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Working with young people in the Juvenile Justice System

Comparison between the Children's Court and the Magistrates' Court

The age jurisdiction of the Children's Court is up to 18 as of 1 July 2005
Physical separation within the Children's Court between criminal and family divisions
Sentencing options are different, including even more focus on rehabilitation in CC
Juvenile Justice supervises community based dispositions in CC, versus Community Correction (CORE) in MC
Cautions are available to young people up to 18 (i.e. the offence/s must be committed by YP before they turn 18)

The Children's Court has the following divisions:

The Family Division which hears applications relating to the protection and care of children and young persons at risk, and applications for intervention orders
The Criminal Division which hears matters relating to criminal offending by children and young persons
The Koori Court (Criminal Division) aims for greater participation of the Aboriginal Community in the sentencing process of the Children's Court (Criminal Division) to the effect of achieving more culturally appropriate sentences for young Aboriginal people.

Children, Youth and Families Act 2005 Vic

Changes in relation to children and the criminal law

The new Children, Youth and Families Act 2005 (CYFA) combines the Children and Young Persons Act 1989 and part of the Community Services Act 1970 to create an integrated child protection and child and family support system. It is expected that it will come into effect in October 2006, although some provisions may be held over until 2007.

In the Children, Youth and Families Act 2005, very few changes have been made to the criminal jurisdiction of the Children's Court (Children and the Criminal Law –Chapter 5).

Changes in terminology

The term "children and young persons" has been replaced by "children" in s.1 and throughout the new Act. There have also been a few minor changes in terminology

"youth justice centre" replaces "youth training centre"
"youth justice unit" replaces "youth supervision unit"
"youth justice officer" replaces "youth probation officer"

In Sections 366 and 371 regarding breaches of accountable undertakings and good behaviour bonds respectively, the term "child" has been replaced by "person" so that a breach may be prosecuted even when the person is no longer a "child".

In Section 420 the term "child" has been replaced by "person" to empower the Court or a bail justice or a member of the police force unambiguously to grant bail or remand in custody in a case of alleged breach of a Children's Court sentencing order, irrespective of whether or not the person is a "child" within the meaning of the definition in Section 4(1) of the Act.

Group conferencing

A major change is the addition of the power of the Court to order a group conference to defer sentencing in a case where the Court would otherwise be considering probation or a youth supervision order. Sections 362 and 414-416 regulate group conferences. Sections 576-580 regulate group conference reports.

The purpose of a group conference is to facilitate a meeting between the child and other persons (such as the victim or their representative, members of the child's family and other persons of significance to the child, if they wish to participate, and with permission to attend by the convenor with the consent of the child). A group conference must be attended by the child, the child's legal practitioner, the informant or other member of the police force and the convenor.

The primary objective is to increase the child's understanding of the effect of their offending on the victim and the wider community, so in the future they refrain from further or more serious offending. The process involves the formulation of an outcome plan agreed to by the child, to encourage recognition of responsibility and reparation.

Additions regarding Group Conference

Group conferencing is a pre-sentence diversionary option which facilitates the constructive involvement of those who have been affected by the offending in the sentencing process: young offenders, victims, families and community. Its focus is tailored towards prevention of crime and rehabilitation of young offenders rather than retribution and punishment.

Section 362(3) provides that if a child has participated in a Group Conference and has agreed to the outcome plan, the Court must impose a sentence less severe than it would have imposed had the child not so participated.

Section 362(4) provides that if sentencing of a child is deferred for the purpose of the child's participation in a Group Conference and the child has failed to participate, the Court must not impose a sentence more severe than it would have imposed had the child not so failed to
participate.

Section 414(1)(c) provides an alternative ground for deferring sentencing if the Court is of the opinion, after consultation with the Secretary, that the child is suitable to participate in a Group Conference and the child agrees to participate.

Referral to Secretary [protective services for investigation]

In Sections 349-355 of the Children and Young Persons Act 1989, a change has been made regarding Referral to Secretary [protective services for investigation] and applies to a case in which the Court considers that grounds exist for the making of an application under Section 245 for a therapeutic treatment order or the making of a protection application under Section 243.

Two drafting errors in relation to youth attendance orders have been corrected:

Section 397(1)(b) The requirement that the child be under 19 years has been removed.
Section 408(2)(c) Upon proof of breach of a Youth Attendance Order, there is now express power to revoke and re-sentence.