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Sentencing Juveniles consistently with the UN Convention on the Rights of the Child

Sentencing Juveniles consistently

with the UN Convention on the Rights of the Child

The National Inquiry

into Children and the Legal Process

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.

Principles of

sentencing

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.

Particular attention

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

recidivism.

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.

Sentencing options

The Convention

on the Rights of the Child requires a range of options for dealing

with young offenders.

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 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

40.4).

Magistrates dealing

with young offenders should ensure that they are aware of the range of

available sentencing options.

Conferencing

schemes

Conferencing schemes

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.

Fines

Although provisions

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

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.

Community service

orders

Community service

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.

Effective supervision

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.

Detention

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.

Available statistics

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.

The sentencing

process

Background reports

Background reports

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.

Giving children

a voice in the sentencing process

The Convention

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

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.

Post-sentence

processes

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 stating that "you have completed all the requirements of

the order". Acknowledgment has a strong rehabilitative influence.

Sentencing doubly

vulnerable children

Girls

When considering

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.

Children affected

by mental illness

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.

Children in

rural and remote areas

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

possible extent.

Children involved

in substance abuse

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.

Indigenous children

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.

Further information

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.

Last

updated 2 December 2001.