Report 104 (2005) - Young Offenders - Law Reform Commission : Lawlink NSW

7.1 Youth justice conferencing is the most serious diversionary response under the Young Offenders Act 1997 (NSW) (“YOA”). In the second reading speech introducing the Young Offenders Bill 1997 (NSW), the then Attorney General emphasised that:

7.3 Youth justice conferencing is designed to: encourage young offenders to accept responsibility for their behaviour; strengthen their families; provide developmental and support services; and enhance the rights and interests of victims of crime.⁶

7.5 Much of the ethos of the YOA stems from theories of restorative justice.⁸ Youth justice conferencing, in particular, falls squarely within the practices of restorative justice.

7.6 Earlier policy models, based either on the punishment or the treatment of the offender, placed the offender in a passive role “as the object of services on the one hand, and punishment and surveillance on the other”.⁹ It followed that little or no constructive effort was required from the offender. In contrast, restorative justice has as its goal the re-situating of the offending behaviour within a community framework, by providing reparation for harm caused and the active involvement of the offender.¹⁰ From this base, it aims to “build safer communities in which most conflicts which lead to crime can be peacefully resolved and the cycle of violence broken”.¹¹

7.7 Where an investigating police officer determines that it is not in the interests of justice to give a warning or caution,¹² the matter must be referred to a specialist youth officer (“SYO”) to consider whether a conference would be appropriate.¹³The SYO must consider: the seriousness of the offence; the degree of violence; the harm suffered by the victim; the number and nature of any other offences committed by the young person; and any other instances in which the young person has been dealt with under the YOA.¹⁴The SYO can decide that it is not in the interests of justice for the matter to be dealt with by holding a conference and that it would be more appropriate either to caution the young offender or commence criminal proceedings.¹⁵Unless it is impracticable to do so, the SYO must consult with the investigating official before deciding how best to proceed in the matter.¹⁶

7.8 Where the SYO determines that a conference should be held, the matter must be referred to a conference administrator for a conference.¹⁷If the conference administrator disagrees with the referral, he or she must, unless it is impracticable to do so, consult with both the SYO and the investigating official; and if there is then failure to agree, the conference administrator must refer the matter to the DPP for a final decision.¹⁸

7.9 The DPP or a court may also refer young offenders to youth justice conferences.¹⁹ In practice, however, the DPP does not directly refer matters to a youth justice conference.²⁰ Unless it is impracticable to do so, the DPP must consult with the investigating official (if any) before making any decision as to whom the matter is to be referred.²¹ As mentioned above, the DPP may refer a matter back to a youth justice conference administrator when acting as an umpire for disputed referrals.²²

7.10 For a referral to a conference by the DPP or a court, the young person must have admitted the offence and, in the case of referral by the DPP, must have consented to conferencing.²³ In determining whether to refer a matter to conferencing, the DPP or a court must take into account the same matters that the SYO takes into account, set out in paragraph 7.6.²⁴The DPP or the Court must notify the Area Commander of the local police area in which the offence was committed of a decision to refer and reasons for doing so.²⁵ The Court may refer a matter at any stage in proceedings, including after a finding of guilt.²⁶

7.11 A court-referred youth justice conference is exactly the same as any other youth justice conference administered by the Department of Juvenile Justice, except that the court that referred the matter has the power not to approve the outcome plan and can continue proceedings as if the conference had not been held.²⁷

7.12 The YOA requires that, where practicable, youth justice conferences are to be held within 21 days of receipt of the referral by the conference administrator, but not less than ten days after the young offender has been notified of the date, time and place of the referral.²⁸The New South Wales Bureau of Crime Statistics and Research (“BOCSAR”) examined 1,885 conferences held between 12 June 1998 and 28 November 1999 to determine whether these statutory time frames were being met.²⁹

7.13 BOCSAR found that the statutory time-frames were not met in the majority of cases in the examined data set.³⁰ In fact, 92% of the conferences held over a 17-month period did not meet the statutory time-frames.³¹ Conferences were held between 4 and 241 days after the date that the conference was referred to the conference administrator. On average, 40.3 days elapsed between the conference referral date and the date of the conference.³²

7.14 However,BOCSAR noted that the longer time-frames were likely to be due to the time and effort required to accomplish the numerous administrative tasks associated with organising conferences, which seem to occupy more time than the legislation allows.³³ BOCSAR surmised that convenors appear to have given higher priority to completing the pre-conference tasks fully, rather than strictly adhering to the statutory time-frames and perhaps compromising the quality of the pre-conference preparation.³⁴

7.15 The Attorney General’s statutory evaluation of the YOA noted that a number of submissions argued that the time frame stipulated by the YOA is unrealistic, as a result of which “the interests of the young person may be being jeopardised”.³⁵ The NSW Department of Aboriginal Affairs submitted that unrealistic time frames can have an adverse impact in rural areas, where participants may have to travel long distances, and hence may affect Indigenous people disproportionately, given the large numbers living in rural areas.³⁶ On the other, the NSW Police was of the view that the time frames under the YOA are not “unrealistic or problematic” and that the Act provides a “timely response to offences committed by children”.³⁷

7.16 BOCSAR also found that 28% of conferences were held before the 10 day notice period expired.³⁸ The Youth Justice Conferencing Directorate of the Department of Juvenile Justice (“YJCD”) reports that for these conferences, there was usually a good reason for holding the conference earlier than 10 days after the young person has been notified of the details of the conference date, time and place.³⁹ For relatively simple referrals, which require less preparation, it may often be more appropriate to hold the conference sooner rather than later. In some cases, young people and their family, or the victim, had planned to travel overseas. If the conference had been delayed until their return, this would have meant that it was held well after the 21 days had elapsed. In most of these instances, the proper preparation of conferences was not compromised.

7.17 The Commission notes that the statutory evaluation of the YOA recommended that the Act be amended to extend the time limit for conferences to 28 days.⁴⁰ Before acting on this recommendation, it may be appropriate to update the research on compliance with the statutory time-frames, as BOCSAR’s research is now six years old. If the time-frames are still not being met, one needs to know why and how the “if practicable” qualifier contained in s 43 of the YOA is being interpreted. The government can respond as needed to the findings of this research. One option may be to relax slightly the time frames to allow sufficient time for thorough preparation, but retain the qualifier as a reminder that the longer the period that elapses between the conference and the offence, the more all participants’ recall of what happened and how they were affected will be diminished.

7.18 The YJCD is responsible for conferencing under the YOA. Upon referral,⁴¹ the conference administrator must appoint a conference convenor,⁴² who prepares for and holds the conference.⁴³ Convenors must operate in accordance with the written guidelines for the conduct of conferences that are approved by the Director General of Juvenile Justice.⁴⁴

7.19 The offender, a person responsible for the child, members of the offender’s family or extended family, an adult chosen by the offender, a legal practitioner advising the offender,⁴⁵the investigating official, an SYO, any victim or his or her representative, and a support person for any victim, are entitled to attend the conference.⁴⁶ Where appropriate, the conference convenor may also invite a respected member of the community, an interpreter, a representative of the offender’s school, an appropriately skilled person for an offender with a disability, a supervising officer, or a social worker or other health professional.⁴⁷

7.20 All participants in the conference have the opportunity to hold forth on what happened, who has been harmed and how, and what can be done to address the harm caused. The young offender is expected to speak first, followed by his or her family members, the victim/s and then other participants.

7.21 In this way, the conference participants move from looking backward to what has happened to looking to the future. In the process, many emotions are expressed, and often very forcefully. However, a well-facilitated conference will end with general satisfaction by the participants and confidence that the young person will move on from his or her offending behaviour and grow in maturity and responsibility, knowing that they have the support of their family and community. Victims should be satisfied with the process, having been able to express their hurt and anger, and, hopefully, receive sincere apologies from the young person and promises that they will not offend in future.

7.22 The purpose of a youth justice conference is that, guided by a neutral convenor, participants will agree on a set of tasks for the young person designed to address the harm they have caused, and to link them to developmental and support services that will help them to stay out of trouble in future.⁴⁸ An outcome plan may include: a written or verbal apology to the victim by the young person; tasks that provide concrete reparation to the victim; or tasks that are reparatory but not undertaken directly for the victim but in the community; and participation by the offender in an appropriate program, such as counselling or drug and alcohol programs.⁴⁹ An outcome plan is not itself a “punishment”, but rather the final stage of a process that emphasises restitution by the offender and the acceptance of responsibility for his or her behaviour, and which meets the needs of both victim and offender.⁵⁰

7.23 An outcome plan is, if possible, to be determined by consensus of the participants in the conference. However, subject to a right of veto by the offender and any victim who personally attends the conference, the outcome plan may be agreed to by the conference even though it is not agreed to by all the participants.⁵¹ If the participants are unable to agree on an outcome plan, or at least on one that complies with the YOA, the conference administrator must refer the matter back to the person or body that referred the matter for a conference.⁵² Where the offender was referred by the Court, the conference convenor must submit any outcome plan agreed to at a conference to the Court.⁵³The court may approve the plan or, if it does not, may continue the proceedings.⁵⁴

7.24 The individualised approach that characterises youth justice conferencing avoids some of the problems of court-based sentencing. Representations were made to the Commission during its consultations that some court-based sentences are effectively “designed to fail”, as they include conditions that young offenders will inevitably breach. Examples given were curfews where a young person living without any effective adult supervision may need to leave the house after a 6pm curfew to buy food, or orders made to attend school where there was no transport available.⁵⁵ The YOA seeks to avoid such situations by setting out guidelines for the creation of outcome plans that are based on the individual circumstances of the participants.⁵⁶ In particular, an outcome plan must “contain outcomes that are realistic and appropriate and sanctions that are not more severe than those that might have been imposed in court proceedings for the offence concerned”.⁵⁷ The outcome plan must also set out times (not exceeding any limits imposed by the regulations) for the implementation of the plan⁵⁸ and must not impose more community service hours than the maximum that may be imposed under the Children (Community Service Orders) Act 1987 (NSW) for the same offence.⁵⁹

7.25 While offering some indicators to conference participants, s 52 provides the greatest possible latitude in order to implement the objectives of the YOA. This flexibility of outcome, together with the accountability and transparency of the process, provides a valuable means of balancing the needs of victim and offender with the interest of the wider community in rehabilitation and reparation.

7.26 However, where the offence is an arson/bush fire offence, the legislation is more prescriptive.⁶⁰ The outcome plan must provide that the young offender must: visit a hospital burns unit; view a film on the harmful effects of fire; assist in clean-up operations and the treatment of injured animals; and pay compensation.⁶¹

7.27 A conference administrator supervises the monitoring, implementation and completion of each outcome plan and issues written notices to the offender, any victim, the referring person or body, the Commissioner of Police (if the offender was referred by the DPP or a court) and any other person on whom the outcome plan imposed obligations, detailing whether or not the young offender has satisfactorily completed the plan.⁶²

7.28 As the most public aspect of the YOA’s diversionary scheme, conferencing must retain the support and confidence of the community. The Commission agrees with the comment by the DPP that:

7.29 Community confidence in conferencing as a legitimate diversionary option is undermined by negative media portrayal. Conferencing has from time to time been the subject of some media criticism as being a “soft option” for the young offender involved, and one that does not sufficiently take into account the needs of the victim.⁶⁷ It has sometimes even been referred to in the media as “counselling” rather than “conferencing”, thereby softening and even misrepresenting the process.

7.30 Much of the negative media attention appears to stem from a misunderstanding of the way in which the diversionary process operates. The focus of media criticism is almost inevitably on a perceived lack of a punitive response to juvenile offending and overlooks the express aims of the YOA and, to some extent, s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”).⁶⁸ While there is a legitimate public interest in conferencing generally, there is a danger that negative media coverage will drive political response:⁶⁹

7.33 This is borne out by research for the New Zealand Ministry of Social Development which found that:

7.34 The most widely accepted measurements of the effectiveness of conferencing are: for the offender and victim, satisfaction with the actual conferencing process; and, for the community, reduced recidivism and costs.

7.35 The satisfaction of the participants in conferencing is based on their sense of the fairness of the process and outcome, and their ability to have a positive effect on decision-making. “Fairness” is of particular importance in the context of limiting re-offending. Research suggests that, for young people, the greater the degree of perceived fairness of a sentence, the greater the deterrent effect of that sentence.⁷⁶

7.36 Hayes and Daly note that although satisfaction is a “notoriously fuzzy concept with varied referents for victims and offenders”, a recurring finding to emerge from the literature on conferencing (and restorative justice generally) is that there are generally high levels of satisfaction with the process and outcomes among victims and offenders.⁷⁷

7.37 Hayes and Daly reviewed a number of studies, including in Australia and New Zealand, to ascertain the effect on offenders of being satisfied with, or judging to be fair, a justice process. In addition, they carried out their own research based on data collected by the South Australia Juvenile Justice project from 89 conferences conducted in South Australia in 1998.⁷⁸ They found that young people who were observed to be remorseful and who were in conferences in which the outcome was decided by genuine consensus, were less likely to reoffend.⁷⁹

7.38 In a later study, Hayes and Daly gathered data from conference case files and offending history records of 200 young offenders conferenced in Queensland from April 1997 to May 1999 to assess the link between offender characteristics and conference features and reoffending.⁸⁰ After three to five years following their conference, just over half the offenders (56%) had gone on to commit one or more offences. Hayes and Daly concluded that, while there remains uncertainty about how conference features are related to reoffending, what offenders bring to their conference is highly predictive of what they do afterwards.⁸¹ In this study, Hayes and Daly again provide a comprehensive summary of the research and the equivocal results on conferencing and reoffending, principally in Australia and New Zealand.⁸² Despite equivocal results, they summarise the research as showing:

7.44 Much of the research on the impact that participation in a conference has on future offending demonstrates that, because many young offenders who are dealt with by way of a conference have chaotic and unsupported lives, it is neither possible nor appropriate to identify a direct correlation between participation in a conference and future offending. The research does indicate, however, that conferences that do not shame young offenders or their families, and that result in young people accessing services that help them to deal with the problems they are facing, and provide them with reliable adult support, are more likely to result in diminished or no future offending, than those that shame an offender or do not provide for adequate and appropriate services following the conference.

7.45 Included in the principles and purposes of youth justice conferences is that they should be culturally appropriate where possible⁹⁴ and that any measures for dealing with, or imposing sanctions on, children must take into account the race of the child.⁹⁵ Despite these safeguards, an early criticism of youth justice conferencing was that it did not cater for the needs of Aboriginal and Torres Strait Islander communities.

7.46 In an article written in 1999, it was argued that cultural appropriateness was hindered by there not being enough Indigenous conference convenors to match with Indigenous offenders.⁹⁶ Where Indigenous offenders are conferenced by non-Indigenous conference convenors, the argument continued, not only is this culturally inappropriate, but it results in further alienation of the offender rather than reintegration into the community.⁹⁷ It was also suggested that, where offender and victim are from Indigenous and non-Indigenous backgrounds, there could be co-convenors from each of those cultural backgrounds.⁹⁸

7.47 The YJCD has addressed these concerns by recruiting convenors from specific cultural groups and training convenors to address specific cultural needs,⁹⁹in addition to aiming for a high level of community participation.¹⁰⁰ Fiveof the 17 full-time youth justice conference administrator positions (seven metropolitan and 10 rural) are held by Indigenous people.¹⁰¹ Around 8-10% of the 500 active conference convenors are Aboriginal or Torres Strait Islander people, enabling cultural matching of Indigenous offenders and convenors in appropriate cases.¹⁰²

7.48 Two other issues relevant to Indigenous young people are: ensuring a level of diversion under the YOA comparable with non-Indigenous young people; and meeting the needs of respected Indigenous community members in both the conferencing process and the implementation of outcome plans.

7.49 The Commission has been advised that, since 1998, one quarter of all referrals to youth justice conferences have been for Aboriginal young people.¹⁰³ In addition, research comparing the outcomes of the first three years of the operation of the YOA with those for the three years prior to its introduction, found that Aboriginal young people were still more likely to be taken to court and less likely to be cautioned than non-Aboriginal young people, even though they were equally likely to be warned or referred to conferences compared with non-Aboriginal young people. The available data show that the YOA has had a substantial impact on the over-representation of Aboriginal young people: it has resulted in an almost 50% drop in the odds ratio of Aboriginal first offenders being taken to court compared with the situation before the Act.¹⁰⁴

7.50 The Commission does not wish to dismiss concerns as to the applicability to Indigenous young offenders of the restorative justice processes of youth justice conferencing under the YOA. However, we have not received any evidence to suggest that this is a cause for disquiet for those Indigenous people currently working with the YOA. Nonetheless, it remains important that conference convenors consider the requirements of the YOA that the process be “culturally appropriate, wherever possible”.¹⁰⁵

7.51 During the Commission’s consultations following its release of Issues Paper 19, Sentencing: Young Offenders¹⁰⁶ (“IP 19”),it was suggested that in some cases courts do not dispense with, but in fact order, conditional bail or add good behaviour bonds when referring young offenders to youth justice conferences.¹⁰⁷

7.52 The Commission was also advised that some magistrates refer young offenders to youth justice conferencing for minor or first offences, for which the child is entitled to be cautioned. This is contrary to the principles of the YOA and the clear intentions expressed in the second reading speech, as well as being “an inappropriate, expensive and time consuming way of dealing with a minor offence”.¹⁰⁸ Bargen has argued that:

7.54 As noted above, the YOA authorises the conference convenor, if he or she thinks it appropriate, to invite a respected member of the offender’s community to attend youth justice conferences, for the purpose of advising conference participants about relevant issues.¹¹¹ Such participants appear voluntarily and do not receive payment.

7.55 The issue of payment for participation in the conferencing process was raised in IP 19¹¹² and in the Commission’s consultations. The Commission was informed that, particularly in respect of Indigenous young offenders, the responsibilities of attendees at conferences may be of an ongoing nature, such as transporting a young offender to and from unpaid work pursuant to the outcome plan.¹¹³ The lack of payment for a respected community member’s participation has also been criticised by Kelly and Oxley.¹¹⁴

7.56 A number of submissions raised additional issues relating to youth justice conferencing under the YOA. The Young Lawyers’ submission noted that police prosecutors regularly cite the attitude of the victim as a reason that renders a matter unsuitable for conferencing. As this is not a relevant criterion under s 40 of the YOA, it was suggested that prosecutors would benefit from ongoing training about conferencing and the objects of the YOA.¹¹⁵

7.57 The Children’s Court noted that the fact that it approves most outcome plans indicates that, at a basic level, outcome plans are appropriate. However, the Children’s Court also noted that, as such matters are dealt with in chambers without submissions from the prosecution or input from the victim, “[a]pproval of outcome plans should not necessarily imply a ‘ringing endorsement’ of the outcome plan or of all aspects of it”.¹¹⁶ Nonetheless, the Children’s Court’s general support for the process is one of the reasons it advocates expanding the range of offences that can be conferenced.¹¹⁷

7.58 The Anti-Discrimination Board stressed the need for youth justice conference convenors to have “adequate understanding of anti-discrimination legislation that prohibits discrimination, vilification and harassment on the ground of homosexuality”, and advocated training, working guidelines and a code of conduct to avoid homophobic behaviour at conferences.¹¹⁸ We note that the importance of issues relating to the sexuality of a young offender are currently dealt with in s 34(1)(3)(c), which provides as a basic principle of the YOA that any measures for dealing with, or sanctions imposed on, a child who is alleged to have committed an offence take into account the sexuality of any such child. While there is no harm in ensuring awareness of anti-discrimination and anti-vilification laws through education, guidelines and/or a code of conduct, the Commission is unaware of any evidence to suggest that conference convenors are in need of behaviour modification. As far as we are aware, no formal complaints have been made against conference convenors to the Anti-Discrimination Board. On the other hand, several years ago a complaint was made to the Board by a conference convenor against a conference administrator.

7.59 The Children’s Court queried the status of a dismissal under s 57(2) of the YOA.¹¹⁹ Pursuant to s 57(2), if the court refers a charge to conferencing without making a finding of guilt, and the outcome plan is satisfactorily completed, it must dismiss the charge.¹²⁰ It submitted that it is not clear whether the requirement to dismiss the charge under s 57(2) “is a specific dismissal power under the YOA, or a direction to dismiss under the [CCPA]”.¹²¹

7.60 Practice Direction No 17 was issued by the Senior Magistrate of the Children’s Court on 12 October 2000 with the aim of encouraging “consistency of practice in the administration of the [YOA]” but without limiting or interfering with “the powers and discretions of a magistrate either generally or in a particular case”.¹²²

7.61 Setting of conditional bail or imposing a good behaviour bond when a young offender is referred to conferencing is inconsistent with the diversionary intentions of the YOA and explicitly contrary to the provisions of the YOA and the CCPA and to Practice Direction No 17.

7.62 Section 57(2) of the YOA provides that “a court that referred a matter for a conference without making a finding that the child concerned was guilty of an offence must dismiss a charge against a child on receiving notice that an outcome plan relating to the offence concerned has been satisfactorily completed by the child.” Section 33(1)(c1) of the CCPA provides that a court may make an order releasing the young offender on condition that he or she complies with a conferencing outcome plan. Paragraph 5 of Practice Direction No 17 provides that when a court is dealing with a matter to which s 57(2) of the YOA or s 33(1)(c1) of the CCPA applies, the child should be excused from attending court and bail dispensed with.

7.63 Paragraph 7 of Practice Direction No 17 provides that the magistrate who referred a young offender to conferencing will consider the outcome plan in chambers. If the plan is approved, the magistrate should excuse the child from appearing on the adjourned date. However, it also provides that: “the registrar is to notify the child and the conference administrator … of any requirement for the child to personally appear before the court on the adjourned date”. The Practice Direction does not otherwise deal with excusing a young offender referred to conferencing by a court from attendance before the court. Nor does the Practice Direction address the other concerns raised in paragraphs 7.50-7.52.

7.64 Consideration should be given to revising Practice Direction No 17 to address the concerns above. Among other things, the Practice Direction should make clear that conferencing should only be used in accordance with s 7(a) of the YOA, that is, where it is the least restrictive form of sanction in the circumstances.

7.65 The Commission notes that the report of the Attorney General’s review of the YOA recommended that the Act be amended to create a statutory presumption that bail be dispensed with when a matter is referred to conference, although retaining a court discretion to impose unconditional bail in special circumstances.¹²³ We recommend in Chapter 10 that the Bail Act 1978 (NSW) be amended to provide that a court should generally exercise a discretion to dispense with bail where it has referred a young person to a youth justice conference.¹²⁴

7.66 Much of the ethos of the YOA stems from theories of restorative justice, in which crime is seen not in the abstract as an act against the state or a violation of law, but in a much more direct way as an act against another person and the community. The involvement in the conferencing process of a person who is personally important to the young offender is a crucial part of the link between offender and community.

7.67 In many instances, the presence of a respected community member forms a vital part of conferencing, especially where a parent of the young person is unavailable. It reinforces the “positive shaming” aspect of the process. The inability of a community member to attend due to cost potentially weakens the impact of conferencing upon the offender. However, the obverse of this issue is the concern expressed to the Commission that payment by the state to the community member weakens that very community ownership on which the process relies.¹²⁵

7.68 Furthermore, the YJCD considers that the views of Kelly and Oxley do not generally represent those of any of the five Aboriginal YJCD conference administrators. These administrators are strongly of the view, based on their experiences over the last six years, that to pay Aboriginal “elders” to attend youth justice conferences in the way Kelly and Oxley suggest would be counter-productive and perhaps create a “conferencing industry” for certain Aboriginal people. Their strong view, which is YJCD practice, is to ensure that out-of-pocket expenses are paid to any people who attend and participate in a youth justice conference but would be unable to do so without some financial help. YJCD also offers to provide financial support to community members who assume responsibilities for helping young offenders undertake their outcome plan tasks in appropriate cases.¹²⁶

7.69 The Commission acknowledges that the contribution of a community member is valuable, significant and can be extensive, and that he or she ought not to be out of pocket for attending a conference and assisting in achieving successful completion of an outcome plan. Accordingly, we support the direction given to conference convenor’s by the YJCD that respected community members attending youth justice conferences receive re-imbursement for verifiable expenses associated with the conferencing process and the implementation of the outcome plan. We see no need or justification to recommend more than this.

7.70 Pursuant to s 33(1)(a) of the CCPA, if the Children’s Court finds a person guilty of an offence to which Division 4 - Penalties applies, it may, among other things, make an order dismissing the charge. Section 32 provides that Division 4 applies to any offence for which proceedings are being dealt with summarily or in respect of which a person has been remitted to the Children’s Court under s 20 of the YOA.

7.71 The Commission regards s 57(2) of the YOA as clear and the resulting situation appropriate. The requirement of s 57(2) of a dismissal of the charge is tied to there being no finding of guilt. This is appropriate in the case of a discretionary scheme. In contrast, the dismissal power under the CCPA is tied to a finding of guilt. Furthermore, the CCPA creates a penalties regime in which it is important to retain discretion. The Commission considers that the YOA’s requirement to dismiss the charges under s 57(2) is a specific dismissal power under the YOA and not a direction to dismiss under the CCPA.¹²⁷

7.72 For the avoidance of doubt, s 33 of the Children (Criminal Proceedings) Act 1987 (NSW) should be amended to ensure that the Children’s Court has the power, on the completion of a youth justice conference outcome plan, to make orders dismissing the original charge.

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