Hansard debates

Ordered that second-reading speech be incorporated into Hansard on motion of Ms PULFORD (Minister for Agriculture).

Ms PULFORD (Minister for Agriculture) — I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Children and Youth Legislation Amendment (Youth Justice Reform) Bill 2017 contains measures to address community concerns about crimes committed by children and young people, and to improve safety and security in youth justice facilities.

Despite an overall reduction in the number of crimes committed by young people in recent years, small numbers of young people are entering the criminal justice system early and reoffending more often and in an alarmingly serious manner. Members of our community deserve to be safe from crime and protected from children and young people who commit aggravated home invasions, aggravated carjacking and other serious offences. The bill makes clear that this kind of serious violent offending will not be tolerated. It includes a presumption that certain serious youth offences will no longer be heard in the Children's Court and a requirement that
18–21-year-olds who commit certain serious youth offences are sent to adult prison, not youth detention. For adults who encourage young people to commit crimes on their behalf, the bill creates a tough new offence punishable by up to 10 years imprisonment.

This government understands that suitable young people should be given the opportunity to rehabilitate, which will protect the community from further offending. The youth control order is a new sentencing option targeted at children who would otherwise be sentenced to detention because of the seriousness or ongoing nature of their offending, but who do have potential to be rehabilitated with the support and supervision of the court. The order will require intense supervision by youth justice and regular court monitoring. The order requires the child to engage in education, training or work, and failure to comply with the order will result in a sentence of detention unless exceptional circumstances exist. The youth control order will not be an easy way out.

The maximum period of detention in a youth justice facility that can be imposed by the Children's Court and higher courts will be increased, and higher penalties will apply to various offences committed within youth justice centres. Young offenders involved in violence and property damage in our youth justice facilities will be subject to tough new sentencing requirements, including statutory minimum sentences for attacks on youth justice custodial officers for offenders aged 18 and over. Youth justice staff should be safe at work and the public should not have to continue to bear the cost of damage to these facilities.

Preventing a life of crime before it starts is critical in protecting the community. The bill creates a legislative scheme allowing children who have committed low-level offences to be diverted from the criminal justice system and address their offending behaviour before it escalates into persistent offending. For the first time, diversion will be available statewide and will not discriminate by postcode.

1.     Criminal justice reforms

The bill creates a new offence of recruiting a child to engage in criminal activity. Many young people involved in property crimes have been performing these crimes at the request of older, more experienced criminals. In many cases, these older persons do not participate in the crimes at all — but enrich themselves from the proceeds of these crimes. For example, Victoria Police have advised that cars are stolen by children who pass them on to adults in return for cash payments.

The new offence will target adults who recruit children to engage in criminal activity, knowing that it is likely that the child will engage in the intended criminal activity. The offence will apply to an adult aged 21 or over who recruits a child aged under 18, and will have a maximum penalty of 10 years imprisonment.

The bill will set out the matters that the Children's Court must have regard to when considering whether a child who has been charged with offences should be tried in the higher courts. The bill makes clear that trial in the higher courts is appropriate where the sentencing options available to the Children's Court are inadequate to deal with the child's offending. The court will be required to consider the seriousness of the conduct, including the impact on any victims, and the role of the accused, the nature of the offence, the child's personal circumstances and offending history, whether the offence was committed while the child was subject to other orders and any other relevant matter.

When a child is charged with offences in the Children's Court, the same magistrate will be required to oversee the proceedings relating to that child, where practicable. This will ensure that the court takes a consistent approach when dealing with the child, particularly in monitoring sentencing outcomes.

The bill will also permit the Children's Court to impose an aggregate sentence of detention in relation to multiple charges founded on the same facts or of a similar character. This provides consistency with the powers of other courts when sentencing adults.

The bill will increase the maximum period of youth detention that can be imposed for a single offence from two years to three years. It also increases the maximum period of youth detention that can be imposed on a single occasion for multiple offences from three years to four years.

2.     Youth control orders

Youth control orders are a new sentencing option that will operate as an alternative to detention by imposing intense requirements for supervision, support and court monitoring for up to 12 months. Breach of a youth control order will result in detention unless exceptional circumstances apply. Youth control orders will include strict mandatory requirements, including participation in education, training or work, and may also include requirements for community service, treatment, counselling, curfews, social media bans or geographic exclusion.

A youth control order plan will be developed at a meeting involving the child, their family, youth justice officers, education providers and other services. The plan is designed to assist the child to take responsibility for their actions, reduce the likelihood of reoffending, provide the child with rehabilitative opportunities, and inform the court about which requirements should be imposed under the youth control order. Youth control order planning meetings must be held before an order is imposed and can also be held during the course of an order to review the youth control order plan.

A child on a youth control order must attend the Children's Court at least once per month during the first half of the order for a monitoring or reporting hearing. The court can vary the requirements of the order depending on compliance by the child by either making the order more or less restrictive.

The youth control order will be supported by additional youth justice staff and funding for agencies to ensure that children are monitored and supported to comply with the order.

The youth control order will provide a more intensive and targeted form of community-based order for young offenders that garners relevant expertise from the community, support from government agencies, all monitored by the court.

3.     Strengthening consequences for young offenders who commit serious offences

The bill will increase the consequences for young offenders aged 16 years or older who commit serious offences. The bill creates two new categories of serious youth offences, with particular outcomes attached to those offences that are designed to reflect their relative seriousness.

'Category A' offences will be murder, attempted murder, manslaughter, child homicide, intentionally causing serious injury in circumstances of gross violence, aggravated home invasion, aggravated carjacking, arson causing death, culpable driving causing death and commonwealth terrorism offences.

'Category B' offences will be recklessly causing injury in circumstances of gross violence, rape, rape by compelling sexual penetration, home invasion and carjacking.

Uplift of charges to the higher courts

As a result of the changes, more serious offences will be taken out of the Children's Court and heard in the higher courts. This change will help ensure that serious offences are heard in the higher courts with a full range of sentencing options available, serving the interests of justice and community safety.

There will be a presumption that category A offences be heard in the higher courts, alongside the continuing requirement that homicide offences continue to be heard in the Supreme Court. The only circumstances where category A offences will not be uplifted will be where the child or prosecution requests the case be heard in the Children's Court, the Children's Court is satisfied that the available sentencing options will be adequate to deal with the child, and:

a)     it is in the interests of the victim that the matter be heard in the Children's Court, or

b)     the accused child is especially vulnerable because of a cognitive impairment or mental illness, or

c)     there is otherwise a substantial and compelling reason justifying the charge being heard in the Children's Court.

In determining whether there is a 'substantial and compelling reason', the court must have regard to Parliament's intention that a charge for a serious youth offence as described should ordinarily be heard and determined in a higher court. This is similar to the 'special reasons' exception available under the statutory minimum sentence provisions in the Sentencing Act 1991.

A higher court may remit a case back to the Children's Court if it considers that a summary hearing is more appropriate, having regard to the same criteria considered by the Children's Court. To avoid a case moving repeatedly between jurisdictions, if a case is remitted to the Children's Court that court must then hear and determine the case summarily, unless there has been a significant change in the charges or case against the accused.

For category B offences the bill requires the Children's Court to consider uplift to the higher courts, without any requirement for an application by the prosecution. The Children's Court will be required to consider whether the category B offence is unsuitable by reason of exceptional circumstances to be determined summarily.

Limiting dual-track sentencing

The bill will limit the ability for serious young offenders aged 18–21 years to be sentenced to a period of detention in a youth justice facility. These offenders will no longer be able to be sentenced to youth justice detention, except in exceptional circumstances, if they are convicted of:

a category A offence, or

a category B offence, having previously been convicted of a category A or B offence.

This amendment will result in young adult offenders who commit serious offences being sentenced to prison.

Requiring consideration of community safety in sentencing

A concern arising from recent incidents of criminal offending and the sentencing of children is whether the protection of the community is given sufficient weight in the sentencing process.

The serious youth offence provisions will require the Children's Court to have regard to protection of the community when sentencing a child for a serious youth offence. At present, consideration of community protection is only relevant if the court considers it appropriate. This amendment will require the court to consider the need to protect the community, or any person, from the violent or other wrongful acts of a child in all cases where the sentence is for a category A or B offence. This will help ensure that young offenders who commit serious offences are properly managed and the danger they pose to the community is taken into account in sentencing.

Mandatory parole conditions

The bill will require the Youth Parole Board to impose certain parole conditions when granting parole to an offender serving detention for a serious youth offence. The requirements will apply to a person detained in relation to a category A offence, or a category B offence if the person had previously been convicted of a category A or B offence.

The conditions include requirements to undergo rehabilitation and treatment, curfews, non-association and conditions considered necessary for the protection of victim of the person's offending. The Youth Parole Board must impose the conditions unless satisfied it is not necessary due to the person demonstrating a history of good behaviour and positive engagement with rehabilitation programs.

4.     Detainee accommodation

The bill contains reforms to improve decision-making as to how detainees are placed in and transferred between youth justice facilities.

To improve clarity and transparency of transfer decisions the bill sets out the factors that the Secretary to the Department of Justice and Regulation is to consider when deciding whether to transfer a person between youth justice facilities. The factors include: the availability and appropriateness of accommodation across the system; the safety, security and good order of the facility; the safety, security and needs of any detainee; and the safety of staff and others. The amendment also makes clear that the secretary is not required to afford procedural fairness in making transfer decisions, meaning the secretary is not required to hear from the child before making the decision. This does not affect the requirement that the secretary consider the child's needs.

The bill permits the co-location of people on remand with people who are serving a period of detention. Co-location may occur without the consent of the person on remand if the person on remand has previously been in youth justice detention, if it is in their best interests to be accommodated with persons serving a period of detention and co-location is reasonably necessary.

Finally, the bill clarifies the powers of the court when a young person who is remanded in a youth remand centre but has subsequently turned 18 comes before the court on charges committed after they turned 18. It will also set out criteria that the court must consider when deciding whether it is appropriate for those young people to return to a youth justice facility.

5.     Increasing consequences for offending in youth justice facilities

The government does not tolerate riots and other incidents within youth justice centres. The government is determined to ensure public confidence in the youth justice system and to address any behaviour which undermines the rehabilitation and wellbeing of the children and young people detained there.

The bill contains a number of measures to respond to increasing violence and other criminal acts committed within youth justice facilities.

The bill will extend current statutory minimum sentences that apply to prison officers and emergency workers to youth justice custodial workers. As a result, minimum sentences will apply to people aged 18 and over who are sentenced for serious assaults on youth justice custodial workers while they are on duty in a youth justice facility.

For assaults committed by children under 18, the bill creates a presumption that sentences of detention imposed for those assaults will be served cumulatively on any other sentence of detention. This increases the consequences for children, as the statutory minimums do not apply to children.

Whatever the age of the person, there will be a presumption that a sentence of detention for property damage in a youth justice facility or for escaping or attempting to escape are to be served cumulatively on any other period of detention.

In relation to children, the bill will require the Children's Court in sentencing a child to take into account the need to deter the child from committing offences committed in youth justice facilities, where relevant.

Finally, the bill will increase the maximum penalties that apply to certain offences committed in youth justice facilities, including the offence of escape.

6.     Youth diversion

The final part of this bill establishes a tailored pre-plea youth diversion scheme in both the criminal division of the Children's Court and the Children's Koori Court. Currently, youth diversion operates under section 59 of the Criminal Procedure Act 2009 (CPA), which enables diversion for adult offenders in the Magistrates Court. This bill allows for a scheme more tailored to the particular needs of children.

The diversion amendments in the bill complement the existing suite of available diversion options throughout the continuum of the youth justice system. The provisions are intended to address the underlying reasons for low-level offending, assist rehabilitation and prevent children from becoming entrenched in the criminal justice system.

The provisions recognise that most children mature out of criminal behaviour. Supporting children to complete diversion avoids the stigma of a criminal conviction, and the potential negative impact this has on future life opportunities.

The bill enables the court to adjourn a matter to enable a child to undertake specific diversion activities. Youth diversion enables timely intervention in a child's life that can set them on a more constructive and positive path. The youth diversion amendments to the CYFA largely mirror the provisions of the adult scheme contained in the CPA, however, they also provide for greater flexibility, recognising the particular vulnerability of children. Protective elements, and specific principles and factors, have been included to guide the court when deciding whether to adjourn the matter for diversion.

The government announced on 24 April 2016 that $5.6 million would be provided over two years for a statewide youth diversion scheme. The amendments give effect to recommendation 127 of the Royal Commission into Family Violence and enshrine in legislation the scheme that has been operating as a pilot in select locations since 2015, with statewide operation commencing on 1 January 2017.

The purposes of diversion

The bill includes provisions which explain the purposes of diversion. These provisions clearly state Parliament's intent for the youth diversion scheme and also provide guidance to decision-makers as to what outcomes youth diversion should endeavour to achieve.

Availability of diversion for certain offences

The bill does not exclude any offences or types of offences from eligibility for diversion. Rather, it sets out a list of factors to be considered by the court when deciding whether to adjourn the matter for diversion. This allows the necessary flexibility to the court to identify firstly whether diversion is appropriate for an individual and secondly, what kind of diversion activities would be most suitable.

As with the adult diversion scheme, youth diversion is not available in relation to offences with minimum or fixed penalties. This is to ensure that Parliament's intention regarding these penalties is not undermined.

Diversion available pre-plea

The bill provides for youth diversion to be available after charges have been laid and before any plea has been entered by a child. Diversion is to be considered by the court on the initiative of the prosecution or the defence, or on the court's own initiative. The provisions are intended to complement, rather than replace, other pre-court police processes, such as police warnings or cautioning. These practices remain important options for Victoria Police when dealing with children.

In situations where a child has entered a plea before the question of diversion has been considered, and the court considers that diversion should be considered, the bill provides additional, protective provisions. The provisions allow the court to refuse to accept a guilty plea or grant leave to the child to withdraw their guilty plea to allow diversion to be considered, where appropriate.

Extension of the jurisdiction of the Children's Koori Court

As with the adult scheme, the bill extends the jurisdiction of the criminal division of the Children's Koori Court so that it can hear diversion matters for young Koori people. The Koori court provides important insight and support through the participation of Koori elders and respected persons, which will assist in achieving better outcomes for Victoria's Koori children.

The child's consent and acknowledgement of responsibility

The bill requires a child to acknowledge their responsibility for the offence and also consent to diversion. The requirement that a child acknowledge responsibility is intended to reduce recidivism and ensure that the child is referred to appropriate support services. Upon successful completion of diversion, no plea is to be taken and the court must discharge the child without any finding of guilt.

Prosecutor's consent to diversion

As with the adult system for diversion, the bill provides that the prosecutor must consent to diversion. To ensure greater transparency and consistency, the bill prescribes a number of factors, which the prosecutor must have regard to when considering whether to consent to diversion. These factors include the child's prior history of offending, the seriousness of the offence, and the impact on the victim.

Factors to consider

The bill also prescribes factors to be considered by the court, both in deciding whether to adjourn the matter for diversion for a particular child and in deciding appropriate diversion activities. These factors are intended to assist the parties in reaching agreement and also provide guidance as to the intent of the youth diversion scheme.

Diversion achieved by way of adjournment

The bill allows for diversion to be completed by way of adjournment for a period of no more than six months. In the adult diversion scheme, the adjournment period is up to 12 months. A shorter time frame has been prescribed in recognition of the vulnerabilities of children in the youth justice system. There is a greater need to provide a swift response to offending that engages the child with their family, community, and specialist support services.

The effect of diversion

Upon successful completion of the diversion activities included in the diversion plan, the bill allows for the child to be discharged without any finding of guilt. If the child does not complete diversion, they will be required to return to court, enter a plea and be dealt with through the normal court process. In these circumstances, the child's acknowledgement of responsibility will be inadmissible, but the court will be able to take the partial completion of any diversion activities into account during any sentencing.

7.     Instructions not to communicate with a child in out-of-home care or detention

The bill also strengthens provisions that allow the relevant secretary to issue an instruction to a person directing them not to communicate with or attempt to communicate with a child in out-of-home care or in detention. These provisions will strengthen existing offences, and support prosecutions to protect children at risk of sexual exploitation. Currently, while it is an offence to attempt to have contact with a child in out-of-home care or in detention, there is no express provision empowering the secretary to issue such instructions and no provision specifying how instructions should be issued. The provisions of this bill make these powers clear.

I commend the bill to the house.

Debate adjourned for Ms CROZIER (Southern Metropolitan) on motion of Mr Ondarchie.

Debate adjourned until Thursday, 15 June.