With the Andrew’s Government recently implementing plans to raise the age of criminal responsibility from 10 to 12 and to 14 years old by 2027, it is a pertinent time to assess the contentious social issue that is ‘Youth Crime’. By now, every Victorian has seen news headlines lamenting ‘youth crime’ and the impacts of youth gangs on our state. These headlines have been plastered across every major news publication, television channels and social media accounts for years. Yet, the divisive discourse surrounding youth crime is largely ill-informed and sensationalised, neglecting the fact that such offending is perpetuated by children, who often lack the requisite cognitive development to appreciate the criminality of their conduct. This article will explore this contentious social issue from the perspective of a defence lawyer.
Young Offenders & Criminal Responsibility
The decision to raise the age of criminal responsibility in Victoria is a step in the right direction for many reasons. Foremost, the intersection between young offenders and criminal responsibility is complicated by young offenders lacking the requisite cognition to understand the criminality and potential consequences of their actions. This is known in the legal world as ‘doli incapax’, a term which essentially means that a child is unable to posses the necessary mental element for an offence. The reforms posited by the Andrew’s government recognize the importance of this rule and the research validating it. This is reflected by their decision to codify and strengthen the doli incapax presumption, which will ensure that children under 14 cannot be held criminally responsible for their actions. Whilst cognitive development is one area of youth crime that is often overlooked, another important facet that is neglected is the disproportionate percentage of young offenders who have experienced significant trauma and disadvantage throughout their childhood. This is evidenced by research from the Victorian Youth Parole Board, who in 2016 found that 2/3 of children in custody were victims of abuse or neglect.
Similarly, research indicates that Aboriginal and Torres Strait Islander children are disproportionately represented in the youth justice system. This is an area that is currently being address by the Victorian Government, as the initiate the Wirkara Kulpa Youth Justice Strategy.
Whilst these factors are prevalent amongst youth offends, they are neglected by media outlets who prefer to perpetuate a tribalistic culture war through sensationalist discourse and reporting. By doing so, the divide between just outcomes for youth offenders and the community widens, whilst the rate of incarceration increases. This is despite research demonstrating that incarceration is not the answer. The reforms being implemented are therefore welcomed, as they aim to reduce recidivism through a focus rehabilitation. As astutely articulated by Victorian Attorney-General Jaclyn Symes, ‘When very young children engage in harmful behaviour, we know that something has gone terribly wrong in their life. We need to respond effectively and compassionately whilst still making sure they’re accountable for their actions’.
Defending Young Offenders
At Galbally Parker, we often represent young offenders who have been implicated in the youth justice system, quite often by no fault of their own. As a defense firm, our priority with young offenders is to focus on their rehabilitation. This sentiment is shared across the Childrens’ Court Jurisdiction, where rehabilitation is prioritized as a sentencing outcome. Our first port of call is to look at Youth Diversion Services (hyperlink -> https://www.childrenscourt.vic.gov.au/criminal-division/youth-diversion-service).
Diversion plans – what are they?
The Children’s Court Youth Diversion Service is a pre-plea option that provides an opportunity for young offenders appearing before the criminal division of the Children’s Court to complete a diversion plan, involving activities to reduce the likelihood of further offending. Upon completion of the diversion, the offender may have their charges discharged.
How do Diversion Programs work?
CCYD coordinators attend all scheduled sittings of the Children’s Court to conduct assessments, provide advice to the Court on an offenders suitability and develop plans to promote positive behavioural change. Common diversion plan activities include: a letter of apology to any victims; a reflective practice discussion with the coordinator, aimed at improving the offenders understanding of their offending behaviour; an education-related interventions, such as training, education or employment course; engagement in a structured activity, such as sport, cadets or music/art.
Alternative Outcomes
There are alternative outcomes that may also be found suitable for young offenders, depending on their charges, age and history. These include pre-plea options, such as a police caution, referrals to Youth Support Services, bail supervision with Youth Justice, Ropes Courses. Further, post-plea options may be considered, such as deferral of sentence and Youth Justice Group Conferencing.
As has been discussed, youth offending is a complex area of our justice system. Whilst community protection is paramount in all criminal cases, it is necessary to balance this with effective rehabilitation strategies. Incarceration of young offenders should always be the very last resort.
If you have a family member or friend who has been implicated in the Youth Justice System, contact Galbally Parker Lawyers. Our firm has a team of juvenile justice lawyers that have represented youths and children for decades. We have the experience and sensitivity to navigate the road ahead for your family and protect your child. Whether your child is going to be interviewed by Police, has been summonsed to Court or is already part of the juvenile justice system, we can help you and support you. It is what we do and what we are good at.
