Bringing-Them-Home-Report-Web

designed for Indigenous children must be the preferred sentencing option in all but themost serious cases demanding a custodial penalty. There are successful Indigenouscontrolled diversionary programs in various jurisdictions. However, they are limitedin number, under-resourced and under-utilised by the courts. Indigenous young peoplewho are diverted are, therefore, unlikely to benefit from programs designed anddelivered by their communities. As a result they are more likely to fail to completetheir sentences and to receive a custodial penalty in response to breaching their noncustodialorder. The Inquiry was referred to research by the University of WA’sCrime Research Centre which noted that the effects of Aboriginal young people notreceiving diversionary treatments or of ‘failing’ them are compounding.The courts may perceive Aboriginal youth to have ‘failed to respond’ to diversionary optionssuch as cautioning and family group conferences and consequently ‘up-tariff’ them, that is,give them a more severe disposition than justified by the current offence alone (ALSWAsubmission 127 page 370).Indigenous children and young people do not receive the same benefits ofdiversionary options as non-Indigenous young people. Moreover, existingdiversionary options are not of Indigenous making. The diversionary options in mostinstances are alternatives created by the non-Indigenous juvenile justice system fornon-Indigenous young people. To the extent that they extend to Indigenous youngpeople they are imposed on them and their communities. The inevitable consequenceof this process is entrenched over-representation of Indigenous young people indetention centres.Rules 13 and 14 aim to limit the sentencing options of courts to diversion into anIndigenous non-custodial program except in the most serious cases. Rule 15 requiresthe court to give its reasons in writing whenever a custodial sentence is imposed on anIndigenous young person.The existing criminal justice system, anchored in a philosophy of punishment and anarchitecture of imprisonment, can blind us to alternative means to achieve peace and orderwithin a framework of justice (Canadian Royal Commission on Aboriginal Peoples 1996apage 214).Standard 8: Juvenile justiceRecommendation 53a: That the national standards legislation incorporate thefollowing rules to be followed in every matter involving an Indigenous child oryoung person.Recommendation 53b: That the national standards legislation provide thatevidence obtained in breach of any of the following rules is to be inadmissibleagainst the child or young person except at the instance of the child or youngperson himself or herself.Rule 1. WarningsArrest and charge are actions of last resort. Subject to Rule 2, a police officer is toissue a warning, without charge, to a child or young person reasonably suspectedof having committed an offence without requiring the child or young person to