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On the right track

Feature Articles

Cite as: (2003) 77(8) LIJ, p.42

It is important that Victoria's "dual track" juvenile justice system does not become derailed.

By Liz Curran and Rob Stary

Victoria’s unique approach to juvenile justice means that young offenders up to the age of 21 may find themselves undergoing a sentence of detention in a youth training centre (YTC) under the care of the Department of Human Services rather than in the adult corrections system undergoing a penal sentence.

However, in recent times, the continued existence of this “dual track” system for young people aged 17 to 21 has been under threat. In mid-December last year, shortly after the state election, the Youth Law Centre and Jesuit Social Services were advised that certain sections of the Victorian public service wanted to transfer part of the juvenile justice system from the Department of Human Services (the Department) to the adult corrections system and that an announcement was imminent.

As a result of swift action by various legal and community groups who argued forcefully against any such change the scheduled announcement was reversed. Subsequently, members of the judiciary, magistracy, legal profession, the churches and community sector organisations spoke out strongly against the proposed move and condemned it as foolish public policy.[1]

Although the Minister for Community Services Sheryl Garbutt has stated “there are no plans for removing the dual track system”,[2] an interdepartmental committee (IDC) has been examining the juvenile justice system including the dual track system for the past year. The Victorian Council of Social Services (VCOSS) sent a letter to Premier Steve Bracks on 8 April this year specifically asking about the deliberations of the IDC and seeking the release of “all research and program information collected and commissioned by the IDC”, as well as a copy of the IDC’s terms of reference.

In 1984, the Victorian government commissioned Professor Terry Carney as chair of the Child Welfare Practice and Legislation Review Committee to examine approaches to policies around youth and children. The report’s recommendations led to the enactment of the Children and Young Persons Act 1989 (Vic) (CYPA). The CYPA established a specialised court for children and provided a framework for the protection of children and young people with responsibilities for them being allocated to the Department. In addition, the legislation made provisions relating to children and young people who were charged with, or had been found guilty of, criminal offences.

The CYPA approach is to recognise that children and young people under the age of 17 or above the age of 10 (not including a person who is above the age of 18 at the time of being brought before the court) need to be dealt with in the context of their developmental needs, ties to their family, educational and health needs and vulnerability by virtue of their age.

An illustration of the different approach taken with children is to compare s139 of the CYPA with the adult sentencing regime. Section 139 requires the judge to consider the need to preserve the relationship of the child with its family, the desirability of the child living at home, educational training and employment opportunities, disturbance to the child’s life, stigma, the suitability of the sentence and the responsibility of the child for its actions. By contrast, the Sentencing Act 1991 (Vic) in its equivalent provision (s5) lists the factors to be taken into consideration as punishment, deterrence, rehabilitation, denunciation, protection of the community, or one or more of these.

Victoria adopted the novel approach of having a dual track system where offenders aged between 17 and 21 can be detained in a YTC administered by the Department, which has links to other services including family support, mental health, housing and disability providers, rather than adult corrections. Section 32 of the Sentencing Act gives the judge discretion to determine that where a young offender is vulnerable the offender can be diverted to the juvenile justice system rather than the adult prison. The court must be satisfied that:

(a)  there are reasonable prospects for rehabilitation of the young offender; and

(b)  the young offender is particularly impressionable, immature and vulnerable, thus likely to be subjected to undesirable influences in an adult prison.

A YTC sentence still involves a high level of supervision, care and planning. However, there is a stronger emphasis on rehabilitation rather than on the more punitive and control-oriented approaches of an adult prison system. The aim is to try to prevent a young person from further offending behaviours while they are still young and can learn from their mistakes.[3]

In The Queen v Misokka,[4] Callaway J stated:

“The central principle when dealing with young offenders is, in my view, quite clear and has been enunciated on many occasions over the years. Incarceration of a young person in the adult prison system, carrying as it does a real potential to cause damage of a kind which both the offender and the community may pay for dearly in the long-term, should not be ordered unless the court is satisfied that the powerful factors which have been accepted by the legislature and the courts as requiring and justifying the existence of a separate youth correctional system have been clearly displaced in importance in favour of the adoption of a more punitive approach”.

Callaway J also stated:[5]

“ ... I bear in mind two principles. First is that, in the case of youthful offenders, rehabilitation is usually far more important than general deterrence ... The second principle is that such an offender is not, if it can be avoided, sent to an adult prison for a first offence”.

In Misokka, the applicant had pleaded guilty to one count of intentionally causing serious injury and was initially convicted and sentenced to four-and-a-half years imprisonment with a non-parole period of three years.

The applicant was aged 18 years and two months at the time of the offence. The Court of Appeal substituted the sentence for a period of three years detention to be served in a YTC.

In The Queen v Brock Mills,[6] the applicant was aged 20 years at the time of the commission of an offence of recklessly causing serious injury in which it was alleged that he “glassed” the complainant while in an intoxicated state.

In allowing the appeal against an immediate term of adult imprisonment, Batt J said:

“In particular, his Honour did not, as it appears to me, have regard to the principles that in the case of a youthful first offender, rehabilitation is usually far more important than general deterrence and that such an offender is not to be sent to an adult prison if that can be avoided”.[7]

In that case, the applicant had subsequently turned 21 and was therefore ineligible to receive a period of detention at a YTC and the original sentence of 18 months with a non-parole period of nine months was set aside. It was substituted by a sentence of 12 months imprisonment, eight months to be wholly suspended. The applicant had served four months in custody awaiting the appeal.

The other reason for the difference in approach is to avoid the immersion of a young offender in the criminal justice system.[8]

University of Melbourne associate professor Christine Alder has observed that the juvenile justice system aims to delay for as long as possible the introduction of a young offender to an adult correctional system which involves older and more serious offenders and has different approaches to young people.[9] Dr Alder argues that the current dual track system might, in fact, be one of the reasons why Victoria has one of the lowest crime and detention rates in the country.

From a practitioner’s point of view, often young people who offend have become involved in drugs, are at a developmental age when awareness of consequences of their actions is limited, have had very few positive influences in their lives or have themselves been the victim of some form of physical, sexual or psychological abuse. The juvenile justice system, in the practical experience of the authors who have sought assistance for young offenders with their problems, is better at achieving its aims of offering opportunities and assistance to the development of juvenile offenders rather than merely detaining them.

A December 2000 report, the Review of Community Correctional Services of the Office of the Correctional Services Commissioner, has identified the more effective responses of the juvenile justice system as compared with the adult system in its treatment of young people.[10]

The juvenile justice system also focuses on drug treatment and rehabilitation and health issues including mental health. Such intensive support takes a long-term view and assists in diverting the young person from further criminal behaviours, makes their behaviours less severe and can address the root causes of offending behaviours and increase the young person’s resilience to undesirable influences to which they are exposed on release. Bail advocacy and legal aid service provision are also key elements of ensuring the most appropriate action is taken by the court in line with the framework in the CYPA mentioned earlier. To place a young offender in an adult prison often fails to adequately address those issues and, more often than not, simply has the effect of temporarily removing the young person from the community without any effective attempts at rehabilitation.

A 2001 report on recidivism rates[11] states, “In the majority of cases where young people are likely to grow out of offending with maturation, intensive intervention from the criminal justice system is not warranted. This is supported by the diversionary approach of the Victorian juvenile justice system ... The juvenile population is characterised developmentally by an adolescent surge in delinquent participation, which is normative for males and peaks near 17 years in most Western countries”.

For this reason, it is unlikely that recidivism rates in the short-term can be higher than for adults as they are at an age when they are likely to be testing the boundaries and still learning about law abiding behaviours.[12] This latter point would suggest that to be too punitive, given this developmental inclination of young people, may be counterproductive as it might harden a young person where there is hope for redemption. The Court of Appeal has recognised that it would be inappropriate to consider various forms of adult custodial sentences, including suspended adult jail or intensive corrections orders where the young offender might otherwise be eligible for detention in a YTC.

In R v Simmons,[13] although non-immediate jail sentences were contemplated, the Court was of the view that if any form of custodial sentence was considered, then detention in a YTC would be considered more appropriate, principally because of its rehabilitative value, than other forms of adult custody, albeit that the young offender would not immediately be required to serve that sentence.

With the government’s aim of reducing expenditure there has been a tendency in recent times for it to make what the authors consider questionable costs comparisons. For instance, rather than comparing juvenile justice costs to other adolescent services there has been a tendency to compare them with the cost of detaining a person in the adult system where there is a lower level of support and where the focus has traditionally been on the holding of prisoners for their term of imprisonment rather than sustained effort to assist the prisoner in sorting out their life or changing their behaviours.

Such comparisons, in the authors’ view, are like comparing apples and oranges. In addition, arguments mounted look at per capita costs of holding juveniles by comparison with other states, without following through the flow-on costs for the system of not taking the more holistic approach in the treatment of young people. For instance, per capita costs in Victoria may be higher than New South Wales but New South Wales on a whole of system analysis holds significantly more juveniles.[14] The total cost of juvenile justice in New South Wales is significantly higher than in Victoria.

A delegation from the Ministerial Juvenile Justice Round Table met with the IDC in March 2003, where the IDC indicated material before it on costings on juvenile justice would not be released. The actual figures being secured by government are likely to be classified as “Cabinet-in confidence”. This not only raises the obvious issue about transparency but also, given the concern that the methodology of the figures may be flawed, Cabinet may be basing its deliberations on spurious material. State Attorney-General Rob Hulls, as the senior minister responsible for the CYPA, has stated his commitment to the dual track system and undertaken to clarify the role of the IDC.

It could be argued that Victoria holds fewer juveniles because of its approach of intensive support. The dual track system offers an effective opportunity to direct children and young people away from criminal behaviour. A Department report states that, “ ... findings suggest that supervised orders have a positive effect in reducing recidivism risk through the support and direction provided during the period of statutory supervision. Addressing the needs of young offenders through individualised client assessment and planning, and appropriate interventions, is an effective response to prevent further offending”.[15] This may be more expensive than the approach offered in the adult corrections system but it suggests that in the long-term the advantages to the community in terms of shorter prison sentences and a reduction in crime are worth the investment.

Victoria’s juvenile justice system is by no means perfect but the authors would argue that Victoria’s lower rates of crime and imprisonment in comparison with other states are indicative of a policy that appears to be working. Indeed, an injection of further funding into the dual track system may enhance those outcomes further. The concern is that by tinkering with the approach based on what may be a flawed narrow economic analysis puts at risk aspects of the system that work towards Victoria’s positive record in these areas of crime and imprisonment rates.

It is noted that many children and young people who end up having contact with the juvenile justice system have come from the intervention of the Department through its care and protection system (child protection, intervention by the DHS).

This means that they have often been under the attention of and guardianship of the state for some time. Greater effort is certainly required to assist what is a limited number of young people from spiralling out of control and providing positive frameworks earlier in their lives to divert them away from the criminal justice system.

A number of anomalies exist in relation to the operation of the juvenile justice system and the Law Institute’s Criminal Law Section has raised these in various submissions.

The first anomaly is that the option of being remanded into a YTC when the offender is aged between 17 and 21 years is not available. It is only available after a sentence of detention is imposed on conviction. The vulnerability of a young offender and the wish not to expose them to an adult prison environment equally applies to a young person on remand as well as to post-conviction sentence. The second anomaly is that where a young offender breaches a suspended sentence or intensive corrections order, the offender must be committed to adult imprisonment on breach even where in ordinary circumstances the young offender has a prima facie eligibility to a YTC. This difficulty with the current legislation was also noted in Professor Arie Freiberg’s Sentencing report.[16]

Those who seek to dismantle the dual track system for 17 to 21-year-olds are yet to put forward an argument to justify such a change. Rather, the Department has been placed in a position where it has to argue for the retention of the system. Unfortunately, it has been slow to commission qualitative research that demonstrates the positive outcomes for children and young offenders of having intensive support as opposed to not having such support. Practitioners, therefore, are left to rely on “anecdotal evidence” of their dealings with young offenders and children.

Practitioners are well aware that many of the young offenders who have turned the corner have done so as a result of positive intervention by youth workers and court support services such as bail advocacy, early involvement of legal aid lawyers and social, training and health pro grams. In recent times, the government has committed to expanding pre-release and post-release support programs for young offenders in custody to decrease the likelihood of re-offending behaviour.[17]

This has been a positive initiative and in the authors’ view other efforts at rehabilitation could be undone if the move to dismantle the dual track system for young offenders is transferred into the adult correctional system of the Department of Corrections from the current more integrated approach of the Department of Human Services.

Case Study One - Young person with support

Dave (not his real name) left the family home at 15 years of age because of conflict with his father. His first custodial sentence was at 15 in a youth training centre which was followed by repeated terms of detention. Dave first accessed post-release support at the age of 17 through the Brosnan Centre. He remains connected to the service. Dave made numerous attempts to stabilise his drug use and offending behaviour with the assistance of a youth worker and intensive housing support. Dave had simple goals –stop using drugs, get a good job, rent his own flat and seek a relationship with a young woman who was “straight”. He decided to return to the family home, he negotiated rules and conditions with his parents with the help of workers, started on the Bubrenorphine Program and is now working in his father’s business. Dave has been drug-free for nine months, is involved in a sports club and has established connections in the community with other young people who are not involved in drugs or crime.

Case Study Two - Young person without support

Linda (not her real name) had been a state ward since she was 10 years of age when her mother died of a drug overdose. The identity of her father was unknown. Linda experienced 23 foster care placements, spent long periods of time “at risk” on the streets during her adolescence, has been addicted to heroin since the age of 15, is illiterate (failed to complete year 7) and has been a victim of sexual abuse, while in and out of care.

Linda has been remanded in prison due to numerous alleged armed robberies (with a blood-filled syringe as a weapon), burglaries, thefts, serious assaults, prostitution and criminal damage (associated with Met ticket machines). Since the age of 17 Linda’s institutionalisation continued, however, in the juvenile justice and correctional systems.

Most recently, Linda was released from the Dame Phyllis Frost Centre after serving two months for breach of a prior parole order. She was released homeless, she feared the system and had no support connections or hope for life without drugs or crime.

From prison, Linda was given a public transport ticket, a plastic bag with a dozen items of clothing and a letter entitling her to a crisis payment from CentreLink. Linda travelled straight to St Kilda, used heroin within two hours and started “working” [as a prostitute] that night. Within two weeks she had overdosed three times, was depressed and suicidal.

Case studies provided by the Brosnan Centre, April 2003

LIZ CURRAN is a lecturer in law and legal studies at La Trobe University and a member of the Law Institute’s Criminal Law Section. ROB STARY is a criminal lawyer and chair of the Law Institute’s Criminal Law Section. Both are members of the Ministerial Juvenile Justice Round Table.

[1] Ministerial Juvenile Justice Round Table, 20 February 2003.

[2] Notes from a statement made by Minister Sheryl Garbutt at the Ministerial Juvenile Justice Round Table, 20 February 2003. A similar statement was made by the Attorney-General Rob Hulls in a meeting with Liz Curran, 21 March 2003. In a letter to Ms Curran dated 7 June 2002, the previous Minister for Community Services Bronwyn Pike stated, “As I mentioned at the recent Juvenile Justice Round Table meeting on 17 April 2002 which you attended, the government supports the ‘dual track’ system in Victoria”.

[3] Juvenile Justice: An investment in the future, a report written on behalf of the West Heidelberg Legal Service by students on clinical legal education placement from La Trobe University, Bundoora, 2002.

[4] Unreported, Court of Appeal, 9 November 1995, at 10.

[5] Note 4 above, at 6.

[6] [1998] VSC 7 (26 February 1998).

[7] Note 6 above, at 10.

[8] Dr Christine Alder, “Do we need a new community based order for young adult offenders?”, notes for seminar on 21 March 2003, Department of Criminology, University of Melbourne, 2003. See also Recidivism Among Victorian Juvenile Justice Clients 1997-2001, 2001, Department of Human Services.

[9] Dr Alder, note 8 above.

[10] Arthur Andersen, Review of Community Correctional Services of the Office of the Correctional Services Commissioner, December 2000.

[11] Recidivism report, note 8 above, pp1 and 8.

[12] Professor Robert Havinghurst, Developmental Tasks of Normal Adolescence, University of Chicago, see; see also Abraham Haslow’s Hierarchy of Needs

[13] Unreported, Supreme Court, 23 June 1977.

[14] Persons aged 10-17 years rate per 100,000 in 1999 was 11.8 in Victoria as compared to 39.4 in New South Wales, and Victoria’s rate was by far the lowest in Australia in that year: Persons in Juvenile Corrective Institutions 1981-1999, Australian Institute of Criminology.

[15] Recidivism report, note 8 above, p42.

[16] Sentencing Review: Pathways to justice, 2002, chapter 4, pp130 and 139.

[17] Then Minister for Community Services Christine Campbell, “A balanced approach to juvenile justice in Victoria”, ministerial statement, August 2000, p3.


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