In Victoria, separate bail and sentencing regimes exist which apply specifically to children and young people. This article outlines the youth justice framework which applies to people under the age of 21 who are to be sentenced to serious offences (or multiple offences) which will attract a custodial sentence.
Importantly, these include adults on remand in adult prisons facing sentence, but who are under the age of 21 years. In that circumstance, the sentencing court can request a Youth Justice Assessment Report in relation to the young person’s suitability for a Youth Justice Centre Order. If granted, the young person can spend up to four years in a Youth Justice Centre serving sentence, rather than be sentenced to or remain in adult custody.
Accordingly, young adults facing custodial sentences should consider applying for a Youth Justice Centre Order. These orders enable young offenders to be detained alongside other young offenders in a Youth Justice Facility, sparing them from the intimidating environment of adult prisons. Being sentenced to a Youth Justice Centre also allows for better treatment options that are tailored to young offenders and which are not available in adult prisons. Research has indicated that young offenders typically come from disadvantaged and often traumatic backgrounds, or are suffering from mental health conditions. Age-specific programs are tailored to address their complex developmental and intersecting needs. This improves their prospects for rehabilitation and improves the likelihood of reintegrating successfully into the community.
An additional benefit of a Youth Justice Order is that Youth Justice partners with the Department of Education and Training to deliver education services to support children and young people to engage with education. Educational programs in adult custody are limited and highly sought after amongst the prison population. In Youth Justice, education is prioritised because it is pivotal to breaking the cycles of disadvantage and to minimise recidivism.
The possibility of being sentenced to a Youth Justice Order hinges on various factors, primarily the gravity of the offence committed and the unique circumstances surrounding the offender. Let’s delve into these considerations.
Youth Justice Centre Order (YJCO) and Youth Residential Centre Orders (YRCO)
Sections 410 and Sections 412 of the Children, Youth and Families Act 2005 (Vic) set out the power of a Magistrate or Judge to order detention in a Youth Residential Centre or Youth Justice Centre. These sentencing options are available for young offenders (under 15 in the case of a Youth Residential Centre Order, and 15 and over but under 21 in the case of Youth Justice Centre Order). Detention in Youth Residential Centre or Youth Justice Centre can be made for a maximum of 2 years in the Magistrates Court, and 3 years in the County Court. In the Supreme Court, it can be made for a maximum of 4 years.
YJCO – Offenders older than 15, younger than 21
Section 32 of the Sentencing Act 1991 (Vic) establishes the parameters for ordering a YCJO or YRCO. Pursuant to s 32(1), the Court may make a youth justice centre order in respect of a young offender if it has received a positive pre-sentence report and:
(a) believes there are reasonable prospects for the rehabilitation of the young offender; and/or
(b) believes that the young offender is particularly impressionable, immature, or likely to be subjected to undesirable influences in an adult prison.
The two limbs of s 32(1) are stated in the alternative, so that young offenders only need to satisfy one of the limbs (as described by Justices Niall and Kaye of the Victorian Court of Appeal in the recent case of Singh v The King [2023] VSCA 17). The court must also have regard to the nature of the offence and the age, character, and past history of the young offender (s32(2)). Central to a consideration of prospects of rehabilitation is an assessment of the young person’s insight and remorse.
Procedural Steps
In accordance with section 8A of the Sentencing Act, before the court can consider sentencing the young offender to a YJCO, they must first obtain a pre-sentence report. This report will establish whether the offender is suitable for the order. The report must be prepared by the Department of Human Services. The report itself will contain important information to assist the Magistrate/Judge, including the age of the offender, social history, medical and psychiatric history, alcohol, drug or substance abuse history, educational and employment history, circumstances of the offending and many other factors (See a full list here: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/sa1991121/s8b.html)
Importantly, the Youth Justice Assessor will have access to the offender’s complete corrections file. This includes all records of any disciplinary incidents, records of failures to follow directions, any drug use in custody and any health issues. The Assessor will often see the offender a number of times for interview, will put matters to them, discuss the offending and ask about their history in custody. They may also speak with family members in relation to the Offender. Significantly, the report is provided to the Court, which then disseminates to the parties. This means that there is no opportunity for the offender (or their representatives) to try and have the report amended.
Eligibility Requirements
There are strict eligibility requirements for offenders aged 18-21 to qualify for a YJCO. Under s32(2C) of the Sentencing Act, if a young offender is to be sentenced for a category A serious youth offence, a court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist.
Similarly, under s32(2D) If:
- a young offender is to be sentenced for a category B serious youth offence; and
- the young offender has previously been convicted of another offence that is a category A serious youth offence or a category B serious youth offence—
The court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist.
The following offences are categorised as Category A and B offences:
Category A serious youth offences include:
- murder
- attempted murder
- manslaughter
- child homicide
- homicide by firearm
- intentionally causing serious injury in circumstances of gross violence)
- aggravated home invasion
- aggravated carjacking
- arson causing death
- culpable driving causing death
- section 4B of the Terrorism (Community Protection) Act 2003 ;
- a provision of Subdivision A of Division 72 of Chapter 4 of the Criminal Code of the Commonwealth
- a provision of Part 5.3 or 5.5 of the Criminal Code of the Commonwealth
Category B serious youth offences include:
- recklessly causing serious injury in circumstances of gross violence
- rape
- rape by compelling sexual penetration
- home invasion
- carjacking
In conclusion, for young adults facing custodial sentences, exploring the option of applying for a Youth Justice Centre Order can significantly alter their incarceration experience. These orders offer the opportunity for detention in a specialised facility alongside peers, shielding them from the harsh realities of adult prisons. Moreover, the availability of tailored treatment programs designed specifically for young offenders addresses their unique developmental and mental health needs, which are often complex, involving trauma pursuant to a disadvantaged background. Research demonstrates the efficacy of such age-specific interventions in fostering rehabilitation and facilitating successful reintegration into the community. Therefore, considering the holistic benefits, opting for a Youth Justice Centre Order holds promise in not only transforming the trajectory of young offenders’ lives but also in enhancing public safety and well-being.
How Galbally Parker Youth Justice Lawyers can Help
Unless your lawyer works in the youth crime space, they may not be readily familiar with Youth Justice Orders and the options available to young offenders. If you or someone you love are aged under the age of 21 years old and facing prosecution for a serious offence, you need the very best advice to take advantage of provisions that apply only to you. Your decision-making may be affected by advice as to your prospects of being granted a YJC Order. Importantly, the prospect of a YJC Order disappears the moment a young offender turns 21 years old. So, time is of the essence.
Understanding the intricacies of youth justice applications for sentencing is crucial in ensuring that young offenders receive fair treatment and have the opportunity for rehabilitation. If you or a loved one find yourselves facing such challenging circumstances, it’s essential to seek expert legal guidance. The team at Galbally Parker are expert Melbourne criminal defence lawyers with experience in youth justice and can provide the necessary support and advocacy.
