Sentencing Juveniles consistently
with the UN Convention on the Rights of the Child
National Inquiry into Children and the Legal Process
doubly vulnerable children
In 1997 the report
of a joint inquiry into children and the legal process undertaken at the
request of the then federal Attorney-General by the Human Rights and Equal
Opportunity Commission (now known as the Australian Human Rights Commission) and the Australian Law Reform Commission
(ALRC) was published. Titled Seen
and heard: priority for children in the legal process, the report
considers, among many other topics, how Australian sentencing practice
could become more consistent with the requirements of the UN Convention
on the Rights of the Child. This article briefly outlines the main
findings and conclusions.
The juvenile justice
sentencing system is based on the principle that young offenders can and
should be rehabilitated. This reflects the requirement in article 40 of
the Convention on the Rights of the Child that treatment of children
who come into conflict with the law must take into account "the desirability
of promoting the child's reintegration and the child's assuming a constructive
role in society".
The Convention also
requires that children be deprived of liberty only as a last resort and
for the shortest appropriate period of time (article 37(b)). Children
must be given a voice in any decisions that affect them (article 12).
In accordance with these principles most jurisdictions accept that rehabilitation
should be a goal of juvenile justice and that detention is not the preferred
option for achieving this end.
Compliance with the
Convention requires a contextual approach to sentencing in which all relevant
factors are taken into account in determining sentences for children.
Children's courts in Australia generally take into account the particular
circumstances of the offender. The immaturity or inexperience of the child
may affect the commission of the offence and courts are generally aware
of this. Nevertheless, evidence to the inquiry indicated that courts do
not always have sufficient regard to the totality of relevant circumstances
when deciding sentences. More attention is needed to social factors such
as homelessness, family circumstances, educational needs and so on in
determining sentences for children. Sentences should take into account
the special health and other requirements of children and young people.
The factors which need to be considered in sentencing vary from young
person to young person.
needs to be given to the situation of repeat young offenders. These young
people often have serious family or other problems. Programs that involve
continuing support aimed at re-directing the young person's behaviour
into more socially accepted forms are more likely to succeed in preventing
The report highlighted
some important principles for sentencing of juvenile offenders. They include
- the need for proportionality
by reference to the circumstances of both the offence and the offender
- thus requiring individualised sentencing
- the importance
of rehabilitating juvenile offenders
- the need to maintain
and strengthen family relationships wherever possible
- the desirability
of imposing the least restriction 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 need to take
into account 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.
on the Rights of the Child requires a range of options for dealing
with young offenders.
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 to ensure
that children are dealt with in a manner appropriate to their well-being
and proportionate to both their circumstances and the offence (article
with young offenders should ensure that they are aware of the range of
available sentencing options.
are increasingly being used as a sentencing option. Typically, they involve
contact between the victim and offender for the purpose of reconciliation
or compensation. Conferencing has a lot to commend it, particularly in
terms of rehabilitation. Offenders are confronted with the consequences
of their actions and given an active role in making amends. On the other
hand, some of these schemes have attracted criticism because they lack
sufficient procedural safeguards and are not always open to scrutiny,
accountability and review. These factors should all be considered carefully
before a juvenile offender is committed to a particular conferencing scheme.
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 one of the root causes of their offending
behaviour. 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.
Parole and probation
are intended to assist the rehabilitation of the child by providing guidance
and support. The inquiry found that insufficient supervision is made available
to child offenders. Magistrates and judges do not always specify the agency
responsible for supervising the child with the result that no agency takes
responsibility for supervision. Parole and probation orders could be made
more effective with quality supervision, proper training and closer monitoring
by the courts.
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 if they are breached. 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
support payments. Community service programs should also be culturally
appropriate, taking into account the particular needs and problems of
children from different backgrounds and especially Indigenous children.
is vital to the effectiveness of community service orders. Magistrates
should give clear guidance on the respective roles of police, government
agencies and community organisations in the supervision of these orders.
Evidence indicates that there is often confusion and lack of co-ordination
in supervision arrangements.
The laws in 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. 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.
The relatively high
youth detention rates in a number of jurisdictions may be indicative of
insufficient regard for the requirement that detention should be the last
resort when sentencing.
and research suggest that detention and other harsh sentencing options
are generally ineffective as deterrents to re-offending. In fact, for
young and impressionable people detention is more likely to be the first
step in a life-long cycle of involvement in the criminal justice system.
In terms of preventing re-offending, the most successful programs are
positive and constructive non-custodial programs that seek to address
the offending behaviour.
give vital information to courts to assist in the sentencing decision.
In some jurisdictions it is a requirement that they be provided in cases
involving certain types of offences. The inquiry considered that they
should be provided in every case where a detention order for a child offender
is being considered.
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.
on the Rights of the Child requires that the children be allowed appropriate
involvement in decisions and actions affecting them. 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 each particular, individual, child.
Much of the language
used by judges and magistrates in relation to sentencing is confusing
and alienating for children. One submission to the inquiry said
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.
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 stating that "you have completed all the requirements of
the order". Acknowledgment has a strong rehabilitative influence.
affected by mental illness
in rural and remote areas
involved in substance abuse
sentencing options for young female offenders, magistrates should seek
wherever possible to utilise programs designed specifically for young
women and involving supervision by female caseworkers.
Many young people
are incarcerated instead of being given appropriate treatment for their
mental illness. In sentencing children affected by mental illness the
emphasis should be on treatment and rehabilitation rather than punishment
and detention. In these cases magistrates and judges should obtain and
give appropriate consideration to specialist psychiatric reports prior
to making any sentencing decision.
Sentencing may have
particularly harsh effects on children from rural areas. Generalist magistrates
sometimes impose relatively harsher sentences on juvenile offenders than
specialised children's magistrates. One reason for this is the lack of
non-custodial programs in rural areas. However, it is also due to insufficient
understanding on the part of some generalist magistrates about the appropriateness
of different sentencing options for juvenile offenders and the effect
on children of being detained in a centre far from their family and community.
Magistrates in rural areas should be aware of the range of available non-custodial
programs in the local community and should utilise them to the maximum
Many offences committed
by young people are alcohol or drug related. In these cases, sentencing
decisions should address the addiction that is the root cause of the offending
behaviour rather than punishment for its own sake. 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.
Sentences for young
Indigenous people should give recognition to Indigenous culture and kin
relationships. 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.
Where there is no
alternative but to impose a custodial sentence on a young Indigenous offender,
custodial arrangements must be designed as far as possible the links between
the juvenile and his or her culture.
This article is intended
only as a brief guide to the sentencing aspects of Seen
and heard: priority for children in the legal process. If you
would like more detailed information you should refer to the full report.
updated 2 December 2001.