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Sentencing Juveniles consistently with the UN Convention on the Rights of the Child

The National Inquiry into Children and the Legal Process

In 1997 the report of a joint inquiry into children and the legal process undertaken at the request of the then federal Attorney-General by the Human Rights and Equal Opportunity Commission (now known as the Australian Human Rights Commission) and the Australian Law Reform Commission (ALRC) was published. Titled Seen and heard: priority for children in the legal process, the report considers, among many other topics, how Australian sentencing practice could become more consistent with the requirements of the UN Convention on the Rights of the Child. This article briefly outlines the main findings and conclusions.

Principles of sentencing

The juvenile justice sentencing system is based on the principle that young offenders can and should be rehabilitated. This reflects the requirement in article 40 of the Convention on the Rights of the Child that treatment of children who come into conflict with the law must take into account "the desirability of promoting the child's reintegration and the child's assuming a constructive role in society".

The Convention also requires that children be deprived of liberty only as a last resort and for the shortest appropriate period of time (article 37(b)). Children must be given a voice in any decisions that affect them (article 12). In accordance with these principles most jurisdictions accept that rehabilitation should be a goal of juvenile justice and that detention is not the preferred option for achieving this end.

Compliance with the Convention requires a contextual approach to sentencing in which all relevant factors are taken into account in determining sentences for children. Children's courts in Australia generally take into account the particular circumstances of the offender. The immaturity or inexperience of the child may affect the commission of the offence and courts are generally aware of this. Nevertheless, evidence to the inquiry indicated that courts do not always have sufficient regard to the totality of relevant circumstances when deciding sentences. More attention is needed to social factors such as homelessness, family circumstances, educational needs and so on in determining sentences for children. Sentences should take into account the special health and other requirements of children and young people. The factors which need to be considered in sentencing vary from young person to young person.

Particular attention needs to be given to the situation of repeat young offenders. These young people often have serious family or other problems. Programs that involve continuing support aimed at re-directing the young person's behaviour into more socially accepted forms are more likely to succeed in preventing recidivism.

The report highlighted some important principles for sentencing of juvenile offenders. They include

Sentencing options

The Convention on the Rights of the Child requires a range of options for dealing with young offenders.

A variety of dispositions, such as care, guidance and supervision orders, counselling, probation, foster care, education, and vocational training, programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate to both their circumstances and the offence (article 40.4).

Magistrates dealing with young offenders should ensure that they are aware of the range of available sentencing options.

Conferencing schemes

Conferencing schemes are increasingly being used as a sentencing option. Typically, they involve contact between the victim and offender for the purpose of reconciliation or compensation. Conferencing has a lot to commend it, particularly in terms of rehabilitation. Offenders are confronted with the consequences of their actions and given an active role in making amends. On the other hand, some of these schemes have attracted criticism because they lack sufficient procedural safeguards and are not always open to scrutiny, accountability and review. These factors should all be considered carefully before a juvenile offender is committed to a particular conferencing scheme.

Fines

Although provisions dealing with fines generally set monetary limits for juveniles, there remain serious questions as to their appropriateness as a sentencing option for juvenile offenders. Many young offenders come from financially disadvantaged backgrounds and indeed poverty is one of the root causes of their offending behaviour. They may encounter difficulty paying the fine on the terms set by the court. Default may then lead to further involvement in the criminal justice system. In addition, financial penalties have limited rehabilitative value for young offenders.

Parole and probation

Parole and probation are intended to assist the rehabilitation of the child by providing guidance and support. The inquiry found that insufficient supervision is made available to child offenders. Magistrates and judges do not always specify the agency responsible for supervising the child with the result that no agency takes responsibility for supervision. Parole and probation orders could be made more effective with quality supervision, proper training and closer monitoring by the courts.

Community service orders

Community service orders and other non-custodial sentencing options offer significant benefits for young offenders in terms of rehabilitation and reintegration into society. However, they can also attract quite significant and onerous legal consequences if they are breached. Community service programs should not be so onerous that young people find it difficult to complete them. Courts must be aware of the problems children in difficult circumstances face in complying with orders. For example, travel for a community service order may be problematic for a young person who is not receiving any assistance or support from parents and other family members and perhaps no income support payments. Community service programs should also be culturally appropriate, taking into account the particular needs and problems of children from different backgrounds and especially Indigenous children.

Effective supervision is vital to the effectiveness of community service orders. Magistrates should give clear guidance on the respective roles of police, government agencies and community organisations in the supervision of these orders. Evidence indicates that there is often confusion and lack of co-ordination in supervision arrangements.

Detention

The laws in some jurisdictions recognise that detention, while appropriate in some circumstances, is not the preferred option for achieving rehabilitation of young offenders. In Queensland, for example, the legislation provides that a court may only make a detention order against a child if, after having considered all other available sentences and taken into account the desirability of not holding a child in detention, it is satisfied that no other sentence is appropriate in the circumstances. In New South Wales and Victoria, the legislation sets out a hierarchy of penalties in order of seriousness and provides that a court must not impose a particular sentence on the scale unless it is satisfied that a lighter sentence is inappropriate.

The relatively high youth detention rates in a number of jurisdictions may be indicative of insufficient regard for the requirement that detention should be the last resort when sentencing.

Available statistics and research suggest that detention and other harsh sentencing options are generally ineffective as deterrents to re-offending. In fact, for young and impressionable people detention is more likely to be the first step in a life-long cycle of involvement in the criminal justice system. In terms of preventing re-offending, the most successful programs are positive and constructive non-custodial programs that seek to address the offending behaviour.

The sentencing process

Background reports

Background reports give vital information to courts to assist in the sentencing decision. In some jurisdictions it is a requirement that they be provided in cases involving certain types of offences. The inquiry considered that they should be provided in every case where a detention order for a child offender is being considered.

Children should have a full and clear understanding of the reporting process. They should be aware that they are not obliged to participate in the preparation of background reports and that their comments to agency staff are not confidential.

Giving children a voice in the sentencing process

The Convention on the Rights of the Child requires that the children be allowed appropriate involvement in decisions and actions affecting them. Involving children in sentencing means giving them a genuine opportunity to express their views freely. This in turn means ensuring that the individual child is able to be fully engaged in the process with attention to creating an environment which is not intimidating and using language which is readily understood by each particular, individual, child.

Much of the language used by judges and magistrates in relation to sentencing is confusing and alienating for children. One submission to the inquiry said

There is an inappropriate use of language by judges and magistrates to young people within the judicial system. This is related to the lack of explanation to the young person of the process, of the penalty handed down and the reasons for the penalty. The use of expressions such as "recognisance", "control order", "detention", "bail", "parole", "probation", "reparation", "retribution", "community deterrents", and "community service" would confuse and alienate many adults. Their effect on children is even worse.

Post-sentence processes

Follow-up support programs for young offenders can play a role in helping to reduce recidivism. Courts and agencies should formally acknowledge completion of orders by young people stating that "you have completed all the requirements of the order". Acknowledgment has a strong rehabilitative influence.

Sentencing doubly vulnerable children

Girls

When considering sentencing options for young female offenders, magistrates should seek wherever possible to utilise programs designed specifically for young women and involving supervision by female caseworkers.

Children affected by mental illness

Many young people are incarcerated instead of being given appropriate treatment for their mental illness. In sentencing children affected by mental illness the emphasis should be on treatment and rehabilitation rather than punishment and detention. In these cases magistrates and judges should obtain and give appropriate consideration to specialist psychiatric reports prior to making any sentencing decision.

Children in rural and remote areas

Sentencing may have particularly harsh effects on children from rural areas. Generalist magistrates sometimes impose relatively harsher sentences on juvenile offenders than specialised children's magistrates. One reason for this is the lack of non-custodial programs in rural areas. However, it is also due to insufficient understanding on the part of some generalist magistrates about the appropriateness of different sentencing options for juvenile offenders and the effect on children of being detained in a centre far from their family and community. Magistrates in rural areas should be aware of the range of available non-custodial programs in the local community and should utilise them to the maximum possible extent.

Children involved in substance abuse

Many offences committed by young people are alcohol or drug related. In these cases, sentencing decisions should address the addiction that is the root cause of the offending behaviour rather than punishment for its own sake. This should include the provision of appropriate drug treatment facilities incorporating both detoxification programs and treatment or referral services. It should also include counselling and other practical programs to assist these young people and their families.

Indigenous children

Sentences for young Indigenous people should give recognition to Indigenous culture and kin relationships. This requires appropriate training for both magistrates and practitioners. Defence lawyers should have the knowledge to propose culturally appropriate sentencing arrangements. This might include, for example, involvement of the extended family and maintenance of links between the young offender and his or her local community.

Where there is no alternative but to impose a custodial sentence on a young Indigenous offender, custodial arrangements must be designed as far as possible the links between the juvenile and his or her culture.

Further information

This article is intended only as a brief guide to the sentencing aspects of Seen and heard: priority for children in the legal process. If you would like more detailed information you should refer to the full report.

Last updated 2 December 2001.