Victorian Numbered Acts Victorian Numbered ActsFor section 362(1)(g) of the Principal Act substitute —
"(g) the need to protect the community, or any person, from the violent or other wrongful acts of the child—
(i) in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or
(ii) in any other case—if it is appropriate to do so.".
Division 3—Amendments of the Criminal Procedure Act 2009
25 Definitions
In section 3 of the Criminal Procedure Act 2009 insert the following definitions—
""Category A serious youth offence" means any of the following offences—
(a) murder;
(b) attempted murder;
(c) manslaughter;
(d) child homicide;
(e) an offence against any of the following sections of the Crimes Act 1958 —
(i) section 15A (intentionally causing serious injury in circumstances of gross violence);
(ii) section 77B (aggravated home invasion);
(iii) section 79A (aggravated carjacking);
(iv) section 197A (arson causing death);
(v) section 318 (culpable driving causing death);
(f) an offence against a provision of Division 101 of the Criminal Code of the Commonwealth;
"Category B serious youth offence" means an offence against any of the following sections the Crimes Act 1958 —
(a) section 15B (recklessly causing serious injury in circumstances of gross violence);
(b) section 38 (rape);
(c) section 39 (rape by compelling sexual penetration);
(d) section 77A (home invasion);
(e) section 79 (carjacking);".
26 Court may transfer certain charges to Magistrates' Court or Children's Court
In section 168(2) of the Criminal Procedure Act 2009 for "The" substitute "Subject to section 168A, the".
27 New section 168A inserted
After section 168 of the Criminal Procedure Act 2009 insert —
(1) Despite section 168(2), the court may, under section 168(1), transfer a charge in respect of an accused who is a child to the Children's Court if—
(a) the charge is for a Category A serious youth offence committed when the child was aged 16 years or over, other than murder, attempted murder, manslaughter, child homicide, an offence against section 197A of the Crimes Act 1958 (arson causing death) or an offence against section 318 of the Crimes Act 1958 (culpable driving causing death); and
(b) the Children's Court has refused to hear and determine the charge summarily; and
(c) the child or the prosecution requests that the charge be heard and determined summarily; and
(d) the court is satisfied that the sentencing options available to the Children's Court under the Children, Youth and Families Act 2005 are adequate to respond to the child's offending; and
(e) any of the following applies—
(i) it is in the interests of the victim or victims that the charge be heard and determined summarily;
(ii) the accused is particularly vulnerable because of cognitive impairment or mental illness;
(iii) there is a substantial and compelling reason why the charge should be heard and determined summarily.
(2) In determining whether there is a substantial and compelling reason why the charge should be heard and determined summarily, the court must have regard to the intention of the Parliament that a charge for a Category A serious youth offence should not normally be heard and determined summarily.
(3) Despite section 168(2), the court may, under section 168(1), transfer a charge to the Children's Court if the charge is for a Category B serious youth offence committed when the child was aged 16 years or over, after considering whether section 356(3) of the Children, Youth and Families Act 2005 has the effect that the offence should not be heard and determined summarily.".
Division 4—Mandatory parole conditions
28 Release of person from remand centre etc.
For section 458(4) of the Principal Act substitute —
"(4) Subject to any determination of the Youth Parole Board, a parole order is subject to—
(a) the prescribed terms and conditions; and
(b) any conditions imposed under section 458A.".
29 New section 458A inserted
After section 458 of the Principal Act, insert —
(1) The Youth Parole Board must impose the conditions referred to in subsection (3) on a parole order in relation to a person if—
(a) the person was detained in a youth justice centre or a youth residential centre or was otherwise subject to the jurisdiction of the Youth Parole Board; and
(b) the person was detained in respect of—
(i) a Category A serious youth offence committed when the person was aged 16 years or over; or
(ii) a Category B serious youth offence committed when the person was aged 16 years or over, if the person had previously been convicted of a Category A serious youth offence or a Category B serious youth offence.
(2) Despite subsection (1), the Youth Parole Board is not required to impose the conditions referred to in subsection (3) if the Youth Parole Board considers that the person has demonstrated a history of good behaviour and positive engagement with rehabilitation programs throughout the period of detention for the offence referred to in subsection (1)(b).
(3) For the purposes of subsection (1), the conditions that the Youth Parole Board must impose are as follows—
(a) the person must not break any law;
(b) the person must be supervised by a parole officer;
(c) the person must obey any lawful instructions of that parole officer;
(d) the person must report as and when reasonably directed by that parole officer;
(e) the person may be interviewed by that parole officer at any reasonable time and place directed by that parole officer;
(f) the person must, within 2 days of changing his or her address, advise that parole officer of the change of address;
(g) the person must not leave Victoria without the written permission of the Youth Parole Board;
(h) any other condition the Youth Parole Board considers necessary for the protection of any victim of an offence referred to in subsection (1)(b);
(i) if the Youth Parole Board considers it appropriate having regard to the circumstances of any offence referred to in subsection (1)(b), one or more of the following—
(i) that the person not visit particular places or areas, or only visit the places or areas at specified times;
(ii) that the person not contact specified persons or classes of person;
(iii) that the person undergo rehabilitation and treatment ordered by the Youth Parole Board;
(iv) that the
person attend a day program specified by the Youth Parole Board.".
Part 5—Custodial management powers
30 New section 487A inserted
After section 487 of the Principal Act insert —
Without affecting the liability of the Crown or any other body or person, an officer is not personally liable for injury or damage caused by the use of reasonable force in accordance with section 487.".
31 New section 488AA inserted
After section 488 of the Principal Act insert —
(1) This section applies if an officer takes any of the following actions at a remand centre, youth justice centre or youth residential facility in relation to a detainee—
(a) uses physical force;
(b) places the detainee in isolation in accordance with section 488(7).
(2) As soon as possible after taking the action, the officer must report the taking of the action to the Officer in Charge of the remand centre, youth residential centre or youth justice centre in which the detainee is detained or to or from which the detainee is being transported.
(3) As soon as possible after receiving a report
under subsection (2), the Officer in Charge must report the taking of the
action by the officer to the Secretary to the Department of Justice and
Regulation.".
Part 6—Amendments relating to youth justice placement decisions
Division 1—Amendments relating to transfer and co-location
32 Form of care, custody or treatment
For section 482(1)(c)(ii) of the Principal Act substitute —
"(ii) either—
(A) the persons on remand consent; or
(B) the persons on remand have previously served a period of detention, it is in the best interests of each person on remand to be accommodated with persons who are serving a period of detention and it is reasonably necessary to accommodate persons on remand with persons who are serving a period of detention; and".
33 Removal of person from remand centre etc.
After section 484(5) of the Principal Act insert —
"(6) When making a decision under this section to cause the removal of a person under subsection (1)(a), (b) or (c), the Secretary to the Department of Justice and Regulation, in the Secretary's complete discretion, may have regard to the following—
(a) the availability and appropriateness of accommodation for the combination of all persons detained across all remand centres, youth residential centres and youth justice centres;
(b) the safety, security and good order of any remand centre, youth residential centre or youth justice centre;
(c) the safety, security and needs of any person detained at any remand centre, youth residential centre or youth justice centre;
(d) the safety of any person at any remand centre, youth residential centre or youth justice centre;
(e) any matter that the Secretary to the Department of Justice and Regulation considers relevant.
(7) For the avoidance of doubt, the Secretary to the Department of Justice and Regulation is not required to afford procedural fairness in making any decision under this section.".
Division 2—Amendments relating to remand
34 When is a person in the legal custody of the Secretary?
After section 6A(2) of the Corrections Act 1986 insert —
"(2A) Subsection (2) applies despite an order of the Children's Court or any other court that the person is to be remanded as a child.".
35 Power to adjourn proceeding
For the note at the foot of section 331(2) of the Criminal Procedure Act 2009 substitute —
" Notes
1 See section 333 of this Act and section 5A of the Bail Act 1977 where the accused is undergoing a sentence of detention in a youth justice centre.
2 If an order is made under paragraph (a) or (c) and the accused is the subject of a youth remand warrant that was issued in another criminal proceeding, the youth remand warrant remains in effect.
3 If an accused is remanded into custody under paragraph (b), section 6A(2A) of the Corrections Act 1986 provides that the remand order under paragraph (b) takes effect despite the existence of a youth remand warrant.".
36 Power to return accused to youth justice centre
(1) In section 333(1) of the Criminal Procedure Act 2009 , after "court may," insert "subject to subsection (3),".
(2) After section 333(2) of the Criminal Procedure Act 2009 insert —
"(3) If the prosecution in a criminal proceeding objects to the accused being returned to a youth justice centre under subsection (1), the court may only order that the accused is to be returned to the youth justice centre if the court has considered—
(a) the antecedents and behaviour of the accused; and
(b) the age and maturity of the accused; and
(c) any evidence of the behaviour of the accused in custody; and
(d) whether an application has been made to the Youth Parole Board regarding the custody of the accused; and
(e) any other relevant factor.".
37 New section 3C of the Bail Act 1977 inserted
After section 3B of the Bail Act 1977 insert —
If—
(a) the accused in a criminal proceeding in any court is of or over the age of 18 years and is in a remand centre (within the meaning of the Children, Youth and Families Act 2005 ), pursuant to a remand warrant issued when the accused was aged under 18; and
(b) the criminal proceeding relates to one or more offences alleged to have been committed when the accused was of or over the age of 18 years—
in making a determination under this Act in relation to the accused, the court must take into account (in addition to any other requirements of this Act)—
(c) whether the accused has engaged in conduct that threatens the good order and safe operation of the youth remand centre; and
(d) whether the accused can be properly controlled in the youth remand centre.".
38 Power to return accused to youth justice centre
(1) In section 5A(1) of the Bail Act 1977 , after "Court may," insert "subject to subsection (3),".
(2) After section 5A(2) of the Bail Act 1977 insert —
"(3) The Supreme Court or the County Court may only order that the accused is to be returned to a youth justice centre under subsection (1) if the Supreme Court or the County Court has considered—
(a) the antecedents and behaviour of the accused; and
(b) the age and maturity of the accused; and
(c) any evidence of the behaviour of the accused in custody; and
(d) whether an application has been made to the Youth Parole Board regarding the custody of the accused; and
(e) any other relevant factor.".
Part 7—Information sharing
39 New Division 4 of Part 5.5 inserted
After Division 3 of Part 5.5 of the Principal Act insert —
(1) The Secretary to the Department of Justice and Regulation must notify the Youth Parole Board in writing within 48 hours of becoming aware that a person detained in a youth residential centre or a youth justice centre—
(a) has been involved in an incident that has threatened the safety or security of the centre; or
(b) has engaged in conduct that has threatened the safety of another person, or damaged property, at the centre.
(2) After receiving a notice under subsection (1), the Youth Parole Board may request further additional information about the incident or conduct and may specify a reasonable period within which the additional information is to be provided.
(3) If the Youth Parole Board requests further additional information under subsection (2), the Secretary must provide the additional information within the specified period.
(4) If the Secretary notifies the Youth Parole Board of a person's involvement in an incident or conduct under subsection (1)—
(a) the Secretary must notify the person that he or she has done so; and
(b) the Youth Parole Board must give the person an opportunity to comment on that involvement or conduct.
(1) The Youth Parole Board must notify Victoria Police of—
(a) the release on parole, or scheduled release on parole, of a person detained in a youth residential centre or a youth justice centre, if the detention related to at least one Category A serious youth offence or Category B serious youth offence; and
(b) any conditions of the parole.
(2) The Youth Parole Board may notify Victoria Police of—
(a) the release on parole, or scheduled release on parole of any other person detained in a youth residential centre or a youth justice centre; and
(b) any conditions of the parole.".
40 Restriction on publication of proceedings
(1) After section 534(3) of the Principal Act insert —
"(3A) The Secretary to the Department of Justice and Regulation may grant permission for the publication of any identifying particular of any person who has escaped from a remand centre, a youth residential centre or a youth justice centre if the Secretary is satisfied that publication—
(a) is reasonably necessary for the safety of the person who has escaped or any other person; or
(b) will assist in apprehending the person or protecting the community.
(3B) In making a decision under subsection (3A), the Secretary must—
(a) have regard to the desirability of minimising the stigma to the person and the child's family; and
(b) grant permission for publication only to the extent necessary to apprehend the person.".
(2) In section 534(4) of the Principal Act, for
"and (3)" substitute ", (3), (3A) and (3B)".
Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres
Division 1—Consequences of assaults on staff
41 Definitions
(1) In section 3(1) of the Principal Act insert the following definitions—
""offence involving an assault" means an offence against any of the following sections of the Crimes Act 1958 —
(a) section 15A (intentionally causing serious injury in circumstances of gross violence);
(b) section 15B (recklessly causing serious injury in circumstances of gross violence);
(c) section 16 (intentionally causing serious injury);
(d) section 17 (recklessly causing serious injury);
(e) section 18 (intentionally or recklessly causing serious injury);
"offence involving property damage" means—
(a) an offence against section 197 of the Crimes Act 1958 (criminal damage); or
(b) an offence against section 9(1)(c) of the Summary Offences Act 1966 (wilful damage);
"youth justice custodial worker" means a person—
(a) who is employed or engaged by the Secretary to the Department of Justice and Regulation in a remand centre, a youth residential centre or a youth justice centre; and
(b) whose duties include duties in relation to detainees in the custody of the Secretary;".
(2) After section 3(4) of the Principal Act, insert —
"(5) For the purposes of the definition of youth justice custodial worker in subsection (1), a youth justice custodial worker is on duty at any time when the youth justice custodial worker is performing a function or exercising a power as a youth justice custodial worker.".
42 Matters to be taken into account
In section 362 of the Principal Act—
(a) in paragraph (g), for "child." substitute "child; and";
(b) after paragraph (g) insert —
"(h) if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.".
43 Youth residential centre orders
(1) In section 411(2)(a) of the Principal Act for "any" (where first occurring), substitute "subject to subsection (2A), any".
(2) After section 411(2) of the Principal Act insert —
"(2A) If one or more of the offences referred to in subsection (2) is—
(a) an offence involving an assault on a youth justice custodial worker on duty; or
(b) an offence constituted by escape from a remand centre, youth justice centre or a youth residential centre; or
(c) an offence involving property damage to a remand centre, a youth justice centre or a youth residential centre—
any period of detention imposed on the child for that offence or those offences must be served cumulatively with any period of detention in respect of any of the other offences, unless the Court, at the time of sentencing, states that the sentences are concurrent and gives reasons for its decision.".
(3) In section 411(5) of the Principal Act, for "32 and", substitute "32, 32A and".
44 Youth justice centre orders
(1) In section 413(3)(a) of the Principal Act, for "any" (where first occurring) substitute "subject to subsection (3A), any".
(2) After section 413(3) of the Principal Act insert —
"(3A) If one or more of the offences referred to in subsection (3) is—
(a) an offence involving an assault on a youth justice custodial worker on duty; or
(b) an offence constituted by escape from a remand centre or a youth justice centre; or
(c) an offence involving property damage to a remand centre or a youth residential centre or a youth justice centre—
any period of detention imposed on the child for that offence or those offences must be served cumulatively with any period of detention in respect of any of the other offences, unless the Court, at the time of sentencing, states that the sentences are concurrent and gives reasons for its decision.".
(3) In section 413(4) of the Principal Act for "Every", substitute "Subject to subsection (4A), every".
(4) After section 413(4) of the Principal Act insert —
"(4A) If one or more of the offences to which a sentence of detention referred to in subsection (4) is—
(a) an offence involving an assault on a youth justice custodial worker on duty; or
(b) an offence constituted by escape from a remand centre or a youth justice centre; or
(c) an offence involving property damage to a remand centre or a youth justice centre—
any period of detention imposed on the child for that offence or those offences must be served cumulatively with any uncompleted sentence or sentences of detention in a youth justice centre imposed on the child, unless the Court, at the time of sentencing, states that the sentences are concurrent and gives reasons for its decision.".
45 Definitions
In section 3(1) of the Sentencing Act 1991 insert the following definitions—
""offence involving an assault" means an offence against any of the following sections of the Crimes Act 1958 —
(a) section 15A (intentionally causing serious injury in circumstances of gross violence);
(b) section 15B (recklessly causing serious injury in circumstances of gross violence);
(c) section 16 (intentionally causing serious injury);
(d) section 17 (recklessly causing serious injury);
(e) section 18 (intentionally or recklessly causing injury);
"offence involving property damage" means—
(a) an offence against section 197 of the Crimes Act 1958 (criminal damage); or
(b) an offence against section 9(1)(c) of the Summary Offences Act 1966 (wilful damage);".
46 Custodial sentence for certain offences against emergency workers and custodial officers on duty
(1) In section 10AA(1), (2), (4) and (5)(a) of the Sentencing Act 1991 for "or a custodial officer on duty" substitute ", a custodial officer on duty or a youth justice custodial worker on duty".
(2) In section 10AA(5)(b) of the
Sentencing Act 1991 , after
"custodial officer" insert
"or a youth justice custodial worker".
(3) In section 10AA(8) of the Sentencing Act 1991 —
(a) in the definition of "hospital", for " 1988 ." substitute " 1988 ;";
(b) insert the following definition—
"" youth justice custodial worker "means a person—
(a) who is employed or engaged by the Secretary to the Department of Justice and Regulation in a remand centre, a youth residential centre or a youth justice centre; and
(b) whose duties include duties in relation to detainees in the custody of the Secretary.".
(4) After section 10AA(10) of the Sentencing Act 1991 insert —
"(11) For the purposes of this section, a youth justice custodial worker is on duty at any time when he or she is performing a function or exercising a power as a youth justice custodial worker.".
(5) For the heading to section 10AA of the Sentencing Act 1991 substitute —
" Assaulting, etc. emergency workers, custodial officers and youth justice custodial workers on duty ".
47 Special reasons relevant to imposing minimum non-parole periods
In section 10A(2A) of the Sentencing Act 1991 , for "or a custodial
officer on duty " substitute
", a custodial officer on duty or a youth
justice custodial worker on duty".
48 Assaults
(1) In section 31(1)(b) of the Crimes Act 1958 —
(a) after "duty" insert "or a youth justice custodial worker on duty,";
(b) after "was an emergency worker" insert "or a youth justice custodial worker".
(2) In section 31(1)(ba) of the Crimes Act 1958 —
(a) after "duty" insert "or a youth justice custodial worker on duty,";
(b) after "was assisting an emergency worker" insert "or a youth justice custodial worker".
(3) In section 31(2A) of the Crimes Act 1958 , in the definition of emergency worker on duty "and " emergency worker , for " emergency worker on duty and emergency worker " substitute "" emergency worker on duty" , emergency worker , youth justice custodial worker on duty and youth justice custodial worker ".
49 Assaulting, etc. emergency workers, custodial officers or local authority staff on duty
(1) For the heading to section 51 of the Summary Offences Act 1966 substitute —
" Assaulting, etc. emergency workers, custodial officers, youth justice custodial workers or local authority staff on duty ".
(2) In section 51(1) of the Summary Offences Act 1966 —
(a) in the definition of emergency worker on duty and "emergency worker", for " 1991 ." substitute " 1991 ;";
(b) insert the following definition—
" youth justice custodial worker on duty and youth justice custodial worker have the same meanings as in section 10AA of the Sentencing Act 1991 .".
(3) In section 51(2) of the Summary Offences Act 1966 , for "duty or a custodial officer on duty" substitute "duty, a custodial officer on duty or a youth justice custodial worker on duty".
(4) In section 51(4) of the Summary Offences Act 1966 , for "duty or a custodial officer on duty" insert "duty, a custodial officer on duty or a youth justice custodial worker on duty".
(5) For section 51(5) of the Summary Offences Act 1966 substitute —
"(5) In addition to imposing a penalty under this section, the court may order and award a sum sufficient to cover any damage which an emergency worker, a custodial officer, a youth justice custodial worker or a member of staff of a local authority or a person lawfully assisting an emergency worker, a custodial officer or a youth justice custodial worker has sustained by the assault, resistance, obstruction, hindrance or delay.".
50 Sentences—whether concurrent or cumulative
In section 16(1A) of the Sentencing Act 1991 —
(a) in paragraph (e), for "offence." substitute "offence; or";
(b) after paragraph (e) insert —
"(f) on a young offender because of the operation of section 33(1A).".
51 Sentence to be concurrent unless otherwise directed
(1) In section 33(1) of the Sentencing Act 1991 , for "Every" substitute "Subject to subsection (1A), every".
(2) After section 33(1) of the Sentencing Act 1991 insert —
"(1A) If one or more of the offences referred to in subsection (1) is—
(a) an offence of escape from a remand centre, a youth residential centre or a youth justice centre; or
(b) an offence involving property damage to a remand centre, a youth residential centre or a youth justice centre—
any period of detention imposed on the young offender for that offence or those offences must be served cumulatively with any uncompleted sentence or sentences of detention in a youth justice centre imposed on the child, unless the Court, at the time of sentencing, states that the sentences are concurrent and gives reasons for its decision.".
Division 2—Increase in penalties
52 Youth justice centre orders
(1) In section 413(2) of the Principal Act, for "2 years" substitute "3 years".
(2) In section 413(3)(b) of the Principal Act, for "3 years" substitute "4 years".
53 Offence to escape or attempt to escape etc.
In the penalty at the foot of section 498(1) of the Principal Act—
(a) in paragraph (a), for "3 months" substitute "6 months";
(b) in paragraph (b), for "6 months" substitute "12 months";
(c) in paragraph (c), for "6 months" substitute "12 months".
54 Offence to harbour or conceal person
In the penalty at the foot of section 499 of the Principal Act—
(a) for "15 penalty units" substitute "120 penalty units";
(b) for "3 months" substitute "12 months".
55 Offence to counsel or induce person to escape
In the penalty at the foot of section 500 of the Principal Act—
(a) for "15 penalty units" substitute "120 penalty units";
(b) for "3 months" substitute "12 months".
56 Offences in relation to persons held in centres
(1) In the penalty at the foot of section 501(1) of the Principal Act—
(a) for "15 penalty units" substitute "120 penalty units";
(b) for "3 months" substitute "12 months".
(2) In the penalty at the foot of section 501(2) of the Principal Act—
(a) for "15 penalty units" substitute "120 penalty units";
(b) for "3 months" substitute "12 months".
57 Offence to obstruct Secretary or employee
In the penalty at the foot of section 503 of the Principal Act—
(a) for "15 penalty units" substitute "120 penalty units";
(b) for "3 months" substitute "12 months".
58 Youth justice centre or youth residential centre order
In section 32(3)(b) of the Sentencing Act 1991 , for "3 years" substitute "4
years".
Part 9—Youth diversion and other amendments
59 New Division 3A inserted in Part 5.2
After Division 3 of Part 5.2 of the Principal Act insert —
(1) This Division does not apply to—
(a) an offence punishable by a minimum or fixed sentence or penalty, including cancellation or suspension of a licence or permit to drive a motor vehicle and disqualification under the Road Safety Act 1986 or the Sentencing Act 1991 from obtaining such a licence or permit or from driving a motor vehicle on a road in Victoria but not including the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act; or
(b) an offence against section 49(1) of the Road Safety Act 1986 not referred to in paragraph (a).
(2) This Division does not affect the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act.
The following purposes of diversion are to guide the operation of this Division—
(a) a child should be diverted away from the criminal justice system where possible and appropriate;
(b) the risk of stigma being caused to a child by contact with the criminal justice system should be reduced;
(c) a child should be encouraged to accept responsibility for unlawful behaviour;
(d) a child's offending should be responded to in a manner that acknowledges the child's needs and assists with rehabilitation;
(e) a child should be provided with opportunities to strengthen and preserve relationships with family and other persons of importance in the child's life;
(f) a child should be provided with ongoing pathways to connect with education, training and employment.
(1) Subject to this Division, at any time before taking a formal plea from a child in a criminal proceeding for an offence, the Court may, on its own motion or on application by the child or the prosecutor, adjourn the proceeding for a period not exceeding 4 months to enable the child to participate in and complete a diversion program.
(2) The Court may refuse to accept a plea of guilty from a child in a criminal proceeding for an offence, or may allow the child to withdraw such a plea, if—
(a) there has been no application for an adjournment under subsection (1); and
(b) the Court considers it necessary to consider the appropriateness of diversion; and
(c) the Court has not heard any evidence in the proceeding; and
(d) in the case of a withdrawal of a plea, the Court is satisfied that the prosecutor does not object to diversion.
(3) Despite anything to the contrary in subsection (1), the Court may not adjourn a proceeding for the purpose of the child completing a diversion program if—
(a) the prosecutor does not consent to the adjournment; or
(b) the child does not consent to the adjournment in accordance with section 356E.
(4) The Court, as far as practicable, must consider the following matters when determining whether to grant an adjournment under subsection (1)—
(a) the seriousness and the nature of the offending;
(b) the seriousness and the nature of any previous offending;
(c) the impact on the victim (if any);
(d) the interests of justice and any other matter the Court considers appropriate.
(5) In considering the matters in subsection (4), the Court may inform itself in any way it considers appropriate.
(1) An adjournment must not be granted under section 356D(1) unless the child—
(a) acknowledges to the Court responsibility for the offence; and
(b) consents to the Court adjourning the proceeding for the purpose of the child participating in a diversion program.
(2) A child's acknowledgement to the Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea.
(3) A plea withdrawn under section 356D(2) is inadmissible as evidence in a proceeding for the offence and does not constitute a plea.
A prosecutor must consider the following matters when determining whether to consent to an adjournment under section 356D(1)—
(a) the availability of suitable diversion programs;
(b) the impact on the victim (if any);
(c) the child's failure to complete previous diversion programs (if any);
(d) the alleged level of involvement of the child in the offending;
(e) any other matter that the prosecutor considers relevant.
(1) The Court, as far as practicable, must consider the following matters when determining the type of diversion program to be ordered—
(a) the diversion program should not be more punitive than the sentence that would have been imposed had the child been found guilty;
(b) the diversion program should be achievable by the child and measurable;
(c) the personal characteristics and circumstances of the child;
(d) the desirability of maintaining a child's engagement in education, training and employment;
(e) the diversion program should be culturally appropriate;
(f) the impact on the victim (if any);
(g) the appropriateness of a restorative approach;
(h) any other matter the Court considers appropriate.
(2) In considering the matters in subsection (1), the Court may inform itself in any way it considers appropriate.
(1) Despite anything to the contrary in section 356D, the Court may adjourn the proceeding for a further period not exceeding 2 months if it considers it to be appropriate to enable the completion of the diversion program.
(2) The total period of the adjournment under section 356D(1) and subsection (1) must not exceed 6 months.
(1) If a child completes a diversion program to the satisfaction of the Court—
(a) no plea to the charge is to be taken, or if a plea to the charge was withdrawn under section 356D(2) no further plea to the charge is to be taken; and
(b) the Court must discharge the child without any finding of guilt; and
(c) the fact of participation in the diversion program is not to be treated as a finding of guilt except for the purposes of—
(i) Division 1 of Part 3 and Part 10 of the Confiscation Act 1997 ; and
(ii) section 9 of the Control of Weapons Act 1990 ; and
(iii) section 151 of the Firearms Act 1996 ; and
(iv) Part 4 of the Sentencing Act 1991 ; and
(d) the fact of participation in the diversion program and the discharge of the child is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances.
Note
In relation to subsection (1)(c)(iv) see section 417.
(2) If a child does not complete a diversion program to the satisfaction of the Court and the child is subsequently found guilty of the charge, the Court must take into account the extent to which the child complied with the diversion program when sentencing the child.
If an adjournment is granted under section 356D(1) and the diversion program requires a person to engage in community service activities, section 407(3) of this Act applies as if a reference to a direction under subsection (1) were a reference to a diversion program.
Nothing in this Division affects the requirement to observe the rules of natural justice.".
60 Offences in relation to community service etc.
At the end of section 497 of the Principal Act insert —
"(2) For the purposes of subsection (1)(c), the Secretary may issue a written instruction to any person directing the person not to attempt to have contact with a child placed under an interim accommodation order or by the Secretary under section 173.
(3) An instruction under subsection (2) must be served in accordance with section 593.".
61 Offences in relation to persons held in centres
After section 501(4) of the Principal Act insert —
"(5) For the purposes of subsection (1)(a), the Secretary may issue a written instruction to any person directing the person not to communicate or attempt to communicate with a person held in a remand centre, youth residential centre, youth justice centre or youth justice unit in contravention of the instruction.
(6) An instruction under subsection (5) must be served in accordance with section 593.".
62 Circumstances in which Koori Court (Criminal Division) may deal with breach of a sentence imposed by it or another Division of the Children's Court
(1) In section 518A(c)(iii) of the Principal Act, for "Division; and" substitute "Division; or".
(2) After section 518A(c)(iii) of the Principal Act insert —
"(iv) intends to consent to the adjournment of the proceeding under section 356D to enable the child to participate in a diversion program; and".
63 Circumstances in which Koori Court (Criminal Division) may deal with certain offences
(1) In section 519(1)(c)(iii) of the Principal Act, for "Division; and" substitute "Division; or".
(2) After section 519(1)(c)(iii) of the Principal Act insert —
"(iv) intends to consent to the adjournment of the proceeding under section 356D to enable the child to participate in a diversion program; and".
Part 10—Transitional provisions
64 Transitional provisions
(1) After section 160 of the Sentencing Act 1991 insert —
(1) The amendments made to section 32 of this Act by section 21 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the sentencing of an offender for an offence alleged to have been committed on or after the commencement of that section, irrespective of when the previous offence referred to in section 32(2D)(b) of this Act (as inserted by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 ) was committed.
(2) The amendments made to this Act by Division 1 and 2 of Part 8 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply respectively to the sentencing of an offender, or the hearing of a charge, for an offence alleged to have been committed on or after the commencement of that Part.
(3) For the purposes of subsection (1) and (2), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 , the offence is alleged to have been committed before that commencement.".
(2) After Schedule 5 to the Children, Youth and Families Act 2005 insert —
" Schedule 6—Transitional provisions relating to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017
(1) The amendments made to this Act by Division 2 of Part 4 of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the sentencing of an offender for an offence alleged to have been committed on or after the commencement of that Part.
(2) The amendments made to this Act by section 29 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the detention of a person for an offence for which the person has been convicted on or after the commencement of that section, irrespective of when the previous offence referred to in section 458A(1)(b)(ii) of this Act (as inserted by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 ) was committed, being an offence committed when the person was aged 16 years or over.
(3) The amendments made to this Act
by Divisions 1 and 2 of Part 8 of the Children and Justice
Legislation Amendment (Youth Justice Reform) Act 2017 (other than by
section 52 of that Act) apply respectively to
the sentencing of an offender, or the
hearing of a charge,
for an offence alleged to have been committed on
or
after the commencement of that Part.".
(3) After section 63 of the Summary Offences Act 1966 insert —
(1) The amendments made to this Act
by Division 1 of Part 8 of the Children and Justice Legislation
Amendment (Youth Justice Reform) Act 2017 apply to the sentencing of
an offender
for an offence alleged to have been committed on or after the
commencement of that Part.
(2) For the purposes of subsections (1), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 , the offence is alleged to have been committed before that commencement.".
(4) After Schedule 4 of the Criminal Procedure Act Act 2009 insert —
" Schedule 5—Transitional provisions relating to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017
(1) The amendments made to this Act by Division 3 of Part 4 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the hearing of a charge for an offence alleged to have been committed on or after the commencement of that Division.
(2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Division 3 of Part 4 of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 , the offence is alleged to have been committed before that commencement.".
(5) After section 628 of the Crimes Act 1958 insert —
(1) The amendments made to this Act by Division 1 of Part 8 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the sentencing of an offender for an offence alleged to have been committed on or after the commencement of that Part.
(2) For the purposes of subsection (1), if an
offence is alleged to have been committed between 2 dates, one before and one
after the commencement of Division 1 of Part 8 of the Children and
Justice Legislation Amendment (Youth Justice Reform) Act 2017 , the
offence is alleged to have been committed before that commencement.".
Part 11—Amendments relating to review of Act
65 New Part 5.9 inserted
After Part 5.8 of Chapter 5 of the Principal Act insert —
(1) The Minister must undertake a review of the amendments made to this Act and other Acts by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 to determine whether the policy objectives of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 remain valid and whether the amendments made by that Act remain appropriate to achieve those objectives.
(2) The review is to be undertaken as soon as possible after the third anniversary of the first day on which all the provisions of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 have commenced.
(3) Without limiting the matters that the review may consider, the review must cover the following matters—
(a) the effects of the amendments made by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 , whether adverse or otherwise, on the following—
(i) rates of offending and re-offending;
(ii) incarceration of young people;
(iii) community safety;
(iv) the long-term well-being of children and young people in contact with the justice system;
(b) the operation of youth control orders;
(c) the operation of youth diversion strategies and programs;
(d) the operation of the system known as the dual track system;
(e) the categorisation of certain offences as serious youth offences, and the effect of this categorisation on decisions about bail, non-custodial sentences and the placement of young adults in youth justice centres;
(f) whether the incarceration of Aboriginal or Torres Strait Islander children and young people has increased or decreased as a proportion of the total incarcerated population of young people in Victoria since the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 received the Royal Assent;
(g) whether any additional legislative, administrative or policy reform is necessary to improve the operation of Victoria's youth justice system.
(4) The Minister must cause a report on the review
to be laid before each House of the Parliament not later than 12 months after
the third anniversary of the first day on which all the provisions of the
Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017
have commenced.".
Part 12—Repeal of amending Act
66 Repeal of amending Act
This Act is repealed on 1 June 2019.
Note
The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the
Interpretation of Legislation Act 1984 ).
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