The sentencing of youth offenders has gained substantial prominence in the media over the last year particularly following the deaths of two South Australian mothers in hit-and-run accidents committed by youths on our roads since October 2016.
What happened in the recent two fatal accidents involving minor offenders?
A 48-year-old mother of two, Nicole Tucker was killed in October 2016 after a 15-year old driver and his 17-year-old passenger stole a high-powered ute from a home in Adelaide’s South. The youths were tracked on Adelaide’s Southern Expressway at speeds of more than 210 kph.
The stolen vehicle was traveling at an estimated 160kph when it hit the side of Ms Tucker’s car, pushing her across an intersection into two other cars. Ms Tucker’s car burst into flames and she died instantly in the wreckage.
A prosecution application was granted to sentence the youth driving the car as an adult, after noting the gravity of the offending and the boy’s past criminal history of more than 60 previous offences. The 15 year old pleaded guilty to causing death by dangerous driving in the District Court of South Australia.
While Judge Tracey described the boy’s offending as “horrifying” and said the choices he made had a devastating impact on many people, the youth was jailed for just over 3 years and 4 months with a non-parole period of 18 months. Having already spent some time in custody, the youth offender would be eligible for parole in just 10 months.
In a similar incident in August 2017, 40-year-old mother-of-two, Lucy Paveley, was killed on her way to work when her car was struck at high speed on Main North Road by an allegedly stolen four-wheel-drive.
Three youths aged 13-15 years and an 18 year old man were charged with manslaughter following the incident.
Manslaughter charges were subsequently dropped against the three youths, but charges including aiding and abetting someone to commit manslaughter still stand against one of the 15-year-old offenders. An 18-year-old man (presumably the driver of the vehicle) has pleaded guilty to death by dangerous driving.
The incidents have reignited debate in South Australia about how youths who commit serious crimes should be treated by our criminal justice system.
How are youths currently sentenced in South Australia?
In South Australia, ‘youth’ refers to a person of or above the age of 10 years but under the age of 18 years.
The object of the current law is to secure the care, correction and guidance necessary for youth offenders to develop into responsible and useful members of the community.
While the Youth Court has the power to hear all youth-related matters; murder and manslaughter offences are usually tried in the Supreme Court. Youth matters may also be held in adult courts where a youth requests a trial by jury (as juries are not present in Youth Court matters).
Where a youth has elected to be tried in an adult court, they cannot be sentenced as an adult unless the court is satisfied that this is warranted due to the gravity of the offence or the youth’s history of offending.
A youth who has been found guilty by the Supreme Court or District Court of any offence other than murder may be sentenced in one of the following ways:
- As an adult;
- The Court may make an order in the way the Youth Court would sentence the young offender; or
- The Court may send the matter back to the Youth Court for sentencing.
A youth found guilty of murder must be sentenced to imprisonment for life and must be treated as an adult.
In South Australia the focus in sentencing a young offender is currently on the deterrent effect on the youth personally, as opposed to general deterrence, which is a greater consideration in the adult jurisdiction.
For example, if 35 year old Nick committed the same offence as the 15 year old youth sentenced for the death of Ms Tucker and received an ten year prison sentence, the court would have considered the need to discourage the general public from stealing a car, traveling at 160 kph and causing the death of an innocent mother against Nick’s potential for rehabilitation or reoffending amongst other things. Nick’s sentence would, in part, serve as an example to other road users not to engage in this kind of behaviour.
Where a youth is being dealt with as an adult, the court may consider the general deterrent effect on other youths. Regard must also be given to protection needs of the community versus the need to rehabilitate the youth. The reconciliation of these two factors is arguably the reason for the extremely low sentence imposed on the youth that caused the death of Ms Tucker.
So far as the individual circumstances of the case allows regard should also be given to preserving and strengthening the youth’s relationships, the youth’s education and employment, and the youth’s racial, ethnic and cultural identity.
The call for change to youth sentencing in South Australia
Following public outcry at the sentencing of the 15 year old responsible for the death of Ms Tucker, South Australian Attorney General John Rau introduced the Statutes Amendment (Youths Sentenced as Adults) Bill 2017 (SA) into Parliament. The Bill aims to respond to community concern over the perceived inadequacy of sentences on young offenders who have committed grave offences.
The Bill purports to remove the requirement for balancing rehabilitation and deterrence and makes community safety the paramount sentencing consideration. As the paramount consideration, community safety is to outweigh any other consideration, object or policy, including the need to rehabilitate the youth. Regard must also be had to the deterrent effect any proposed sanction may have on other youths.
This Bill, and calls for tougher youth sentencing laws have been met with mixed criticism and appreciation. While some argue that there should be a hard line for youth offenders (particularly repeat offenders), who should feel the full force of the law and suffer the consequences of their actions, others strongly disagree.
Of course, throwing the proverbial ‘book’ at youth offenders cannot always be the answer. One can certainly argue that the development of proper rehabilitative and interventionist programs that focus on strengthening families, and addressing mental health issues, as well as drug and alcohol use and family violence appear to be of greater productivity. Indeed, programs that enable youth to avoid the justice system altogether are arguably likely to reduce reoffending in the long term.
Others argue that sentencing youth offenders as adults will effectively mean longer sentences, which often have little to no effect on the rate of re-offending, and in some cases, increase re-offending rates by exposing youth to violence and crime in adult prisons.
The argument that the human brain doesn’t fully develop until 25, which makes youth offenders incapable of adult reasoning and decision making, has also been put forth as an argument against sentencing youth offenders as adults.
Attorney General John Rau insists, however, that the Bill will not open the floodgates as it is not aimed at the typical young offender but rather, a very small group of serious young offenders. Indeed, the Bill does not change the test as to whether a person will be considered a serious young offender, and should therefore be tried as an adult. This remains at the behest of the court, taking into consideration the gravity of the offending and the youth’s past criminal history.
As a society we are intent on maintaining the distinction between children and adults – we do not let those under the age of 18 years purchase alcohol or vote because of the fundamental recognition that children are simply not adults.
But should young offenders who commit even the gravest of crimes, possibly time and time again, be given the benefit of that distinction? Should community safety outweigh the need for rehabilitation when it comes to serious and repeat youth offenders? Drawing a hard line is certainly no easy feat and it is likely that opinions will remain clearly divided in relation to this issue.
The Statutes Amendment (Youths Sentenced as Adults) Bill 2017 (SA) went to a final vote in late November 2017 and was passed by a majority Parliament. Young offenders sentenced in a higher court will now be sentenced with community safety as the primary consideration as opposed to rehabilitation.
Today’s blog has been written by Legal Intern, Julia Arena. Julia is the winner of the 2014 UniSA Torts Prize sponsored by Andersons Solicitors. The article has been settled by Partner in Family Law, Eva Bailey.