Sentencing
What’s the problem?
Governments are under pressure from the community as expressed through the tabloid media & interest groups such as the Police Association to tell judges how to sentence. They argue that judges and magistrates are out of touch with community expectations. We question who these community members are and how informed are they about sentencing ? Sentencing advisory bodies have conducted research here and overseas . Consistently they have found that members of the public given all the facts of a case recommend a sentence more lenient than most judges or magistrates . We do not support legislated directions about sentencing that do not allow judicial discretion and taking into account an individual’s actions and circumstances. In regard to young people it also contravenes the guiding principle of sentencing that jail should be a last resort. Sentencing regimes we have opposed include minimum mandatory sentencing & baseline sentencing.
Minimum mandatory sentencing.
In May 2011. The Victorian Attorney General requested the Sentencing Advisory Council (“SAC”) to provide advice on the introduction of a statutory minimum penalty for the offences of intentionally/recklessly causing serious injury when committed with gross violence. The minimum recommended sentence was 2 years for 16 and 17 year olds and 4 years for those over 18. Youthlaw prepared an extensive submission to the Sentencing Advisory Council which was endorsed by a number of key stakeholders including VCOSS; Victoria Legal Aid; Victoria Aboriginal Legal Service; Jesuit Social Services; Centre for Multicultural Youth and Youth Affairs Council of Victoria.
In November 2011 , after receiving the Sentencing Advisory Council’s (“SAC”) the gov’t deferred the introduction of statutory minimum sentences for young people aged 16 and 17 years old saying this would allow them to consult with interested parties.
In early December 2012 Government introduced a new law to Parliament providing for a statutory minimum sentence of 4 years’ jail for attacks by involving “gross violence”. At this stage the law does not apply to children under 18 years.
Criminal Records
Currently Victoria is the only state in Australia that doesn’t have spent convictions legislation. These laws set out when convictions are expunged from a person’s record. Not having such law means that a conviction incurred by young people can impact on them throughout their lives, applying for jobs, applying for professions & travelling overseas. Young people also tell us that police bring up their previous convictions & this alters their behaviour towards them.
What we want
Spent convictions legislation
Irrelevant convictions is a recognised ‘attribute’ in the Victorian Equal Opportunity Act and allows for a discrimination action to be brought (eg against an employer )
Remand
Bail practices by police and bail related legislation can have major impact on remand numbers. This was the case when the Victorian Gov’t introduced a breach of bail offence for all ( ie adults and young people ) in December 2013. Following its introduction members organisations of SJ4YP and many others including the President of the Children’s Court voiced concerns about the sharp increase in the number of children held on remand.
- Taking on these concerns the Andrews Government’s Bail Amendment Bill was passed in Parliament on 11th February 2016 to exclude under 18 year olds from the bail breach offence and they also introduced other positive relating to children :
- child specific factors to be considered in bail decisions
- the inclusion of a presumption in favour of initiating criminal proceedings against children by summons, rather than arrest, to align with Victoria Police best practice.
Despite some hysterical reporting, the changes to the Bail Act will not only help keep vulnerable children out of detention but assist police and youth justice staff in their work.
The introduction of child specific factors to the Bail Act will help ensure bail is granted appropriately to children in the first instance and bail conditions are not unduly onerous or difficult to comply with and so less likely to be contravened. This means police time and resources are saved not having police these bail conditions.
The change to the Bail Act exempting children from the breach of bail condition offence will prevent many children ending up in detention for technical, not serious breaches of bail conditions (e.g. breaking curfew by 10 minutes) where the child has not committed any other offence, nor have they failed to appear in court when they are supposed to.
The expected decrease in numbers of vulnerable children in detention on remand as a result of these changes to the bail laws will no doubt relieve the pressure and strain on Melbourne Youth Justice Centre staff and services.
However if the young person committed a serious breach of bail or a new crime then even with the changes they will have breached bail, are likely to still be remanded and have to face the full consequence of due legal process.
Youth in adult prison
In July 2014 the Victorian Ombudsman announced an investigation into the adult prison system prompted by the growth in prisoner numbers, concerns about rates of re-offending, and the cost to the Victorian community. This investigation did not include youth detention (18 & under) but did provide findings and recommendations in regard to young people under 25 in the adult prison system. On 17 September 2015, the Ombudsman tabled her report. Click here for the media release and here for the report.
The report includes the following data on young adults:
- That 12% of the adult prison population are under 25
- There was a 162.2% increase in prisoners under 25 b/w 2008 & 2013
- There was an 163.2 % increase in young women prisoners between 17 and 24 b/w 2008 & 2013
- The recidivism rate for those under 25 was 52.7 %
- Interventions targeted at young offenders provide a significant opportunity to break the cycle of re-offending before it becomes entrenched.
- The potential exists for a great deal of harm to be done to young offenders if ineffective or unsuitable interventions are applied.
- Young offenders are likely to have faced a number of challenging circumstances including trauma and neglect, family dysfunction, untreated psychiatric illnesses & limited cognitive and developmental maturity.
- Young prisoners are at risk of post traumatic stress & at high risk of rape & assault by older prisoners.
- The complexity of this cohort means that a mainstream adult response will not meet the different individual needs of each offender.
The report recommended: Rec 18 – Consideration of new and/or expanded accommodation options and practices for young adults in prison, along the model developed by the Youth Unit in Port Phillip.