Domestic and international laws dictate that a custodial sentence should always be a last resort for children and young people. The primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish. Restriction on liberty must be commensurate with the seriousness of the offence. The court must consider the child or young persons culpability in committing the offence and any harm which the offence caused was intended to cause.
Paragraph 1.1 Section 58 of the Code. The court has the following duties when sentencing children or young people. Regard the principal aim of the youth justice system to prevent offending. Reflect upon the welfare of the child and young person.
Welfare:
Obligation to secure proper provision for education and training, remove the child from undesirable surroundings where appropriate and need to choose options for taking account of circumstances.
Factors:
Mental health problems or learning difficulties.
Experiences of brain injury or traumatic life experiences.
Speech and language difficulty.
Vulnerability of children to safe harm.
Effect of experiences of loss, neglect and abuse.
Black and minority ethnic children and young people are over represented in the youth justice system. A significant proportion of these children are from this background. Experience of discrimination and negative experiences of authority.
Allocation:
The youth court is designed to meet specific needs. The welfare principles apply to all cases. Child appear in the Crown Court if charged with homicide, charged with firearms offence (over 16 years old) and notice has been given to the court (Section 51B and 51C Crime and Disorder Act 1998)
Dangerous offender provisions
found guilty of specified violent or sexual offence
court is of the opinion they are a significant risk to the public
custodial term of at least 4 years would be imposed
A significant risk is possibility of occurrence. Assessment of dangerousness is taking into account the circumstances of the offence. It may take into account information regarding previous patterns of behaviour relating to the offence.
Charged alongside an adult:
whether separate trials will cause injustice to witnesses - Section 27 and 28 Youth Justice and Criminal Evidence Act 1999
Age of the child, and greater desirability that they are to be tried in the youth court
Age gap between child and adult
Lack of maturity
Relative culpability of the child compared to the adult
Lack of previous findings of guilt on part of the child or young person
Parental responsibilities:
Statutory requirement that parents and guardians attend during all stages of proceedings. Court may enforce this requirement for a young person aged 16 and above if deemed desirable to do so.
Outcomes must be clearly communicated to and understood by the child and young person.
Orders that can be imposed upon parents. Courts have a duty to make a parental bind over or impose a parenting order if it would be desirable in the interest of preventing the commission of further offences.
Determining the sentence:
Seriousness of the offence = Starting point to determine appropriate sentence. Sentence imposed and restriction on liberty to commensurate with the seriousness of the offence. Individualistic approach. Assess the culpability of the child or young person. Harm caused, intended or could foreseeably seen. Consider aggravating or mitigating factors to increase or reduce seriousness of the offence.
Age and maturity = Statutory presumption no child under the age of 10 can be guilty of an offence. Developmental and emotional age of the child should be considered. Necessary maturity to appreciate the consequences of conduct.
Key elements
principal aim of youth justice system
welfare
age (chronological, developmental and emotional)
seriousness of the offence
likelihood of further offences being committed
extent of harm likely to result from further offences
Guilty pleas:
An acceptance of guilt reduces the impact of the crime upon victims. Save victims and witnesses from testifying. In the public interest to save public time and money on investigations and trials.
Factors such as admissions at interview, cooperation with the investigations and demonstrations of remorse should NOT be taken into account in determining level of reduction. Strength of evidence should NOT be taken into account when determining the level of reduction.
The maximum level of reduction for a guilty plea if 1/3.
Sentences:
The punishment of offenders, the reduction of crime, the reform and rehabilitation of offenders, the protection of the public and making of reparation by offenders to persons affected by their offences.
Persistent offenders: youth rehabilitative order with intensive supervision when aged under 15. YRO with fostering. Detention and trining order when aged 12-14.
Some sentences have longer rehabilitation periods than others. The primary aim of the court should be to encourage compliance and seek to support the rehabilitation of the child or young person.
Absolute discharge = appropriate in the least serious cases, the court considers that no punishment should be imposed.
Conditional discharge = appropriate when the offence is not serious enough to warrant an immediate punishment.
Orders:
Financial orders can be imposed in accordance with statutory requirements. The amount of the cost must not exceed the amount of the fine. If the person is under 16 then the court has the duty to order parents or guardians to pay the fine.
Referral order is the mandatory sentence in youth courts for committing an offence for the first time and pleading guilty to an imprisonable offence. Discretionary referral order can be imposed for any offence where there is a guilty plea. Delivering restorative justice.
Youth Rehabilitation Orders is a community sentence within which a court may include one or more requirements designed to provide for punishment, protection of the public, reducing re-offending and reparation. The court must outline a time period for requirements of the order.
Detention and training order is decided on an individual basis. The court must consider chronological age, maturity, emotional and developmental age, and relevant factors. It is only applicable to children aged 12-14 years old.
Custodial sentences should be a last resort in domestic and international law. A court must state its reasons for being satisfied that the offence is serious and why the other orders are not justified. The pre-sentence report will assess the criterion and must be considered before a custodial sentence imposed.
Detention at His Majesty Pleasure. Mandatory sentence for child or young person found guilty of committing murder. The starting point for minimum term is set out in paragraphs 5A and 6 Schedule 21 of the Sentencing Code.
Breach of orders:
Conditional Discharge = committing an offence during the conditional discharge results the court in resentencing the original offence. They should be dealt with on the basis of their age when convicted. Court can deal with the origianl offence as if the child had just been found guilty. The court can sentence the child for the new offence and leave the conditional discharge in place.
Reparation order = Order a paid fine not exceeding 1000. Revoke the order and re-sentence the child using the range of sentencing options available. The court must take into consideration the extent to which the order has been complied with accordingly. Youth Offending Team can apply for the order to be revoked or amended.
Referral order = Breached conditions the court can revoke the referral order and resentence using the range of sentencing options. Allow the referral order to continue with the existing contract. Extend the length of referral order to a maximum 12 months. Impose a fine up to 2,500.
Youth Rehabilitation Order = Take no action and allow the order to continue its original form. Impose a fine, up to 2,500. Amend the terms of the order. Revoke the order and re-sentence the child or young person. If the terms of the order are amended the new requirements must be capable of being complied with before the expiry of the overall period. The court should understand why the order has been breached and necessary steps has been taken to support compliance.
Detention and Training Order = Impose a further period of custody of up to three months or the length of time from the date the breach was committed until the end of the order. Impose a further period of supervision of up to three months or length of time from the date of breach. Impose a fine up to 1,000. Take no action.
Until the next Legal Thought,
Elicia Maxwell
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