Executive summary
Updates and background for this project (Digest)
Because of their youth, young people between the ages of 10 and 17 years require special consideration at sentencing. For that reason, they are sentenced under a separate system to adults. This report examines the two main pieces of legislation governing the sentencing of young offenders and forming the basis of juvenile justice policy: the Young Offenders Act 1997 (NSW) (“YOA”) and the Children (Criminal Proceedings) Act 1987 (NSW). Where necessary, the report makes recommendations for the reform of these and other statutes relating to the sentencing of young offenders. It also explores the distinct philosophy, practice and procedure of the juvenile justice system.
The implementation of the YOA is arguably one of the most significant developments in juvenile justice in the twentieth century. It established a scheme to divert, wherever possible, young offenders away from formal court processes through the use of warnings, cautions and conferencing. Youth justice conferencing, in particular, provides a community-based response to offending that seeks to identify the cause of the offending; to encourage the young offenders to take responsibility for their conduct; and to require offenders to make reparation for harm caused. In this way, it addresses the needs of victims and offenders more directly than traditional court proceedings, and holds out the promise of reduced rates of recidivism. The Commission supports the objectives and approach of the YOA.
The report considers a number of ways in which the YOA should be strengthened to achieve its objectives. First, the report focuses on the effectiveness of the discretionary decision-making processes under the Act. It expresses concern that recent legislation increasing police powers in areas likely to have a particular impact on young people, threaten the diversionary aims of the YOA.
Secondly, the report examines the case for extending the scope of the YOA beyond the offences to which it currently applies. The Commission concludes that the only reason why an offence should, in principle, be excluded from the operation of the YOA is that it is so serious that, even in the case of a young offender, it cannot appropriately be dealt with by a diversionary option. At the same time, we recognise that Parliament may from time to time, for broader policy reasons, decide to exclude certain offences from the operation of the YOA (as is currently the case, for example, with breaches of Apprehended Violence Orders and certain drug offences).
The report considers the particular problems that arise in sentencing young offenders convicted of serious offences. The present law requires the sentencing court to set a non-parole period and then the balance of the term. In cases of serious offences that attract lengthy prison sentences, uncertainties surrounding the offender’s future emotional and intellectual development and maturing make it difficult for the court to apply the objectives of sentencing (that is, rehabilitation, incapacitation, deterrence, retribution and denunciation) to arrive at an appropriate punishment. In such cases, the Commission recommends that, while the young offender should still be sentenced according to the usual method, the sentencing judge should have a discretion to make an order, in appropriate cases, that the offender be re-sentenced at a specified time before the end of the non-parole period.
The Children’s Court plays a central role in achieving the aims of juvenile justice in NSW. Its sentencing jurisdiction extends to serious and complex cases. In the Commission’s view, the Court (which we recommend renaming the “Youth Court”) should be strengthened by appointing as its head a District Court judge, who, in turn, would be primarily responsible for the appointment of Children’s Magistrates. We also recommend that the Children’s Court should consider initiating a rural circuit so that the benefits of a specialist jurisdiction are made available in country areas of NSW.
Decisions about bail have the potential to impact seriously on the diversion of young offenders from the criminal justice system and on sentencing outcomes, thereby undermining the policies upon which juvenile justice in New South Wales is based. The Commission recommends that the Bail Act 1978 (NSW) should be amended to identify separate criteria to be applied to young people. This would deter unnecessary refusals of bail and the imposition of harsh and inappropriate conditions. We also recommend that the presumption against bail for certain repeat offenders should not apply to young people.
