Sentencing Options for Youth Offenders

A police officer may be of the opinion that despite admitting the commission of an offence, the nature of the offence requires more formal proceedings than any of the above diversionary procedures. In cases such as this, the police officer may file a complaint for the offence before the Court. Court is also a probably outcome if the youth fails to appear at a community conference, the conference fails to make a decision, or the youth fails to fulfil an undertaking agreed to at a conference. The court may then deal with the offence that originally triggered the conference and the court may impose a sentencing order (s47, Youth Justice Act 1997 (Tas)). These orders include:

• dismiss the charge and impose no further sentence;
• dismiss the charge and reprimand the youth;
• dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;
• release the youth and adjourn the proceedings upon conditions;
• impose a fine;
• make a probation order;
• impose a community service order;
• impose a determinant period of detention.
• under forthcoming amendments, impose a certain sentences under the Sentencing Act 1997 (Tas) if the offender is 18 years old or more but committed the offence when they were a youth.

In addition to the above the court may also make one of the following orders:

• a suspended detention order; and/or
• a restitution order; and/or
• a compensation order.

The court may not impose probation, community service orders or detention without obtaining a pre-sentence report. The court can only issue a community service order if a youth indicates willingness to comply with such an order.

Recording convictions

Section 48 of the Youth Justice Act states that the Court must not impose a sentence that is more severe than would be imposed on an adult who commits the same offence while section 49(1) provides that if the court imposes a sentence that does not include a fine, probation, community service or detention a conviction is not to be recorded. Section 49(2) provides that if the court imposes a sentence of a fine, probation or community service the court may order that the conviction either is or is not to be recorded. If the court imposes a sentence consisting of or including a period of detention and does not make a suspended detention order a conviction must be recorded (s49(3)).

In determining whether or not to record a conviction, the court must have regard to all the circumstances of the case, including (s49(4)):

• the nature of the offence;
• the youth’s age;
• any sentences or sanctions previously imposed on the youth by any court or community conference and any formal cautions previously administered to the youth; and
• the impact the recording of a conviction will have on the youth’s chances of rehabilitation generally or finding or retaining employment.

Under forthcoming amendments, in determining whether or not to record a conviction, the Court must ensure that the matter of rehabilitation of the youth is given more weight than is given to any other individual matter.

Cautioning

Cautions are the first tier of diverting youths away from the criminal justice system. They are meant to provide a means of conveying the gravity of the situation without necessitating the stress of a court appearance, on the youth. Informal cautions are for offences that a police officer deems trivial enough to not warrant more formal means of punishing a young offender. After informal cautions come formal cautions, followed by community conferencing, and finally the Youth Justice court.

Informal cautions

Police have the discretion to informally caution young offenders where the youth admits the commission of an offence. Records are kept of informal cautions. Informal cautions occur on the spot, where the young person admits to the commission of the offence (section 8). Agreeing to an informal caution may affect how the police engage with a young person on subsequent occasions when the young person is suspected of having committed an offence. A second offence is more likely to lead to a formal caution or court proceedings.

Formal cautions

Where a young person has been apprehended and admits to the commission of the offence, the police can formally caution the young person (s9(1)). It is a requirement that a youth justice worker be present at a formal cautioning.

There is always the option for an arresting officer to issue a formal caution for offences such as shoplifting, trespass, and under age drinking. If a young person agrees to a formal caution, this has legal consequences. It can be used as evidence of a prior offence, which may affect sentencing if there is a subsequent conviction (s10(3)(b)).

During the formal caution the officer may require that the young person enter into one or more of the following undertakings (s10(2)):

•  to pay compensation for loss of or damage to property and/or injuries suffered, expenses incurred or other loss suffered by the victim of the offence;
• to make restitution of property;
• to perform a specified period (not exceeding 35 hours) of community service which is for the benefit of the victim of the offence. Amendments to the Act will see restrictions on the types of community services that a youth under 13 can perform, and an additional cap on cumulative hours will apply 70 hours for a youth less than 16 and 210 hours for a youth 16 and over.;
• to apologise to the victim of the offence;
• to do anything else that may be appropriate in the circumstances.

Undertakings have a maximum duration of three months. If the undertaking is entered into and completed there will be no further action taken. However, if a young person has not ‘substantially completed’ a formal caution without reasonable excuse for not completing the undertakings, the Police have the option of consulting with the Secretary of the Department of Communities and taking further action, either by referring the youth to community conference or filing a complaint on the original charge. There are time frames that limit the period of time within which this can happen.

There are provisions in the legislation to allow Aboriginal Elders or their representative to administer a caution where the young person identifies with the Aboriginal Community (s11). There is also provision for other community representatives of religious, ethnic or other community groups to administer cautions where the young person identifies with that particular community (s12).

The young person also has an option not to agree to be formally cautioned. In deciding whether or not to admit to the commission of an offence, the young person is entitled to legal advice. If the young person does not admit to the commission of the offence, legal advice should be sought and questions relating to the offence should only be answered in the presence of a legal representative.

Given the consequences of admitting to an offence, young people are always encouraged to seek legal advice in all circumstances in which they are considering admitting to the commission of an offence.

Victims can be present at the administering of the formal caution. If the victim is not present while the formal caution is administered, section 10(9) provides that they may be informed of the identity of the offender, as well as how the offence has been dealt with.

Community Service Orders

Section 69 of the Youth Justice Act provides for imposing community service orders on young offenders aged 13 to 17 years. The court may make a community service order only if the youth is at least 13 years old and indicates a willingness to comply with the order, and a pre-sentence report states that the youth is a suitable person to perform community service. A young offender, under the age of 13, may be subject to undertakings, but can not be given a community service order. For youths under 16 years of age, a maximum is allowed of 70 hours of undertakings. For youths over 16, the maximum is 210 hours of undertakings. This would be applicable where a youth may have been sentenced in relation to several offences, or have a community service order from a prior offence still ongoing, or have a community service undertaking from a formal caution (s10(2)(c)). The court may choose to impose other special conditions.

Community conferences

Community conferencing is the third tier of diverting youth away from the court and sentencing system. The rapid changes of adolescence and the tendencies for risk-taking behaviour that manifest in young people mean that the court system is often too slow, or formal to address the issues that underlie unlawful behaviour. Community conferencing is meant as both a restorative justice process and a means of rehabilitation, aiming for greater flexibility and responsiveness than the court system permits. The youth is encouraged to acknowledge responsibility and make reparation to the victim of the offence. Community conferencing is used around the world as a means of bringing youth into a community-based structure that allows for learning and growth from unlawful behaviour. It can reduce re-offending whilst promoting community ties with youth.

A youth may be diverted into the community conferencing system at the discretion of the police officer, as an alternative to formal cautioning, where the offence is considered too serious for informal cautioning. In order for this to happen, the youth must agree in writing to attend, and also to accept responsibility for their offending behaviour. Under forthcoming amendments, a youth may also be referred to community conferencing if they fail to substantially fulfill the undertakings of the caution.

Courts can also order community conferencing as a diversion from sentencing, but it is court-ordered, and takes the element of self-responsibility away from the youth. If a youth fails to fulfil undertakings agreed to at a community conference, the offence that triggered the conference may be dealt with by a court, and, if the youth is found guilty, the court can impose a sentence or order.

Community conference requests must first be made by the police officer to the Secretary of the Department of Communities (s13). The Secretary then appoints a facilitator to make contact with the necessary parties (s14). The Secretary must be provided with the names and addresses of the youth, his or her guardian/s, relatives who may be able to usefully participate in the conference, people with close associations with the youth, and the victim (s13) The facilitator may also invite any other person they believe may be able to usefully participate in the community conference. The victim is not obliged to attend; however if they do choose to attend, one or more support persons may accompany them. The young person is entitled to be accompanied by one support person.

Compliance with a community conference order and any undertakings arising from that conference will see the charge before the Court dismissed (s41) and the records of the court amended (s41(2)). Nevertheless, if the youth later appears before a youth justice court, the court may well refer to previous sanctions imposed by a community conference when determining an appropriate sentence for a subsequent offence (s47(4)(b)).

The following sanctions may be imposed at a community conference (s16):

• administer a caution against further offending;
• require the youth to enter into an undertaking to pay compensation for injury suffered by the victim or any other person because of the offence;
• require the youth to enter into an undertaking to pay compensation for loss or destruction or damage to property;
• require the youth to enter into an undertaking to make restitution of property;
• require the youth to enter into an undertaking to perform a specified period, not exceeding 70 hours, of community service. Amendments will alter these provisions in the near future;
• with the agreement of the victim of the offence, require the youth to enter into an undertaking to apologise to the victim;
• require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case.

An undertaking may have a duration not exceeding 12 months. If practical, the community conference should reach a decision on the sanctions to be imposed on the youth by consensus. The community conference is taken to have failed to reach a decision unless all the following persons agree to the imposition of the sanction:

• the youth;
• the police officer; and
• if the victim is present at the conference, the victim.

Fines

Sections 57 to 64 of the Youth Justice Act cover fines. The court must not impose a fine in respect of a single offence that exceeds:

• if the youth is less than 15 years old, 2 penalty units or the maximum fine, whichever is lower; or
• if the youth is 15 or 16 years old, 5 penalty units (5 x the current amount) or the maximum fine, whichever is the lower, or
• if the youth is 17 years old or more, the maximum fine.
• The court must not impose fines in respect of two or more offences the total of which exceed:
• if the youth is less than 15 years old, 5 penalty units or the total of the maximum fines for those offences, whichever is lower; or
• if the youth is 15 or 16 years old, 10 penalty units or the total of the maximum fines for those offences, whichever is lower; or
• if the youth is 17 years old or more, the total of the maximum fines for those offences.

The court must take into consideration the financial circumstances of the youth when determining the amount of a fine to be imposed on the youth if the youth is present before the court. The court may order that the fine be paid in installments.

If the youth has difficulty in paying the fine within the period required, they can apply for further time or an amendment to the order to pay the fine (section 60(1)).

If the youth fails to pay a fine, they may be summoned to appear in court and the following orders may be made:

• amend the order so that the fine is paid by installments that the court considers appropriate;
• order the youth to perform community service instead of paying the outstanding amount of the fine;
• order the district registrar to take proceedings for the recovery of the outstanding amount of the fine;
• revoke the order made under section 47 and make another order under that section in respect of the offence.

Deferral of Sentence

Deferral of sentence is a recent addition to the Youth Justice Act under sections 47(1)(j) and 56A – 56D. The thought behind deferred sentences is that as an alternative to incarceration, conducive to rehabilitation of a  young offender. A sentence can now be deferred for up to 12 months. In that 12 month period the court may have imposed conditions and requirements that the youth must meet, such as attending counselling or drug treatment. The court has a monthly review of the progress of the youth. If the conditions are being met satisfactorily, the review frequency may be decreased (section 56C) as a reward. Failure to comply may result in more frequent reviews or a revocation of the deferred sentence. If the youth does not respond to the conditions and review process intended for rehabilitation, the long term consequence is that at the end of the deferral period the court may sentence the youth to a period of imprisonment.

Supervised Release Order

Supervised release orders are the youth justice equivalent of parole. A sentence for a young offender always has a supervised release date of half the head sentence. Supervised release must take place at the earliest release date (section 109).

Sentencing for Prescribed Offences

The sentencing options open to the magistrate for offences other than prescribed offences have already been discussed above. For prescribed offences that only the Supreme Court can deal with,  Supreme Court judges may either sentence under the Youth Justice Act (see below), or they may impose the same sort of sentences as they are empowered to impose on an adult, subject to the considerations that naturally follow upon the age of the offender.

The Supreme Court has the discretion (s 107, Youth Justice Act) to sentence either under the Youth Justice Act or the Sentencing Act 1997. If a young person is sentenced to imprisonment under the Sentencing Act, they are usually detained at the Ashley Youth Detention Centre, rather than in prison as detention of a youth in an adult prison would violate the UN Convention on the Rights of the Child. Youths sentenced under the Sentencing Act and detained at Ashley are classified as Prisoners on Sentence rather than detainees.

If a youth pleads guilty to a prescribed offence which is a serious indictable offence, then depending on the particular offence, there often a choice (called ‘an election) whether to be sentenced in the Magistrates Court or in the Supreme Court. Legal advice should always be sought before electing to go to the Supreme Court rather than the Magistrates Court.