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Imprisonment of Pregnant Women (Vic)

Many pregnant women and/or women with young children come before the courts for criminal matters, which can result in terms of imprisonment being imposed. The Sentencing Act 1991 does not provide for a person’s gender to be taken into account with respect to sentencing. Therefore, there is no special category that women who are pregnant or have a young family are placed in when coming before the court for sentencing. This article deals with the imprisonment of pregnant women and women with young children in Victoria.

Pregnancy as a relevant factor

In light of the above, under Section 5(2)(g) of the Sentencing Act 1991, when sentencing an offender, the court must have regard to, “the presence of any aggravating or mitigating factors concerning the offender and/or any other relevant circumstances”.

This provision allows an accused and/or their legal representative to make submissions to a sentencing court as to the harsher impact that a term of imprisonment would likely have on the person because of their health or care responsibilities. This allows courts to take into account a woman’s pregnancy or status as the primary carer for a child when imposing a sentence. For example, where an individual is facing a term of imprisonment and is due to give birth during the period they are likely to be in custody, this may provide a strong argument against the imposition of a custodial sentence.

However, it is also the case that there are some offences and circumstances in which a full-time custodial sentence will be imposed, despite the above submission being made to the court. In these situations, there are several programs available in prison for expectant mothers (and those with young families) in an effort to reduce the impact that a custodial sentence will have on a child, especially one born whilst the mother is in custody.

The Living with Mum program

Currently, in Victoria, there are two prisons that house female inmates. These are the Dame Phyllis Frost Centre in Ravenhall and the Tarrengower Prison in Nuggetty. Both of these prisons run the Living with Mum Program.

The Living with Mum Program is a specialist program that aims to assist females who are incarcerated and are also the primary caregivers of young children. The aim of the program is to attempt to facilitate and maintain the bond between mother and child by allowing the child to live with the mother whilst in custody, in conjunction with the rights that children have under the Victoria Charter of Human Rights and Responsibilities Act 2006.

Eligibility Process

There is a very strict application process for the program given the limited spaces available for entry. Whilst a prisoner might meet the eligibility criteria, her application may still be refused.

The main criteria for an individual seeking acceptance into the the Living with Mum Program are that:

  1. They expect a custodial sentence to be imposed on them;
  2. They are the primary caregiver for an infant or pre-school aged child prior to their imprisonment; or
  3. They are pregnant and are likely to give birth whilst in prison.

Should an individual fall into the above categories, then an application can be submitted to the appropriate contact at any of the female prisons in Victoria where the individual is likely to be incarcerated. This application can be completed whilst the individual is awaiting sentencing, given the processing times for such an application to be considered.

Once an application is received, the relevant support worker at the prison will conduct an assessment with the individual concerned and/or their legal representative to discuss the reasoning behind the application. They will also obtain any other information that might assist in considering the person’s suitability for the program (this can include liaising with external agencies such as the Department of Families, Fairness and Housing and Child Protection).

How are applications decided?

Once an application has been submitted, a panel of assessors reviews each application for approval into the program. During this process, applications are decided based on what is in the best interests of the child/ren concerned, and can also include assessment of:

  1. the nature of the offending;
  2. the child/ren’s circumstances, including medical conditions and immunisations;
  3. details of any engagements with the Department of Families, Fairness and Housing and/or Child Protection;
  4. review of any other possible external care arrangements that may be available;
  5. letter from the child’s external parent supporting the application (if applicable).

Should an application be granted, the mother and child will be situated in a dedicated unit in the prison, which is safe and secure for children to reside in. These units usually contain a self-contained kitchen and bathrooms, as to avoid the mother and child having to share these facilities with the general prison population. Once a woman is accepted into the program, there are very strict rules that must be followed. Any deviation may result in the termination of participation in this program.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Joseph Palamara - Managing Associate - Werribee

This article was written by Joseph Palamara - Managing Associate - Werribee

Joseph holds a Bachelor of Laws from Victoria University and completed his Graduate Diploma of Legal Practice at the College of Law. Joseph also holds a Certificate in Legal Business from the College of Law. Joseph was admitted to practise law in the Supreme Court of Victoria in March 2017 and is also admitted in the High Court of Australia....

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