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Youth Detention (Vic)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

In Victoria, there are six youth detention centres, which accommodate young people who have been remanded in custody or sentenced for criminal offences. These centres are administered by the Department of Justice and Community Safety.

In 2017-2018, Victoria had the lowest rate of young people in detention of all states and territories, with 523 detainees in the centres (equating to 8.94 per 10,000 young people). As in other Australian jurisdictions, Indigenous children are overrepresented in Victorian youth detention centres.

Age of criminal liability

In Victoria the age of criminal liability is 10. Children younger than 10 cannot be charged with offences as they are considered too young to understand the difference between right and wrong. There is also a rebuttable presumption that a child under the age of 14 cannot be found guilty of a criminal offence. However, this can be overcome if the prosecution can demonstrate that the child understood the criminal nature of their actions.

Human rights advocates are campaigning to have the age of criminal liability raised. They say that a low age of criminal liability leads to underprivileged children being criminalised and incarcerated early, further entrenching disadvantage and increasing the chances of them entering the adult prison system in the future.

Child or young person?

Victorian criminal law distinguishes between a child and a young offender. A child is someone aged between 10 and 18 at the time of the alleged offence, who is still under 19 at the time court proceedings begin. A young offender is someone under 21 at the time of sentencing.

Children are generally dealt with by the Children’s Court and young offenders by the Magistrates Court. When the offence concerned is a serious indictable offence, the matter must go through a committal proceeding, before being transferred to the County Court or Supreme Court to be finalised.

Victorian courts have the power to sentence young offenders to youth detention instead of adult prison. This is to prevent vulnerable young people from entering the adult prison system. A young person may be allowed to serve a sentence in youth detention if the court is satisfied that they have good prospects of rehabilitation or are particularly immature, impressionable or likely to be subjected to bad influences in adult prison.

Bail and remand

When a child is charged with a criminal offence, the police may grant them bail. If police do not grant bail, the young person must be brought before a court as soon as possible.

Bail is generally granted where the child is not considered to pose an unreasonable threat to the community and is likely to attend court to answer to their charges. Bail is often granted with conditions, such as that the child must adhere to a curfew, not have contact with alleged co-offenders or live at a particular address. If bail is refused, the child will be held in youth detention until their matter is finalised (or until they are granted bail).

Sentences of youth detention

Under the Children Youth and Families Act 2005, courts sentencing children must take into account a number of principles that are different from those considered when dealing with adults. These include:

  • The need to strengthen and preserve the child’s relationship with their family;
  • The desirability of allowing the child’s education to continue;
  • The desirability of allowing the child to live at home;
  • The suitability of the sentence to the child.

Courts must sentence a child to detention only if no other sentencing option is appropriate in the circumstances.  This is because rehabilitation is generally the paramount concern when dealing with juvenile offenders. However, in very serious matters, such as murder or manslaughter, other sentencing principles will take priority.

In the Children’s Court, a child can be sentenced to a period of no longer than two years in detention for any single charge. If a child is sentenced to detention for more than one offence within the same Children’s Court proceeding, the periods of detention must be concurrent, and the total term of detention must not exceed three years.

Parole

Parole allows a child to serve part of a sentence of detention in the community under the supervision of corrections. Unlike adult offenders, children do not have a non-parole period set by the court. Rather, young people who received sentences of six months of longer are generally eligible to be considered for parole. The Youth Parole Board has a discretion to grant parole if satisfied with the young person’s parole plan. Each case is decided on its own merits.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.

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