority of jurisdictions recognise that money laundering includes both knowingly dealing with dirty money, as well as recklessly and negligently dealing with such money. For illustration, ‘reckless’ is defined in the legislation as when there could be a ‘substantial risk’ that something could occur and when, considering the circumstances at the time, taking that significant risk is unjustifiable.

In addition to the various criminal offences, the Anti-Money Laundering/Counter-Terrorism Financing Act 2006 (Cth) provides for national framework of anti-money laundering legislation. This Act aims to prevent money laundering and the financing of terrorism by imposing a number of obligations on the financial sector, gambling sector, remittance services, bullion dealers and other professionals or businesses that provide particular ‘designated services’. Designated services include, but are not limited to, opening a bank account, obtaining a loan, buying shares or gambling at casinos, race tracks or gaming machines. It should be noted, that real estate agents, lawyers and accountants are excluded from the scheme.

The legislation places number of regulatory obligations on reporting entities, including customer and beneficial ownership due diligence, record keeping and transactions reporting. There are also provisions that allows the government agency that oversees the Act to authorise officials of Commonwealth, State or Territory agencies to access a broader range of information gathered under the Act for the purpose of performing their ordinary duties and functions.

Dan then traversed a number of recent cases that involved the prosecution of professionals for money laundering offences. One such case was John Anile, a previously Melbourne based solicitor who recently pleaded guilty to one count of money laundering. His offence arose out of a 1994 land deal in which Anile, then a practising solicitor, was given cash from a friend for the purchasing and development of a block of land. For his role he was sentenced to 3 years imprisonment. In handing down the sentence, Judge Michael O'Connell stated, ‘As a legal practitioner, particularly one with some criminal law experience, you should have well understood how money laundering enables and encourages serious criminal activity … In other words, you should have known better.’

Lastly, Dan outlined a handful of tips all professionals should use to prevent themselves or their staff from being caught off guard in this space. There were:

  1. Get to know your client;
  2. Develop an anti-money laundering internal policy framework within your team;
  3. Complete anti-money laundering compliance education regularly;
  4. Be constantly suspicious; and
  5. When in doubt, get out.

 


Robertson O'Gorman Solicitors' Legal Director, Dan Rogers - is being tough on youth justice the weak solution?

Last night our Principal and Legal Director, Dan Rogers was one of 5 panel members at the Politics in the Pub event held at Brisbane Powerhouse, an event organised by the New Farm Neighbourhood Centre. The topic for discussion was 'Is being tough on youth justice the weak solution?'  Dan was joined by other experts in the youth justice system, including Katrina Jefferson from the Youth Advocacy Centre, Debbie Kilroy OAM from Sisters Inside Inc, Maggie Munn from Amnesty International Australia, and Professor Tamara Walsh from the University of Queensland. The topic was chosen in the wake of recent debate over the Youth Justice and Other Legislation Amendment Bill 2021 (Qld) (‘the Bill’) which proposes laws that will, among other things:

  • reverse the presumption of bail for children who reoffend in certain circumstances;
  • impose GPS tracking devices on children aged 16 and 17 years old; and
  • make breach of bail an aggravating factor in the sentencing of children.

The night begun with some context - we were told that of the children currently on remand for an offence in Queensland, 80% of those children are known to Child Services.  Of this group, 52% of children who come into contact with the criminal justice system usually only come before the courts once or twice. Therefore, the remaining 48% are recidivist children. It is currently estimated that only 400 children belong to this recidivist group.

When asked how governments should respond to the issue of youth justice and youth crime, Dan stated that the central challenge for legislatures is whether they will move beyond the politically attractive, quick fix solutions towards solutions that address the deep rooted social disadvantage many of these children often face. He concluded that quick-fix, band aid solutions, such as those in the Bill, will not contribute to a reduction in youth crime.

Dan also spoke about the Human Rights Act 2019 (Qld) (‘the Act’). He noted that under this Act, children are afforded a number of unique rights that must be afforded to them in their interactions with the State in a criminal justice setting. In particular, section 33 of the Act recognises that children in criminal processes are especially vulnerable due to their age, and that they require special protections. Subsection 33(1) ensures that children detained must be segregated from all detained adults. This acknowledges that children have greater needs than adults and the risks associated with children being detained with adults. Subsection 33(2) provides that when accused, children must brought to trial as quickly as possible. Lastly, subsection 33(3) states that when convicted, children must be treated in a manner appropriate for their age. This is likely to mean that if they are imprisoned, the State should ensure that they still have access to education and other recreational activities children are likely to enjoy.

Dan concluded that there is a very real risk that the proposed laws are a flagrant breach of the unique human rights afforded to children in the criminal justice setting.

The night concluded with a note of optimism - each of the speakers noted that they are hopeful there can be movement forward on this issue that will divert children away from custodial sentences in favour of more rehabilitative approaches.

Thank you to the Powerhouse and the New Farm Neighbourhood Centre for a wonderful night.


How to run a bail hearing in a COVID-19 world

Today our Principal, Dan Rogers presented a Queensland Law Society On-Demand Video about how to run a bail hearing in a COVID-19 world. The presentation will be available shortly. Topics covered include:

  • important preparation for bail hearings
  • key differences between bail applications in the higher and lower courts
  • new developments in the past month and how they affect bail applications
  • how to articulate a COVID-19 related case in a bail hearing
  • other Human Rights Act 2019 considerations to make.

Persons in custody are highly vulnerable during the current pandemic. If you need advice or assistance in a bail application or a special circumstances parole application, contact Robertson O’Gorman Solicitors on (07) 3034 0000


R v Young [2020] QCA 3 – Dishonesty in Corporate Matters

Insolvent trading by companies is a source of considerable attention and the regulator is actively investigating matters where allegations of insolvent trading are alleged.  Section 588G(3) concerns a director’s personal criminal liability if they fail in their duty to prevent insolvent trading by a company.

Under that provision, a person will commit the criminal offence if:

  • The company incurs a debt at a particular time;
  • At that time, the person is a director of the company;
  • The company is insolvent, becomes insolvent at that time because of debt;
  • The director suspected at the time that the company was insolvent or would become insolvent because of that debt or other debts;
  • The director’s failure to prevent the company incurring the debt was dishonest.

‘Dishonest’ is defined in the Act as according to the standards of ordinary people.[1] Defences in relation to reasonable grounds, illness or reasonable steps are applicable to the provision.[2]

This article considers the recent case of R v Young[3] where the director, Mr Young, was charged with a number of offences related to breaches of his director’s duties.

In R v Young, the appellant Mr Young was tried in the District Court on one count of fraud (s 408C Criminal Code (Qld)) and 18 counts of insolvent trading (s 588G(3) Corporations Act 2001 (Cth)). The charges arose from Mr Young’s involvement in companies associated with the Kleenmaid white goods business. Due to financial difficulties, the Kleenmaid group was ‘restructured’ around mid-2007 wherein the group was divided into the Corporate and Orchard Groups. The core business of Kleenmaid companies was to be conducted by the Corporate Group, which was largely EDIS and its subsidiaries. In November 2007, Westpac provided finance to EDIS totaling to $13 million. In 2009, the Kleenmaid group went into liquidation.

The fraud charge alleged that the appellant, with his brother and another, dishonestly gained a benefit for EDIS in November 2007. Specifically, this involved loan facilities from Westpac totaling to $13 million. The counts of insolvent trading involved debt/s incurred by EDIS between July 2008 and April 2009. The prosecution case was that the appellant acted dishonestly by concealing the nature of the intended ongoing relationship between EDIS (and its subsidiaries) and the Orchard Group; the two groups were not dealing with each other at an arms-length basis as portrayed to Westpac, leaving EDIS exposed to the precarious financial situation of the Orchard Group.

In this case, although defences were pursued, ultimately the Jury found beyond reasonable doubt that the director did fail in his duties and was dishonest in his dealings.

For businesses, it is important to remember that large companies whose umbrella incorporates subsidiary companies should develop strict policies and documented processes which can be used to argue reasonable grounds or reasonable steps were taken. If your company requires assistance with a regulatory investigation or you are concerned about your company’s response to a regulator, our corporate criminal defense advisors can assist.

[1] Corporations Act 2001 (Cth) s 9.

[2] Ibid s 588H.

[3] [2020] QCA 3.


Human Rights Act Series - Part 5 - Case Example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377

Case Example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377

This is the fifth blog in our Human Rights Act Series, looking at the case of R v Shaheed[1] regarding police powers and exclusion of evidence.

As discussed in our previous blog, courts have discretion to exclude unlawfully or improperly obtained evidence.[2] In Victoria, this discretion is enlivened by a breach of right/s as contained in the Charter.[3] In New Zealand, which has analogous legislation, the Court of Appeal have ruled that the test of admissibility is one of balancing the seriousness of the breach of the right against securing convictions.[4] The Queensland Act will operate in a similar way.

Facts

Mr Shaheed was charged with offensive behaviour and requested to provide a blood sample for the police database. He was told that if he refused to do so, authorisation from the court would be sought so that the sample could be taken by force. No such power existed to require a blood sample under the relevant legislation. Mr Shaheed was not provided the opportunity to consult a lawyer, and provided a sample that linked him to a rape case of which he was not previously a suspect. He was then identified by the rape complainant from a photo-board.

Decision

The New Zealand Court of Appeal overruled previous decisions that provided for exclusion of evidence obtained in breach of the NZBORA. They replaced the exclusionary rule with a new ‘balancing test’, summarised by Blanchard J as:[5]

The Judge must make that determination by means of a balancing process in which the starting point is to give appropriate and significant weight to that breach but which also takes proper account of the need for an effective and credible justice system.

The majority of the Court of Appeal also identified six key factors to be considered in applying the balancing test:

  1. the nature of the right and the nature of the breach;
  2. whether the right was breached in bad faith, recklessly, negligently or due to a genuine misunderstanding of the law by the police;
  3. whether other investigatory techniques were available but not used by the police;
  4. the reliability, cogency and probative value of the evidence obtained in violation of the Bill of Rights;
  5. the seriousness of the crime; and
  6. the importance and centrality of the evidence to the Crown's case.

The result, though with judges providing considerably varied reasons, was that the blood sample was rendered inadmissible while the photo-board identification evidence was admissible.[6] The ‘balancing test’ was essentially codified in the Evidence Act 2006 (NZ).[7] Significant academic debate is present in New Zealand as to whether this test affords sufficient consideration of human rights.

This decision makes it clear that where police breach the requirement to act compatibly with and give proper consideration to human rights, this will be an important consideration when deciding whether to exclude evidence. Further, it confirms that police conduct that breaches a person’s rights is conduct that is both improper, for being ‘inconsistent with the standards expected in our society of law enforcement officers’, and unlawful.[8] The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.[9]

[1] [2002] NZLR 377.

[2] Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; R v Thomas (2006) 14 VR 475.

[3] Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008), 525-53 citing Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 272.

[4] See generally: Simon Consedine, ‘R v Shaheed: the first twenty months” (2004) 10 Canterbury Law Review 77.

[5] R v Shaheed [2002] 2 NZLR 377, [156].

[6] Elias C held all evidence should be admissible (at 383). Richardson P, Tipping and Blanchard JJ excluded all evidence (at 423-4). Gault and Anderson JJ admitted all evidence (at 428 and 431). McGrath J excluded sample 3 but admitted the photo-board identification evidence (at 430).

[7] See generally Law Commission, The 2013 Review of the Evidence Act 2006 (Report No 127, February 2013) 68-74.

[8] Ibid at [333].

[9] Ibid at [348], [479].


Human Rights Act Part 4: Case example: Police powers and exclusion of evidence – DPP v Kaba [2014] VSC 52

This is the fourth blog in our Human Rights Act series, looking at the case of DPP v Kaba[1] regarding police powers and exclusion of evidence.

Courts have a discretion to exclude evidence that is unlawfully or improperly obtained.[2] While a breach of the Charter may not necessarily lead to the exclusion of evidence obtained as a consequence of that breach, it will supply the element of unlawfulness that enlivens judges’ discretion to exclude evidence.[3]

In DPP v Kaba, the Supreme Court held that police had acted incompatibly with the human rights of freedom of movement and privacy when they coercively questioned a person during a vehicle stop. These rights as expressed in the Victorian Charter[4] are essentially the same as their counterparts in the Queensland Human Rights Act 2019[5] (HRA).

Mr Kaba was a passenger in a car that was subject to a random stop and licence and registration check by uniformed police officers in 2012. Mr Kaba walked away from the car and the police who, without suspecting him of any wrongdoing, repeatedly pressed him for his name and address. Mr Kaba refused these requests using offensive language and protested about racial harassment. He was then arrested for using offensive language and failing to state his name and address.[6]

The Magistrate found that the police had no power under the relevant legislation[7] to carry out the random stop and licence and registration check, and had breached Mr Kaba’s rights by subjecting him to coercive questioning for his name and address. Consequently, the Magistrate exercise his discretion not to admit evidence on the grounds that it was the result of unlawful and improper police conduct.

On appeal, Bell J found that the Magistrate was correct in finding that there had been a breach of Mr Kaba’s rights to movement and privacy.[8] While there had been no physical interference with Mr Kaba and the interference itself was for a short duration, it was not simply a ‘brief and innocuous request for [his] name and address’.[9] Bell J stated that Mr Kaba had not been suspected of wrongdoing and the police ‘could easily have let Mr Kaba go on his way and they should have done so.[10] Whether he would give them his name and details was his private business but they pressed him well over the line of permissible questioning’.[11] Bell J stated that the relevant test in judging the limits of police interference is whether objectively it can be said that individuals are made to feel that they cannot chose to cease cooperating or leave in circumstances of police interaction.[12]

However, Bell J held that the police have the power of random stop and check under the relevant legislation.[13] Because the Magistrate’s decision not to admit the evidence was based on both findings, the decision was quashed and the matter was returned to the Magistrates Court.[14]

This decision clarifies that where police breach their obligation to act compatibly with and give proper consideration to human rights (under s 38(1) of the Victorian Charter or similar provisions in Queensland’s Act), courts will consider whether to exclude evidence on this basis. Further, it confirms that police conduct breaching Charter rights is conduct that is both improper, for being ‘inconsistent with the standards expected in our society of law enforcement officers’, and unlawful.[15] The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.[16]

[1] [2014] VSC 52.

[2] Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; R v Thomas (2006) 14 VR 475.

[3] Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008), 525-53 citing Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 272.

[4] Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 12, 13(a) (Victorian Charter’).

[5] Human Rights Act 2019 (Qld) ss 19, 25 (‘HRA’).

[6] DPP v Kaba [2014] VSC 52, [1]-[3]; see also ‘DPP v Kaba (Supreme Court) – December 2014’, Victorian Equal Opportunity & Human Rights Commission (Web Page) < https://www.humanrightscommission.vic.gov.au/index.php/human-rights/item/1098-dpp-v-kaba-supreme-court-december-2014>.

[7] Road Safety Act 1986 (Vic) s 59(1).

[8] DPP v Kaba [2014] VSC 52, [469]-[470].

[9] Ibid [478].

[10] Ibid [478].

[11] Ibid.

[12] Ibid [459].

[13] Ibid [458].

[14] Ibid [486]-[487].

[15] Ibid [333].

[16] Ibid [348], [479].