2. 'Diversionary measures in the juvenile justice system are a cost-cutting measure that reduces the burden on the court system and provides less formal options of dealing with young offenders. It is a win-win'. Critique this statement by providing 5 key points regarding the advantages and disadvantages of diversionary measures.
1. Financial- Court based methods of dealing with youth justice are amongst the most costly means of dealing with juvenile crime due to high immediate costs and ongoing long-term costs to the juvenile justice system due to continued contact with the criminal justice system. Therefore it stands to reason that if diversionary methods reduce recidivism, then it in turn will reduce the cost to our system (Murphy, McGinness, McDermott, 2010 p.1). They can also produce further benefits to the community by avoiding the incurrence of costs by victims of crime (Murphy, McGinness, McDermott, 2010 p. 1), the process are also simpler and speeder than court based actions, and therefore less costly (Wundersitz, 1997 p. 275).
2. Labelling- by preventing labelling we reduce the chance of recidivism. If there is less chance of a youth re-offending then there are less financial implications, as well as less time constraints on our justice system. Diversionary techniques focus on minimising stigmatisation and secondary deviance (Wundersitz, 1997), they do this by stigmatising the deed instead of offender, thereby minimising deviance (Braithwaite, 1989).
3. Recidivism rates- Reoffending is more likely to occur if a young person receives a punitive response to a first offence (Carrigton & Pereira, 2009 p. 146), so therefore if a juvenile undergoes a diversionary method, then they are less likely to re-offend, in fact, the Reintergrative Shaming Experiments project found that diversionary conferences reduced offending rates by about 38% (Carrigton & Pereira, 2009 p. 146).
4. Misuse of police discretionary powers in issuing diversionary options (Net Widening)-The police are given the discretionary powers to decide about diversionary measures for young people, such as whether a young person will be warned, cautioned or charged and available evidence suggests that these powers work against the interests of Aboriginal youth, who are less likely to receive a diversionary option (Cunneen &White 2002, p. 153). Net widening is evident in the number of Aboriginal youth who are being charged when they could have been cautioned (Cunneen &White 2002, p. 153).
5. Victim involvement- Compared with court prosecutions, restorative justice processes place greater emphases on the role and experience of victims in the criminal process (Carrigton & Pereira, 2009 p. 142), reparation, like those given in conferencing helps restore dominion to victims (Carrigton & Pereira, 2009 p. 143). There are concern regarding victim involvement when it comes to crimes of a sexual or family violence nature (Carrigton & Pereira 148) which deems the use of informal court processes inappropriate due to concerns for the victim and the symbolic implications of informal penalties which may be viewed as a ‘soft option’. Offenders may view the more lenient nature of restorative justice as reinforcement that their behaviour is justifiable (Carrigton & Pereira 148)
3. In 2014, the QLD State Government passed legislation permitting the publication of the names and offences of youths who are "repeat offenders". Analyse the impact this measure would have on the principle of doli incapax if a similar measure was passed in NSW.
The term Doli incapax translates to “incapable of wrong” and refers to the age of criminal responsibility in Australia as a common law policy. The age of criminal responsibility in NSW is outlined in Children (Criminal Proceedings) Act 1987 No 55 and for NSW that age is 10 (Hutchinson 2014, p. 245). Under this act it states that children under the age of 10 do not possess the Mens rea (criminal intention) to