Under the Victorian Sentencing Act (1991) a person is classified as a young offender if at the time of sentencing they are under the age of 21. At common law, however, there is no particular age when an offender is no longer considered youthful. This means that youth may be taken into account at sentencing even when the offender is older than 21. Youth is often treated as a mitigating factor at sentencing. However, the mitigating impact of youth decreases as the offender ages. While young offenders may be given more lenient sentences than older offenders, in some instances other considerations will be found to be more important than the offender’s youth.
Why is youth a factor in sentencing?
Youth is a major factor in sentencing. In the case of young offenders, particularly where they have had no prior dealings with the justice system, it is usually appropriate not to impose a sentence which involves a term of actual imprisonment, even for serious offending.
The courts recognize that young offenders are immature and may not understand the consequences of their actions. They also recognize that young people have their whole lives ahead of them and generally should not have their prospects – professional and otherwise – ruined by a youthful mistake.
R v Mills
In the 1998 case of R v Mills, a 20-year-old offender was convicted of recklessly causing injury and sentenced to 18 months imprisonment. The defendant was 21 by the time of sentencing. He appealed the sentence and the Victorian Court of Appeal found in his favour, holding that the following considerations should be taken into account when sentencing a youthful offender:
- First and foremost, the youth of the offender, particularly if they have no prior convictions;
- The importance of rehabilitation over general deterrence in the case of a youthful offender, as focusing on rehabilitation decreases the chances of re-offending; and
- That a youthful offender should not be sent to an adult prison if this can be avoided as this may lead to further offending.
Since this decision as handed down, the considerations it outlined have been followed by the courts and have generally been considered a good starting point for understanding the sentencing considerations of youthful offenders.
Rehabilitation and young offenders
The courts have stressed the greater importance of rehabilitation compared to general deterrence when it comes to youthful offenders. Rehabilitation not only benefits the offender but also the community at large. One of the main reasons why the courts emphasise rehabilitation for young offenders is that young people are more likely to change as they are still in a developmental stage. Moreover, youthful offenders are more inclined to be influenced by criminal behavior in prison which increases their chances of reoffending.
In order to maximise a young offender’s prospects of rehabilitation, courts may order that they undertake specific programs. Some of these programs are outlined below.
The Ropes Program is a one-day diversionary program offered to eligible teenagers who plead guilty to an offence. The program involves participating in rope climbing activities with police rather than being dealt with by the criminal justice system.
The P.A.R.T.Y Program is an in-hospital trauma prevention program designed to familliarise young people including young offenders with the consequences of risk-taking behaviours. The program involves spending time in emergency rooms and intensive care units and speaking to medical staff about injuries and how they can change lives.
Drug and Alcohol Counselling
When young offenders are charged with offending that is drug or alcohol-related, they may receive sentencing orders that include a requirement that they undergo drug or alcohol counselling.
Behaviour Change Program
The Behaviour Change Program is a VicRoads program that is a requirement for anyone who has been found guilty of a drink or drug driving offence. It is designed to help offenders to understand the reasons the offence occurred and to avoid such offending in the future.
Anger Management Program
When young offenders are charged with violent offences, they may be required to undergo anger management as a condition of their sentencing order or as part of a diversion program.
Limitations of youth as a sentencing factor
Although the courts have reference to the considerations mentioned above whenever they are sentencing a young offender, they often find that other sentencing considerations outweigh the considerations set out in the decision of R v Mills.
Other sentencing considerations that may outweigh the offender’s youth are the objective seriousness of the offences, the nature and the circumstances of the offences, and the offenders past prior criminal history.
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