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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Youth Diversion Children's Court (Vic)


In Victoria, diversion programs aim to keep child offenders out of the criminal justice system via early intervention. There are many types of programs, all tailored to meet the needs of the particular offender and all focusing on rehabilitation and deterrence.

Legislation

The Children Youth and Families Act 2005 encourages the use of diversion, following the principles that:

  • a child should be diverted away from the criminal justice system where possible and appropriate;
  • the stigma of a child’s contact with the criminal justice system should be reduced;
  • a child should be encouraged to accept responsibility for their unlawful behaviour;
  • the response to a child’s offending should acknowledge the child’s needs and help with rehabilitation;
  • a child should be helped to strengthen and preserve relationships of importance;
  • a child should be provided with ongoing help to connect with education, training and employment.

Under the Act, before accepting a formal plea to a charge, a court can adjourn the proceeding for up to 4 months to enable the child to take part in a diversion program. The court can make the decision itself, or the offender or prosecutor can request the move. When deciding whether to grant an adjournment, the court must consider factors such as the seriousness and nature of this and any previous offending, and the impact on any victim.

Before an adjournment can be granted, the child must acknowledge to the court responsibility for the offence and consent to diversion. Before consenting to diversion, the prosecutor must consider factors such as any failure to complete previous diversion programs and the child’s level of involvement in the offending.

If there is no such adjournment, the court can refuse to accept a guilty plea or allow a child to withdraw a guilty plea if:

  • it considers diversion may be appropriate for the child;
  • it has not heard any evidence;
  • the prosecutor does not object.

Determining the type of diversion

When deciding on the type of diversion program to order, the court must consider factors such as:

  • ensuring the program is not more punitive than the sentence that would otherwise have been imposed;
  • ensuring the program is achievable and measurable;
  • the child’s personal characteristics and circumstances;
  • trying to maintain the child’s engagement in education, training and employment;
  • ensuring the program is culturally appropriate;
  • the impact on any victim,
  • whether a restorative approach is appropriate.

Once a child has completed a diversion program to the satisfaction of the court, no plea to the charge can be taken and the court must discharge the child without any finding of guilt. Completion of the program is a defence to any later charge for the same offence or similar offence arising out of the same circumstances. If the child does not complete the program and is subsequently found guilty of the charge, when sentencing the child the court must take into account the extent to which they complied with the program.

Types of Diversion

There is a range of diversion programs available in Victoria. Below are some examples.

Police cautioning

Victoria Police have the power to issue a caution to a young person as an alternative to court proceedings. The police must consider factors such as the seriousness of the crime, the extent of damage or injury caused, the deterrence effect and any previous cautions issued.

Drug diversion

A young person apprehended by police for use or possession of illicit drugs may be eligible to take part in a drug diversion program. The person must be aged over 10, admit to the offence, and not have received more than one caution notice.

Children’s Court Youth Diversion Service (CCYD)

CCYD allows a young person fronting the Children’s Court to complete a diversion plan and have their charge dismissed. CCYD targets those with no or limited criminal history who would otherwise receive a sentence that would not receive supervision. The service began in 2017 and operates in all Children’s Courts in Victoria. CCYD co-ordinators attend all court sittings to conduct assessments, advise the court and develop plans for young offenders.

A diversion plan can include the child:

  • writing a letter of apology to a victim;
  • having a discussion with a CCYD co-ordinator to help the child understand their offending;
  • re-engaging with education or employment,
  • committing to an activity to improve health and wellbeing, such as counselling;
  • engaging in a structured activity to promote positive social interaction, such as sport or music.

ROPES

This program involves the Children’s Court, police and youth workers, and targets children who are first-time offenders who have committed minor offences. The child takes part in rock climbing or a ropes course and education sessions to prevent further offending. When a child has completed the course, police can recommend to a court that the child’s charge be dismissed.

Right Step

This 8-week program is an intensive one for children aged 10 to 17 who have committed a serious offence. A case manager designs a diversion plan tailored to a child’s circumstances which could include homelessness, mental illness, or drug use. At the end of the program, the case manager submits a report to the court on the child’s progress. If the child has completed the program successfully, the charge is dismissed.

Youth Justice Group Conferencing

This restorative justice program works to balance the needs of young offenders, victims and the community via discussions between the parties. Its aims include helping the child understand the impact of their offending and so reduce the chance of them reoffending; satisfying victims that justice has been served; and improving the child’s connection with the community.

For advice or representation in any legal matter, please contact Armstrong Legal.

 

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