Scope of chapter

19.1 The terms of reference require the Inquiry to consider ‘sentencing of children and young people for federal offences’. This chapter examines the legal processes associated with sentencing. The recommendations seek to make sentencing options and procedures more consistent with the basic rights of young people as set out in CROC. Submissions to the Inquiry generally supported of the Inquiry’s draft recommendations in DRP 3. In particular, they emphasised the need for national standards on the sentencing of young offenders,[1] a wider range of sentencing options based on rehabilitation and minimum intervention in the formal justice system[2] and more attention to young people with special needs in the sentencing process.[3]

19.2 The juvenile justice sentencing system assumes that young offenders can and should be rehabilitated. This assumption reflects the requirement in article 40 of CROC 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’. This principle is also reflected in some State and Territory legislation.[4]

19.3 CROC requires a wide 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.[5]

It also requires that children be deprived of liberty only as a last resort and for the shortest appropriate period of time.[6] Children must be given a voice in any decisions that affect them.[7] 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.[8]

19.4 The major issues of concern about sentencing expressed to the Inquiry included

    • insufficient and/or inappropriate programs for the rehabilitation of young people and, in particular, the limited availability of drug counselling and rehabilitation for young offenders

    • the limited range of sentencing options in particular jurisdictions

    • the discriminatory impact of sentencing policies on young people from rural and remote communities who have access to a limited number of rehabilitative options and who are detained far from their families and communities

    • legislation in Western Australian and the Northern Territory that sets mandatory minimum sentences for certain offences and consequently prevents all relevant factors affecting the particular child being taken into consideration when sentencing

    • the shift to more punitive sentencing regimes for young offenders which governments seek to justify by reference to a juvenile crime wave, notwithstanding that there has been no significant increase in juvenile crime in Australia for the past decade.[9]

19.5 Comments made by young people to the Inquiry also stressed the importance of rehabilitation and the need to consider the circumstances of the individual child when sentencing. There is still concern about the achievement of this goal in some jurisdictions.

Some crimes young people commit are not that bad and their life shouldn’t be ruined because of it.[10]

… emphasis should be on rehabilitation not punishment.[11]

Give kids a chance because some parents don’t care, need money.[12]

The circumstances the offender is in should be looked at more closely under law.[13]

The need for national standards

19.6 Aspects of sentencing, such as the number of available options and the degree of reliance on particular options, can vary significantly between jurisdictions. The different approaches to sentencing across different jurisdictions can produce very different results. Clearly, a child’s treatment in the juvenile justice system should not be determined by accident of residence. Deficiencies in sentencing processes have been shown to have a particularly severe impact on certain groups of children including Indigenous children who are over-represented in the juvenile justice system and children from rural and remote areas.[14] These problems are national in their dimensions and require a national response. In particular, the inequities that exist between jurisdictions demand Commonwealth leadership in the development of more consistent national approaches.

19.7 The development of national standards for juvenile justice, based on the principles in CROC and other relevant international instruments, is essential to alleviate inequities and injustices in sentencing young offenders.[15] The Inquiry considers that the national standards for juvenile justice proposed at recommendation 192 should include principles for sentencing juvenile offenders. This view was supported by a number of submissions which saw the lack of clear national standards and national co-ordination as major contributing factors to the deficiencies in current processes for sentencing of juvenile offenders.[16]

[1] eg Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW DRP Submission 53; National Children’s and Youth Law Centre DRP Submission 59.

[2] eg Townsville Community Legal Service IP Submission 46; Juvenile Justice Advisory Council of NSW IP Submission 53.

[3] eg Kreative Kids DRP Submission 35; Autistic Association of NSW DRP Submission 40; Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW IP Submission 53.

[4] Under the Crimes Act s 16A(2)(n) the matters which must be taken into account when passing sentence include ‘the prospect of rehabilitation of the person’. The objectives of the Juvenile Justice Act 1992 (Qld) include recognising the importance of ‘…the provision of services designed to (i) rehabilitate children who commit offences; and (ii) reintegrate children who commit offences into the community.’ (s 3(e)). That Act sets out principles of juvenile justice which include that a child who commits an offence should be ‘…punished in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways’: s 4(e)(ii). s 3(1) of the Young Offenders Act 1993 (SA) provides that ‘the object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and proper realisation of their potential’. Under s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) the principles to which courts are to have regard include ‘(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance; (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption; (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home’. s 5(1) of the Children’s Services Act 1986 (ACT) provides ‘[i]n any proceedings…against or concerning or affecting a child…the court shall…seek to procure for the child such care, protection, control or guidance as will best lead to the proper development of the personality of the child and to the child’s becoming a responsible and useful member of the community’. s 4 of the Child Welfare Act 1960 (Tas) provides ‘each child suspected of having committed, charged with, or found guilty of an offence shall be treated, not as a criminal, but as a child who is, or may have been, misdirected or misguided’. The objectives of the Young Offenders Act 1994 (WA) include ‘…rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens’ and ‘ integrate young persons who have committed offences into the community’: s 6(e). The Act also provides ‘…punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially responsible ways’: s 7(j). The preamble to the Juvenile Justice Act 1983 (NT) refers to ‘…the intention that juveniles be dealt with in the criminal law system in a manner consistent with their age and level of maturity (including their being dealt with, where appropriate, by means of admonition and counselling) and to extend to juveniles the same rights and protections before the law as apply to adults in similar circumstances’.

[5] art 40(4).

[6] art 37(b).

[7] art 12.

[8] CROC art 40(1) refers to ‘the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society’. art 40(4) emphasises the desirability of non-custodial options for dealing with child offenders. See para 19.3.

[9] C Cunneen & R White Juvenile Justice: An Australian Perspective Oxford University Press Melbourne 1995, 101–102. See also paras 4.13, 18.3.

[10] Survey Response 39.

[11] Survey Response 73.

[12] Survey Response 180.

[13] Survey Response 211.

[14] See paras 19.99-101, 19.105-116.

[15] Standards were proposed in draft rec 10.1.

[16] Education Centre Against Violence DRP Submission 43; Townsville Community Legal Service DRP Submission 46.