Sentencing vulnerable children


19.93 As a result of their vulnerability, some children face particular difficulties in their dealings with the juvenile justice system, including sentencing. The responsibility for sentencing vulnerable children resides with the States and Territories. The Commonwealth should play a greater co-ordination and policy role in this area. This includes co-ordinating the development of national standards and collecting and analysing statistics on the sentencing of vulnerable children. This has been strongly supported in submissions received by the inquiry.[163]


19.94 One submission stressed the need for full use of non-custodial programs designed specifically for young women. It stated that young women participating in these programs should be linked with female case workers wherever possible.[164]

19.95 The training for magistrates proposed at recommendations 236 and 247 should cover gender issues as well as children’s issues.[165]

Children affected by mental illness

19.96 Many young people are incarcerated instead of being given appropriate treatment for their mental illness.

Reluctance to identify young people as being mentally ill ‘leads to them being treated in a default system’. Without assessment and an appropriate range of intervention services they just ‘slip between the cracks of the various systems and end up in the juvenile justice system’.[166]

19.97 The emphasis should be on treatment and rehabilitation of juvenile offenders affected by mental illness rather than punishment and detention. Submissions indicated that there is still a lack of appropriate programs, a lack of accommodation options and a lack of staff with the skills and training needed to manage appropriate programs for this category of offenders.[167]

19.98 In a submission to the Inquiry, the Mental Health Legal Centre recommended

Once the child has been placed, whether on a non-custodial program, in a correctional centre or a care and protection residential set-up, there should be ongoing assessment and treatment. Again, this should not be conducted on an ad hoc basis, but in a way that ensures problems are identified, and treated, in as many cases and at early and constructive a stage as possible.

As suggested above, permanent, trained staff should be employed by the courts and institutions which have responsibility for children post-sentence to provide assessment, support and treatment to all children encountering the system, irrespective of their means or level of legal representation.[168]

The Inquiry endorses these proposals.

Children in rural and remote areas

19.99 Sentencing may have particularly harsh effects on children from rural areas. Generalist magistrates tend to impose relatively harsher sentences on juvenile offenders than specialised children’s magistrates.[169] In addition, children in rural areas may not have access to non-custodial programs, making a custodial sentence the only option in some cases. In detention they are likely to be placed in a centre far from their family and community. They may suffer a greater degree of dislocation than children from urban areas.

19.100 Non-custodial programs available in rural or remote areas tend to involve much less supervision and support than those in metropolitan areas. For example, in the country a departmental officer might make only monthly visits to a young person on a supervised order.[170]

19.101 A submission favoured Commonwealth funding for non-government organisations in rural and remote areas to develop programs for juvenile offenders which magistrates could use as sentencing options.[171] The Inquiry endorses this suggestion.

Children involved in substance abuse

19.102 Submissions expressed concern about the lack of appropriate sentencing options for young offenders who are substance abusers. In Victoria there are no youth-specific residential rehabilitation centres. Young substance abusers are required to attend adult oriented programs with adults.[172]

19.103 The Youth Advocacy Centre highlighted the lack of adequate programs and support services for these offenders in Queensland.

When representing a drug-addicted client there are few options available to the legal representatives and their client. There are no detoxification units for children and drug counselling is expensive and virtually non-existent. The magistrates often say in court that the child must attend drug and alcohol counselling as directed by the Department of Families, Youth and Community Care but readily acknowledge that they know the department “ignores this”. Therefore children are frequently sentenced to custody due to the failure of the State to provide proper services for these children.[173]

19.104 Residential facilities for young petrol sniffers and their families are urgently needed in the Northern Territory and Western Australia. According to submissions there are virtually no programs designed specifically for petrol sniffers and sometimes these young people are incarcerated because they have nowhere else to go.[174]

Indigenous children

19.105 Indigenous children are disadvantaged at each stage of the juvenile justice system compared to non-Indigenous children.

Discrimination at earlier stages of the system results in Indigenous young people being less likely to receive diversionary options and being more likely to receive the most punitive of discretionary options. These factors compound as the young person moves through the system. Apparently equitable treatment at the point of sentencing may simply mask earlier systemic biases.[175]

19.106 In this context, treating children equally on the basis of their criminal characteristics does not necessarily do justice and does not redress discrimination earlier in the system.

19.107 The juvenile justice system should give recognition to Indigenous culture and kin relationships in sentencing young Indigenous people. 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. Isolation from family, culture and country is a major issue for young Indigenous people who are often detained in centres thousands of kilometres from their local communities.

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

19.109 Indigenous young people brought before the courts are more likely to come from rural backgrounds and therefore more likely to appear before non-specialist magistrates’ courts. This is significant in that non-specialist magistrates tend to hand down harsher sentences.[176] The lack of resources in rural and remote areas also means that fewer non-custodial sentencing options are available.[177]

19.110 Indigenous young people’s past experiences with the legal system make them more susceptible to receiving a custodial order. For instance, they are more likely to have been previously institutionalised, less likely to have received a diversionary alternative to court and are more likely to have a greater number of previous convictions than non-Indigenous young people. The existence of a prior record is particularly influential in the sentencing process and a particular problem for Indigenous children because intervention occurs at a younger than average age. As a result they accumulate a criminal record much earlier than non-Indigenous children.[178]

19.111 Many of these issues have been addressed in previous reports.[179] Most recently, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families recommended that national standards of treatment for all Indigenous children be enacted to apply to Indigenous children under State or Territory or shared jurisdiction.[180] It recommended the standards should provide

    • that the initial presumption is that the best interests of the child is to remain within his or her Indigenous family, community and culture[181]

    • that in determining the best interests of an Indigenous child, the decision maker must also consider

— the need of the child to maintain contact with his or her Indigenous family, community and culture

— the significance of the child’s Indigenous heritage for his or her future well-being

— the views of the child and his or her family and

— the advice of the appropriate accredited Indigenous organisation[182]

    • that the removal of Indigenous children from their families and communities by the juvenile justice system be a last resort and that where removal from their family is necessary children should wherever possible remain within their community[183]

    • that national standards legislation provide for involvement of accredited Indigenous organisations in sentencing decisions affecting an Indigenous child.[184]

The Inquiry endorses the implementation of these recommendations.

19.112 Other reports have emphasised the need for particular Indigenous sentencing options in consultation with the Indigenous community. In its 1986 report The Recognition of Aboriginal Customary Laws the ALRC recommended that alternative sentencing options for Indigenous communities should be developed, taking into account local needs and circumstances and utilising local justice mechanisms. These recommendations have yet to be fully implemented. The federal Attorney-General’s Department notes that the recommendations of this report are under consideration through SCAG.[185] The Inquiry supports further action to implement these recommendations.

19.113 The Royal Commission into Aboriginal Deaths in Custody also made a number of recommendations relevant to the sentencing of young offenders.

    • Indigenous people and governments should co-operate with a view to reducing the separation of Aboriginal juveniles from their families.[186]

    • Imprisonment is to be regarded as a sanction of last resort.[187]

    • Creative and individual approaches by sentencing and correctional authorities should be developed in relation to community service orders for young offenders. This includes community service work involving personal development courses to give young people the skills, knowledge, treatment and counselling necessary to reduce the risk of re-offending.[188]

Some States and Territories are making progress towards the implementation of some of these recommendations. The Inquiry supports further efforts to achieve full implementation.

19.114 Submissions have highlighted the need for greater attention to cultural issues in sentencing options involving community service work for young Indigenous offenders.

For aboriginal people the work must be culturally appropriate. For example in one remote community the only community work available seems to be gardening for the police station. However, in a creative community, young offenders are taken fishing by older members of the community with the whole catch going to the elderly members of the community.[189]

19.115 The power of Justices of the Peace to determine charges and impose penalties has been identified as one of the factors contributing to the over-representation of young Indigenous people in detention.[190] The Aboriginal Legal Service of WA noted ‘[w]hile these powers remain in place, Aboriginal juveniles in rural and remote areas will continue to be subjected to an unregulated second class system of justice…’.[191] The Inquiry supports the enactment of legislation in States and Territories to reduce the powers of Justices of the Peace in relation to sentencing. The Inquiry also supports the appointment of more magistrates in order to reduce the reliance on Justices of the Peace within the juvenile justice system.

19.116 There is a need for greater involvement of Indigenous people in the administration of the juvenile justice system.[192] The Inquiry regards this as an essential initiative that could result in a sentencing regime more sensitive to the needs and perspectives of Indigenous people. It should involve increased training and support for Indigenous people to take positions with government and non-government agencies in the implementation of sentencing programs for young Indigenous offenders. It could also involve training and support for Indigenous judges and magistrates.

Recommendation 248 The national standards for juvenile justice should include a requirement that information about offending patterns for particular groups of children be collected and used to inform sentencing decisions and practices. Children about whom this information should be collected include boys, girls, Indigenous children, children from non-English speaking backgrounds, children with disabilities, children in care and children from rural and remote communities.

Recommendation 249 The national standards for juvenile justice should make the following provisions in relation to sentencing.

  • Magistrates and judges considering sentences for young people with a mental illness or severe emotional or behavioural disturbance should obtain and give appropriate consideration to specialist psychiatric reports prior to making any decisions about sentencing.

  • Sentences should, where appropriate, provide for systematic and continuing assessment and treatment for young offenders affected by mental illness or severe emotional or behavioural disturbance. This should apply to both custodial and non-custodial sentencing programs.

  • Courts, detention centres and other agencies with responsibility for sentencing and post-sentencing arrangements for juvenile offenders should ensure that relevant staff are provided with appropriate training in the assessment, treatment and support of young people affected by mental illness or severe emotional or behavioural disturbance.

Recommendation 250 A range of alternative non-custodial sentencing schemes to be conducted within local communities should be developed in conjunction with local organisations. Particular attention should be given to rural and remote communities, including the need for greater supervision and support.

Implementation. Attorneys-General of each State and Territory should develop the schemes in conjunction with local communities. Grants should be provided to local organisations for this purpose.

Recommendation 251 Appropriate residential facilities and therapeutic programs should be developed and included in sentencing programs for young people affected by substance abuse. Particular attention should be given to the lack of support services for young people involved in petrol sniffing.

Implementation. Attorneys-General of each State and Territory should develop and fund schemes in consultation with relevant community groups and other organisations.

Recommendation 252 To address the special needs of Indigenous children in relation to sentencing

  • information should be obtained from Indigenous communities about local community approaches and practices in relation to juvenile offending

  • implementation of the recommendations of the ALRC Sentencing Research Paper 11 Sentencing of Young Offenders (ALRC Sydney 1988), ALRC Report 31 Recognition of Aboriginal Customary Laws (AGPS Canberra 1986), the Report of the Royal Commission into Aboriginal Deaths in Custody (AGPS Canberra 1991) and the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (AGPS Canberra 1997) should be progressed.

  • a national strategy should be developed for enhancing the participation of Indigenous people in the administration of juvenile justice, addressing matters such as training programs to increase employment opportunities for Indigenous people in relevant government and non-government agencies and appointment of Indigenous judges and magistrates

  • diversionary sentencing schemes in discrete or remote Indigenous communities should be monitored with a view to ensuring resources for the continuation or expansion of those that prove most effective.

Implementation. The OFC should co-ordinate the above initiatives in conjunction with relevant State and Territory authorities.

[163] Australian Association of Social Workers IP Submission 207.

[164] Confidential IP Submission 215.

[165] ibid.

[166] HREOC National Inquiry into the Human Rights of People with Mental Illness AGPS Canberra 1993 vol 2, 634.

[167] Intellectual Disability Services Council IP Submission 186.

[168] Mental Health Legal Centre IP Submission 167.

[169] Wagga Wagga Practitioners’ Forum 9 May 1996.

[170] Oz Child Legal Service IP Submission 195.

[171] ibid.

[172] ibid.

[173] Youth Advocacy Centre IP Submission 120.

[174] eg Oz Child Legal Service IP Submission 195.

[175] National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC 1997, 528.

[176] See paras 18.191-195, recs 235-237.

[177] See paras 19.99-101.

[178] National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC 1997, 528.

[179] eg ALRC Report 31 The Recognition of Aboriginal Customary Laws AGPS Canberra 1986; ALRC Report 44 Sentencing AGPS Canberra 1988; Royal Commission into Aboriginal Deaths in Custody National Report vol 4 AGPS Canberra 1991; Aboriginal and Torres Strait Islander Social Justice Commissioner Fourth Report AGPS Canberra 1996; Aboriginal and Torres Strait Islander Social Justice Commissioner Indigenous Deaths in Custody 1989 to 1996 ATSIC Canberra 1996.

[180] National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC 1997 recs 44, 45a.

[181] id based on rec 46a.

[182] id based on rec 46b.

[183] id based on rec 48.

[184] id based on rec 49.

[185] Attorney-General’s Dept DRP Submission 52.

[186] Royal Commission into Aboriginal Deaths in Custody National Report vol 4AGPSCanberra1991 rec 62.

[187] id rec 92.

[188] id rec 94.

[189] Oz Child Legal Service IP Submission 195.

[190] Aboriginal Legal Service of WA IP Submission 75.

[191] ibid.

[192] Royal Commission into Aboriginal Deaths in Custody National Report vol 4 AGPS Canberra 1991 rec 237.