Use of background reports in sentencing
19.73 Submissions were generally supportive of the use of background reports in the sentencing of young offenders. Some submissions expressed the view that insufficient use is made of background reports in sentencing.
19.74 There is variance between jurisdictions as to the circumstances in which background reports should be obtained. In South Australia, for example, it is discretionary in all cases. Some other jurisdictions make them a requirement in cases involving certain categories of offence or offender. For example, in New South Wales a background report is required when a detention order is being considered. In Victoria the requirement applies if the court is considering making a detention order or the child is intellectually disabled. In all cases, submissions may be made by the prosecution and the defence as to the appropriate penalty. The child does not normally address the court but the magistrate or judge may question the child and hear the child’s views before passing sentence.
19.75 Submissions to the Inquiry generally supported the use of background reports, including psychiatric and psychological assessments, in sentencing young people. One submission stated that they should be provided as a matter of course prior to any sentencing decision relating to a young person. The Inquiry considers these are generally useful when more serious sentences are being considered.
19.76 Background reports give vital information to courts to assist in sentencing decisions.
Care and protection issues, emotional difficulties and substance abuse are often factors in juvenile offending, particularly for repeat offenders. It is thus imperative that where such issues are indicated in the nature and circumstances of a youth’s offence that skilled assessments are conducted, depending upon their indications, by a social worker or psychologist. Both the assessment stage and the sentencing stage are crucial for such involvement. The expertise of social workers and psychologists can assist the Court in making an informed decision on the factors which contributed to a youth’s offending and the most appropriate sentence to address these factors.
19.77 Background reports can be particularly useful where the young person resides a considerable distance from the court or the defending solicitor does not have easy access to the child’s family, teachers, friends and other relevant people. Obtaining a report from the relevant agency can help overcome these difficulties.
19.78 However, there are also problems associated with background reports, including the processes by which they are obtained.
Pre-sentence reports can prolong the process for young people as the court may need to adjourn for preparation of the report. This is especially concerning in cases where juveniles are held in detention pending consideration of the report.
The usefulness of pre-sentence reports is undermined by staff shortages and resource constraints in agencies responsible for their preparation. These constraints limit the amount of information collected and the time to assess that information.
Pre-sentence reports do not always contain significant contribution from the young person. The onus is normally on the child to attend at the agency preparing the pre-sentence report. For children in difficult circumstances this can be problematic. It may appear, for example, that the child is unco-operative when the child is unable to engage with agency staff.
Background reports sometimes contain information which the child was assured would remain confidential. This may include admissions relevant to the offence but not disclosed to the court during the trial. This information can work to the detriment of the child and may even lead to a more severe sentence.
19.79 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. One submission favoured the introduction of a requirement that young people be advised of their right not to participate in the preparation of background reports. The Inquiry supports this proposal.
19.80 Another submission suggested that a clinic be annexed to the children’s court in each State and Territory to provide independent psychologists where required and reports to assist the court, addressing any psychological aspects that should be taken into account in sentencing. At recommendation 83 the Inquiry proposed such clinics be introduced to provide assistance to the court in care and protection matters. These clinics could assist in the preparation of background reports in this context.
Recommendation 244 The national standards for juvenile justice should make the following provisions in relation to pre-sentencing reports.
Background reports should be provided in all cases where a detention order for a child offender is being considered.
Young offenders should be advised clearly by the magistrate ordering a background report and by the officer preparing the report of the purpose of the report, the role and responsibilities of the reporting officer and the importance of the child’s involvement by way of interview in the preparation of the report. The young offender must be advised that the interview will not be confidential and that anything said during the interview may be reported. The young offender must be advised also of his or her right not to participate in the preparation of background reports.
Children’s clinics proposed at recommendation 83 should be resourced to provide assistance in the preparation of background reports in juvenile justice cases.
Children’s voice in the sentencing process
19.81 A number of submissions expressed concern that the present arrangements do not give children an appropriate voice in the sentencing process.
19.82 Involving children in sentencing means giving them the opportunity to express their views. It also means ensuring that they are able to be fully engaged in the process — giving them an environment in which they do not feel intimidated but feel sufficiently comfortable to express their views, using language that the child understands and can reply to and providing adequate explanation of matters relating to sentencing.
Often neither the charges nor, after the conviction, the sentence is properly explained to the child. Clients are often not given charge or fact sheets or they may lose them before their first appearance in court. Often, children will never have the charges read to them. Sometimes a Duty Solicitor will whisper quickly into a child’s ear to let them know what has happened in court. Often the Duty Solicitor will not go down to the cells or the holding room to explain to a child what a “Control Order” is or what the effect of their sentence is. This can lead to extreme distress and depression. At times, clients are so confused and distressed as to become suicidal.
19.83 Rehabilitation is likely to be enhanced by sentencing procedures which allow for greater engagement of children. The greater the participation of the child, the more meaningful the sentence is likely to be.
19.84 Magistrates sometimes give children an opportunity to express their views on sentencing, although this varies among individual magistrates. However, even where they are given this opportunity, the confusing and intimidating nature of court proceedings can make it difficult for many young people to participate or give proper expression to their views.
Some magistrates and judges believe they allow children an appropriate voice in sentencing by merely asking rhetorical questions. Some magistrates and judges are demeaning and even dehumanising of young people in the court as well as in the sentencing processes. In such circumstances children are intimidated and are less likely to participate in any meaningful way. They consider the situation to be hopeless and are further alienated by their understanding of what is happening to them.
This can be particularly problematic for Indigenous children for whom court processes tend to be especially alienating.
19.85 Much of the language used by judges and magistrates in relation to sentencing is confusing and alienating for children.
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.
19.86 Young people in focus groups reinforced the view that they lack a proper voice in the sentencing process.
Kids don’t get sufficient opportunity to express their views when they are in court. There should be more opportunities for them to say what they think.
The Children’s Court rarely gives a proper explanation of the meaning of the sentence and what it involves.
19.87 Legal representatives play an important role in ensuring that young offenders are given proper advice about sentencing. However, resource constraints within duty lawyer schemes can prevent them from discharging this responsibility adequately.
Recommendation 245 Duty solicitor schemes should be sufficiently resourced to ensure that children are given timely and appropriate advice on matters relating to sentencing and are assisted to express their views during the sentencing process.
Implementation. This provision should be included in the national standards for juvenile justice. The OFC, in consultation with legal aid commissions and State and Territory agencies responsible for juvenile justice and court systems, should monitor the operation of duty solicitor schemes for young offenders.
19.88 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. This could be as simple as a brief letter from the court or relevant government department stating that ‘you have completed all the requirements of the order. Well done.’ As a submission to the Inquiry recognised, this encourages non-offending behaviour in young people. Many young people who come into conflict with the law have received very little from other people in the way of encouragement or positive remarks. Acknowledgement has a strong rehabilitative influence, both by making the experience more meaningful for the young person and by providing an incentive to change his or her behaviour.
Recommendation 246 The national standards for juvenile justice should make the following provisions in relation to sentencing.
Completion of orders such as community service orders and probation orders should be formally acknowledged by the court or relevant agency.
There should be suitable mechanisms for recognising outstanding achievement by young people in these programs.
 J Saunders IP Submission 21; AFP IP Submission 155; Townsville Community Legal Service IP Submission 181; Community Services Australia IP Submission 201; Australian Association of Social Workers IP Submission 207; Law Society of NSW IP Submission 209.
 Townsville Community Legal Service IP Submission 181; Law Society of NSW IP Submission 209.
 Criminal Law (Sentencing) Act 1988 (SA) s 8; Young Offenders Act 1993 (SA) s 32(1).
 Children (Criminal Proceedings) Act 1987 (NSW) s 25.
 Children and Young Persons Act 1989 (Vic) s 52.
 Australian Association of Social Workers IP Submission 207.
 SA Dept of Family and Community Services IP Submission 110.
 Community Services Australia IP Submission 201.
 Law Society of NSW IP Submission 209.
 Brisbane Focus Group 29 July 1996.
 D Sandor DRP Submission 30.
 Federation of Community Legal Centres (Vic) DRP Submission 72.
 Youth Advocacy Centre IP Submission 120; Townsville Community Legal Service IP Submission 181.
 See paras 18.180-184 for further discussion of the child’s understanding of criminal proceedings.
 Burnside IP Submission 214.
 Church Network for Youth Justice IP Submission 212.
 Burnside IP Submission 214.
 Newcastle Focus Group 13 May 1996.
 See para 18.155, rec 227.
 Oz Child Legal Service IP Submission 195.