This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Youth Detention (Vic)


Victoria has six youth detention centres, which accommodate young people who have been refused bail or sentenced to detention. In 2017-2018, Victoria had the lowest rate of children in youth detention of all Australian jurisdictions with 523 detainees in the centres which equated to 8.94 per 10,000 young people. Indigenous children are overrepresented youth detention in Victoria as in other states and territories.

Age of criminal liability

In Australia the age of criminal liability is 10. Children under 10 cannot be charged with offences as they are deemed to be too young to understand the serious nature of criminal conduct. There is a rebuttable presumption that a child under14 cannot be found guilty of criminal offences but this can be overcome if the prosecution can demonstrate that the accused child understood the criminal nature of their actions.

Human rights advocates have long been campaigning to have the age of criminal liability raised in Australia. They say that a low age of criminal liability leads to the criminalisation of underprivileged children, which further entrenches disadvantage and increases the chances of these children entering the adult prison system in the future.

Youth detention and young offenders

The criminal law in Victoria distinguishes between a child and a young offender. A child is someone aged between 10 and 18 at the time of the alleged offending, and who is still under 19 at the time court proceedings begin. A young offender is someone aged under 21 at the time of being sentenced.

Children who are charged with summary offences are dealt with by the Children’s Court and young offenders by the Magistrates Court. When the offence is a serious indictable offence, the matter goes through a committal proceeding, before being moved to the County Court or Supreme Court to be finalised. This is the same procedure for a child as for a young offender, although a child’s committal will be heard by the Children’s Court and a young offender’s

Victorian courts can sentence young offenders to youth detention instead of adult prison. This power exists to prevent vulnerable young people from entering the adult prison system. A young person may be allowed to serve their sentence in youth detention if the court is satisfied that they have good prospects of rehabilitation or that they are particularly immature, impressionable or likely to be subjected to bad influences if housed in an adult prison.

Bail and remand

When a child is charged with a criminal offence, they may be granted bail by the police. If police do not grant a child bail, they must be brought before a court as soon as possible, where they will have the opportunity to apply for bail.

Bail is generally granted where an accused is not considered an unreasonable threat to the community and where they are likely to attend court to deal with their charges. Bail is often granted with conditions, such as that the child is not to have contact with alleged co-offenders or must live at a particular address. If bail is refused, the child will be held in a youth detention centre until their matter is finalised (or until they are granted bail by a court).

Sentences of youth detention

Under the Children Youth and Families Act 2005, when courts sentence children they must take into account principles that are different from those that govern sentencing of adults. These include:

  • The need to strengthen and preserve the young person’s relationship with their family;
  • The desirability of allowing the child to continue their education;
  • The desirability of allowing the child to continue living at home;
  • The suitability of the sentence to the child.

Courts must only sentence a child to youth detention where no other sentencing option is appropriate in the circumstances. This is because a child’s rehabilitation is generally the paramount concern. However, in very serious matters, such as murder or manslaughter, other sentencing principles may take priority.

In the Children’s Court, a child can be sentenced to a maximum of two years in detention for a single charge. If a child is sentenced to detention for multiple offences within the same Children’s Court proceeding, the periods of detention are required to be concurrent, and the total term must not be more then three years.

Parole

Parole allows a child to serve part of their sentence of youth detention in the community while under the supervision of corrections. Unlike adult offenders, children who are sentenced to detention do not have a non-parole period set by the court. Rather, young people who are sentenced to six months or more are generally eligible to be considered for parole. The Youth Parole Board may grant parole to a child if satisfied that they have a suitable parole plan. 

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

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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