How should we deal with young offenders?
02 August 2017

The South Australian Government has promised to get tougher on young people who commit serious crimes, claiming that some prison sentences given to young offenders are too lenient and do not meet community expectations of adequate punishment.

But what should the community expect? That recalcitrant teens get their just desserts? That the courts put community safety first? That prison will reform wayward youths?

Punishment is a feature of any sentencing regime, but the current Young Offenders Act places a particular focus on providing rehabilitation to a person under 18 convicted of an offence. Much of the intense debate about how we deal with young offenders has been about whether this is the right approach, what kind of message it sends, and whether sentencing decisions based on this principle gives sufficient regard to the trauma suffered by victims.

The debate hit fever pitch after a teenager was given a three-year sentence with an 18-month non-parole period for recklessly driving a stolen car that tragically killed Nicole Tucker. The boy was 15-years-old at the time of the offence.

The Government’s response to this horrific incident and attendant controversy was to introduce proposed laws that would make judges apply adult sentencing guidelines to minors convicted of particularly serious crimes.

 

What is the deal with the proposed new laws?

The Government wants to remove the provision in the Young Offenders Act that directs courts to consider “care, guidance and correction” in the sentencing of young offenders when those offenders are being tried as an adult. In its place, the proposed law says that the paramount consideration when determining an appropriate sentence must be the protection of the community.

Currently, the Youth Court, Magistrates Court and DPP have the power to send young offenders (those under 18) to the District or Supreme Court to be tried as adults, but the court still must have regard to the object of the Young Offenders Act to "secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.”

 

Why treat youths differently to adults in the first place?

The law rightly recognises that young people are fundamentally different to adults. Their cognitive functions are under-developed and their capacity to appreciate the consequences of their actions is limited. 

The law needs to draw an arbitrary line between child and adult, and in Australia that line is drawn at 18 years of age (although recent studies show our front lobes don’t fully develop until about 25 years of age).

There is scientific consensus that children simply do not have the cognitive maturity to think through issues, regulate their behaviour and solve problems rationally to the extent that (most) adults can. This is why the law places a greater emphasis on reform of young offenders rather than punishment.

 

Does the law let young people get away with serious crime?

In the Law Society’s opinion, no. Sentences handed down by the courts are based on a complex set of principles that factor in the need for punishment as a form of deterrence, safety of the community, prospects of rehabilitation, and contrition of the offender, among other criteria. 

A sentence of imprisonment is sometimes the most appropriate response to a serious offence, particularly if it the latest in a pattern of repeat offending.

Prison plays an important role in reflecting society's condemnation of certain behaviours, but we must acknowledge that prisoners will at some point be released. Prison alone will not reform offenders. Conversely it can act as a training ground for criminal behaviour.

 

Will increasing the sentences for young offenders make the community safer?

It is doubtful that increasing sentences for young offenders will make the community safer.

If there is any group of people unlikely to be influenced by tougher laws, it's young people, who are typically more rash, impulsive, reckless and irrationally assured of their invincibility than adults.

Furthermore, the history of abuse and trauma that is a hallmark of many young offenders compounds that inability to make sound decisions. The circumstances of the offender should in no way excuse their behaviour but if we don't address the link between a child's upbringing and their destructive behaviour then we are just paying lip service to the problem.

If community safety is the paramount concern, the Government should be investing in intensive support services that involve case management and mentoring of young people at risk of offending.

 

Should victims have more of a say in how young offenders are dealt with?

In recent times victims have had a more visible role in the criminal justice by way of victim impact statements. A victim impact statement lets a victim tell the defendant and the court how the crime has impacted them. The court can take the statement into account when sentencing someone or ordering compensation.

The Youth Court runs family conferences which bring together young offenders and victims. Victims can speak directly to offenders to let them know how their lives have been affected by offenders’ actions.

The Youth Court can refer an offender to family conferences if the offender has admitted guilt, but it is not compulsory for the victim to take part. Often family conferences can be effective in making young people appreciate the consequences of their actions and provide healing to victims.

Family Conferences can divert young people to programs designed to address behaviour issues, such as anger management, drug and alcohol rehabilitation, or sexual counselling. These can have positive outcomes but there are not enough of these services currently available. Furthermore, some young people involved in these programs should then be referred on to mentoring and case management support if they have particularly complex needs, but the accessibility of these types of programs is even more limited.

 

What is the best way to curb youth offending?

There is no single solution, but tinkering with sentencing laws won’t fix the problem.

The ultimate approach must be early intervention, and not just for young people who are on a trajectory of criminality. It must start in early childhood, as soon as the State is notified of a child in a potentially unstable family environment.

Law Society President Tony Rossi, in a recent column for The Advertiser, identified the link between children in State care and youth offending and said:

“…new child protection laws … fail to address early intervention and support for the family unit. Commonly it is where a child has been in a dysfunctional family for some time and transferred from foster care to residential care that rebellious and criminal conduct develops.

In the case of children, there must be a focus on early intervention to ensure an appropriate level of education, training and skills to become contributing members of the community, and ongoing support and rehabilitation where offending occurs. There is a better prospect of correcting increasingly violent behaviour with early intervention and rehabilitation in relation to children than career adult criminals.”

The Law Society is reviewing the Statutes Amendment (Youths Sentenced as Adults) Bill and will make a submission on the Bill in due course.