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Drivers of custodial remand for young people

It is vital to understand the factors that influence rates of custodial remand if Australian jurisdictions are to meet their international obligation of using detention as a last resort for young people. Technically speaking, rates of custodial remand are a reflection of the number of individuals remanded (‘stock’) and the length of remand periods (‘flow’; Ericson & Vinson 2011; Vignaendra et al. 2009; Webster, Doob & Myers 2009). These two factors are in turn determined by a complex web of philosophical and practical influences that ‘drive’ levels of custodial remand. These influences or ‘drivers’ are described in detail in this section.

Rates of offending by young people

One explanation for an increase in young people on custodial remand is that young people are committing more (or more serious) offences. While it is beyond the scope of this study to consider this question in detail, a preliminary examination of publicly available data indicates that in some cases, this may have occurred. The NSW Bureau of Crime Statistics and Research (2012) reports, for example, that the number of young people proceeded against by police for violent offences in New South Wales increased 18 percent over the 10 year period ending in December 2011. Similarly, the Australian Institute of Criminology’s (2012) annual snapshot of offending trends found that recorded offending by young people is currently at its highest rate since 1996–97. In particular, the recorded rate of assaults by young people rose by 67 percent during this time (AIC 2012). It must be considered, however, that these figures may reflect an increase in the reporting rate for this category of offences rather an actual increase in the number of violent offences occurring in the community.

Many stakeholders interviewed for this research perceived that there had been an increase in offending by young people in recent years. Some voiced frustration with the small cohort of young people who persistently reoffend. One stakeholder described a ‘ridiculously high’ level of recidivism among this group. Others reported that for these young people, a ‘vicious cycle’ occurs, whereby their persistent offending results in increased monitoring and scrutiny by police, which in turn leads to more frequent breaches of bail being reported to the courts. In this way, the criminal justice system in general, and bail processes in particular, create a type of ‘revolving door’ for this small cohort of young people.

An increase in serious offences, including aggravated and sexual offences was also observed by stakeholders. Stakeholders also stated that the age of the young people charged with these serious offences appeared to be decreasing. For example, a stakeholder from Western Australia explained that during the last four to five years, at least one 10 or 11 year old has been charged with a very violent or sexual offence that demonstrates ‘vicious and predatory behaviour’. Stakeholders acknowledged, however, that it was difficult to ascertain whether this perceived increase in serious and violent offending reflects a genuine increase in serious and violent behaviour or changes in police activity. It should also be noted that the nature of offences coming through the courts may have become more serious due to the introduction of diversionary measures for young people in the 1990s.

Domestic violence offences

In this study, domestic violence emerged as one offence in particular that may impact on rates of young people on custodial remand. Under some jurisdictions’ legislation, police lack discretion in dealing with domestic violence offences and must refuse bail to any alleged domestic violence offender. Although these provisions are undoubtedly important to protect victims of domestic violence, stakeholders interviewed for this research had observed that in some cases, young people are inadvertently ‘caught up’ in these legislative responses to domestic violence. For example, stakeholders from the Australian Capital Territory noted that occasionally, the parents of young people who are acting out and/or being violent at home report them to the police to ‘teach them a lesson’, without realising (or desiring) that they will be charged with domestic violence and refused bail.

Further, some stakeholders interviewed for this research agreed that a lack of discretion in how police are able to respond to alleged domestic violence offences may be impacting rates of custodial remand of young people. For example, stakeholders from the Australian Capital Territory, Queensland and Victoria revealed that a lack of police discretion in responding to domestic violence offences is an issue for young people, who are being refused bail as a result. In Queensland, this was thought to be the result of a legislative requirement that police must detain an accused offender for four hours. In the Australian Capital Territory, a legislative restriction on the use of summons in cases of alleged domestic violence was considered to be a contributing factor. By contrast, stakeholders from some other jurisdictions reported that young people are rarely charged with domestic violence offences (in some jurisdictions, the legislative definition of domestic violence excludes offences committed by young people against their parents).

Increasingly complex needs of young alleged offenders

In addition to a potential increase in offending by young people, a key influence on rates of young people on custodial remand may be the increasingly complex needs of young people in trouble with the law. In other words, the characteristics of both offences and offenders may influence remand rates.

Previous research has found the increasingly complex needs of offenders to have impacted bail decisions. In a study looking at the factors that influence court bail decisions young people in Queensland, consultations with Magistrates and government and non-government agencies involved in the youth justice system revealed an increase in defendants with complex social needs, with many revealing that they had observed an increase of young people presenting with substance abuse problems, as well as an increase in young women, homeless young people, and younger and more persistent offenders entering the system (Mazerolle & Sanderson 2008).

A study on bail decisions for adult defendants in South Australia and Victoria similarly found an increase in drug dependent defendants appearing before court (King, Bamford & Sarre 2009). Drug dependency appeared to increase the likelihood of an alleged offender being remanded in custody by both police and courts. Police bail was more likely to be refused to allow the defendant to ‘come down’ off drugs and court bail was more likely to be refused because although most drug-dependent accused offenders were charged with relatively minor offences, their drug dependency was regarded as valid evidence of a risk of reoffending (King, Bamford & Sarre 2009). Similarly, stakeholders interviewed for this study commented that substance abuse problems are often considered to constitute an unacceptable risk that the young person will offend if granted bail. Young people with a history of petrol-sniffing or with (the appearance of) Foetal Alcohol Spectrum Disorder were considered to be particularly vulnerable to bail refusal on these grounds. Further, stakeholders believed that young people are often placed on custodial remand to ‘dry out’ or to participate in programs that are only available to young people in detention. This again highlights that young people are sometimes remanded in custody ‘for their own good’.

Both ‘criminogenic’ (ie offending-related) and welfare needs of young people have been raised in the existing literature and by stakeholders interviewed for this study as potential influencers of rates of young people on custodial remand. An increase in young people presenting with mental health issues, substance abuse problems, unstable home environments, poor health and disengagement from school, and an increase in very young people (ie those aged under 15 years) coming into contact with the criminal justice system were all raised as examples of increasingly complex needs that may render young people vulnerable to bail refusal.

Homelessness and related accommodation issues

In particular, homelessness and a lack of suitable accommodation for young people are raised repeatedly in the literature as key factors underpinning rises in custodial remand rates (see eg ACCG 2010; AIHW 2012d; Denning-Cotter 2008; House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011; NSW LRC 2012; NT Government 2011; Stubbs 2010; Wong, Bailey & Kenny 2010). There is a concern that young people who are homeless or in unstable or unsuitable accommodation are remanded due to a lack of accommodation options available at that point of contact with the youth justice system (UnitingCare Burnside 2009; Wong, Bailey & Kenny 2010). For example, a lack of appropriate accommodation was found to be a factor influencing remand decisions for young people in Queensland (Mazerolle & Sanderson 2008).

As one police officer interviewed for Little et al.’s (2011: 42) study on diversion for Indigenous juveniles in Queensland stated:

Depending on the offence, if a young person is homeless then I might consider more so arresting them and objecting to their bail. There’s a lot of factors involved—it’s not just black and white. But I’d rather arrest them and object to their bail rather than issuing a notice to appear…at least that way I know they will be looked after.

Young people are therefore sometimes placed on custodial remand ‘for their own good’.

Although legislation may require the fact that a young person does not live with his/her parents or guardians be ignored by bail decision makers, as is the case in New South Wales (NSW LRC 2012) according to stakeholders interviewed for this research, this does not always occur in practice. Similarly, although Victoria’s legislation limits the length of time a young person can be held on custodial remand to 21 days, stakeholders revealed that this has little practical effect, as young people can be held on more than one consecutive 21 day period of remand.

As highlighted in the literature, young people are often granted bail but, due to a lack of suitable accommodation, are unable to meet the bail conditions imposed, which typically require a young person to ‘reside as directed’ (ie reside at a specified address; Bailey 2009). In other cases, a lack of stable accommodation can mean that young people will be unable to comply with other bail conditions (Baldry et al. cited in Ericson & Vinson 2011; NSW LRC 2012).

The literature also highlights that homelessness or a lack of suitable accommodation is an issue likely to impact more on particular groups of young people, including young people from regional, rural and remote areas (ACCG 2010; Clare et al. 2011; Ericson & Vinson 2011) and by extension, Indigenous young people (Clare et al. 2011; House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011). As Wong, Bailey and Kenny (2010) argue, issues associated with homelessness may also impact more heavily on young women applying for bail, as histories of physical and sexual abuse often make it less likely that young women will have a stable home environment to return to.

Young people in out-of-home care have also been identified as a group particularly vulnerable to bail refusal as a result of not having stable accommodation. It has been reported that child protection agencies are at times unable to provide young people facing remand with appropriate accommodation for a variety of reasons, including:

  • parents not allowing the young person to return home;
  • being unable to determine who the legal guardian is in order to release the young person into care;
  • living arrangements with relatives and friends having broken down; and/or
  • parents being too ill to care for the young person (Boyle 2009; Wong, Bailey & Kenny 2010).

Stakeholders interviewed for this research also identified young people with a history of violence and very young people (aged under 15 years) as vulnerable to bail refusal due to a lack of stable accommodation, as youth refuges often exclude these young people. Stakeholders also revealed that young people can be ‘blacklisted’ from refuges due to past behaviour while in residence there. This again highlights that there is a service gap for young people with very complex needs.

In addition to a lack of accommodation, the unsuitability of existing accommodation for young people on bail has also been raised as an issue. For example, concern has been raised about peer contagion occurring among at-risk young people and those already enmeshed in the criminal justice system at current accommodation facilities (Noetic Solutions 2011). Further, concerns have been raised about young people’s safety in bail accommodation. As one stakeholder consulted as part of the development of the ACT’s diversionary framework (cited in Noetic Solutions 2011: 20) claimed ‘young people are breaching their bail conditions because it’s not safe for them to stay where they’re required’. As this suggests, a lack of appropriate accommodation can not only create a barrier to young people being granted bail, it can contribute towards young people breaching bail conditions, therefore leading to a ‘vicious cycle’ of contact with the youth justice system.

Accommodation that is readily available, provides proper supervision, is gender appropriate and assists in re-engaging with families, schools and the community has therefore been highlighted as a critical area of need for young people (Noetic Solutions 2011).

Young people not applying for bail

The literature suggests that a potential driver of remand rates is young people not applying for bail. There is, however, little that has been documented about the proportion of young people who opt not to apply for bail. In Wong, Bailey and Kenny’s (2010) analysis of a sample of bail hearings (n=142) in Parramatta Children’s Court, New South Wales, 20 percent of young people did not apply for bail. Whether the young person applied for bail, however, varied according to the reason the young person was currently being held in custody. Nearly one-quarter of the 42 young people who appeared on new charges did not apply for bail (n=10), 10 percent of the 78 young people appearing for breaching bail did not apply for bail (n=8) and 100 percent of the 11 young people who had previously had their bail application refused did not re-apply for bail (n=11; Wong, Bailey & Kenny 2010).

Although the authors were unable to determine the reasons for young people not applying for bail, they suggest that the introduction of s 22 of New South Wales’ Bail Act 1978, which limits the number of bail applications that can be made, was influential. Vignaendra et al.’s (2009) study, however, clearly demonstrates that the introduction of this legislative change increased the length of time young people spend on custodial remand in New South Wales and thus contributed towards the increase in rates of young people on remand. Vignaendra et al. (2009: 3) claim that following the introduction of limitations on the number of times an accused person can apply for bail ‘the discontinuity is so abrupt it would be superfluous to test its statistical significance’. It must be noted that under proposed changes to the NSW Bail Act, young people will be able to apply for bail a second time if the initial application was made on the day of their first court appearance. Existing provisions allowing subsequent applications where there is new evidence will be retained under the new Act (Department of Attorney-General and Justice personal communication 30 January 2013). Other literature suggests that young people do not apply for bail due to an anticipation of a backdated sentence (Mazerolle & Sanderson 2008; Tressider & Putt 2005) or because they anticipate the refusal of their application (Mazerolle & Sanderson 2005).

Legal stakeholders interviewed for this research were asked under what circumstances they would advise a young person not to apply for bail. There were three main reasons given and these are discussed in turn. First, legal representatives claimed they would be reluctant to apply for bail for a young person if it was believed that the young person would not be successful in obtaining bail. Situations in which legal representatives believe that a young person may not receive bail included if the young person had a:

  • significant breach of bail history;
  • significant criminal history;
  • serious charge/if there is a presumption against bail;
  • lack of appropriate accommodation; and/or
  • issues with family and personal circumstances.

In most of these circumstances, a bail application would not be made by legal representatives in the first instance in order to give youth justice staff or themselves time to construct a stronger bail application (eg by organising accommodation for the young person). For example, legal stakeholders from the Northern Territory explained that they sometimes advise a young person not to apply for bail until a ‘responsible adult’ can be contacted to appear in court to support the young person’s bail application.

In some jurisdictions, however, legislative restrictions on the number of applications for bail that can be made (see discussion above) also influence legal representatives’ decisions about whether to apply for bail for young people. For example, stakeholders from New South Wales stated that restrictions on reapplying for bail after an initial refusal mean that a legal representative would advise a young person not to apply for bail until they had a strong bail application considered likely to be accepted. Interestingly, stakeholders from South Australia interviewed for this research made similar claims, although there are not legislative limitations on the number of times young people in South Australia can apply for bail. Stakeholders claimed that although there are no legislative restrictions in South Australia, in practice, Magistrates sometimes refuse to hear a bail application for a second time unless there has been a change in circumstances.

Second, legal representatives from Queensland and the Northern Territory interviewed for this research reported that they may advise a young person not to apply for bail if the young person is likely to receive a sentence of detention and is close to reaching adulthood. The length of their sentence to detention would take into account the time spent in remand, so in this way a young person would at least spend part of their sentence remanded in a youth justice facility rather than imprisoned in an adult facility.

Third, some stakeholders from Queensland interviewed for this research stated that in some cases, they may advise a young person not to apply for bail as having a young person placed on custodial remand has an incapacitating effect. That is, placing a young person on custodial remand prevents the young person committing fresh offences while on bail and therefore prevents a build-up of charges and breaches of bail. Minimising the number of offences and breaches of bail committed by young people was therefore seen to be for young people’s ‘own good’, as a history of consistent offending may worsen their sentencing outcome for the current charge(s) and in the future.

It was emphasised by most legal stakeholders that even in the situations outlined above, they would only advise a young person not to apply for bail. If a young person insisted on applying, then they would honour the young person’s wishes. Of course, it is probable that given the empowered position of legal representatives, young people will usually accept their advice.

Lack of access to legal representation

The literature on bail and remand for young people in Australia identifies a lack of access to adequate legal representation as a factor that contributes to lengthy remand periods for young people and therefore as a potential driver of rates of young people on custodial remand (see eg Mazerolle & Sanderson 2008; Tresidder & Putt 2005; UnitingCare Burnside 2009).

Stakeholders interviewed for this research similarly perceived a lack of access to legal representation as a potential driver of remand rates for young people. In general, stakeholders raised concerns about a lack of children’s lawyers and the under-resourcing of children’s lawyers; these concerns were particularly profound for stakeholders from Queensland (see also Mazerolle & Sanderson 2008). Concerns were also raised that legal representation is generally of a poorer standard for young people than it is for adults, due to the complexities of young people’s court matters. Stakeholders in a number of jurisdictions also commented that a lack of access to legal representation is a more profound problem for young people from regional, rural and remote areas.

The inexperience of prosecution lawyers was also raised by stakeholders in New South Wales. It was explained that often a young person charged with a serious offence will be prosecuted by a junior police prosecutor and represented by an inexperienced lawyer, whereas an adult facing the same charge(s) would be prosecuted by a senior DPP lawyer or a Crown Prosecutor and defended by a Public Defender or another experienced lawyer.

Judicial attitudes

A number of stakeholders interviewed for this research project raised judicial attitudes as a potential driver of rates of young people on custodial remand. Stakeholders commented that it is particularly noticeable in small jurisdictions that the numbers of young people on remand increases or decreases following the appointment of a new Children’s Court Magistrate, due to the attitude of that individual Magistrate. In larger jurisdictions, stakeholders noted that at times there are ‘hot spot’ courts, with large numbers of young people being refused bail following bail hearings at these courts compared with others, again due to the attitudes of individual Magistrates.

Stakeholders noted that there is great diversity in the attitudes of individual Magistrates, with some taking a very ‘legalistic’ approach to making with bail decisions and others taking a welfare-oriented approach. Although all judicial officers make bail decisions according to the relevant jurisdictional legislation, there is obviously scope for discretion within this framework.

Pressures on Magistrates are also likely to vary according to a range of factors, including whether they preside over a court in a metropolitan or regional area. One stakeholder interviewed for this study commented that some regional communities place significant pressure on the judiciary, via the media, to ‘act tough on crime’. Magistrates in regional areas or small jurisdictions are more likely than those in large cities to see the same young people repeatedly coming into contact with the criminal justice system; this may also influence the attitudes of these magistrates and in turn, their decision making regarding young people’s applications for bail.

Judicial officers interviewed for this research expressed varying attitudes towards the use of custodial remand for young people. Although it is clear that in most cases Magistrates view detention as a last resort for young people, some Magistrates expressed the view that in cases of persistent offending, the ‘short, sharp shock’ of a short period of custodial remand may stop a young person’s offending behaviour. Empirical research on whether this may be the case would therefore fill an important knowledge gap for bail decision makers.

Whether a Magistrate is a specialist Children’s Court Magistrate or has a broader judicial role may also influence Magistrates’ attitudes. For example, one stakeholder felt that Magistrates who make bail decision relating to both adults and young people may not accept that young people should be dealt with differently from adults.

Punitive community attitudes

Garland (2001) argues that it has become increasingly acceptable in recent years for politicians and policymakers to express punitive sentiments and to frame policies in terms of their retributive, rather than rehabilitative, ideals. A number of commentators have suggested that this renewed emphasis on punitive sanctions has impacted on bail and remand practices in Australia. A Western Australian study by Clare et al. (2011: 36) found that key stakeholders believed there had been a ‘slippage of principles’ and that police are consequently refusing bail to young people rather than diverting them according to the spirit of the Young Offenders Act 1994 (WA). Further, Booth and Townsley (2009) argue that in New South Wales, increasingly punitive criminal justice policies have resulted in an erosion of the presumption in favour of bail. As Booth and Townsley (2009: 50) outline, changes to bail legislation in New South Wales were at least partly premised on punitive sentiments—‘the [then] Attorney-General has expressed some pride in the increasing prison population and proudly speaks of plans to build more prisons to house the increasing population’.

This sentiment is reflected in the NSW Chief Magistrate of the Local Court’s submission to the NSW Law Reform Commission’s Review of the Bail Act 1978. He states:

The traditionally primary objects of a bail determination—ensuring the appearance of the accused person before the court and the protection of the community whilst also having regard to an accused person’s interests in being at liberty—have been intermittently truncated or affected in response to artificially created political reaction to publicised concerns that have had more to do with media campaigning than the product of empirical evidence (Henson 2011: 1).

Furthermore, a key concern in the literature is that the boundaries between bail/remand and sentencing have become increasingly blurred (Stubbs 2010) and that custodial remand is being used as a form of ‘summary punishment’ (Booth & Townsley 2009; Edney 2007; Freiberg & Morgan 2004; NSW LRC 2012; Raine & Willson 1995; Victorian LRC 2007). As the NSW Chief Justice of the Local Court has claimed:

It is of rising concern that prosecution agencies appear to view bail from a perspective alien to the original, and in my view enduring, philosophy of the Bail Act. Concerns articulated before the Court and elsewhere that bail is being used as a form of pre-emptive punishment are in my view grounded in legitimacy (Henson 2011: 1).

As discussed in more detail below, stakeholders interviewed for this research indicated that in some instances, custodial remand is used as an incapacitating strategy designed to reduce youth offending. Although this is not the same as using remand as ‘summary’ or ‘pre-emptive’ punishment, it demonstrates that remand is sometimes used to meet objectives other than those for which it is designed.

It is important to recognise, however, that while the above examples suggest that the re-emergence of punitivism may be influencing remand rates of young people in some Australian jurisdictions, its potential impact should not be overstated. As Webster, Doob and Myers (2009) highlight, increases in remand populations cannot be explained solely by an increase in punitive ideals, as this would be likely to result in overall increases in prison populations (not only increases in remand populations). This has not been the case for young people in Australia, however, where nationally, overall rates of young people in detention have decreased substantially during the past three decades (see Richards 2011a), while rates of young people on remand have increased (see analysis earlier in this report).

While Webster, Doob and Myers’ (2009) argument has merit, it should also be recognised that the re-emergence of punitivism may manifest in policies and practices that can indeed increase rates of remand without increasing overall rates of incarceration. For example, if it is the case that changes to legislation in New South Wales that limit defendants’ opportunities to apply for bail were premised on punitive ideals (as Booth & Townsley (2009) argue) and it is also the case that offenders receive ‘discounted’ sentences of incarceration if they have been in custodial remand, then it appears that this change may result in both increased remand rates and decreased rates of sentenced detention.

Community perceptions of youth offending was raised by stakeholders interviewed for this research as having a profound effect on police and court bail decisions, as well as policing strategies (as described in more detail below). According to stakeholders, the main factor that determines community perceptions of youth offending is the media. Stakeholders frequently raised the issue that the media’s negative portrayal of youth offending can drive police and legislative responses to bail determinations for young people.

There was a general perception among stakeholders that police, Bail Justices and Justices of the Peace were more influenced by punitive community views fuelled by media reports of youth offending than Magistrates. Although some stakeholders suggested that Magistrates, particularly those in non-metropolitan areas, were also influenced by punitive community views, others suggested that Magistrates have a greater capacity to make bail decisions contrary to these views. For example, a South Australian stakeholder gave the example of public pressure to have certain accused young people detained in one small South Australian town. In this case, although police appeared to be influenced by this pressure and refused bail to the young people, the courts appeared to be less influenced by community views and ultimately granted bail to the young people in question.

Court delays

Processes that increase the length of court proceedings may increase the length of time young people spend on custodial remand and therefore increase remand rates of young people. Mazerolle and Sanderson (2008), and Tressider and Putt (2005) identify a number of factors that can contribute to delays in court proceedings:

  • court being adjourned for investigation into welfare issues or to allow for adequate legal representation of the young person;
  • inadequate access to or poor level of service by legal representation;
  • defence lawyers waiting for information from prosecution lawyers;
  • negotiations taking place between defence and prosecution lawyers;
  • police needing to conduct further investigations, particularly if a not guilty plea is entered;
  • investigation of other criminal matters and potential for further charges;
  • delays in the preparation of pre-sentence reports (if the young person has been convicted and is on custodial remand awaiting sentencing); and
  • lack of collaboration between child protection and youth justice agencies in addressing welfare and accommodation needs.

Delays in finalising young people’s criminal matters was also identified as an issue by stakeholders interviewed for this research, particularly those in Queensland. In addition to those outlined above, stakeholders identified the following reasons for court delays:

  • the complexity of youth cases. For example, stakeholders in the Northern Territory explained that youth matters are often allegedly committed in groups, thereby increasing the complexity of the matter for the prosecution;
  • an increase in the number of reports requested by the court and the level of detail required in these reports. Youth justice stakeholders in both South Australia and Western Australia explained that courts were increasingly ordering court reports from youth justice agencies. Stakeholders explained that an increasing array of reports is being requested including social circumstances reports, pre-sentence reports and accommodation/placement reports. Youth justice stakeholders commented that they are not always convinced of the necessity of these reports, particularly given the time taken to prepare them and the delays that occur as a result.
  • reluctance to deal with youth matters outside of business hours. In some jurisdictions where Bail Justices or Justices of the Peace are not available to make bail decisions, stakeholders raised concerns that young people are unnecessarily held on custodial remand during weekends. Stakeholders from New South Wales, for example, perceived a lack of emphasis on young people being able to appear in court on a Saturday to have their matter finalised that day. Stakeholders noted more generally that there appears to be a lack of emphasis, particularly from legal representatives, on having minor matters finalised at the first court appearance.

Difficulties locating ‘responsible adults’ to support young people’s bail applications

Western Australia is unique in its legislative requirement for a young person’s bail undertaking to be signed by a ‘responsible adult’ (usually a parent or guardian) in order for bail to be granted. The research literature identifies difficulties locating responsible adults as a driver of increased remand rates (see Auditor General for Western Australia 2008; ACCG 2010; Clare et al. 2010; Denning-Cotter 2008). Stakeholders in Clare et al.’s (2010) Western Australian study, for example, expressed a desire to remove the requirement for a responsible adult to be located in order for a young person to be granted bail. This issue was considered to impact most heavily on young people from remote or regional areas (Clare et al. 2010).

According to the Auditor General for Western Australia (2008), even in cases in which they can be located, responsible adults sometimes refuse to assist a young person, resulting in the young person being remanded in custody. Reasons for them doing so, as indicated by police records, include:

  • feeling unable to exercise control over the young person;
  • feeling unable to accept bail conditions;
  • feeling unable to ensure the young person would attend court or comply with bail conditions; and
  • having already evicted the young person from their home (Auditor General for Western Australia 2008).

This issue was also identified in the Northern Territory, where s 27 of the Bail Act states that one of the conditions that may be imposed includes the presence of an acceptable person to acknowledge that the accused is likely to comply with their bail undertaking. Problems locating responsible adults was an issue highlighted in the recent review of the Northern Territory youth justice system as driving the refusal of bail (NT Government 2011).

Multiple stakeholders interviewed for this research raised the attitude of parents as a potential driver of custodial remand for young people. Stakeholders from South Australia and New South Wales explained that there are a number of parents who refuse to take their child home because of the belief that detention will ‘teach them a lesson’ (ie using a period of custodial remand as a surrogate punishment).

Pre-court decisions

Bamford, King and Sarre (1999) suggest that pre-court decisions can impact court bail decisions. Magistrates rely heavily on the information they receive from police and prosecutors; therefore, decisions made by police and prosecutors become a critical factor in whether a young person receives court bail or is placed on custodial remand (Mazerolle & Sanderson 2008). For example, a study of young people on custodial remand in Tasmania revealed that the reasons recorded by Magistrates for remanding a young person in custody often present as a summary of the prosecution’s reasons for refusing police bail (Tressider & Putt 2005). Further, research on bail practices in South Australia and Victoria found that police ‘were sensitive to having their decision not to grant bail overturned by later remand decision makers’ (King, Bamford & Sarre 2009: 36).

This suggests that where multiple players are involved (eg police, prosecution and Magistrates), a type of self-fulfilling prophecy sometimes occurs, whereby an expectation of bail refusal from the court encourages police to refuse bail (or prosecutors to oppose bail) in the first instance. Conversely, an expectation that bail will be granted by the court may result in police granting bail (or prosecutors not opposing it). As discussed in the following section, however, the reverse is sometimes the case, with police avoiding making bail decisions in favour of allowing a Magistrate to do so.

Police stakeholders interviewed for this research expressed some frustration with Magistrates overturning their decisions not to grant bail to a young person; this was particularly the case in relation to those young people the police come into contact with repeatedly. Some police were critical of Magistrates’ perceptions that police bail was too restrictive on young people and of Magistrates’ tendency to remove conditions from police bail orders. Importantly, however, the frustration of these police appeared to be primarily about what they perceived as a lack of therapeutic programs comprising conditions of young people’s bail, premised on the belief that this lack of programs contributes towards young people’s reoffending. This could be taken to suggest that police and Magistrates have differing views about the purpose of bail. It could also suggest, however, that there may in fact be broad consensus between police and magistrates about the aims of bail, but that the views of these parties on the most appropriate and/or effective way of achieving these aims may vary.

Bail decisions, and the relationships among those who influence or make them, are highly complex. There is currently a paucity of research on the potential influence of these relationships on rates of custodial remand for young people. This issue should therefore be considered in future research on this topic.

Risk aversion

International research indicates that the newfound preoccupation with managing risk (Feeley & Simon 1992; Garland 2001; Hudson 2003; Shearing & Johnston 2005) has influenced bail decisions and may be a driver of rates of custodial remand. For example, Raine and Willson’s (1997: 600) study found that in England and Wales, police officers felt ill-equipped to make bail decisions in cases involving a risk of breach or reoffending and instead preferred to remand accused persons in custody and therefore force magistrates to ‘bear the responsibility for the decisions’.

Webster, Doob & Myers’ (2009: 99) Canadian research similarly found that:

Canada’s growing remand population is largely the product of an increasing culture of risk aversion…we appear to be witnessing a generalised practice whereby decisions are either continually passed along to someone else or simply delayed by those responsible for making them.

Webster, Doob and Myers (2009) account for this focus on risk avoidance in bail decision making by highlighting that while the benefits of granting bail to an accused person (eg cost savings, protection of innocence) are invisible, the potential costs of doing so (eg the risk that the accused person will offend while on bail) are visible, rendering the decision maker open to criticism.

One stakeholder from New South Wales interviewed for this research confirmed that in some cases, police avoid granting bail to young people bail to avoid being held accountable if the young person offends while on bail; therefore, police refuse the young person bail and force the court to determine the young person’s bail. Stakeholders noted that police officers’ desire to protect the community and minimise the risk of young people offending while on bail also extended to the imposition of onerous bail conditions on young people and/or the close scrutiny of young people granted bail.

Stakeholders from jurisdictions that utilise Bail Justices or Justices of the Peace to make bail decisions reported that these decision makers can be particularly sensitive to community attitudes towards youth offending and thus more risk averse than other bail decision makers, especially in regional areas where Bail Justices and Justices of the Peace are more visible to the public and may come under increased scrutiny.

As the above discussion indicates, it appears that bail decision makers other than Magistrates are the most risk averse, perhaps because the decisions made by police, Bail Justices and Justices of the Peace are later reviewed by a Magistrate (technically, bail is reconsidered by a Magistrate). It is important to note, as one Magistrate interviewed for this study explained, that judicial bail decision makers are accountable to superior courts and the public, and in most jurisdictions a young person has the right to appeal a bail decision. It appears, however, that judicial decisions are not subject to the immediate scrutiny to which the decisions of police and other bail decision makers are subject.

The influence of victims’ rights

The literature on bail and remand identifies concern for victims’ rights as a potential influence on remand rates. For example, Booth and Townsley (2009) argue that changes to bail legislation in New South Wales that limit the number of bail applications that defendants can make (and which Vignaendra et al. (2009) found increased the remand of young people in New South Wales) were partly premised on the belief that repeated applications for bail may upset victims. Importantly, this reflects a newfound concern for ‘the feelings (rather than the safety) of the crime victim’ (Booth & Townsley 2009: 43). Sarre, King and Bamford’s (2006: 5) study of bail for adults in Victoria and South Australia found that concerns about victims often informed bail decisions and that victims of particular types of offences factored into bail decisions more frequently than others:

Some bail decision makers indicated that they take special care when dealing with bail applications from defendants charged with domestic violence offences since the risks and consequences of re-offending were particularly significant in this situation.

Although every Australian jurisdiction has enacted legislation designed to promote the interests of crime victims, only four jurisdictions have legislation that makes explicit reference to bail and remand decisions (see Table 16).

Table 16 Victims’ rights legislation in Australia and provisions relating to bail
Legislation Provisions relating to bail
NSW

Victims Rights Act 1996

6.11 Protection from accused

A victim’s need or perceived need for protection will be put before a bail authority by the prosecutor in any bail application by the accused.

6.12 Information about special bail conditions

A victim will be informed about any special bail conditions imposed on the accused that are designed to protect the victim or the victim’s family.

6.13 Information about outcome of bail application

A victim will be informed of the outcome of a bail application if the accused has been charged with sexual assault or other serious personal violence

Vic

Victims of Crime Assistance Act 1996

Victims’ Charter Act 2006

A prosecuting agency, on request by a victim, is to ensure that the victim is informed of

(a) the outcome of any application for bail by the person accused of the criminal offence; and

(b) if bail is granted, any conditions imposed on the accused person by the court that are intended to protect the victim or family members of the victim.

In having regard to the safety or welfare of members of the public in accordance with the Bail Act 1977, the safety or welfare of the victim or family members of the victim and the attitude of a victim towards the granting of bail may be taken into account by a court in determining whether to grant bail to a person accused of a criminal offence (Victims’ Charter Act 1996 s 10)

Qld

Victims of Crime Assistance Act 2009

So far as is reasonably practicable, an investigatory agency is to, if asked by a victim, give the victim the following information about the crime committed against the victim...the outcome of an application for bail by the charged person and if the charged person is released on bail or otherwise before the proceeding on the charge is finished, the arrangements made for the release, including any condition and any application for variation of the condition that may affect the victim’s safety or welfare (s 11(g))

SA

Victims of Crime Act 2001

n/a
WA

Victims of Crime Act 1994

A victim who has so requested should be kept informed about

(a) the progress of the investigation into the offence (except where to do so may jeopardise the investigation); and

(b) charges laid; and

(c) any bail application made by the offender; and

(d) variations to the charges and the reasons for variations (Sch 1(6)(c))

NT

Victims of Crime Assistance Act

Victims of Crime Rights and Services Act

n/a
Tas

Victims of Crime Assistance Act 1976

n/a
ACT

Victims of Crime Act 1994

n/a

In addition to provisions about the granting of bail contained in victims’ rights legislation, some jurisdictions’ bail legislation contains provisions about how victims should be considered. For example, SA’s Bail Act 1985, which applies to both young people and adults, states that

where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant (s 10(4)).

Under Victoria’s Bail Act 1977, in assessing whether there is an unacceptable risk of an accused person committing an offence, jeopardising community safety, interfering with witnesses or failing to surrender into custody if granted bail, the court must consider ‘the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail’ (s 4(3)(c)). Further, if an application is made to the court (or a Bail Justice) to vary the amount or conditions of bail, the court can consider ‘the attitude, if known, of the alleged victim of the offence to the proposed variation of the amount of bail or the conditions of bail’ (s 18AD(1)(e)).

The NSW Bail Act 1978 considers crime victims in only an abstract way. Under the Act, bail decision makers must consider the likelihood that an accused person will commit a serious offence while on bail. The ‘likely effect of the offence on any victim and on the community generally’ is one of the matters to be considered in determining whether an offence is ‘serious’ (s 32(2A)(b)).

Under the NT’s Bail Act, in considering whether to grant bail to an accused person, the court must consider:

The risk (if any) that would result from the accused person’s release on bail to the safety or welfare of:
i. the alleged victim of the offence; or
ii. the close relatives of the alleged victim; or
iii. if the victim is a child—any person (other than a close relative) who has the care of the child; or
iv. any other person whose safety or welfare could, in the circumstances of the case, be at risk if the accused person were to be released on bail (s 24(1)(e)).

Further, the NT’s Bail Act stresses that ‘if the alleged victim of an offence is a serious sexual offence or a serious violence offence, the safety and welfare of the alleged victim must be considered with particular care’ (s 24(4)). Finally, the Act states that:

If an alleged victim expresses concern to the prosecutor that the release of the accused person on bail could lead to a risk to the alleged victim’s safety or welfare, the prosecutor must, wherever practicable, inform the authorised member or court about that concern and the reasons for it (s 24(6)).

In Tasmania, neither the Bail Act 1994 nor the Justices Act 1959 currently contains any provisions about considering the interests of alleged victims in bail decisions. Tabled amendments to the Youth Justice Act 1997 will, however, outline that bail decision makers should consider the Youth Justice Principles when making a bail decision. These principles include that ‘the victim of the offence is to be given the opportunity to participate in the process of dealing with the youth as allowed by this Act’ (s 5(1)(d), Youth Justice Act 1997 (Tas)).

In jurisdictions that have separate bail considerations for young people (Queensland, Western Australia and the Australian Capital Territory), alleged victims do not have to be taken into account in relation to bail decisions. As outlined above, however, both Queensland and Western Australia’s victims’ rights legislation contain provisions allowing alleged victims to be informed about bail decisions.

In contrast to some of the existing literature, most stakeholders interviewed for this research generally did not consider victims’ rights movements or legislation to be a primary driver of custodial remand rates for young people. This is perhaps partly due to the less serious nature of offences allegedly committed by young people. Concerns were raised, however, that in jurisdictions in which Bail Justices or Justices of the Peace are empowered to make bail decisions in non-metropolitan areas, such decisions tend to be cognisant of victims’ rights and concerns, as victims are often known to bail decision makers.

Inappropriate and/or arbitrary use of bail conditions

A concern that has been raised in the literature is that young people granted bail are often subject to inappropriately high numbers of bail conditions (Bailey 2009; Mulroney 2012; Noetic Solutions 2011; Wong, Bailey & Kenny 2010), many of which are unrealistic and may be difficult for young people to adhere to (ACCG 2010; Noetic Solutions 2011; NSW LRC 2012; Stubbs 2010). Importantly, bail conditions placed on young people often appear arbitrary and unrelated to the young person’s offending (Mulroney 2012; NSW LRC 2012). Judicial officers in Clare et al.’s (2011: 31) study expressed concern that police officers ‘stipulate stringent conditions for bail, such as curfews or school attendance regardless of the relevance or appropriateness of such conditions’. Raine and Willson’s (1995) study of bail in England and Wales found that there was little connection between the types of bail conditions imposed on accused persons and the rationale Magistrates gave for imposing the conditions. Further, they found no significant correlations between the number and type of bail conditions imposed on accused persons and the seriousness of the alleged offence, revealing ‘a lack of clarity about the objectives being pursued by the various decision-shapers and decision makers in the process’ (Raine & Willson 1995: 28).

As Clare et al. (2011) argue, unrealistic bail conditions are likely to impact more heavily on Indigenous young people and young people from regional, rural and remote areas, given the lack of resources these young people may be faced with. It has also been raised that bail conditions fail to take into account the mobile lifestyles of some Indigenous young people, particularly those from remote communities (Reynolds cited in House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011). It is also likely that onerous and/or arbitrary bail conditions will impact more profoundly on young people in out-of-home care, who come under more scrutiny than other young people on bail. The issues faced by young people in out-of-home care are discussed in detail later in this report.

Further, there are issues regarding the practicalities of a young person complying with numerous and/or onerous bail conditions, which may result in an increased likelihood of breaching (ie failing to comply with) their bail conditions. By definition, young people have limited agency and are often dependent on their parents or other adults (NSW LRC 2012). For example, if a young person must report regularly to police as a condition of bail, the young person might be reliant on their parents for transport or public transport fares in order to meet this condition.

The frequency of the use of behaviourally based conditions as opposed to financial surety is demonstrated in Wong, Bailey and Kenny’s (2010) NSW study, which listed the top four conditions imposed on young people granted bail as:

  • curfew;
  • reside as directed and specified;
  • obey reasonable direction; and
  • non-association.

To pay surety was the seventh most common condition imposed on young people’s bail, with nine percent of the 78 young people who received conditional bail receiving this condition (Wong, Bailey & Kenny 2010).

Although breaching bail conditions is not a criminal offence in all jurisdictions (see discussion below), a breach of bail conditions results in an opportunity for the court to reconsider a young person’s bail (Stubbs 2010). Placing young people on strict bail orders with numerous conditions that are difficult to comply with may therefore contribute towards larger numbers of young people being placed on custodial remand (NSW LRC 2012). This is an important issue to consider, given that the literature identifies breaches of bail by young people as a key driver of rates of custodial remand. This issue is considered in more detail in the section below.

The appropriateness of bail conditions placed on young people has thus been raised as a key issue for further consideration (ACCG 2010; Clare et al. 2011; Stubbs 2010). Bail conditions such as reporting regularly to police or not associating with peers may be difficult for young people to meet for a range of reasons including:

  • practical reasons—most young people don’t hold a drivers licence or have access to a vehicle and many may not be able to afford public transport (Noetic Solutions 2011);
  • social reasons—young people are heavily influenced by their peers (Gatti, Tremblay & Vitaro 2009; Hay, Payne & Chadwick 2004; Steinberg 2005) and may find it more difficult than adults to disassociate from their peer group or social network; and
  • biosocial and psychosocial reasons—young people may lack the maturity and insight that are often required to comply with bail conditions.

It has been recommended that bail conditions need to be more cognisant of the ‘mental health, cognitive abilities, family situation and social needs’ of young people in addition to their limited access to transport (Noetic Solutions 2011: 15). In addition, it has been argued that young people (particularly those with an intellectual disability and Indigenous young people) often have difficulty understanding or remembering their bail conditions, resulting in unintended breaches of bail (Allan et al. 2005; Bailey 2009; NSW LRC 2012).

Many stakeholders from multiple jurisdictions interviewed for this research felt strongly that bail conditions for young people are often onerous, arbitrary or unrealistic. Examples of impractical bail conditions imposed on young people include prohibiting a young person from spitting and banning young people from whole towns and suburbs.

Stakeholders also expressed frustration with the ‘welfarisation’ of bail conditions and the way in which, as one stakeholder put it, they are used to ‘control’ young people. This was seen as especially problematic when bail conditions are not related to the charge(s) against the young person (although as Mulroney (2012) notes, some bail conditions that may appear to be based on welfare, such as attending school, may also address the young person’s criminogenic needs). Stakeholders noted that bail conditions for young people are often more onerous than those imposed on adults and less relevant to the charge(s). Curfew was one bail condition that stakeholders deemed particularly problematic for young people to adhere to for a number of reasons. First, young people in trouble with the law are often from violent homes. Insisting that a young person return to a violent home and adhere to a strict curfew is likely to be damaging to the young person and may have a criminogenic effect on the young person (see Richards 2011b for a discussion). Second, young people’s families are sometimes involved in offending behaviours themselves and/or encourage the young person’s offending behaviour (Goodwin & Davis 2011). Again, therefore, having young people reside in the family home according to a curfew is likely to be counterproductive. Finally, stakeholders argued that placing a young person on a strict curfew prevents the young person participating in sporting and/or community activities that may be beneficial for the young person’s development.

Stakeholders also raised concerns that in some instances, bail conditions imposed on young people are more onerous than sentencing outcomes are likely to be.

In summary, the existing literature and stakeholder interviews conducted for this research suggest that the number and nature of bail conditions imposed on young people can result in young people being ‘set up to fail’. Given that breaches of bail have been identified as a key driver of custodial remand rates (as discussed below), minimising the opportunities for young people to breach their bail conditions is one important strategy for reducing the custodial remand of young people.

Breaches of bail

The literature consistently identifies breaches of bail conditions as a key influence on rates of custodial remand. For example, the Auditor General for Western Australia (2008: 43) found that ‘the largest single reason that police did not grant bail was that the young person was already on bail and had breached their bail conditions’ (see also Clare et al. 2011; NSW LRC 2012).The recent inquiry into the youth justice system in the Australian Capital Territory also stated that breaching bail was the primary reason that young people were admitted to detention (ACT Government cited in Roy & Watchirs 2011). Further, a study undertaken in Parramatta Children’s Court showed that 60 percent of young people attending court during a week in August 2008 and a week in January 2009 appeared for breaching bail conditions (Wong, Bailey & Kenny 2010; see also Noetic Solutions 2011).

A NSW study (Vignaendra et al. 2009) that examined the number of young people proceeded against for breach of bail from January 1998 to February 2009 and the average daily number of young people on custodial remand from January 1998 to December 2008, found a significant correlation between the changes of remand numbers and the numbers of those breaching bail, demonstrating that an increase in those arrested for breaching bail conditions is related to an increase in young people on custodial remand.

It is important to recognise, however, that not all breaches of bail are criminal offences. Bail conditions imposed on young people are often ‘behavioural’ conditions, such as obeying parents, adhering to a curfew, residing at a particular premise, or not associating with peers. In other words, these behaviours would not be a criminal offence if the young person was not on bail. Data on breaches of bail by young people in New South Wales indicate that during 2008, new offences constituted only four percent of all breaches; more commonly, young people breached bail by not adhering to a curfew (47%), failing to reside as directed (12%), failing to report to police (12%) and breaching a non-association order (11%; Mulroney 2012).

Table 17 outlines whether it is an offence for a young person to fail to appear in court subsequent to a period of bail and whether it is an offence for a young person to breach other bail conditions in each jurisdiction. As Table 17 indicates, in all jurisdictions, failing to appear in court subsequent to a bail undertaking is an offence for young people and can be penalised. As can also be seen in Table 17, however, breaching other conditions of bail is an offence for young people in Western Australia, South Australia, the Northern Territory and Tasmania. This will no longer be the case in Tasmania following amendments to the Youth Justice Act 1997. Under these amendments, breaches of bail (other than failure to appear before a Justice or Court) will not be offences in their own right, but will be able to be considered at sentencing.

Table 17 Criminal status of bail breaches and penalties
Offence for young person to fail to appear Offence for young person to breach other bail conditions Offence name and penalties Can police arrest without warrant on breach of bail? Warrant for arrest by court for failure to appear

NSW Yes No

Bail Act 1978 s 51 ‘Offences for failing to appear’

Maximum penalty: Imprisonment not exceeding three years or a fine not exceeding 30 penalty units

Yes Yes
Vic Yes No

Bail Act 1977 s 30 ‘Failure to answer bail’

Penalty: 12 months imprisonment

Yes Yes
Qld Yes No

Bail Act 1980 s 33

‘Failure to appear in accordance with undertaking’

Penalty: n/a

Yesa

Yes
WA Yes Yes

Bail Act 1982 s 51 ‘Offence to fail to comply with bail undertaking’

Penalty: A fine not exceeding $10,000 or imprisonment not exceeding three years, or both

Yes Yes
SA Yes Yes

Bail Act 1995 s 17 ‘Non-compliance with bail agreement’

Maximum penalty: $10,000 or imprisonment for two years

Yes Yes
NT Yes Yes

Bail Act s 37B ‘Offence to breach bail’

Maximum penalty: 200 penalty units or imprisonment for two years

Yes Yes
ACT Yes No

Bail Act 1992 s 49 ‘Failure to answer bail’

Maximum penalty: 200 penalty points, imprisonment for two years, or both

Yes Yes
Tasb Yes Yes

Bail Act 1994 s 5(4) ‘Contravening notice of appearance before justices given during grant of police bail’

Penalty: Fine not exceeding 10 penalty points or maximum six months imprisonment or both

s 9 ‘Contravention, & c., of condition of bail order to be offence’

Penalty: Fine not exceeding 20 penalty points or imprisonment for a term not exceeding 12 months or both

Yes Yes

a: Under s 367(4) of the Police Powers and Responsibility Act 2000, before arresting a young person for suspected contravention of a bail undertaking, a police officer must consider whether it would be more appropriate for an application be made under the Bail Act (1980) for a variation or revocation of the young person’s bail undertaking (excluding not appearing at court and/or harassing witnesses)

b: Under tabled amendments to the Youth Justice Act 1997 (Tas), breaches of bail conditions, with the exception of failing to appear before a Justice or Court, will not be chargeable offences, but may be considered during sentencing (Tasmania Department of Human Services personal communication 5 November 2012).

Importantly, however, even when it is not a criminal offence for a young person to breach bail (as is the case in New South Wales, Victoria, Queensland and the Australian Capital Territory), police still have powers to arrest a young person who is (or is suspected of) breaching any of their bail conditions. In all jurisdictions, it is lawful for police to arrest without a warrant a young person who is believed to be in breach of their bail conditions (Bail Act 1978 (NSW) s 60; Bail Act 1977 (Vic) s 24; Police Powers and Responsibilities Act 2000 (Qld) s 367(3); Bail Act 1992 (WA) s 54(1); Bail Act 1995 (SA) s 18(2); Bail Act (NT) s 38; Bail Act 1992 (ACT) s 56A; Bail Act 1994 (Tas) s 10). Queensland is the only jurisdiction that clarifies that police must use arrest for breaches as a last resort:

Before arresting a child for suspected contravention of condition of appearance or another condition of the undertaking, a police officer must consider whether it would be more appropriate for an application be made under the Bail Act (1980) for a variation or revocation of the child’s bail (excluding not appearing at court and/or harassing witnesses) (Police Powers and Responsibility Act 2000 s 367(4)).

Therefore, even in jurisdictions in which breaching bail conditions is not a criminal offence, a breach of bail can result in an arrest; this results in a further opportunity for the court to reconsider a young person’s bail (Stubbs 2010) and may therefore contribute towards rates of young people on custodial remand.

In this context, whether breaching bail is a criminal offence is largely irrelevant. A more critical distinction that should be considered is whether ‘technical’ and ‘criminal’ breaches of bail are dealt with in the same way. Therefore, should there be a distinction between breaches of bail that would constitute an alleged offence even if the young person was not on bail (eg committing an assault) and those that are ‘technical’ breaches only and would not constitute an alleged offence if the young person was not on bail (eg disobeying parents)? Currently, even in those jurisdictions in which breaching bail conditions (with the exception of failure to appear) is not a criminal offence, there is no distinction between these two types of bail breaches. This lack of distinction creates a situation in which young people on bail can be arrested and placed on custodial remand for behaviours that are not criminal (or rather, are only criminal because the young person is on bail, such as not obeying a parent).

Research conducted in New South Wales found that there was only a slight difference between the proportion of young people remanded in custody following a technical breach of bail and the proportion of young people remanded in custody following a new alleged offence committed while on bail. Vignaendra et al. (2009) found that of a random sample of young people who had breached bail conditions (n=102), 76 (75%) were remanded in custody. Two-thirds of those remanded in custody (n=50) had not, however, committed a new criminal offence (ie they had breached a technical bail condition, such as not complying with a curfew or not being in the company of a parent):

To describe it differently, 81 per cent of juveniles who had breached their bail order by committing an offence were subsequently remanded in custody and 71 per cent of juveniles who had breached their bail order only through not complying with bail conditions were subsequently remanded in custody (Vignaendra et al. 2009: 3).

Somewhat ironically, in jurisdictions in which breaches of bail are not deemed to be criminal offences, it is precisely because the behaviour is not criminal that police have few options other than arrest. For example, in New South Wales, because breaches of bail do not constitute a criminal offence, police are not bound by the Law Enforcement (Powers and Responsibilities) Act 2002 or the Children (Criminal Proceedings) Act 1987, both of which limit the use of arrest and stipulate that proceedings against young people should be carried out in the least onerous way possible (Wong, Bailey & Kenny 2010). Further, the diversionary measures legislated under the Young Offenders Act 1997 cannot be used (Wong, Bailey & Kenny 2010), meaning that young people on bail cannot be diverted via a warning, caution or youth justice conference. As a result, a young person who is on bail could be arrested for a non-criminal act (such as not adhering to a curfew), while a young person who is not on bail may be diverted for a genuine offence (eg property damage or minor assault).

Given that limiting the use of arrest is a potential factor in reducing remand rates, it is important that jurisdictions consider whether arrest should be available for technical breaches of bail ‘committed’ by young people. This report posits that a distinction should be considered between technical and criminal breaches of bail by young people, and that technical breaches of bail should not be responded to via criminal justice measures such as arrest. New offences allegedly committed while on bail, however, should be dealt with as offences would ordinarily be dealt with (ie under the jurisdiction’s youth justice legislation). As described above, where this is not the case, minor offences allegedly committed by young people on bail can be dealt with via arrest and result in a young person being placed on custodial remand, whereas the same act committed by a young person who is not on bail may be dealt with via a diversionary measure.

Minimising breaches of bail by young people is an important strategy in minimising levels of young people on custodial remand, since a history of breached bail conditions can influence the outcome of future bail decisions, thereby increasing the likelihood of a young person being remanded in custody. This is of particular concern in jurisdictions in which breaching bail conditions is a criminal offence, as bail breaches in these jurisdictions constitute a criminal history. As described earlier in this report, a young person’s criminal history can be taken into account during a bail decision.

It should also be considered whether it is fair and just for young people to be placed on custodial remand for breaches of bail even though the offence(s) they have been charged with does not carry a potential sentence of detention. As one Magistrate in Clare et al.’s (2011: 31) study on Western Australia commented:

What is starting to happen is that there are some kids for offences such as disorderly conduct, which don’t carry detention as a sentencing option, and yet by the time the Court comes to deal with them they are in custody because they have breached bail conditions rather than being in custody because of the substantive offence in the first place.

In general, stakeholders from states and territories where breaching bail is a criminal offence were of the view that criminalising breaches of bail criminalises non-criminal behaviours and results in the unnecessary accumulation of fresh charges against young people. In particular, where young people receive bail conditions that are intended to address their welfare needs, stakeholders argued that it is counterintuitive for a breach of these conditions to constitute a criminal offence. As described above, therefore, a distinction should be made between ‘technical’ and ‘criminal’ breaches of bail conditions imposed on young people.

Policing performance measures

The literature on custodial remand posits that Key Performance Indicators (KPIs) relating to policing may also have an influence on remand rates. Stubbs (2010) suggests that police performance measures in New South Wales, which focus on bail compliance, have contributed towards increases in remand rates as police proactively target bail compliance in order to meet performance measures (see also Noetic Solutions 2010; UnitingCare Burnside 2009; Wong, Bailey & Kenny 2010). Similarly, King, Bamford and Sarre’s (2009) study on adult bail in Victoria and South Australia found that the then SA policy of targeting repeat offenders and using arrest rather than summons contributed towards higher rates of custodial remand in South Australia. Stakeholders consulted for King, Bamford and Sarre’s (2009) study believed that reaching organisational performance indicators, such as bail compliance and targeting recidivists, influenced strategies for policing accused persons on bail and in turn contributed to levels of custodial remand.

Conversely, the NSW Police Force submission to the review of NSW Bail Act stated that although, in accordance with the NSW State Plan, bail compliance checks had increased by approximately 400 percent between January 2007 and September 2010; the rate of young people on custodial remand remained steady during this period (NSW Police Force 2011). However, using the data provided by police, NSW Juvenile Justice identified a moderate positive statistical correlation between the number of police bail compliance checks per month and the average daily number of young people in custody by month for this period (Pearson’s r=0.373, p<.01) (Department of Attorney-General and Justice personal communication 30 January 2013). This would support data from other sources that indicated that there was in fact a substantial increase in the number of young people held on remand in New South Wales between 2007 and 2008 (see eg Richards & Lyneham 2010; Vignaendra et al. 2009). Yet, as noted above, the rates of young people on custodial remand in New South Wales have generally remained stable since 2008 (AIHW 2012b).

Importantly, as one bail decision maker from New South Wales commented when interviewed for this study, including bail compliance checks as an indicator of police performance had primarily resulted in increasing the quantity rather than ‘quality’ (or nature) of bail breaches being targeted. In other words, consideration was not given to the types of bail breaches, including whether these were minor or serious, or whether they were technical or criminal breaches. It would be reasonable, therefore, to query to what extent this type of performance indicator can contribute towards community safety.

Of course, KPIs that are ‘consistent with and likely to encourage positive outcomes’ (Stubbs 2010: 500) could conversely be used to reduce remand rates, as Sarre, King and Bamford (2006) recommend. For example, compliance with the Convention on the Rights of the Child (United Nations 1989) could be implemented as a KPI for police. It emerged from interviews with stakeholders undertaken for this study, however, that key players in remand decisions for young people have varying objectives to meet and varying measures that indicate their level of performance against these objectives. For example, while police in some jurisdictions may have their performance measured against the objective of ensuring bail compliance by young people, bail service providers may have their performance measured against the rival objective of assisting young people to obtain bail within a specified period of time. According to stakeholders, the Metropolitan Youth Bail Service in Western Australia has a KPI target of 85 percent (previously 80%) of young people entering custody with bail options that are successfully bailed within seven days of admission. It is recommended that performance indicators for key actors in bail decision making, service provision and support for young people could become better aligned to more effectively meet the needs of both the community and young people in trouble with the law.

Policing practices

Even where meeting KPIs was not an issue, some stakeholders interviewed for this research raised concerns about what they consider to be the overzealous policing of young people’s bail compliance and in some cases, a ‘zero tolerance’ approach to bail breaches. For example, one Tasmanian stakeholder raised concerns that the strict monitoring of young people’s bail compliance by police was being used as an incapacitating strategy to reduce youth offending and that this was influencing the rate of custodial remand. While this may be a tempting strategy for police under pressure to reduce youth offending rates, it needs to be considered whether it is appropriate to incarcerate young people who have not yet been tried on their current charge(s).

In another example, a WA stakeholder raised concerns about WA’s effort to replicate the UK’s Priority and Prolific Offender Program. According to the stakeholder, this program is based on the premise that a disproportionate amount of crime is committed by a small group of people. The issue raised by the stakeholder was that in some instances, young people are labelled ‘priority and prolific offenders’ and therefore intensively monitored not because they have a criminal history themselves (because some do not), but because of their familial connection with those with a criminal history. Similarly, a trial of curfews for young repeat offenders in Victoria involves close monitoring of bail compliance by police (see Dowsley & Hurley 2011).

Another issue raised in the existing literature on bail and remand for young people is that in some jurisdictions, a decline in the use of diversionary measures for young people has occurred. For example, the Auditor General for Western Australia (cited in Clare et al. 2011) reports that police diversions declined by 13 percent as a proportion of all police contacts with young people over the five year period from 2002–03 to 2006–07, resulting in 1,937 fewer instances of young people being diverted from the youth justice system. WA stakeholders interviewed for this research similarly reported a decline in the use of diversionary mechanisms by police. This is important to note in the context of bail decisions, given that any corresponding increase in the arrest of young people is likely to result in an increase in young people on custodial remand. In particular, it is important to consider in light of the fact that research has indicated that Indigenous young people are less likely to be diverted from the criminal justice system than their non-Indigenous counterparts (see eg Allard et al. 2010).

These examples suggest that policing practices can influence rates of custodial remand for young people. As described elsewhere in this report, policing practices may in turn be influenced by community punitiveness and/or media representations of youth offending.

Administrative errors

Wong, Bailey and Kenny’s (2010) research in New South Wales found that three percent of a sample of young people whose bail hearings took place in Parramatta Children’s Court (n=4) were in police custody due to administrative errors or unlawful arrests. More recently, a class action was launched in New South Wales seeking compensation for a number of young people who had been remanded in custody for ‘breaching’ bail conditions that the police’s computer system did not show were no longer current (Brown 2011; Maurice Blackburn 2010). Maurice Blackburn lawyers, who have launched the class action with the NSW Public Interest Advocacy Centre, claim that approximately 200 young people have been detained due to computer errors (Maurice Blackburn 2010). At the time of writing, the case was being contested by NSW Police and the Department of Attorney-General and Justice and was subject to litigation (Department of Attorney General and Justice personal communication 30 January 2013).

Stakeholders from New South Wales and South Australia interviewed for this study noted that there are systemic issues with the courts’ information management system in tracking the movements of young people between courts, particularly in tracking their bail conditions and current bail orders. This can result in young people receiving different bail conditions from a number of courts.

Access to accurate information on young people is therefore vital for police officers and the courts to make appropriate decisions regarding arrest and bail. Failures in administrative and data management systems to provide police with accurate and up-to-date data on a young person’s current orders and the conditions of these orders can contribute to the unlawful apprehension of young people and the inappropriate use of custodial remand. Problems in tracking bail orders and conditions can also result in conflicting and potentially confusing bail conditions being imposed on young people with multiple orders.

Lack of access to services/programs

A lack of appropriate services and programs to assist and support young people on bail has also been identified as potentially contributing to rates of custodial remand. In addition to a lack of bail hostels and other appropriate accommodation options for young people, particularly Indigenous young people (QCCYPCG 2012 and those from regional/remote areas (Clare et al. 2011; Denning-Cotter 2008), a lack of access to after-hours services has also been raised as a key issue (Stubbs 2010).

A Youth Magistrate consulted for the review on the NT youth justice system stated that she would often refuse bail when she could not be confident that the sufficient services or support would be available for the young person. One of the recommendations of this review was the development of a bail support scheme similar to the one implemented in Western Australia.

Bail support services currently in operation for young people in each jurisdiction are described later in this report.

The influence of therapeutic jurisprudence

A number of research studies and the broader literature on bail and remand have highlighted the potentially problematic impact of therapeutic jurisprudence (which is the use of the law as a therapeutic agent; Wexler & Winick 1996) on rates of young people on bail and remand. Concerns are premised on the perception that there has been a ‘shift in understanding about what the grant of bail can achieve’ (Edney 2007: 101). Edney (2007) argues that while traditional bail conditions were designed to ensure that the accused person attend a subsequent court hearing and did not ‘reoffend’, a new generation of bail conditions has emerged, which aims to rehabilitate or reform the accused person. These new ‘therapeutic bail conditions’ (Edney 2007: 105) are supported in some jurisdictions by bail legislation that allows for trials to be postponed while the defendant participates in a program designed to prevent recidivism (Edney 2007). Mather’s (2008) study of bail supervision of young people in South Australia provides empirical support for the view that therapeutic jurisprudence has altered traditional understandings about the purposes of bail. Stakeholders in Mather’s (2008: 684) study ‘repeatedly said that services to all young people were provided on the basis of their needs, not on the type of order they were under’. One stakeholder (cited in Mather 2008: 684) claimed that:

It’s not doing the right thing with young people if they don’t have supports whilst the sentence is being heard. Irrespective of [the fact that] you are innocent until proven guilty, if they’re in this sort of trouble there’s something going on.

Therapeutic jurisprudence approaches are undoubtedly implemented with the best interests of both communities and young people themselves in mind and in practice, bail conditions have been found to assist and support some offenders to reduce ‘reoffending’. For example, Raine and Willson (1995) found that some defendants appear to benefit from the structure that bail conditions can provide. As Mather (2008: 686) argues, however, in contrast to traditional understandings of bail, ‘within the therapeutic framework the distinction between guilt and innocence loses all relevance’. This is a crucial issue to consider, as such an approach has the potential to have a ‘mesh-thinning’ effect, that is, once ‘caught up’ in the youth justice system, young people’s opportunities to exit the system diminish—‘quasi-therapeutic bail conditions…create numerous opportunities in which otherwise legal (eg not obeying house rules or touching a remote control) or non-criminal (eg truanting) behaviours can be subjected to criminal sanctions’ (Mather 2008: 687).

Conversely, it has been argued that the adoption of a therapeutic jurisprudence approach has resulted in increased resources and programs and therefore better support for those on bail (Ericson & Vinson 2011; Sarre, King & Bamford 2006) and that given the often complex needs of accused persons, a crucial intervention point may be missed if therapeutic programs are not provided at this stage of the criminal justice process (Raine & Willson 1997). Balancing the potential for therapeutic jurisprudence measures to have a positive impact on young people (Ericson & Vinson 2011) with the potential for net-widening that such measures may introduce (Mather 2008) is therefore critical.

It is important to note in this context that although alleged offenders, about whom bail decisions are being made, are technically innocent, much bail legislation (as well as the broader literature) refers to one of the purposes of bail as being to prevent reoffending. This underscores one of the key challenges faced by bail decision makers—while the accused person may be technically innocent on the current charges, they may already have an established track record of offending. ‘Preventing the accused from reoffending’ may therefore be a real concern for bail decision makers, even if the current charges are not serious. This may also help explain how some young people on minor charges are remanded in custody (see eg Jesuit Social Services 2013. This raises the question of whether it is fair for young people to be placed on custodial remand for a minor offence because they have committed more serious offences in the past. Further, it supports the findings of McAra and McVie’s (2007) study on the Scottish youth justice system, which found that young people who had previous contact with the system were much more likely to have future contact than other young people (irrespective of the seriousness of their recent offending). It should be considered, in this context, whether it is appropriate to take into account a young person’s previous offending behaviour.

In response to this shift in expectations about what bail can achieve, the Victorian Law Reform Commission (2007) recently recommended that bail legislation in Victoria should focus on achieving the traditional purposes of bail, by reducing the likelihood that an accused person will—fail to attend court, commit an offence while on bail, endanger the safety of the community, or interfere with witnesses or obstruct the course of justice.

Stakeholders interviewed for this study, however, saw the issue in more nuanced terms. While many agreed that therapeutic interventions are not appropriate for young people who have not yet been found guilty or admitted guilt, others commented that life skills interventions (eg interventions to assist young people with needs such as accommodation, education, employment and relationships) would be suitable irrespective of the young people’s guilt. One Magistrate commented, for example, that he has ‘no problems’ mandating young people to participate in such interventions. Interventions that address young people’s offending behaviour (eg participation in the Changing Habits and Reaching Targets (CHART) program) were viewed as more problematic, although one Magistrate claimed he would mandate a young person’s participation in such a program if the young person was on an existing youth justice order. This approach allows Magistrates to address the offending behaviour of a young person in trouble with the law even though the young person may be technically innocent on the current charge(s).

It was also noted by stakeholders that young people usually plead guilty or admitted their guilt to police (see also Mulroney 2012). As such, it was seen as something of a wasted opportunity to avoid addressing a young person’s offending behaviour because of legal technicalities. A number of jurisdictions (New South Wales, Victoria, Western Australia and the Australian Capital Territory) have in place a system of deferred sentencing that operates in this context by allowing young people who have pleaded or been found guilty to participate in therapeutic interventions designed to address their offending behaviour prior to sentencing taking place. A similar initiative is currently being trialled in the southern region of Tasmania.

Although these provisions should enable jurisdictions to limit or reduce the use of custodial remand for young people, as they allow young people to be on bail in the community prior to being sentenced, it is important to note that they only relate to young people awaiting sentencing, not those awaiting trial. Further, as one stakeholder interviewed for this research pointed out, whether a young person is encouraged or mandated to participate in a therapeutic intervention is often up to the relevant Magistrate and as discussed above, Magistrates’ views on how best to deal with young people accused of offending vary considerably.

This discussion highlights that a key challenge for bail decision makers is targeting. In other words, how can bail decision makers apply the ‘innocent until proven guilty’ standard to young people who do not require intensive interventions, while intervening with those young people who are on a trajectory towards becoming entrenched in offending patterns?