Principles of sentencing

A contextual approach

19.16 All relevant factors must be taken into account in determining sentences for children.

Factors that should be considered when sentencing include: the nature and seriousness of the offence, age, maturation, parental or significant other support, environment, education, activities, drugs or substance abuse, programmes or options for support on sentencing, any disability and special needs of the individual.^[31]

The factors which should be taken into account in sentencing include the youth’s

• previous history, whether the offence is isolated or chronic

• reason for committing the offence

• state of mind at the time of the offence

• care and protection issues which impact on the youth’s behaviour

• admission of responsibility and preparedness to make restitution

• capacity for rehabilitation.^[32]

19.17 All children’s courts in Australia generally take account of 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. Matters such as a prior record or a background report that discusses the likelihood of re-offending play a large part in sentencing children. Some jurisdictions provide explicit sentencing principles.^[33]

19.18 Nevertheless, submissions expressed concern that courts do not always have sufficient regard to the totality of relevant circumstances when deciding sentences.^[34] Magistrates often do not take sufficient account of social factors such as homelessness, family circumstances, educational needs and so on in determining sentences for children.^[35] Many offences committed by young people are alcohol or drug related. In these cases, one submission suggested sentencing decisions should place greater emphasis on addressing the addiction which is the root cause of the offending behaviour than punishment for its own sake.^[36]

19.19 Cultural factors should also be considered. One submission, for example, recommended that community service orders should offer work options that are culturally appropriate.^[37]

19.20 The factors which need to be considered in sentencing vary from young person to young person. Policy guidelines should not attempt to prescribe the relevant factors in a rigid or exhaustive fashion. However, inclusive guidelines should be developed to promote the consideration of individual circumstances in sentencing.

Rehabilitation

19.21 Some jurisdictions have included in legislation the principle that rehabilitation should be a goal of sentencing in juvenile justice. Some refer specifically to rehabilitation in their legislation while others do not but nonetheless have provisions which are clearly aimed at rehabilitation.^[38] However, the situation in a number of jurisdictions raises questions as to whether this goal is realised in practice. The relatively high youth detention rates in the Northern Territory may indicate that courts there do not have sufficient regard to the requirement that detention should be the last resort when sentencing.^[39] High detention rates may reflect different approaches by individual magistrates.^[40] They may also reflect a lack of appropriate non-custodial sentencing options.

19.22 Rehabilitation is also an important element in relation to non-custodial sentencing options. Greater emphasis on rehabilitation and reintegration into the community is needed in the design of community service orders for young offenders.^[41] Community service orders should include more positive programs to address offending behaviour or the offending environment.^[42]

Repeat offenders

19.23 Studies in NSW indicate that most children who appear in court — about 70% — never reappear before the court.^[43] The proportion of the total child population who appear in court is extremely small, about 2%.^[44] Most children given detention orders have been convicted of several prior offences. Available statistics and research suggest that detention and other harsh sentencing options are generally ineffective as deterrents to re-offending. As a recent report on recidivism by the NSW Department of Juvenile Justice stated

… higher order penalties, such as custodial orders, Community Service Orders and supervised recognisance and probation orders are associated with higher levels of juvenile re-offending.^[45]

The same report noted

… one cannot totally discount the possibility that such orders further criminalise juvenile first offenders, say, by contamination through their association with other known offenders.^[46]

19.24 Repeat young offenders often have family or other problems.^[47] To acknowledge this is not to discount their responsibility for offending but merely to focus attention on effective mechanisms for rehabilitation. 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.^[48] The Church Network for Youth Justice submitted that the effectiveness of sentencing options as deterrents to re-offending depends on

[w]hether the experience is a meaningful one to the young person, whether the young person has been treated with dignity, whether the young person has been able to enter into a trust relationship with an adult and what follow-up is available. Conversely, meaningless work, a dehumanising or violent experience will promote bitterness and militate against deterrence.^[49]

19.25 A submission from the South Australian Department of Family and Community Services highlighted a number of principles in relation to repeat juvenile offenders. They include

• the right to be treated with dignity

• the right to be treated as less responsible for their actions than an adult

• the belief that young offenders can change their behaviour

• the offender must take responsibility for his/her actions

• connection to significant adults in the community should be maintained

• offenders will have relapses; tolerance for this is necessary

• for effective rehabilitation offenders need a reason to have hope and an incentive to change their behaviour

• the obligation by the judicial and welfare systems to provide opportunities for change.^[50]

That submission noted some elements identified in international literature as important in reducing the likelihood of re-offence. It cited

• the goal of improving the overall social competence and not targeting offending behaviour per se

• empathy training and moral reasoning

• life skills development

• improving literacy and numeracy

• vocational training

• the involvement, where possible, of the youth’s family

• follow-up to ensure social and vocational integration.^[51]

19.26 The Inquiry considers that these principles should be taken into account in developing sentencing options for repeat offenders.

Support services for juvenile offenders

19.27 One submission said that national standards should require that in sentencing juvenile offenders courts should take account of failure in protective service provision or community based juvenile justice services for young offenders.^[52] The submission cited the 1988 decision of the Victorian Court of Criminal Appeal in McCracken in which this principle was applied. The Inquiry agrees that this should be a relevant consideration in sentencing.^[53]