Sentencing options

Range of current options

19.28 Sentencing options across the jurisdictions include

• dismissal of the charges^[54]
• reprimand^[55]
• good behaviour bond/recognisance/undertaking (essentially requirements for the offender to be of good behaviour for a specified period of time)^[56]
• conferencing schemes^[57]
• payment of fines^[58] or compensation^[59]
• community service orders^[60]
• probation orders (similar to bonds and recognisances except that they usually involve extra conditions such as supervision and regular interviews with a probation officer)^[61]
• orders catering for offenders with a mental illness or intellectual disability, such as hospital or psychiatric orders^[62]
• release on supervision orders,^[63] community based orders^[64] or attendance orders^[65]
• home detention^[66]
• weekend detention^[67]
• detention at a Youth Residential centre^[68] or Youth Training centre^[69]
• detention at a juvenile detention centre.^[70]

Some jurisdictions have placed limits on the period for which a juvenile can be detained.^[71] Some also have special sentencing provisions for juveniles who commit indictable or ‘serious’ offences.^[72]

Conferencing schemes

19.29 There are two main types of conferencing schemes, family group conferences and conferences involving offender and victim. Conferencing is discussed in paras 18.45-62 in the context of programs aimed at diverting young people from the formal court system. Conferencing can also play an important role at the sentencing stage. It can help the court in determining an appropriate sentence. It can also be used as a sentencing option, for example involving contact between victim and offender for the purpose of reconciliation or compensation.

19.30 An example of a scheme is the juvenile justice group conferencing pilot project which operates in Victoria through the Children’s Court. This program mainly targets second offenders and applies to all offences except sex offences and murder. Under the scheme, the case is adjourned in the Children’s Court for 28 days and parties are directed to return with the result of the conference after that period. The magistrate then decides whether to proceed with the order. The conference involves a meeting with the offender and a panel of people, including the victim.^[73]

19.31 The conferencing scheme in the ACT differs from the Victorian scheme in that conferences can only take place in circumstances in which no victim is involved. The panel is comprised of police and community representatives. If the child ignores the order, the case is sent back to court.^[74]

19.32 As part of the sentencing process, conferencing has a lot to commend it, particularly in terms of rehabilitation.

… offenders are confronted with an account of the consequences of their action and can take an active role in doing something to make amends. Such an approach is traditionally not available in the criminal justice system.^[75]

On the other hand, some criticisms have been directed at these schemes.

Criticisms of conferencing schemes arise largely because of concerns that procedural safeguards and rights which are available under the traditional criminal justice system may not be available under the alternative schemes, which may also be less open to scrutiny, accountability and review. An identifiable and effective community to support both victims and offenders is also considered necessary in most cases for there to be an effective outcome.^[76]

19.33 The Inquiry has proposed at recommendation 200 that the development of best practice guidelines for family group conferencing be included in the national standards for juvenile justice. The guidelines should cover conferencing schemes used as part of the sentencing process for young offenders.

Fines

19.34 Although the 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 often one of the root causes of their offending behaviour.^[77] 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.^[78]

Parole and probation

19.35 Parole is a period of supervision in the community following the completion of a period in detention. Probation is an order for supervision in the community without any prior period of detention. These orders are available in Australian jurisdictions under a variety of names. They are intended to assist rehabilitation of the child by providing continuing guidance and support.

19.36 Actual levels of supervision and support vary. It has been suggested that insufficient supervision is made available to child offenders.^[79] One reason for inadequate supervision is a lack of available funding. Another is that magistrates and judges may not specify the agency responsible for supervising the child and as a consequence no agency takes responsibility for supervision.^[80]

19.37 Submissions were very critical of the level of supervision and guidance provided under these orders.

The system of probation and parole, as applied to children, is of very little assistance. Children are supervised for short periods of time and the supervision is very superficial. This is caused by lack of resources. It is totally different to supervision of adults on probation and parole, which is much more appropriate.^[81]

It is more often true than not that supervision and guidance under these orders is conspicuous by its absence. As the courts do not monitor these orders nor inquire in a subsequent matter whether they have been activated, it has no way of knowing if supervision and guidance has been provided and at what level. The court more often than not presumes that a high level of supervision and guidance has been provided.^[82]

19.38 Suggestions to make parole and probation orders more effective included the provision of additional resources, proper training and realistic caseloads which enable them to provide quality supervision and guidance to young people. Submissions also emphasised the need for closer monitoring of these orders by the courts.^[83]

Community based orders

19.39 Most community based orders for children are based on adult programs. A child must be assessed as suitable for a program and must consent to involvement and a place must be available. These orders aim to

• provide the Children’s Court and young people with a direct alternative to incarceration
• prevent the young offender from further offending
• reduce the population of offenders in detention centres
• punish the young offender through imposing restrictions on his or her liberty
• provide young offenders with an opportunity to make amends for the offences committed.^[84]

19.40 Magistrates have suggested that the range of community based orders should be increased and the terms of the orders be capable of extension so that they can be used as a real alternative to a detention order.^[85] A former Senior Magistrate of the New South Wales Children’s Court has proposed greater use of options such as home detention, periodic detention, programs operated by community youth centres and other forms of intensively supervised release.^[86]

19.41 Community services 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.

The imposition of a CSO [community service order] has serious consequences, including the existence of a criminal record showing a serious offence was committed. Breaches of CSO may also have the consequences of re-sentencing, including the option of full-time custody, and the arrest and placement of the person into custody pending the re-sentencing. Further, the fact that a person was performing a CSO is an aggravating factor if that person is convicted of any other offence said to have taken place during the time of the CSO. Accordingly, CSO should not be viewed as a benign program giving young people something to do. CSOs must remain as a direct alternative to custody and be for appropriate lengths of time and offer appropriate work.^[87]

19.42 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 security payment.^[88]

19.43 The effectiveness of community service orders as sentencing options depends in large measure on the level of resources committed to their implementation. This has been a major problem in the system of community service orders operating in South Australia. A recent report by the South Australian Juvenile Justice Advisory Committee found that there was frequently not enough work for young offenders and insufficient supervision to ensure compliance with orders.^[89] This has been attributed to a number of factors including lack of resources in the Department of Family and Community Services and reluctance by community groups to offer work to young offenders.^[90] Another relevant factor is the significant increase in the number of orders handed down. The report also said there was confusion over the respective roles of the police, the Department of Family and Community Services and community groups in the implementation of these orders.^[91]

19.44 The South Australian experience highlights the need for allocation of sufficient resources and a streamlined and co-ordinated approach in the implementation of community service orders for young people. Community based sentencing options need to be better funded, more culturally appropriate and with a greater focus on integration in the community.^[92] More programs are needed to assess effectiveness and the outcomes of community based sentencing options.^[93]

Detention

19.45 On 31 December 1996 there were 717 children aged 10 to 17 in juvenile corrective institutions in Australia.^[94] The rates of detention for children are slightly lower than for adults and have been dropping over the last ten years.^[95] There are substantial differences between the States and Territories in the rates of detention of children. The Northern Territory, with a detention rate of 68.8 per 100,000 of the child population, continues to detain children at a much higher rate. Victoria has the lowest rate at 14.9 per 100,000 of the child population.^[96]

Table 19.1: Rates of Persons aged 10–17 in Juvenile Corrective Institutions, 31 December 1996^[97]

19.46 Young people in detention are most commonly convicted of property offences. In NSW 65% of detention orders given by the courts are for property crimes.^[98]

19.47 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.^[99] 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.^[100] Detention is recognised as necessary in some circumstances. The NSW Government, for instance, acknowledged

… that, in many cases, ordering young people into detention is not a solution. Detention frequently does not make sense because it is more likely to teach young and impressionable people how to become criminals rather than to deter them from a career in crime. In addition, a record of a young person’s involvement in the juvenile justice system, particularly time served in detention, is likely to adversely affect the young person’s future prospects.

However, the Government is adamant that detention is an appropriate and necessary penalty for juvenile offenders who commit serious crimes and for those juvenile offenders who repeatedly engage in criminal behaviour. Society must be protected from people, even young people, who commit serious crimes.^[101]

19.48 Submissions to this Inquiry reinforced the view that detention should only be used as a measure of last resort.^[102] Many questioned the effectiveness of current detention practices in rehabilitating young offenders. They argued strongly that more attention needs to be given to the circumstances in which detention is applied as a sentencing option and the environment provided for young detainees. Young people themselves also expressed very negative perceptions of the appropriateness of detention as a sentencing option for young offenders.

Kids should not get locked up.^[103]

Stop locking young kids up.^[104]

19.49 Issues relating to the treatment of young people in detention are discussed in more detail in Chapter 20.

Mandatory detention and other punitive measures in sentencing

19.50 Various States and Territories have adopted more punitive sentencing provisions, with longer sentences, particularly in relation to repeat offenders. In some jurisdictions they have included mandatory detention laws.

19.51 The Queensland Parliament has amended its juvenile justice legislation to increase significantly the sentences that can be imposed on young offenders, including life sentences for more serious offenders.^[105] Under the amendments, official cautions form part of children’s criminal records.^[106] The stigmatising nature of this provision has been the subject of criticism.^[107]

19.52 Western Australia’s Young Offenders Act 1994 contains special provisions relating to repeat offenders, defined as persons who have served at least two previous periods of detention and who have a high likelihood of re-offending within a short period of release from detention. The Act allows for the imposition of a special order for an additional 18 months in detention for these offenders.^[108]

19.53 The Northern Territory Parliament’s juvenile justice amendments provide for a ‘punitive work order’ as a sentencing option with the minister determining the sort of work which can be designated as part of a punitive work order.^[109] The punitive work order was presented by the Attorney-General as ‘a punishment that shames the guilty person’. He indicated that those serving a punitive work order would be clearly identifiable by a uniform or label, again with the purpose of making it a shameful experience.^[110] The Inquiry views these measures as entirely inappropriate, rendering the young offender vulnerable to discrimination, victimisation and retribution from other members of the community. They are likely to harden criminal behaviour because they stigmatise the young offender in the eyes of the community and in his or her own eyes.

19.54 In 1996 mandatory detention provisions were introduced in the Northern Territory and Western Australia. The Northern Territory amendments provide for mandatory imprisonment of young people found guilty of more than one property offence. These provisions apply regardless of how minor the second property offence.^[111] The amendments in Western Australia provide that when convicted for a third time or more for a home burglary, adult and juvenile offenders must be sentenced to a minimum of 12 months’ imprisonment or detention (the ‘three strikes and you’re in’ legislation).^[112] The Western Australian Minister of Justice justified the provisions by reference to Western Australia’s high burglary rate, the traumatic impact of burglary on victims and the fact that the legislation targeted a small number of repeat offenders.

19.55 Mandatory detention offends against the principle of proportionality which requires that the penalty imposed be proportional to the offence in question.

[I]t is now firmly established that our common law does not sanction preventative detention. The fundamental principle of proportionality does not permit the increase of sentence imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender.^[113]

19.56 The Western Australian mandatory detention provisions have attracted adverse comment in several cases from the President of the Western Australian Children’s Court, Judge Fenbury. In two cases the President ruled that a non-custodial Conditional Release Order could be imposed despite the provisions of the mandatory detention legislation.

19.57 In one case the child was aged fourteen and had not previously had such a conditional release order.^[114] The President characterised the mandatory detention provisions as contrary to the ‘long accepted theory that when sentencing juvenile offenders, rehabilitation is of prime importance’.^[115]

19.58 In the other case, the child was only 11 years old and had received two convictions for minor offences, one for keeping lookout for two other children and the other for breaking into a house and stealing a container holding a small amount of loose change. His third burglary offence was recorded when he stole $15 worth of food and drink when he had been left to fend for himself in a Pilbara town while his carers were in Perth for medical treatment. Again, Judge Fenbury used his discretion to place the child on a Conditional Release Order.^[116]

19.59 In a later case involving a young offender who was 17 years of age and had a long criminal history, the offender was sentenced to 12 months detention as required. Again the President expressed concern that the young offender may well spend more time in custody than an adult with a similar conviction.^[117] Had he been a few months older, this offender could have received a significantly lesser penalty.

19.60 All three cases involved Indigenous children. They highlight the disproportionate impact this kind of legislation will have on the Indigenous community.^[118]

It is a general and clearly espoused principle of juvenile justice that detaining a young person in custody for an offence should only be used as a last resort and, if required, is only to be for a short time as is necessary…A mandatory minimum sentence of 12 months detention clearly contravenes this principle of juvenile justice.^[119] In dealing with a young person who has been found guilty of an offence, the court is to dispose of the matter in a way that is in proportion to the seriousness of the offence (s 46(3) of the Young Offenders Act)…A mandatory minimum sentence of 12 months detention is in clear contradiction to this principle. A child convicted of stealing a torch from a tent can become subject to a mandatory penalty of 12 months detention.^[120]

It is clear from our observations of the application of the three strikes law that the Aboriginal young persons are grossly over represented in its application.^[121]

19.61 The Northern Territory legislation has been considered in similar ways. In Trennery v Bradley, which involved an adult, the defendant stole items from a toy shop, but returned the goods to police five days later and pleaded guilty.^[122] Under the mandatory detention regime, the offender would have served a term of imprisonment of not less than 14 days. The Full Court of the Supreme Court considered whether it could suspend the term of imprisonment, with or without conditions, such as an order for home detention or the fixing of a non-parole period, but it decided reluctantly that such orders would defeat Parliament’s intention.

19.62 The mandatory provisions were criticised in this case as the ‘very antithesis of just sentences’^[123] and as posing particular problems in relation to defendants suffering from mental illness. Under the mandatory detention regime, the court may not be able to consider diagnosis and treatment or make a hospital order, as such orders do not constitute imprisonment in the legislation.^[124]

19.63 The Northern Territory and Western Australian laws breach a number of international human rights standards and common law principles. They violate the principle of proportionality which requires the facts of the offence and the circumstances of the offender to be taken into account, in accordance with article 40 of CROC. They also breach the requirement that in the case of children detention should be a last resort and for the shortest appropriate period, as required by article 37 of CROC. Mandatory detention violates a number of the provisions in the ICCPR including the prohibition on arbitrary detention in article 9. Both CROC and ICCPR require that sentences should be reviewable by a higher or appellate court.^[125] By definition, a mandatory sentence cannot be reviewed.

19.64 The Inquiry considers these violations of international and common law norms so serious that it recommends federal legislation to override the laws unless the Parliaments of Western Australia and the Northern Territory repeal them.

The adequacy of sentencing options

19.65 There are different opinions on whether there are sufficient sentencing options for children in Australia. This reflects to some extent the considerable variations between States and Territories.

19.66 The sentencing options in legislation are not always reflected in the range of programs available to young offenders. Failure by governments to commit sufficient resources has restricted young people’s access to suitable non-custodial sentencing programs.^[126] In Victoria, for example, even though the legislation provides for a wide range of sentencing options^[127] submissions identified deficiencies in the availability of programs and services to give effect to these legislative options. Those deficiencies include lack of residential drug rehabilitation programs, lack of alternatives to mainstream education and lack of adolescent psychiatric inpatient and outpatient services.^[128] Some potentially effective programs have been limited by stringent eligibility requirements and other restrictions on their application.^[129]

19.67 The Inquiry considers that sentencing legislation should provide the broadest possible options for young people, including community service work, appropriate forms of home detention, other community based programs and periodic detention.^[130] Sentencing orders should be designed and implemented with greater creativity. They should be tailored more specifically to the needs and circumstances of the individual.^[131] The special needs of particular groups of children, such as children with disabilities, need to be addressed in available sentencing options.^[132]

19.68 Sentencing options should be designed to encourage rehabilitation and reintegration into the community.

Programs that re-connect children with their communities, mainstream and social institutions are more likely to reduce offending and make some changes in a child’s life.^[133]

19.69 More care is needed to ensure that the length of a court order is appropriate for the young person. One submission highlighted the need for time frames that are more meaningful for young people.

A significant problem is that Court Orders are often too long. This is particularly the case with young Aboriginal people from remote communities. The concept of time, that is months and years is not well understood by these young offenders. Indeed all young people have a varying degree of understanding of time. It is important that these young offenders are given achievable penalties in sentencing. For example, in regard to bonds of good behaviour, appropriate length should be in school terms or until Easter or Christmas or another significant festival recognisable by the young person. A time period that is readily understood by the young person should be used. To say to a 13 year old, “you are on a good behaviour bond for 12 months” is of little use.^[134]

19.70 For young sex offenders, sentencing options should include sex offender-specific treatment programs designed to address the offending behaviour and reduce the likelihood of re-offence.^[135]

19.71 The Commonwealth should become more involved in compiling, updating and disseminating statistics and other information about sentencing young offenders in all States and Territories. At present, this information is provided in a fragmented and unco-ordinated manner by a range of State and Territory agencies.^[136]. As part of this process, research should be commissioned to evaluate and analyse all non-custodial sentencing options currently operating in Australian jurisdictions to inform the development of national standards.^[137]

19.72 Government and non-government agencies involved in the implementation of sentencing options should develop clear program objectives and performance indicators so that success or failure can be assessed in a systematic manner.^[138]