ABORIGINAL OVER-REPRESENTATION AND DISCRETIONARY …

1 ABORIGINAL OVER-REPRESENTATION AND DISCRETIONARYDECISIONS IN THE NSW juvenile justice SYSTEMG arth Luke and Chris CunneenA REPORT TO THE CRIMINOLOGY RESEARCH COUNCILTABLE OF CONTENTSA cknowledgmentsExecutive SummaryPrefaceINTRODUCTIONI ntroductionBackgroundEthnic Minority GroupsIdentifying ABORIGINAL Juveniles in the SystemVariables Available for AnalysisThe relevance of the 1990 dataPART ONE ABORIGINAL Participation in the NSW justice SystemIntroductionKey Points of ParticipationComparison of ABORIGINAL and Non- ABORIGINAL OffendersAge.

2 Sex and ResidenceOffending PatternsAppearances and Prior InvolvementPART TWO A Comparison of TreatmentIntroductionPolice DecisionsCautions and the Decision to ProsecuteProsecution by way of Arrest or SummonsBail Refusal and Bail ConditionsDiscussionCourt DecisionsOutcomesThe Use of DetentionCommunity Service OrdersDiscussionPART THREE Treatment by Geographic LocationUrban - Rural DifferencesA Closer Look at Intervention RatesA Closer Look at Post-intervention decisionsThe Decision to Prosecute or CautionThe Decision to Proceed by Way of ArrestThe Police Bail DecisionThe Court Decision to IncarcerateSummaryPART FOUR A Comparison of the Treatment of ABORIGINAL and non- ABORIGINAL GirlsIntroductionA Comparison between ABORIGINAL and non- ABORIGINAL girls in the SystemOffending PatternsAppearances and Prior InvolvementPolice DecisionsCourt DecisionsConclusionCONCLUSION AND RECOMMENDATIONSA cknowledgementsThe authors would like to thank the Criminology Research Council.

3 The NSW juvenile JusticeAdvisory Council, the staff of the NSW Police, the NSW Department of Community Services,the NSW Department of juvenile justice , the ABORIGINAL Law Centre at UNSW and the SydneyUniversity Institute of Criminology. Special mention should be made of the help of LaurieYoung, Jim Baldwin, Michael Cain, Ernie Zibert and Amanda Graham from Akhurst, Doreen Eatts and Neva Collings gave valuable research assistance. Manypeople also helped with the clarification of the data including Faye Ah', Esther Alvarez, BillAllen, Joyce Clague, Craig Everson, Lyall Munro Jnr, Hilton Naden, Debbie Rhodes andHewitt Whyman.

4 Assistance was provided by the ABORIGINAL Legal Service in Redfera andsome of the regional offices (Newcastle, Canberra, Wagga, Walgett, Cowra and Blacktown),the Western ABORIGINAL Legal Service in Dubbo, and the South Coast ABORIGINAL Legal would also like to thank Phil Anderson for his assistance with statistical analysis and JoyWundersitz for information about research in South is a project supported by a grant from the Criminology Research Council. Theviews expressed are the responsibility of the authors and are not necessarily those of paper presents the final findings from an analysis of all court appearances and policecautions in NSW during 1990.

5 Using a combination of police, welfare and ABORIGINAL LegalService data the authors have identified the Aboriginally of all those with formal policeinterventions in that year. This has allowed the first analysis of the treatment of Aboriginalchildren at all stages of the criminal justice system in aims of this research report are:* to illuminate the causes of OVER-REPRESENTATION of ABORIGINAL children in the NSW justicesystem, at least to the extent that DISCRETIONARY decision-making affects ABORIGINAL youngpeople.

6 * to suggest detailed strategies to reduce this present study has grown from a lack of comprehensive information about how the policeand courts deal with young ABORIGINAL people. Only one study, by Gale et al (1990), hascompared the treatment of ABORIGINAL and non- ABORIGINAL people throughout a justice report used official data to look at all young people dealt with in South Australia duringthe early 1980's. The study also provides important methodological considerations in the studyof context in which the current research was developed was the fact that ABORIGINAL ymithcomprise around 25% of juveniles held in NSW juvenile detention centres, and that it had beenclaimed that NSW had the highest rate for ABORIGINAL juvenile incarceration in Australia(Wootten, 1989, ).

7 More recent research indicates that Western Australia exceeds NSW inthe rate of ABORIGINAL juvenile detentions (Cunneen, 1990, p. 15). However the basic pointconcerning the high level of OVER-REPRESENTATION of ABORIGINAL juveniles at the most serious endof the NSW juvenile justice system remain?.In NS\V there have been valuable but limited insights into the treatment of ABORIGINAL juvenilesby the criminal justice system (Chisholm, 1984; Luke, 1988a; Cunneen & Robb, 1987; YouthJustice Coalition, 1990).

8 Early research established that some communities in NSW have largenumbers of ABORIGINAL youth appearing before the Children's Court for criminal matters andhave relatively high rates of committals to institutions (Chisholm, 1984; Luke, 1988a; Cunneen& Robb, 1987). Chisholm's (1984) research indicated important differences in juvenilecriminal charge patterns between different ABORIGINAL communities (Bourke and Nowra) andargued that one factor involved was the relationship of the particular ABORIGINAL community tothe wider non- ABORIGINAL has also been some research which has indicated variations in the treatment ofAboriginal to non- ABORIGINAL youth.

9 Cunneen (1988) indicated that ABORIGINAL youth in certaincommunities were least over-represented at the more informal stages of police intervention(cautioning) and most over-represented in the formal processing through criminal charges. TheGale et al (1990) work in South Australia also supports the view that ABORIGINAL youth areleast over-represented in the least punitive stages of intervention and most over-represented atthe point of committal to an the absence of Aboriginality in criminology data collections in NSW (it is notrecorded by the courts) has prevented any detailed look at the whole system of juvenile justiceto date.

10 The result has been a lack of knowledge about differential treatment by the police andcourts and the absence of planning and implementation tools for government. This studyattempts to remedy this situation by identifying the Aboriginality of every young person whowas formally dealt with by the NSW police in 1990 and then Unking this information withcriminal record and court and police outcome Minority GroupsThe nature of the analysis presented in this report has drawn a basic division betweenindigenous and non-indigenous young people and analysed the data for differential treatmentbetween the two groups.