McDougall, James; Lam, Huette --- "Sentencing Young Offenders in Australia: a Review" [2005] ALRCRefJl 10; (2005) 86 Australian Law Reform Commission Reform Journal 39

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Reform Issue 86 Winter 2005

This article appeared on pages 39 – 44 & 72 of the original journal.

Sentencing young offenders in Australia: A review

By James McDougall and Huette Lam*

Imagine an area of policy that has been the subject of consideration and debate for many years by a broad range of experts drawn from a variety of societies; where, over the past 25 years, a comprehensive set of principles has been developed based on the debate and existing research; where those principles have now been adopted by the international community; and where research continues to demonstrate that the fundamental direction and intent of the principles remain appropriate.

You would expect in those circumstances that public policy development in such an area would be considered and not reactive—without grandstanding and cheap political stands.

Think again. Welcome to public debate in the area of sentencing young offenders. This article does not propose to reflect on why that should be, but instead to conduct a broad review of the area in Australia today, look at the major trends, and propose a possible new direction. In particular, we will highlight the major challenge that faces public policy in this area—that is, the ongoing over-representation of Indigenous young people in the justice system. At the same time, we will encourage greater use of the considerable resources that already exist to inform the ongoing public policy debate.

But, first, what are the resources—the comprehensive set of principles—referred to in the opening paragraph?

Every five years since 1955, the United Nations has organised a Congress on Crime Prevention and Treatment of Offenders. This Congress brings together experts from government, academia and communities all over the world. The treatment of young offenders has been on the agenda since the first Congress in Geneva.

In 1980 in Caracas, the Congress first provided the impetus for the development of a clear set of principles.

The principles

Today the set comprises:

• the United Nations Guidelines for the Prevention of Juvenile Delinquency 1990 (the Riyadh Guidelines);

• the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules);

• the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990; and

• the United Nations Convention on the Rights of the Child (CROC).

CROC has a broader application than just the administration of juvenile justice but it does set out fundamental principles that should be reflected in the sentencing of young offenders. It also places juvenile justice in the context of a comprehensive statement of the place that children should have in all human society—as valued, autonomous human beings that require special protections, but are also deserving of the same basic human rights and dignities that adults deserve.

CROC also has particular significance as it has been adopted and ratified by Australia (in 1990) and now represents the most widely ratified international instrument—with Somalia and the United States being the only countries not to ratify it. There exists a strong argument that the terms of the Convention effectively have been incorporated into customary international law.

CROC has not yet been directly incorporated into Australian law and there remains considerable controversy as to the extent to which its terms may impact on discretionary administrative decision making affecting individuals. However, in the context of broad public policy, there should be a case for recognition of the strong persuasive power of its principles. The full set of documents is well worth careful attention—perhaps alongside a copy of the International Covenant on Civil and Political Rights (ICCPR).

For a brief summary we commend the Human Rights Brief paper co-authored by Meredith Wilkie and Chris Sidoti,¹ which sets out 11 principles that have been since endorsed by Chris Cunneen and Rob White.² This is our rephrasing of the principles that they have identified:

(1) Participation. A child is to be given appropriate involvement in decisions affecting them (Article 12.1 CROC; Beijing Rule 14.2).

(2) Best interests. The wellbeing of the child shall be the guiding factor in the consideration of the case (Article 3.1 CROC; Beijing Rules 5 and 17.1(d)).

(3) Community safety. The sentence must ‘reinforce the child’s respect for the human rights and fundamental freedoms of others’ (Article 40.1 CROC).

(4) Rehabilitation. The sentence must ‘promote the child’s reintegration and the child’s assuming a constructive role in society’ (Article 40.1 CROC).

(5) Dignity and integrity. The sentence shall respect the child’s dignity and physical and mental integrity (Article 37(c) CROC; Riyadh Guideline 54).

(6) Liberty. Detention is only to be used if there is no other appropriate response—it is a measure of last resort (Article 37(b) CROC; Beijing Rule 17.1).

(7) Flexibility. A range of sentencing options must be available in order to avoid institutionalisation/detention. (Article 40.4 CROC; Beijing Rules 6 and 18.1).

(8) Timeliness. The matter and the sentence are to be dealt with as quickly as possible, with any unavoidable detention to be for the minimum period necessary (Article 37(b) CROC; Beijing Rules 17.1(b), 19 and 20).

(9) Proportionality. The sentence must be proportionate to the circumstances of the child and to the offence (Article 40.4 CROC; Beijing Rule 5).

(10) Right of appeal. The child must have an enforceable right of review of the sentence (Article 14.5 ICCPR; Article 40.2 CROC).

(11) Consistency. The sentence must not be discriminatory or arbitrary in impact (Articles 2 and 37(b) CROC).

We would add a 12th principle drawn from our reading of the materials and understanding of the area. We call it the ‘diversion principle’. It relates to the principles of rehabilitation and timeliness (and often also community safety and participation). It is the principle that recognises the ongoing risk of stigmatisation of the young offender at all stages of the criminal process. It builds the goal of reintegration into the community into the very process of dealing with the young offender—from the moment they come into contact with the system. At the same time it can enhance the role of the community in the sentencing process. The principle is found in Article 40.3(b) CROC and Beijing Rule 11.

The current situation in Australia

Broadly in terms of public policy development, there have been two identifiable trends towards the sentencing of juveniles in Australia—pre-court diversionary options and the ‘what works’ approach.

Pre-court diversionary options

Currently all states and territories have some form of diversionary system, although the structure, emphasis and scope of these systems vary widely across jurisdictions. New South Wales, Queensland, South Australia, Western Australia and Tasmania have statutory systems, while the systems in the Australian Capital Territory and the Northern Territory are run by the police.³ In Victoria, the conferencing project is run by a charitable organisation together with the Children’s Court, the police, Legal Aid and the Department of Human Services.⁴

Such schemes usually involve a two-tier system—police warnings and/or cautions as the first response and a formal diversion program, usually conferencing, at the second level.

A caution is a warning given to a young person by a police officer,⁵ although as an alternative intervention—particularly for young people from Indigenous or ethnic communities—it can be structured to be delivered by an appropriate community-based authority figure. Cautions should not form part of a young person’s criminal history, although they may become part of his or her police record.⁶

Cautioning represents, at least in theory, an exemplary diversionary response. A properly structured cautioning procedure improves young people’s understanding of their offending behaviour and its consequences; it diverts young people from the formal justice system at an early stage; and it is cost-effective compared to formal court processes.⁷

However, insufficient attention is often given to both the legislative and administrative framework for cautioning. A simple accountability mechanism, a clear legislative mandate and resources for appropriate training would create a sound foundation for best practice intervention.

The second level of a diversionary scheme usually involves referral to conferencing. Conferencing is a form of restorative justice, which is ‘a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future’.⁸

Youth justice conferencing brings together the young person, the victim of the offence and their supporters to negotiate an agreed outcome, which may include an apology and some form of reparation. If the young person completes the outcome plan satisfactorily, no further action will be taken against them for that offence. Failure to satisfactorily complete the outcome plan will result in further recommendations being made by the conference administrator, including possible initiation or continuation of legal proceedings.⁹

Youth justice conferencing is available in some form in all states and territories. In some states—for example, Queensland—a community conference may be ordered by the court either as a pre-sentence order or as an alternative to sentencing.

In Australia, conferencing has been evaluated in several jurisdictions. The studies indicate that the conference participants experienced a very high level of satisfaction with the conferencing process. Most of these studies have also identified some reduction in re-offending.¹⁰

Diversionary options, especially those without a strong regulatory framework, could be open to the criticism that they tend ‘to be implemented in a manner that actively reproduces the dominant forms of social control’.¹¹ For instance, youth justice conferencing may be used as a means of diversion solely for the ‘soft’ end of the juvenile justice system—that is, first-time offenders and/or minor offences—thus justifying retribution and punishment at the ‘hard’ end of the spectrum.¹²

On a practical level, the more serious manifestation of this is to be found in the greatest challenge facing the existing system, an issue that goes significantly beyond the misuse of diversionary options: the over-representation of Indigenous young people.

Studies have consistently shown that Indigenous young people are less likely than non-Indigenous youth to benefit from diversionary options.¹³ The more often we build into the system limitations such as the restriction on cautioning to first-time offenders (in defiance of the flexibility principle), we also build in a recurring mechanism to limit the availability of this option to Indigenous young people.¹⁴

The ‘what works’ approach

Programs based on the ‘what works’ approach normally target high-risk offenders, offer them the most intensive interventions and attempt to change factors that are directly related to their reasons for offending, such as drug or alcohol dependency.¹⁵ These represent examples of the exercise of the rehabilitation and flexibility principles referred to above.

One such program is the youth drug court pilot program, which is established specifically to provide young offenders with substance abuse problems an opportunity to undertake treatment. Drug court programs are usually offered as an alternative to detention for offenders willing to plead guilty and submit themselves to intensive supervision and treatment. Participants in a drug court program are supervised by a team of people from diverse disciplines, including the offender’s legal representative, the prosecutor, probation officers, treatment services providers and the sentencing judge.¹⁶

The Youth Drug Court was piloted in NSW in July 2000. The only other Australian jurisdiction currently piloting a specialist youth drug court is Western Australia. Queensland, South Australia and Victoria are conducting trials in adult drug courts.¹⁷

Recent Australian and overseas evaluations of drug courts identified a number of positive outcomes, including:

• a decrease in drug use and re-offending, both during and after completion of the program;

• improvements in the participants’ health and well-being;

• cost savings in prosecution, policing, prison administration and court processes; and

• social benefits such as long-term reduction in drug use and increases in the rates of employment, education and the reunification of families.¹⁸

In 2004, an evaluation of the NSW Youth Drug Court pilot program indicated that:

• 39% of participants completed the program successfully;

• most participants reported a reduction in drug use; and

• there was an improvement in the mental health of participants, especially young women.¹⁹

However, it was estimated that up to 60% of the participants appeared on fresh charges while they were on the program (excluding minor breaches of bail conditions) and 39% went on to serve custodial sentences (on existing or fresh charges).²⁰

Overview

Both trends—the pre-court diversionary options and the ‘what works’ approach—have contributed to a sense of ‘steady as she goes’, that is, the gradual development of new initiatives to meet identified issues, appropriately evaluated practice and, where necessary, legislative schemes to support and extend those initiatives and practice.

Ordinarily, this would seem to be a sensible approach. There are a number of instances of dubious practice in public policy—we would cite the survival of mandatory sentencing in Western Australia; the hand-over of the management of the Kariong Juvenile Detention Centre from the NSW Department of Juvenile Justice to the NSW Department of Corrective Services; and the indirect effects of the withdrawal of prosecutorial discretion in South Australia. But, generally, this cautious approach has been an understandable response in an area where, as noted earlier, the debate is not always as considered and rational as one would hope.

So why should we consider any other options? The answer is obvious: because unless we do, we will continue to fail to address the key challenge, that is, the over-representation of Indigenous youth in the justice system.

Indigenous youth and the juvenile justice system

Although there has been a significant decline in the imprisonment rate for Indigenous young people in recent years, they are still significantly over-represented in detention. As of 30 June 2003, Indigenous persons accounted for 47% of the total number of persons in juvenile detention.²¹ Despite the fact that there has been a 31% reduction in the incarceration rate of Indigenous young people, they are still 20 times more likely to be incarcerated than non-Indigenous young people.²² As referred to earlier, studies show that Indigenous young people are less likely than non-Indigenous youth to benefit from diversionary options. In 1991, the Royal Commission into Aboriginal Deaths in Custody (the Royal Commission) made specific recommendations which were aimed at reducing the levels of detention of Indigenous young people in custody, including:

• negotiation with Aboriginal communities and organisations to find the best solutions to the problem of over- representation;

• resources for such communities and organisations to provide adequate non-custodial community-based alternatives;

• adequate use of diversionary facilities by the police for Aboriginal and Torres Strait Islander (ATSI) young people; and

• young people not to be held in police cells unless there were exceptional circumstances.

However, except for legislation requiring the use of summons rather than arrest for young people, none of these recommendations has been adequately implemented.

A decade later, the ATSI Social Justice Commissioner has argued that not enough has been done to implement the Royal Commission’s recommendations to devise strategies to minimise Indigenous young people’s contact with the criminal justice system.²³

There is no doubt that the challenge is complex. The Social Justice Commissioner also argues that ‘public order’ laws and public space regulation have a discriminatory impact on Indigenous people.²⁴ Public order offences that are commonly prosecuted include offensive conduct, offensive language, assaulting police and resisting arrest. Given that Indigenous people are more likely than non-Indigenous people to be held in police custody²⁵ and prosecuted for public order offences,²⁶ any increase in prosecutions for public order offences disproportionately impacts upon Indigenous people.

Yet there appears evidence of increased efforts to regulate behaviour in public space. Under section 19 of the Children (Protection and Parental Responsibility) Act 1997 (NSW), police have the power to remove an unaccompanied young person under the age of 16 from a public place in designated towns if they believe the young person to be ‘at risk’ (that is, the person is in danger of physical harm or abuse, or may be about to commit an offence).

In the first six months of the operation of that legislation in the NSW town of Moree, 91 of the 95 young people who were removed by the police were Aboriginal. The Social Justice Commissioner suggests that the fact that the legislation impacted almost solely on Aboriginal young people is ‘to an extent the result of a continuation of the history of poor relations between the Indigenous community and the police’.²⁷ He also points to the visibility of Aboriginal people in public spaces.

Similarly, the Social Justice Commissioner argues that police records in Victoria from 1993 to 1997 showed that public drunkenness and summary offences (for example, indecent language, resisting arrest and offensive behaviour) continued to be a significant factor in Indigenous over-representation in custody.²⁸ At the same time, the records indicate that Indigenous offenders were also more likely to go through formal processes rather than cautioning for all offence categories.

This represents a key failure in the most practical sense of the existing system of sentencing of young offenders to meet the fundamental principles that have been described above.

A new direction?

Perhaps we need to reconsider our ‘steady-as-she goes’ approach; our assumption that generally the framework for sentencing of young offenders is adequate.

We propose that the current situation would benefit from the implementation of the recommendations of the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission (HREOC) report Seen and Heard (ALRC 84)²⁹ relating to the development of national standards for juvenile justice, which would include principles for sentencing. Such standards could then be adopted and incorporated into the relevant federal, state and territory laws.

It has already been argued that the lack of consistency between different Australian jurisdictions of the sentencing principles may result in inequities and injustices in the sentencing of young offenders.

HREOC has also identified key deficiencies in the full implementation of the Convention’s sentencing provisions in Australia. These include:

• insufficient and/or inappropriate rehabilitation programs for young people, especially the limited availability of drug counselling and rehabilitation;

• the limited range of sentencing options in certain jurisdictions;

• the discriminatory impact of sentencing policies on young people from rural and remote communities who have limited access to rehabilitative options and who are detained far from their families and communities; and

• legislation in Western Australia that sets mandatory minimum sentences for certain offences and, consequently, prevents all relevant factors affecting the particular child being taken into consideration when sentencing.³⁰

We know that there has not been any significant increase in crime by young offenders in Australia for the past decade. In fact, there was a significant decline in the rate of offending, from 4,092 per 100,000 young people in 1995-1996 to 3,130 in 2002-2003. There was also a decrease in the incarceration rate of young people of 57% between 1981 and 2003.³¹

The benefits of the introduction and implementation of national standards could include a consistent ‘best practice’ system that provides for the diversion of all young offenders from the formal criminal justice system. Let’s now develop a framework that is non-discriminatory, adopts international best practice and ensures that Australia fully complies with its human rights obligations.

* James McDougall is the Principal Solicitor at the National Children’s and Youth Law Centre.

Huette Lam was a volunteer at the National Children’s and Youth Law Centre until April 2005. She is now a Legal Officer with the Australian Law Reform Commission.

Endnotes

1. Human Rights and Equal Opportunity Commission, Human Rights Brief no. 2: Sentencing Juvenile Offenders (1999).

2. C Cunneen & R White, Juvenile Justice: Youth and Crime in Australia (2002), 274.

3. Australian Institute of Criminology, Young People and Crime: Pre-Court Diversionary Options (2004), <www.aic.gov.au/research/jjustice/diversion/options.html> at 4 April 2005.

4. Children’s Court of Victoria, Group Conferencing (2003), <www.childrenscourt.vic.gov.au/CA256CA800014B4A/page/Criminal+Division-Group+Conferencing?OpenDocument&1=30-Criminal+Division~&2=30-Group+Conferencing~&3=~> at 16 April 2005.

5. Logan Youth Legal Service, Court Process for Young People (2000), 5.

6. K Polk et al, Early Intervention: Diversion and Youth Conferencing - A national profile and review of current approaches to diverting juveniles from the criminal justice system (2003), 11.

7. A Lewis & C O’Regan, ‘Police Cautioning—Effective Diversion or Expedience?’ in L Atkinson & S Gerull (eds) National Conference on Juvenile Justice: proceedings of a conference held 22–24 September 1992 (1993), 247.

8. T Marshall, ‘Restorative Justice: An Overview’, in G Johnston (ed) A Restorative Justice Reader: Texts, sources, context (2003).

9. H Figgis, Juvenile Justice: Some Recent Developments, NSW Parliament Briefing Paper 5/99, 15.

10. NSW—L Trimboli, An Evaluation of the NSW Youth Justice Conferencing Scheme (2000); G Luke and B Lind, ‘Reducing Juvenile Crime: Conferencing versus Court’, (2002) 69 Crime and Justice Bulletin: Contemporary Issues in Crime and Justice. QLD—H Hayes and K Daly ‘Conferencing and Re-Offending in Queensland’ (2004) 37 Australian and New Zealand Journal of Criminology 167. ACT—L Sherman et al, Recidivism Patterns in the Canberra Reintegrative Shaming Experiments (RISE) (2000); H Strang, Repair or Revenge: Victims and Restorative Justice (2002).

11. C Cunneen & R White, Juvenile Justice: Youth and Crime in Australia (2002), 377.

12. Ibid.

13. Human Rights and Equal Opportunity Commission, Human Rights Brief no. 5: Best Practice Principles for the Diversion of Juvenile Offenders (2001) 6; J Sanders, Human Rights in Juvenile Justice (2004), 6.

14. C Cunneen & D McDonald, Keeping Aboriginal and Torres Strait Islander People Out of Custody (1997), 11.

15. A Day et al, ‘Current Trends in the Rehabilitation of Juvenile Offenders’ (2004) 284 Trends & Issues in Crime and Criminal Justice 2.

16. D Weatherburn, Law and Order in Australia: Rhetoric and Reality (2004), 133.

17. NSW Law Reform Commission, Sentencing: Young Offenders, IP 19 (2001).

18. Australian Institute of Criminology, ‘Drug Courts: Reducing Drug-related Crime’ (2004) 24 AICrime Reduction Matters.

19. T Eardley et al, Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report (2004).

20. Ibid, 77, 187.

21. Australian Institute of Criminology, Australian Crime: Facts & Figures 2004 (2004), 102.

22. Ibid, 102. K Charlton & M McCall, ‘Statistics on Juvenile Detention in Australia: 1981–2003’, (2004) Technical and Background Paper Series 10, Australian Institute of Criminology, 24.

23. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001 (2002), 8.

24. Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Issue 3: Law and Public Order, Including Juvenile Justice’ Submission to the United Nations Committee on the Rights of the Child for their Day of General Discussion on the Rights of Indigenous Children (2003), 2.

25. Australian Institute of Criminology, Australian Crime: Facts & Figures 2004 (2004), 53.

26. Aboriginal Justice Advisory Council, Policing Public Order: Offensive Language and Behaviour, the Impact on Aboriginal People (1999), 5.

27. Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Issue 3: Law and Public Order, Including Juvenile Justice’ Submission to the United Nations Committee on the Rights of the Child for their Day of General Discussion on the Rights of Indigenous Children (2003), 2.

28. Ibid, 3.

29. Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997).

30. Human Rights and Equal Opportunity Commission, Human Rights Brief No 2: Sentencing Juvenile Offenders (1999).

31. Australian Institute of Criminology, Australian Crime: Facts & Figures 2004 (2004), 101.