SENTENCING OPTIONS FOR JUVENILES. Judge J.M. Robertson President of the Childrens Court of Queensland

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1 SENTENCING OPTIONS FOR JUVENILES Judge J.M. Robertson President of the Childrens Court of Queensland Paper presented at the Children and Crime: Victims and Offenders Conference convened by the Australian Institute of Criminology and held in Brisbane, June 1999

2 Introduction Since my appointment as President of the Childrens Court of Queensland in January 1999, I have become more familiar with the ongoing debate in Australia and New Zealand as to the best approach to the vexed issue of juvenile crime. For some time prior to that, as a result of my experience as the resident District Court Judge in Ipswich, I had come to the conclusion that the retributive and rehabilitative approach in dealing with young offenders was limited in its effectiveness. I instinctively recognised that a more creative approach to sentencing juveniles was required; if we are to divert more young people from becoming adult offending statistics. I also came to realise - not an easy process for one who has practised always in the adult criminal model of retribution and rehabilitation - that courts dealing with children must recognise that they are merely one part of a complex array of professionals and interest groups which make up the community response to juvenile crime. In what follows, I will share with you some initial thoughts with the caveat that I do not regard myself as an expert in juvenile crime issues; nor do I profess more than a basic understanding of the complex causes of juvenile crime. It is tempting, from my lofty position - who else in the court system has the impressive title of President - to resort to glib oversimplifications; such as the breakdown of family values, a decline in religious beliefs, drugs, violent video games and movies etc., but I know that the problem is much more complex than that, and the solutions therefore must also be more creative and flexible. Sentencing options A quick surf through Australian and New Zealand sentencing legislation identifies many similarities to adult sentencing models, as well as some major differences. The stand-out example of difference is the New Zealand The Children, Young Persons and Their Families Act 1989 which adopts as a central plank to dealing with juvenile offenders, the family group conference, an option designed to divert children from the court system and an option based on the principle of restorative justice. Even the title of the Act suggests something quite different. The Act defines children as those aged over 10 and under 14 and young people as those aged 14 to 16; and introduces the concept of the family as being part of the solution rather than part of the problem. Not surprisingly, the Act played havoc with criminal justice statistics producing, for example, a drop in the number of cases proved involving young offenders from 6,629 in 1989 to 1,144 in I will return briefly to the New Zealand model later in my paper. Conferencing is an established part of the juvenile crime process, but in only two Australian States (New South Wales and Queensland) can conferences be used as sentencing options. In Queensland, conferencing has been trialed (and is therefore only available to courts) in Logan and Ipswich and is about to trialled in Cairns. The difficulty is that by the time the young person is before the court and pleading guilty, so much time has elapsed in the ordinary course of events as to render the conference option illusory. All youth courts in Australia have available sentencing options which are also available in adult courts, such as community based orders, bonds and fines. The South Australian Youth Court has the power to order a youth (defined as someone older than 10 and younger than 18) to 1 Spier: Conviction and Sentencing of Offenders in New Zealand 1988 to 1997 Ministry of Justice, New Zealand, p.75 at p.80. 2

3 perform up to 500 hours community service. Other Stares (such as Queensland) limit the number of hours by reference to the age of the offender. The South Australian court has the unusual option of home detention for up to six months 2 which requires the youth to wear an electronic bracelet and to be intensively monitored within the community. A number of States have sentencing options designed as a last resort to detention. In Western Australia, the court can make an intensive youth supervision order with or without detention of up to 12 months in default. 3 In Victoria, a court that finds a child (over 10 under 17) guilty of an offence can make a youth attendance order 4 as an effective last resort to prison. The youth attendance order can be likened to the adult intensive correction order which is available in many States, which is in effect a term of imprisonment to be served in the community subject to stringent conditions. Some commentators suggest that the concept in Victoria has not been successful, because of compliance difficulties have in complying. The orders can be up to 52 weeks, and noncompliance rates have been high. 5 The Childrens Court in Victoria does have available to it a resource, which is not a sentencing option but an aid to sentencing and that is the Childrens Court Clinic; 6 which is available to provide reports to the court independently of the relevant family services department. In Queensland, the immediate release order has been adopted as alternative to imprisonment. 7 The Juvenile Justice Act 1992 (Qld) has recognised the compliance difficulties inherent in making an order longer than three months. The Immediate Release Order is similar to the Youth Attendance Order in that the child is subject to a suspended sentence subject to compliance with strict conditions which may be up to a period of three months. Recent statistics suggest that the non-compliance rate across the State averages approximately 35% which is better than the non-compliance rate in Victoria for youth attendance orders. Western Australia and the Northern Territory are alone in having options available for mandatory sentencing of juveniles. 8 Section 53AE of the Northern Territory Act requires a Magistrate or Judge to impose a period of at least 28 days detention on a juvenile (defined as a person who is between 15 and 17 years of age) who has been convicted of any one of a list of property offences and has at least one prior conviction for a property offence committed after 8th March The Criminal Code Amendment Act (No 2) 1996 (W.A.) known as the three strikes legislation applies to both juvenile and adult offenders and makes it mandatory for a judicial officer to sentence a repeat offender convicted of a home burglary to a minimum of 12 months detention (for juveniles) or imprisonment (for adults). The legislation defines a repeat offender as a person convicted of a relevant offence committed in respect of a place ordinarily used for human habitation and subsequent to that conviction, again committed and was convicted of a relevant offence committed in respect of such a place. Mandatory sentencing provisions, particularly for juveniles, has been the subject of criticism. 9 The West Australian court also has available the extreme option of an indeterminate sentence for a repeat juvenile offender. However, in practice, this option is rarely used, if ever. In most jurisdictions, there is a limitation on the maximum term of imprisonment which is determined Section 23(2)(b) Young Offenders Act 1993 (SA). Section 98 Youth Offender Act 1994 (W.A.). Sections 170 Children and Young Persons Act 1989 (Vic.). Walters Alternative to Youth Imprisonment: Evaluating the Victorian Youth Attendance Order (1996) 29 The Australian and New Zealand Journal of Criminology p.166. Division 8 s.37 and following 1989 (Vic.). s.176 Juvenile Justice Act 1992 (Qld). e.g. Juvenile Justice Amendment Act (No 2) 1996 (N.T.) Criminal Law Journal Volume 22 August 1998, p

4 by the choice of venue and the type of charge. For example, in Victoria, children aged 10 to 15 years can be detained in a youth residential centre for up to two years, 10 whilst 15 to 17 year olds can receive up to three years in a youth training centre. 11 The South Australian Youth Court can sentence a youth (over 10 and under 18) to up to three years in a training centre. 12 In Queensland, the Childrens Court of Queensland (comprised of a Childrens Court Judge) or the District Court, can sentence up to a maximum of ten years or if the offence is a serious offence that is a life offence, up to a maximum of ten years or up to life if the offence involves the commission of violence against a person, and the court considers the offence to be a particularly heinous offence, having regard to all the circumstances. 13 In West Australian, the court has the same jurisdiction as for adult offenders, although a magistrate sentencing a young person has a maximum period of imprisonment of up to six months, unless the power is extended by the President of the Childrens Court of Western Australia. This brief summary will indicate that in Australia, the criminal justice model with its emphasis on deterrence, retribution and rehabilitation has largely been adopted into the various laws dealing with children as offenders. As I have noted, the restorative approach has been adopted as a central platform in the New Zealand legislation, and is being trialled in most Australian jurisdictions. The limited statistical information available throughout Australia as to the rate of juvenile imprisonment indicates that in those Australian jurisdictions which objectively have adopted a more punitive criminal justice model with extensive powers to imprison (Western Australia, Northern Territory and Queensland) the juvenile detention rate is extremely high. I am grateful to Dr David Brereton, the Director of the Research and Prevention Division of the Queensland Criminal Justice Commission for his assistance in obtaining and analysing what statistics are available, and with his permission, I publish as a annexure to this paper, a table setting out this information as at 22nd April Section 186 Children and Young Persons Act 1989 (Vic.). Ibid, s.188. Section 23(2)(a) Young Offenders Act 1993 (SA). Section 121 Juvenile Justice Act 1992 (Qld.). 4

5 Juveniles involved with the police ( ) and juveniles (10 to 17 year olds) in the criminal justice system or in custody, Australia and New Zealand, at 22 April 1998 Particulars Rate per Rate per 100,000 juveniles in JJ system Rate per 100,000: (rounded) 100,000 offences involving formal Indigenous Non- Indigenous Total juveniles in custody contact between juveniles and police New South Wales n.a Victoria Queensland South Australia Western Australia Tasmania Northern Territory 5440 n.a. n.a. n.a. n.a. Australian Capital Territory n.a Australia n.a. n.a. n.a. n.a. n.a. New Zealand n.a In the first column, as defined by each jurisdiction and in all other columns, those aged 10 to 17 years. Thus all states shown, with the exception of NT, will include some adults, i.e. those aged 17 years who are not dealt with as juveniles. The data for most states relates to the number of offences, not people (except for the Northern Territory and Tasmania which are more a count of people). To calculate a rate, the population figure must be used. Thus in the calculation of these figures, offences are compared to people, a statistically inappropriate procedure. This will account for the relatively low figure for NT, as population is being compared. 5

6 The figures in the table show the number of offences associated with formal contact between juveniles and the justice system for 100,000 juvenile population (including those cautioned or referred to a community conference). There is no data available in the Northern Territory; my own informal enquiries of judicial officers in the Territory suggest that the rate of juvenile detention in that jurisdiction is even greater than Queensland and Western Australia. This is not surprising as the Territory has the highest rate of imprisonment in Australia; 14 although Queensland is making a challenge. 15 It has often been noted by academics and lawyers that the punitive approach involving greater incarceration does not work as a crime prevention measure, and indeed, tends to promote higher levels of recidivism particularly amongst young offenders. 16 This trend has led some highly respected academic commentators to challenge the need for specialist childrens courts, if children are to be sentenced by reference to the same retributive model and principles applicable to adults. 17 Indeed, in the same paper, Professor Freiburg notes that in the United States the policy makers have followed the trend of treating child offending in the same general way as adult offending; which in turn has led to the application of the whole range of criminal sanctions to juveniles and the reduction or elimination of the jurisdiction of specialist childrens courts. Since Professor Freiburg delivered that address in 1992, as I have noted, all Australian jurisdictions have, to some extent, adopted aspects of restorative justice, as part of an overall approach to young offenders. A number of the conferencing programmes have been evaluated, and reports of these evaluations were delivered at the International Youth Justice Conference in Wellington, New Zealand, in October of The Canberra programme, known as RISE (Reintegrative Shaming Experiment) was evaluated on the basis of observations of around 200 cases involving young people involved in property or violent offences randomly assigned to a court or to a conference and interviews with the offenders and victims involved in those incidents. 18 The finding suggests that both offenders and victims found the conference option fairer; and victims found that they were much better treated by the conference process than the court process. Interestingly, the offender group reported more dimensions of reintegrative shaming after conferences than after court, including feelings of forgiveness. Such findings do not fit well with the traditional approach to punishment for crime, nor do they fit well into the adversarial model of fact finding, however, in my own limited experience of dealing with offending youth, I have noted quite starkly that child offenders, generally speaking, are much more comfortable with the court process (when they have their own lawyer and are rarely personally involved in the court process); than with the idea of having to confront and be confronted by the victim of their offending at a time soon after the offence has been committed. The South Australian juvenile justice project has also been evaluated, and the Editorial Criminal Law Journal Volume 22 p.201. Criminal Justice Commission Monitor Series Volume 3 April M. Cain: Recidivism of Juvenile Offenders in New South Wales, Department of Juvenile Justice, 1996, p.1. Arie Freiberg: Abolish Childrens Court? The Second Alicia Johnson Memorial Lecture Darwin, 11th September Strang: Research on Conferencing: The Canberra Experiments, Youth Justice in Focus Conference Proceedings, New Zealand 1998, p

7 results of that evaluation are yet to be published. A report was given to the New Zealand conference as to the methodology employed in that evaluation, and as to the possible benefits that flow through the interaction between researchers and practitioners involved in restorative justice programmes. 19 In Queensland, trial projects at Logan and Ipswich have been conducted with positive results and a further pilot is being launched today (17 June 1999) in Cairns. In light of these developments, it is timely at a conference such as this, focussing on children and crime, to report some observations made at the New Zealand conference by the Chief Judge of the District Court, His Honour Judge R.L. Young. The Youth Court of New Zealand is presided over by a Judge of the District Court. Judges of that court exercise Federal jurisdiction which includes criminal, family and protective jurisdiction. In his paper delivered to the New Zealand conference, 20 the Chief Judge identified a number of shortcomings identified by Judges of his Court over the nine years of operation of the Children and Young Persons and Their Families Act He said this: From the perspective of the judiciary, youth justice co-ordinators have individually had some success, sometimes spectacularly so. Individual co-ordinators have brought extraordinary energy and inventiveness to their tasks and individual social workers have also brought a professionalism and energy to their work which has been impressive. But all too often, judges have observed the following shortcomings: a lack of independence of youth justice co-ordinators from the (Family Services Department), so essential the credible performance of their job; family group conferences called outside the time limits provided in the Act; family group conferences adjourned because essential participants are not present; conferences occurring without victims and without essential family members present - too often because inadequate effort has been made to ensure their presence; conferences all too often suffering from uninventive and poorly structured results; conferences where the players are only going through the motions of a process; recommendations of family group conferences that are often nothing more than apologies and purposeless community work; children, young persons and their families service reports that are too often superficial which fail to get to or address the real issues for the family; rehabilitative community based programmes which are available and successful which are not or cannot be funded by (the Department); desirable sentencing options are seen as too expensive by the (Government Department) or as requiring too much supervision by them; a lack of credibility of sentencing options - too often there is monitoring of sentences with the result the Judges and the community have no idea whether or not the sentence is completed. In short, there is a lack of sentence integrity; Daly & Kitcher: The Revolution of Restorative Justice Through Researcher- Practitioner Partnerships: Ibid. p.184. Young: Youth Justice in New Zealand - Some Problems. Youth Justice in Focus Conference Proceedings New Zealand 1998 p

8 In his paper, Judge Young suggests a number of reasons as to why the failures were occurring, including inadequate resourcing and inadequate allocation of resourcing within the relevant departments, and poor training and a lack of commitment to the principles of the Act among some of the key professionals. Some of the proffered solutions included a Department of State solely focussed on youth justice and youth justice co-ordinators employed by the Department for Courts with their own administrative structure and a National police infrastructure for youth offending supported properly by police headquarters. Obviously, these observations and criticisms cannot simply be applied to the various Australian jurisdictions; where there are many differences, not the least being demographical differences and a different judicial hierarchy, however, they are worth noting as Australian jurisdictions consider more creative ways of dealing with young offenders, particularly programmes based on restorative justice principles. You might well ask why I have spent some time on this issue, which is, by and large, a diversionary process rather than a sentencing option for a court. I have done so because I have concluded that to be effective, the family group conference process must be linked in a creative way to a specialist court such as occurs in New Zealand. I think the reality is that the public is unlikely to accept a wholesale approach to dealing with juvenile offenders which is not linked in some way to the specialist Childrens Court process (particularly those charged with the most serious crimes). Despite all the criticisms of the sentencing process, the public do have confidence in the court system because it is open and accountable. How this is to be achieved, in the event that we move further down the New Zealand path is a matter for future debate. Finally, in this context, I wish to mention an initiative of the District Court of Queensland of which I am a member. In April 1999, the District Court conducted the first ever criminal circuit to the remote Murri communities of Mornington Island, Normanton and Doomadgee in the Gulf of Carpentaria in North Queensland. The circuit to Mornington Island is the subject of a Radio National Awaye programme which went to air on 21st and 22nd May At each centre, I took the unusual step of meeting with the elders and their comments have convinced me that, in such communities, a much more creative approach to sentencing is called for. This particularly applies to the sentencing of young people. Community justice programmes are being developed in each community and I think it is much more likely from the point of view of common law principles of sentencing, such as deterrence retribution and rehabilitation, that sentences carried out within the community and subject to community supervision are likely to be much more effective as a crime prevention measure. Much care needs to be taken, to avoid the real criticism of unequal justice; but it does seem to me that restorative justice principles could readily apply, e.g. community based detention on a traditional outstation under the supervision of tribal elders for a set period as opposed to 12 months in a prison 800 kilometres away on the eastern seaboard of Queensland away from family and elders and under the influence of others from different communities is likely to be a much more positive option from the point of view of the community, the victim and the offender. My observations mirror concerns expressed in New Zealand as to the dangers of removing young Maori from their family or extended family and placing them in detention centres a long way from their traditional areas Levin & Ors: Creative Youth Justice Practice, Social Policy Journal of New Zealand, Issue 11, December

9 Conclusion As many more experienced in this difficult area have observed, there is no easy solution to the complex problem of youth offending. The Courts are but one element; and there are many questions to be answered about the suitability of traditional models of criminal justice in the sentencing of children. The problem of youth crime is multi-faceted; and a cursory glance at the contents page of the New Zealand Conference, to which I have made reference, indicates that in finding solutions, consideration must be given to the importance of the role of the family of the child, the community (including the victim of the offence), the police, the schools, the various professionals from the relevant Government department, researchers, lawyers and the courts. It is no longer acceptable for courts to approach the sentencing of children as if child offenders were simply young adults. 9

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