A rude awakening – Sentencing in the Children’s Court vs sentencing in the adult jurisdiction
It is sadly commonplace in my day to day practice as a criminal solicitor to act for people accused of crimes when they are children and then act for them again after they have turned 18. Ordinarily the alleged offending will not be drastically different when I encounter them the second time around. Very often the second time I meet them they will only be a few months older than when I last saw them. What has radically changed is the potential penalty they are facing now that they have turned 18 and find themselves in the adult jurisdiction.
The principles for sentencing people in the Children’s Court are set out in section 362 of the Children, Youth and Families Act 2005 (Vic). Many of these principles require decision makers to attribute significant weight to the rehabilitation of the person being sentenced and the need to divert them away from anti-social behaviour. The sentences available to the decision maker when sentencing young people reflect these principles. The decision maker has a wide range of community-based sentences available to sufficiently punish the young person they are sentencing without putting them into a custodial environment.
Sentencing in the adult jurisdiction is an altogether different experience for a person who has been found guilty of a crime. The sentencing guidelines set out in section 5 of the Sentencing Act 1991 (Vic) a demonstrably less focused on rehabilitation and diversion from future encounters with the justice system than s 362 of the Children, Youth and Families Act, although rehabilitative principles continue to play an important role. As Vincent JA noted in R v Evans, ‘as a matter of law and practice it is recognised that the respective weight to be given to relevant sentencing factors will vary’ when dealing with youthful as opposed to mature offenders.1
The differences in sentencing practice between the children’s and adult jurisdictions are jarring for a young person found guilty of a crime. A person who commits an armed robbery when they are a child is more likely to avoid going to gaol and receive sentence that they will serve in the community. As part of that sentence, they may receive support from Youth Justice to help them find employment, obtain an education or receive treatment for mental health or substance abuse issues. These supports will often provide a young person with the support they need to live a pro-social life. On the other hand, a young adult who commits an armed robbery will be faced with the prospect of being remanded in custody and serving a prison sentence, where they will mix with people institutionalised in the prison system and receive the type of education that the community can ill afford.
There is of course some capacity for judicial decision makers to smooth the transition between the Children’s Court and the adult jurisdiction. There is a significant body of case law emphasising the importance of rehabilitation for ‘youthful offenders’ over the age of 18. Magistrates can and do use Community Corrections Orders to sufficiently punish youthful adult offenders without placing them in custody. Regardless, the sentencing options in the adult jurisdiction are blunter and there is a noticeable dichotomy between the types of sentences imposed in the children’s court and the adult jurisdiction for similar offending. I regularly hear this acknowledged when Magistrates warn people they are sentencing in the Children’s Court that the offending they have committed would attract a significantly heavier sentence in the Magistrates’ Court.
It appears artificial to me that once a person reaches the age of 18, they are suddenly subject to an altogether harsher sentencing regime. In my experience a person who is 17 years and 11 months old is no more mature than a person who is 18 years old, however the justice system treats them very differently. I think there is some merit to extending the more rehabilitative focused sentencing practices from the Children’s Court to people up to the age of 21. This way, young and often immature 18-21-year-olds can receive the same type to targeted treatment to remove the underlying causes of recalcitrant behaviour that is so effective in the Children’s Court. The community broadly would benefit from this approach. It is undoubtedly better to have young members of the community rehabilitated and becoming contributing members of society than it is for them to be incarcerated and exposed to the very worst role models imaginable.
  VSCA 223