Human Rights Brief No.
Sentencing Juvenile Offenders
The UN Convention on the Rights of the Child (CRC) sets out 11 fundamental binding principles to be reflected in sentencing all juvenile offenders.
The CRC was adopted in 1989 and ratified by Australia in 1990. Many of its provisions are relevant to the sentencing process and the ultimate decision. Also relevant are
- the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules)
- the United Nations Guidelines for the Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines)
- the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990.
These rules and guidelines are relevant and persuasive on their own account. More importantly, however, they have also been adopted by the Committee on the Rights of the Child as filling out the content of the CRC itself. Therefore, to understand fully what is required by the CRC, a government must refer to these rules and guidelines.
This Brief has information on:
- Principles governing the sentencing process
- Principles applicable to all sentences
- Principles applicable to detention
- The CRC in Australia; deficiencies and enforcements
- Practitioner checklist
- Further research; cases, bibliography and websites
Sentencing occurs within a much broader context of social programs, inequalities, opportunities for prevention, methods of crime detection, training of criminal justice personnel and other factors. These are beyond the scope of this number but are addressed in the above-mentioned and other international instruments.
The CRC requires that children be given appropriate involvement in decisions and actions affecting them. Article 12.1 provides
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
Involving children in sentencing means giving them a genuine opportunity to express their views freely. This in turn means ensuring that the individual child is able to be fully engaged in the process with attention to creating an environment which is not intimidating and using language which is readily understood by the particular individual child.
Beijing Rule 14.2 states
The proceedings shall be conducive to the best interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow the juvenile to participate therein and to express herself or himself freely.
1.2 Participation in Australia
Much of the language used by Australian 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 (submission quoted in Seen and heard on page 561).
- Best interests
- Community safety
- Not cruel, inhuman or degrading
- Range of options
- Capable of review
The CRC article 3.1 requires
In all actions concerning children, whether undertaken by . courts of law . the best interests of the child shall be a primary consideration.
Article 3.1 was the topic of Human Rights Brief No. 1.
The CRC and the Beijing Rules make clear that the best interests rule is as much a sentencing principle as any other. Moreover, one aspect of a child's best interests - his or her 'well-being' - is not merely 'a primary consideration' but must be 'ensured' (article 40.4). This is further spelt out in Beijing Rule 17.1(d):
The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.
Protection of the rights and interests of children needs to be balanced with the protection of other members of the community from real harm. Human rights law recognises the right of everyone to personal security (for example, International Covenant on Civil and Political Rights (ICCPR) article 9). The CRC makes clear that community safety is a relevant factor in sentencing. The treatment of the young offender must 'reinforce the child's respect for the human rights and fundamental freedoms of others' with the aim of the child 'assuming a constructive role in society' (article 40.1). At the same time the sentence must be 'consistent with the promotion of the child's sense of dignity and worth', taking into account the child's age and the desirability of reintegration (article 40.1).
The CRC provides that the objective of sentencing a juvenile offender must be his or her 'reintegration' into society or 'rehabilitation' (article 40.1). The commentary to Beijing Rule 17 states that 'strictly punitive approaches are not appropriate'. In sentencing a juvenile offender, 'just desert and retributive sanctions . should always be outweighed by the interest of safeguarding the well-being and the future of the young person'. Rehabilitation of offenders is also the best way to promote community safety.
Rehabilitation in Australia
[I]t has been accepted by the courts that the reformation of the [child] offender is always an important, if not the dominant consideration, and that any sentences should be tailored with a greater emphasis on the future welfare of the offender (Yorkshire, 1998, Justices Wallace and Smith).
The CRC article 37(a) stipulates
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
The prohibition of torture and other cruel, inhuman and degrading punishments aims 'to protect both the dignity and the physical and mental integrity of the individual' (Human Rights Committee (HRC) General Comment 20 paragraph 1). It extends 'not only to acts that cause physical pain but also to acts that cause mental suffering to the individual' (HRC General Comment 20 paragraph 5). Corporal punishments are not to be imposed in any circumstances (HRC General Comment 20 paragraph 5; see also Beijing Rule 17.3).
It is arguable that indeterminate sentences for juveniles, such as those imposed on 'repeat violent offenders' under the now repealed Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA) would be inhuman punishments. Indeterminate sentences lack the element of proportionality essential in a humane punishment (Nowak page 133; Fawcett page 42).
On the other hand, all criminal punishments contain an element of inhumanity and degradation. To amount to a violation of article 37(a) there must be 'an additional element of reprehensibleness' (Nowak page 133) which was perhaps lacking from that legislation. It is 'insufficient that punishment is extraordinary' (Nowak page 134). The drafters intentionally omitted the word 'unusual' from ICCPR article 7 and the CRC article 37(a).
The CRC article 40.4 requires
A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available .
Beijing Rule 18.1 calls for 'a large variety of disposition measures . allowing for flexibility so as to avoid institutionalisation to the greatest extent possible'.
The CRC article 40.4, in setting out the rationale for a variety of dispositions, also states a most fundamental principle of sentencing for juvenile offenders - the principle of proportionality. This principle has wide-reaching implications. Article 40.4 continues
. to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
Well-intentioned people may differ on whether a particular sentence is 'proportionate' or not. The principle is not a purely subjective one, however. Three sub-principles can be unequivocally stated.
- The sentence must be proportionate both to the seriousness of the offence and to the circumstances of the offender. These circumstances include his or her age, physical and mental health, family and socio-economic background, cultural affiliations, intellectual development and level of educational attainment.
- The sentencer must make the decision in the individual case. A sentence which is proportionate to the circumstances of the offender must be an individualised sentence. Relevant background detail must be obtained to ensure proportionality. Beijing Rule 16.1 sets out the obligation to obtain 'social inquiry reports' prior to sentencing. The commentary adds that the sentencer 'should be informed of relevant facts about the juvenile, such as social and family background, school career, education experiences, etc'.
- This principle of individualised sentencing further means that mandatory sentences of any kind, and particularly of detention, contravene the CRC.
The principle of proportionality is described in the commentary to Beijing Rule 5 as
an instrument for curbing punitive sanctions, mostly expressed in terms of just desert in relation to the gravity of the offence. The response to young offenders should be based on the consideration not only of the gravity of the offence but also of personal circumstances. The individual circumstances of the offender (for example, social status, family situation, the harm caused by the offence or other factors affecting personal circumstances) should influence the proportionality of the reaction (for example by having regard to the offender's endeavour to indemnify the victim or to her or his willingness to turn to a wholesome and useful life).
Proportionality in Australia
[I]t is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender (Chester page 618).
All offenders must be accorded a right of appeal against both conviction and sentence. Article 14.5 of the ICCPR stipulates that
Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
The CRC repeats this universal rule for application to juvenile offenders in particular in article 40.2(b).
Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
Review in Australia
Mandatory sentences are incapable of revision on appeal.
3. PRINCIPLES APPLICABLE TO DETENTION
The CRC article 37(b) contains the three most significant principles relevant to the consideration whether or not to impose a sentence of detention and, if so, for how long.
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
Detention is a measure of last resort. It is clear that this means 'in the individual case' because the CRC requires individualised sentencing that is proportionate to the circumstances of the offender as well as of the offence. All lesser options must be considered and excluded for sound reasons before a detention sentence is imposed. Beijing Rule 17.1(b) makes this point explicit.
Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration.
Beijing Rule 17.1(c) strongly stipulates that detention is only to be imposed for very serious offending.
Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response.
Detention is not just one more sentencing option. It has the capacity to cause harm - contrary to the obligation to protect the child's well-being at all times and contrary to the right of other members of the community to live in safety. It must therefore be subject to 'stricter scrutiny' before it is adopted. As the commentary to Beijing Rule 19 summarises:
Progressive criminology advocates the use of non-institutional over institutional treatment. Little or no difference has been found in terms of the success of institutionalization as compared to non-institutionalization. The many adverse influences on an individual that seem unavoidable within any institutional setting evidently cannot be outbalanced by treatment efforts. This is especially the case for juveniles, who are vulnerable to negative influences. Moreover, the negative effects, not only of loss of liberty but also of separation from the usual social environment, are certainly more acute for juveniles that for adults because of their early stage of development.
A sentence of detention will contravene the CRC if it is 'unlawful' and also if it is 'arbitrary'. The two notions are distinct but overlapping. A sentence which is contrary to law would be arbitrary. But arbitrariness extends much more broadly to sentences which are 'unjust', 'unreasonable' or 'an abuse of power' (Bossuyt pages 197, 201, 342-3). Arbitrary detention is detention 'incompatible with the principles of justice or with the dignity of the human person' (Bossuyt page 201).
Principles of justice include the principle of proportionality, the principle of consistency and the principle of non-discrimination. The jurisprudence of the Human Rights Committee indicates that, to avoid the taint of arbitrariness, detention must be a proportionate means to achieve a legitimate aim, having regard to whether there are alternative means available which are less restrictive of rights.
Proportionality is discussed above. Consistency between like offences and offenders must be achieved within the constraints of individualised sentencing. It is best done by reference to clear standards or guidelines. Thus 'capricious' sentencing unguided or uninformed by open standards would be arbitrary.
The principle of non-discrimination is fundamental to all actions under the CRC. Where sentencing is influenced by the offender's race, sex, age, religion or other status to the offender's detriment relative to another case which is similar in other respects, the sentencing is arbitrary. Where a pattern of sentencing reveals that children of one sex or race, for example, are substantially more likely to receive the harshest penalties, sentencing is suspect. Discrimination can be disproved by showing the discrepancies are 'reasonable'. To be reasonable, the justifications must be free from hidden discrimination and otherwise consistent with the CRC.
Arbitrariness in Australia
In Trennery v Bradley (NT, 1997) the Northern Territory's mandatory detention regime for property offenders was described as 'the very antithesis of just sentences' (Justice Mildren).
Where detention is the only appropriate sentencing option, it must be for the 'shortest appropriate period of time'. This is an expression of the broader principle that young offenders more generally should be subjected to the least possible intervention or restriction. For example, Beijing Rule 11.1 recommends diversion from formal trial processing wherever appropriate. In fact the commentary to that Rule makes the point that 'in many cases, non-intervention would be the best response'.
The question of what is an 'appropriate' sentence length is necessarily, ultimately, in the sentencer's discretion subject to guidance from the legislature and the higher courts. It is an individualised decision and the length must also be proportionate.
Beijing Rule 19.1 uses the alternative phrase 'minimum necessary period'. It is strongly arguable that an objective standard is set by both terms and the 'appropriateness' or 'necessity' of a particular term of detention is not purely a matter either for the individual sentencer or for the individual country attempting to implement the CRC.
Key deficiencies in the full implementation of the CRC sentencing principles in Australia are
- insufficient and/or inappropriate programs for the rehabilitation of young people and, in particular, the limited availability of drug counselling and rehabilitation for young offenders
- the limited range of sentencing options in particular jurisdictions
- the discriminatory impact of sentencing policies on young people from rural and remote communities who have access to a limited number of rehabilitative options and who are detained far from their families and communities
- legislation in Western Australia and the Northern Territory that sets mandatory minimum sentences for certain offences and consequently prevents all relevant factors affecting the particular child being taken into consideration when sentencing
- the shift to more punitive sentencing regimes for young offenders which governments seek to justify by reference to a juvenile crime wave, notwithstanding that there has been no significant increase in juvenile crime in Australia for the past decade (Seen and heard page 537).
The CRC is not directly implemented in Australia; it is not part of Australian law.
However, it is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This gives the Commission power to investigate complaints that the CRC rights have been violated by or on behalf of the Commonwealth or a Commonwealth agency but only in the exercise of a discretion or in abuse of power.
Where legislation requires the rights of the child to be set aside, the Commission can only advise the Parliament that the legislation should be amended. The Commission can also advise Parliament on action that should be taken to promote compliance with the CRC.
Human rights complaints which cannot be resolved by conciliation do not proceed to a hearing and determination but may, after appropriate inquiry, be made the subject of a report to the Attorney-General for tabling in Parliament. The Commission has no authority over the courts.
The High Court has imposed an obligation to consider human rights in cases of discretionary administrative decision-making. In Ah Hin Teoh the High Court held that, although the CRC has not been implemented in Australian law, its ratification by Australia had given rise to a legitimate expectation that decision-makers would not violate its provisions. Where legislation permits a discretion, that discretion should be exercised in conformity with Australia's international treaty obligations. The Federal Government has attempted to remove the legitimate expectation by issuing an Executive Statement but the effect of that Statement has yet to be tested before the courts.
It is also now accepted 'that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law' and that 'an international convention may play a part in the development by the courts of the common law' (Chief Justice Mason and Justice Deane in Ah Hin Teoh).
If the answer to any question is 'No', there has been a failure to implement the CRC sentencing principles in full. If the answer to any question is 'Don't know', there may have been such a failure.
Does the young person fully understand his or her situation?
Was the young person given an opportunity to make submissions on sentencing, in person or through counsel?
Did the young person feel free to participate?
- Best interests
Did the court investigate the young person's best interests?
Did the court make the best interests a primary consideration?
Was the young person's well-being a guiding factor?
- Community safety
Does the sentence reinforce the child's respect for the rights of others?
Is it likely to discourage re-offending?
Does the sentence aim to rehabilitate the child?
Will it do so in fact?
- Cruel, inhuman or degrading
Is the sentence humane taking into account the young person's age, physical and mental health, family and socio-economic background, cultural affiliations, intellectual development and level of education?
- Range of options
Was a range of sentencing options available to the court?
Did the court consider a range of sentencing options?
Is the sentence proportional both to the young person's circumstances and to the offence?
Is the sentence capable of review by a higher tribunal?
- Detention as a last resort
In the case of a sentence of detention, was the sentence imposed as a measure of last resort?
In the case of a sentence of detention, is the sentence free from arbitrariness (proportional, consistent, non-discriminatory, compatible with the principles of justice, applied according to clear standards and guidelines)?
- Shortest appropriate time
In the case of a sentence of detention, is the length of the sentence the shortest which is appropriate in the individual case?
Ah Hin Teoh: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
Chester: Chester v R (1988) 165 CLR 611.
Trennery v Bradley, unreported, Full Court NT Supreme Court, 20 June 1997.
Veen v The Queen (No 2) (1988) 164 CLR 465.
Yorkshire: Yorkshire v The Queen, unreported, WA Court of Criminal Appeal, 20 June 1988.
Atkinson, L, 'Boot Camps and Justice: A Contradiction in Terms?', No. 46 Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology, 1995. Electronic version at www.aic.gov.au/publications/tandi/ti46.pdf
Atkinson, L, 'Detaining Aboriginal Juveniles as a last resort: Variations from the theme', No. 64 Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology, 1996. Electronic version at www.aic.gov.au/publications/tandi/ti64.pdf
Bossuyt, M, Guide to the 'Travaux Preparatoires' of the International Covenant on Civil and Political Rights, Martinus Nijhoff Publishers, 1987.
Bringing them home: Human Rights and Equal Opportunity Commission, Bringing them home, report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 1997, chapters 24 and 26.
Detrick, S (ed), The United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires, Kluwer Academic Publishers/Martinus Nijhoff Publishers, 1992.
Fawcett: J E S Fawcett, The Application of the European Convention on Human Rights, Clarendon Press, second edition, 1987.
HRC General Comment 20: Human Rights Committee, General Comment on Article 7 of the International Covenant on Civil and Political Rights, 1992 in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/Rev.3 (1997). Electronic version at www1.umn.edu/humanrts/gencomm/hrcom20.htm
Nowak: M Nowak U.N. Covenant on Civil and Political Rights: CCPR Commentary, N. P. Engel, Publisher, 1993.
Seen and heard: Australian Law Reform Commission & Human Rights and Equal Opportunity Commission, Seen and heard: priority for children in the legal process, 1997, chapter 19. Electronic version at www.austlii.edu.au/au/other/alrc/publications/reports/84/ALRC84.html
Walker, J, M Collins & P Wilson, 'How the public sees sentencing: an Australian survey', No. 4 Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology, 1987. Electronic version at www.aic.gov.au/publications/tandi/ti04.pdf
Wilkie, M, 'Crime (Serious and Repeat Offenders) Sentencing Act 1992: A Human Rights Perspective', (1992) 22(1) University of Western Australia Law Review 187-196.
- The full text of the Convention on the Rights of the Child
- United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)
- United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)
- United Nations Rules for the Protection of Juveniles Deprived of their Liberty
- United Nations Committee on the Rights of the Child
- Australia's firstreport to the Committee on the Rights of the Child (submitted December 1995)
- Australia’s combined second and third report to the Committee on the Rights of the Child (submitted March 2003)
- Australian Institute of Criminology
Disclaimer: This document provides general information only on the subject matter covered. The Human Rights and Equal Opportunity Commission does not assume a duty of care with respect to this information. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice. The information contained in this document may be amended from time to time. Copyright: Copyright in this document is owned by the Human Rights and Equal Opportunity Commission, 1999. The contents may be reproduced freely with acknowledgement. Date of last amendment: June 1999. Contributing authors: Meredith Wilkie, Chris Sidoti. ISSN Number: 1442-0813