Sentencing Children and Young People in Victoria Sentencing Advisory Council April 2012 Published by the Sentencing Advisory Council Melbourne, Victoria, Australia This paper reflects the law as at 2 March 2012. © Copyright State of Victoria, Sentencing Advisory Council, April 2012. This publication is protected by the laws of copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth). ISBN 978-1-921100-88-8 (Print) 978-1-921100-89-5 (Online) Authorised by the Sentencing Advisory Council, Level 4, 436 Lonsdale Street, Melbourne VIC 3000 Printed by BigPrint, Tope Street, South Melbourne Publications of the Sentencing Advisory Council follow the Melbourne University Law Review Association Inc Australian Guide to Legal Citation (3rd ed., 2010). Printed on recycled paper ISO 14001 environmental management system in place iii Contents Contents Contributors v Executive summary vii Children’s Court sentencing principles vii Young people and diversion viii Offence distribution for Victorian young offenders, 2000 to 2009 ix Sentence distribution for Victorian young offenders, 2000 to 2009 x Sentencing young offenders in the higher courts xi ‘Dual track’ xi Chapter 1: Introduction 1 Exclusions 3 Terminology 3 The Council’s approach 4 Structure of the report 5 Chapter 2: An overview of young people’s offending in Australia 7 Risk factors for offending by young people 11 A statistical snapshot of young people’s contact with the criminal justice system in Victoria 12 Interstate comparisons 14 Reoffending 18 Chapter 3: Theoretical framework and legislative development 21 Victoria: Underlying juvenile justice models and principles 22 Legislative development 24 Chapter 4: Pre-court diversionary practices 27 Police cautioning 29 ‘Ropes’ Program 33 Other diversionary programs 35 Chapter 5: The Children’s Court of Victoria 37 Criminal Division of the Children’s Court 39 Koori Court Division of the Children’s Court 44 CAYPINS 46 Court programs and services 48 Chapter 6: Sentencing in the Children’s Court 51 Determination of sentence 51 Sentencing procedures 72 Chapter 7: Sentencing options in the Children’s Court 77 Dismissal 78 Non-accountable undertaking 79 Accountable undertaking 79 Good behaviour bond 80 Fine 81 Probation 82 Youth supervision order 83 Youth attendance order 84 Detention orders 85 Recording conviction 88 Orders in addition to sentence 89 Sentencing children and young people in Victoria iv Chapter 8: Offence distribution 91 Data overview 92 Children’s Court finalisation rates – all offence categories 97 Most frequent principal proven offences 105 Chapter 9: Sentence distribution 113 Distribution of sentences by principal proven offence 113 Distribution of sentences within offence categories 118 Breach offences 158 Chapter 10: Youth detention 161 Which groups are over-represented in detention? 166 Types of matters receiving detention 170 Custodial lengths 172 Prior convictions and detention 174 Remand and bail 174 Chapter 11: Sentencing child offenders in the higher courts 177 Sentencing under the CYF Act in the higher courts 179 Sentencing young offenders under the Sentencing Act 1991 (Vic) 180 Offence and sentence distribution in the higher courts 183 Chapter 12: Sentencing young adult offenders under ‘dual track’ 191 Young (under 21 year old) offenders in the ‘dual track’ system 191 Youth Parole Board and Youth Residential Board 195 Appendix 1: Data methodology 199 Data sources 199 Counting unit 201 Data scope and limitations 202 Population rates 207 Identifying children sentenced in the higher courts 207 Appendix 2: Meetings list 209 Roundtable meeting 209 Individual meetings 209 References 210 Bibliography 210 Case law 216 Legislation 218 v Contributors Contributors Authors Hilary Little Tal Karp Statistical analysis Dennis Byles Sentencing Advisory Council Chair Arie Freiberg Deputy-Chair Thérèse McCarthy Council Members Carmel Arthur Graham Ashton† Peter Dikschei* Hugh de Kretser David Grace QC John Griffin† Ken Lay‡ Jenny Morgan Barbara Rozenes Gavin Silbert SC Lisa Ward Kornelia Zimmer* *Commenced 1 January 2012. Did not participate in any deliberations regarding this report. †Commenced 21 February 2012. Did not participate in any deliberations regarding this report. ‡Resigned from the Council 21 November 2011. Chief Executive Officer Stephen Farrow Acknowledgements The Council would like to thank all those who attended meetings and provided information in relation to this project, in particular His Honour Judge Grant, President of the Children’s Court of Victoria. Sentencing children and young people in Victoria vi vii Executive summary Executive summary This report aims to fill the gap in publicly available data on the Children’s Court and the sentencing of young offenders (aged from 10 to 17 years) in Victoria. The report provides contextual material on the operation, functions and philosophy of the Criminal Division of the Children’s Court, with particular emphasis on the sentencing principles applicable under the Children, Youth and Families Act 2005 (Vic). It presents a statistical profile of offences heard and sentence outcomes, and identifies and analyses changes over a ten-year period (2000–09) in the types of offences sentenced by the court, demographics and sentence outcomes. Children’s Court sentencing principles The Criminal Division of the Children’s Court has jurisdiction to hear and determine summarily all criminal charges against children (apart from charges for fatal offences), including charges for indictable offences. With the enactment of the Children, Youth and Families Act 2005 (Vic), the jurisdiction of the court was expanded to include young offenders aged 17 at the time of offending. Previous to this, young offenders of this age were dealt with in the adult courts. Sentencing in the Children’s Court is markedly different from sentencing in courts of adult jurisdiction. The Sentencing Act 1991 (Vic) instructs courts of adult jurisdiction that the purposes for which a sentence may be imposed are punishment, deterrence, rehabilitation, denunciation and protection of the community. The principles set out in the Children, Youth and Families Act 2005 (Vic), on the other hand, are all directed at an assessment of the particular offending behaviour and the needs of the offender. For example, in determining which sentence to impose on a child, the court must consider factors including the need to strengthen and preserve the relationship between the child and the child’s family, the desirability of allowing the child to live at home and continue with education, training or employment, the need to minimise stigma to the child and the suitability of the sentence to the child. Unlike in courts of adult jurisdiction, where rehabilitation is but one of five purposes for which a sentence may be imposed, in the Children’s Court rehabilitation is the overarching or core principle. However, in appropriate cases, the emphasis on rehabilitating the offender is qualified by the need to protect the community, to specifically deter offenders and to ensure that offenders are held accountable for their actions. Sentencing children and young people in Victoria viii Young people and diversion Much offending by young people is minor in nature, and there is research to say that many adolescents are likely to cease offending once they reach adulthood. Due to the strong emphasis on diverting them from the criminal justice system, young people are under- represented compared with adults in court finalisation statistics. Nationwide, in 2009–10, 1,505 per 100,000 young people were adjudicated in Children’s Courts compared with 3,156 per 100,000 adults in Magistrates’ Courts. In 2009–10, Victorian police cautioned approximately 25% of all young alleged offenders (compared with only 2.7% of adult alleged offenders). Young people, however, are over-represented compared with adults in alleged offending statistics (3,046 young offenders per 100,000 nationwide in 2009–10, compared with 1,790 adults per 100,000). Detected crime is a blunt measure of actual offending rates and various reasons have been posited for higher police apprehension rates for young people: young people are less experienced offenders, they often offend in groups (which makes their offending more visible) and their offending is mostly unplanned and opportunistic and occurs in public places, again making it more easily detectable. The sentencing statistics in this report must be read in the context of the heavy emphasis on diversion for young people. Court-based sentencing statistics do not reflect the full range of dispositions utilised by the criminal justice system in relation to young offenders. ix Executive summary Offence distribution for Victorian young offenders, 2000 to 2009 Principal proven offence data were obtained from the Children’s Court for the ten-year period from 2000 to 2009. For the purpose of the statistical analysis, offences were grouped into five categories: property offences, offences against the person, driving offences, transit offences and ‘other’ offences. One of the Council’s main findings is that the offences dealt with in the Criminal Division of the Children’s Court are mostly non-violent and many of them are minor. From 2000 to 2009, transit offences (ticketing and non-ticketing) accounted for 34.1% of all principal proven offences dealt with by the court, followed by property offences at 32.1% (with theft and burglary making up the majority of these, followed