238The Crimes Act should be amended to make it clear that s 20C allows the enforcement provisions of State and Territory legislation to apply to young federal offenders.
Implementation. The Attorney-General should initiate this amendment.
239The national standards for juvenile justice should include principles for sentencing of juvenile offenders. These principles should also be reflected in relevant Commonwealth, State and Territory legislation. They should include the following.
the need for proportionality, such that the sentence reflects the seriousness of the offence
the importance of rehabilitating juvenile offenders
the need to maintain and strengthen family relationships wherever possible
the importance of the welfare, development and family relationships of the child
the desirability of imposing the least restrictive sanctions consistent with the legitimate aim of protecting victims and the community
the importance of young offenders accepting responsibility for their actions and being able to develop in responsible, beneficial and socially acceptable ways
the impact of deficiencies in the provision of support services in contributing to offending behaviour
the need to take into account the special circumstances of particular groups of juvenile offenders, especially Indigenous children.
240A wide range of sentencing options, with clearer and more appropriate hierarchies based on minimum appropriate intervention by the formal justice system, should be provided in the national standards for juvenile justice. Sentencing options should embody the principles in recommendation 239 dealing with national standards for sentencing. In addition, matters to be taken into account in the development of sentencing options should include
Rehabilitation and reintegration into the community should be the primary objective in the development of sentencing options.
Programs should be tailored as a far as possible to the individual needs and circumstances of young offenders, including the difficulties they may have in complying with certain orders.
Sentencing options should take into account the special health and other requirements of children and young people. This should include the provision of appropriate drug treatment facilities incorporating both detoxification programs and treatment or referral services. It should also include counselling and other practical programs to assist these young people and their families. These could be run by voluntary, community or church based agencies, by non-profit concerns or by government agencies.
Sentencing options for young sex offenders should include specific treatment programs appropriate to this category of offenders.
241The national standards for juvenile justice should be consistent with Australia’s international obligations and should include a prohibition on mandatory detention or mandatory terms of imprisonment for certain juvenile offenders.
242The Attorney-General through SCAG should encourage Western Australia and the Northern Territory to repeal their legislation providing for mandatory detention of juvenile offenders. In the event that this is not successful, the Attorney-General should consider federal legislation to override the Western Australian and Northern Territory provisions.
243Alternative non-custodial sentencing options should be evaluated to assist the development and promote the use of a greater range of alternatives to detention. These alternatives should be included in the relevant national standard for juvenile justice.
Implementation. OFC should commission research into the effectiveness of alternative non-custodial sentencing options, disseminate the findings of such research and develop in conjunction with the relevant State and Territory authorities, community groups and young people best practice models for non-custodial options.
244The 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.
245Duty 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.
246The 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.
247Training for judicial officers should include material on the availability and effectiveness of sentencing options for juvenile offenders in each jurisdiction.
248The 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.
249The 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.
250A 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.
251Appropriate 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.
252To 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. OFC should co-ordinate the above initiatives in conjunction with relevant State and Territory authorities.
253Criminal convictions of young offenders should be expunged after a period of two years or when the young person attains the age of eighteen years, whichever is earlier, except where further convictions have been recorded. Exceptions to this requirement may be appropriate in relation to particularly serious offences, some sexual offences and certain other categories.
Implementation. The Attorney-General through SCAG should encourage the implementation of this recommendation, including development of appropriate exceptions, in all Australian jurisdictions.
254Police records of young offenders should be retained for fiveyears and then destroyed where no further offence has occurred and subject to the same exceptions noted at Recommendation 253.
Implementation. The Attorney-General through SCAG should encourage the implementation of this recommendation in all Australian jurisdictions.