Appropriate legal interventions for children and
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March 2014 Research brief Appropriate legal interventions for children and young people in Victoria Summary Victoria is currently the only Australian state that does not have a legislated diversion system for children and young people. Consequently, availability of, and access to such programs is inconsistent and inequitable. This report will examine current diversionary practice in Victoria, with particular reference to the ROPES, Right Step and Youth Justice Group Conferencing programs. Whilst these programs are successfully diverting young people from the criminal justice system and helping to reduce reoffending, they are not available in all areas or to all young offenders. In a recent case in regional Victoria, the Children’s Court held that the legislated diversion program for adults could apply to young offenders where ROPES is not available. This decision illustrates the current ‘ad hoc’ nature of diversionary practice in Victoria and highlights the need for a state-wide legislated diversion scheme for Children and Young People to ensure equitable access to such programs. It is recommended the following mechanisms be introduced to address these issues: Amending the Children, Youth and Families Act 2005 (Vic) to provide that all first time offenders aged < 18 years have the opportunity to participate in diversion. Allowing Magistrates to refer young people to diversion irrespective of police recommendation. Author: Eleni Martakis (Monash University, Juris Doctor student) This paper was written as part of a student research practicum co-ordinated with Victoria Legal Aid and Monash University. Contact: research@vla.vic.gov.au © 2016 Victoria Legal Aid. This work is licensed under a Creative Commons Attribution 3.0 Australia licence. You are free to re-use the work under that licence, on the condition that you credit the author. The licence does not apply to any images or branding. Disclaimer. The material in this publication is intended for general information only. Any views expressed are those of the author and are not intended to represent the views of Victoria Legal Aid. Published by Victoria Legal Aid Contents Acknowledgments ................................................................................................................................................. 2 Introduction ........................................................................................................................................................... 2 1. Diversion in Victoria: Current practice .............................................................................................................. 3 ROPES ................................................................................................................................................................. 4 Right Step ............................................................................................................................................................. 4 Youth Justice Group Conferencing ....................................................................................................................... 5 2. Does diversion work? ....................................................................................................................................... 5 a. Diverting people from the criminal justice system ............................................................................................ 6 Victorian practice and experience ........................................................................................................................ 9 b. Reducing recidivism ........................................................................................................................................ 11 Victorian practice and experience ...................................................................................................................... 13 ROPES ............................................................................................................................................................... 14 Right Step ........................................................................................................................................................... 15 Youth Justice Group Conferencing ..................................................................................................................... 16 3. Criticisms and concerns regarding current Victorian diversion practice ......................................................... 17 a. Police discretion .............................................................................................................................................. 17 b. Addressing the causes of offending ............................................................................................................... 19 Conclusion .......................................................................................................................................................... 21 Recommendations .............................................................................................................................................. 22 Program-specific recommendations ................................................................................................................... 22 ROPES ............................................................................................................................................................... 22 Right Step ........................................................................................................................................................... 22 General recommendations ................................................................................................................................. 22 A best practice approach for Victoria .................................................................................................................. 23 References ......................................................................................................................................................... 24 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -1- Acknowledgments The author would like to thank the following people and organisations for their valuable input into this project. Victoria Legal Aid Victoria Police Neighbourhood Justice Centre Community Justice Group Conferencing Youth Connect ROPES Introduction ‘Diversion’ is an overarching term used to describe the myriad of interventions and programs aimed at diverting people from the criminal justice system (CJS).1 In this sense, diversion involves two distinct aims; identifying at risk individuals and connecting them with support services in an attempt to reduce the likelihood of the person engaging in antisocial behaviour, and secondly, providing programs and support to people who have engaged in offending, to prevent them progressing further into the system. It is the second aim of diversion that will be the subject of this project, in particular, identifying appropriate legal interventions for children and young people in Victoria. Research suggests that young people who are diverted from the CJS are less likely to reoffend than those who are processed by the courts;2 and of those who do commit further crime, their offending is generally less serious than it might otherwise have been. 3 Thus, it is perplexing that Victoria does not have a state-wide coordinated diversion scheme for children and young people. Whilst there is a vast amount of literature on the topic of youth diversion, very little research has focused specifically on the Victorian system. This project therefore aims to conduct a review of current Victorian practices and experiences by addressing the following questions: 1. 2. 3. 4. 5. What is the current state of diversion in Victoria? What kinds of diversion programs are currently available in Victoria? Does diversion work? What are the key criticisms and concerns regarding current Victorian diversion practice? Can a best practice model of diversion for Victoria be identified? In order to address these questions, research on youth diversion will be collated and presented in the form of a literature review. These findings be compared and contrasted to the Victorian system. To gain an insight into current practice in Victoria, representatives from the following organisations were interviewed for this project: 1 Department of Justice, Practical Lessons, Fair Consequences: Improving Diversion for Young People in Victoria, Report (2012) 17. 2 Jeff Latimer et al, ‘The Effectiveness of Restorative Justice Practices: A Meta-analysis’ Ontario: Department of Justice, Canada (2001) 3 YouthConnect, A step in the Right Direction: Diverting Young People from the Victorian Justice System, Pilot Evaluation Report (2012) 9. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -2- Victoria Legal Aid Victoria Police Youth Connect Community Justice Group Conferencing ROPES 1. Diversion in Victoria: Current practice Victoria is the only Australian state that does not have a legislative court based diversion scheme to address offending by children and young people.4 This is despite the enactment of the Victorian Charter of Human Rights and Responsibilities 2006, which recommends that any criminal procedure involving a child take into account the accused’s age and the ‘desirability of promoting the child’s rehabilitation.’5 The lack of legislative reform in regards to youth diversion is in contrast to Victoria’s adult system, which permits a Magistrate to adjourn proceedings for 12 months to allow an accused to participate in a diversion program.6 If the accused completes the program to the Magistrate’s satisfaction, he or she may be discharged without any finding of guilt.7 In lieu of a formalised approach, diversion for young offenders in Victoria takes two forms; police cautioning and police referral (with a Magistrate’s consent) to an informal diversion program. This project will examine two current informal programs available in Victoria, ROPES and Right Step, as well as Youth Justice Group Conferencing (YJGC) run by the Department of Human Services. Despite the lack of a legislative framework for diversion, Victoria is widely acknowledged as a leader in juvenile justice;8 evidenced by the fact that the state currently has the second lowest rate of young people in custody in Australia.9 However, without a state-wide statutory framework, availability of and access to youth diversion programs is inconsistent and largely dependent on where an offender is located.10 Furthermore, diversion programs in Victoria are historically created by community organisations, police, or local courts, and are dependent on individual initiative and resources to function.11 Additionally, most of the programs receive minimal and infrequent funding and government support.12 Thus, Victoria’s current youth diversion system is ‘ad hoc’ at best,13 and the aims espoused in the Charter of Humans Rights and Responsibilities (Vic) principally ideological. Lucinda Jordan and James Farrell, ‘Juvenile Justice Diversion in Victoria: a Blank Canvas?’ (2013) 24(3) Current Issues in Criminal Justice 419, 419. 5 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 525(3). 6 Criminal Procedure Act 2009 (Vic) s 59(2). 7 Criminal Procedure Act 2009 (Vic) s 59(4). 8 KPMG, Review of the Youth Justice Group Conferencing Program, Final Report, (2010) 13; Lucinda Jordan and James Farrell, ‘Juvenile Justice Diversion in Victoria: a Blank Canvas?’ (2013) 24(3) Current Issues in Criminal Justice 419, 424. 9 Peter Murphy, Review of Effective Practice in Juvenile Justice, Report (2010) 13. 10 Lucinda Jordan and James Farrell, ‘Juvenile Justice Diversion in Victoria: a Blank Canvas?’ (2013) 24(3) Current Issues in Criminal Justice 419, 432. 11 Ibid 427. 12 Ibid 420. 13 Ibid 424. 4 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -3- ROPES Senior Constable Mick O’Meara from Boronia Police established the ROPES program in 2002 in an effort to combat youth offending in the area. The program was supported by the Ringwood Children’s Court and has since been replicated in a number of areas throughout Victoria. ROPES is aimed at first time offenders, aged 17 years or less, who have committed minor offences such as vandalism or shop theft. To be eligible, the young person must be referred to the program by a police informant, have admitted to the offending and must be deemed suitable by the Magistrate.14 The program involves the young person participating in a day diversion, which includes a high ropes course, or rock climbing, interspersed with education sessions about the implications of having a criminal record and avoiding anti social behaviour.15 The main aim of ROPES is to improve relationships between police and young people by having the arresting officer support the offender along the obstacles. It is hoped that by improving this relationship and instilling a sense of selfconfidence in the young person, ROPES will help reduce recidivism. Upon successful completion of the program a young person is presented with a certificate, a copy of which is sent to the referring court; if the Magistrate is satisfied that the young person has met their obligations he or she will be discharged and no conviction will be recorded.16 Right Step Right Step commenced in October 2009 as a pilot program and was originally slated to run for three years.17 Right Step differs from ROPES in that it is a more intensive program aimed at young people aged 10-17 years who have engaged in more serious offending. Right Step is only available to young people in the Bayside, Kingston and Glen Eira areas, and is run in conjunction with the Moorabbin Magistrates Court.18. Young people who reside in these areas and who are due to appear in the Moorabbin Children’s Court must be referred to the program by the police, with the consent of the victim, and must have admitted to the offending. If the Magistrate endorses the young person to participate in Right Step, the matter will be adjourned for 8 weeks to allow the young person to complete the program.19 Right Step partners the young person with a Case Manager who designs an individualised plan for each client depending on his or her offending and environmental issues; for instance a client may be referred to drug and alcohol counselling or other support services. The intensive nature of the program provides an opportunity to address the causes of the young persons’ offending and provide further support to help reduce recidivism.20 Upon successful completion of the program the Selma Milovanovic, ‘Teenage offenders shown the Ropes’, The Age, February 8 2005. Victoria Police, ‘Victoria Police Shows Local Youth The Ropes’ (Media Release, Wednesday 14 February 2007). 16 Peter Power, ‘Sentencing’, Chapter 11 (12 July 2012) 11.177 <http://www.childrenscourt.vic.gov.au/legal/research-materials/sentencing>. 17 YouthConnect, ‘A step in the Right Direction: Diverting Young People from the Victorian Justice System, Pilot Evaluation Report, (2012) 6. 18 The program was established to help address the high rate of youth recidivism in these suburbs. 19 YouthConnect, ‘A step in the Right Direction: Diverting Young People from the Victorian Justice System, Pilot Evaluation Report (2012) 5. 20 Ibid. 14 15 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -4- Magistrate is able to dismiss the charge(s) against the young person who is discharged from the court without a criminal record. Youth Justice Group Conferencing The Youth Justice Group Conferencing (YJGC) program, established in 2003, operates throughout Victoria and is overseen by the Department of Human Services. The program is based on restorative justice principles and aims to rehabilitate the young person and the victim by bringing them together to encourage dialogue about the offending and possible resolutions.21 Access to Group Conferencing is legislated in the Children, Youth and Families Act 2005,22 which enables a young person to participate in the program if the court is considering imposing a Supervisory Order.23 In order to be eligible for YJGC the young person must be aged between 10 18 years, have plead guilty to the offence, must be appearing before the court for the first time and facing charges in the Criminal Division of the Children’s Court. Unlike ROPES, Right Step, and other Australian states, police are unable to refer a young person to conferencing in Victoria; referral remains solely the responsibility of the court. YJGC differs from ROPES and Right Step in that participants who successfully complete the program still receive a reprimand and record a conviction. However, the benefit of YJGC is that young people are diverted from more intensive supervisory outcomes whilst still being held accountable for their offending.24 As part of this, the young person makes an outcome plan which involves making a commitment to improve their own lives by setting goals and objectives, and undertaking to account for their offending by writing a letter of apology to the victim or making a monetary payment by way of compensation.25 2. Does diversion work? In order to answer the question, ‘does diversion work?’, the aims of diversion must first be identified. Different programs invariably promote different goals depending on the type, scope, and funding of the program. However two fundamental objectives of diversion are: a. Diverting people from the criminal justice system b. Reducing recidivism These aims are undoubtedly intertwined; diverting people away from the CJS will presumably reduce recidivism rates and reducing the number of people who engage in further offending will likely reduce the number of people who progress further along the CJS. Therefore, the question is whether diversion succeeds in meeting these aims. 21 Department of Human Services, General group conference fact sheet <http://www.dhs.vic.gov.au/_data/assets/pdf_file/0005/660272/General-group-conference-factsheet.pdf>. 22 Children, Youth and Families Act 2005 (Vic) s 414. 23 Department of Justice, Practical Lessons, Fair Consequences: Improving Diversion for Young People in Victoria, Report (2012) 20. 24 KPMG, Review of the Youth Justice Group Conferencing Program, Final Report, (2010) 1. 25 Interview with Community Justice Group Conferencing representative. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -5- a. Diverting people from the criminal justice system A key feature of diversion is the creation of community based crime responses that direct individuals away from the criminal justice system, thereby avoiding negative outcomes associated with formal state intervention.26 Advocates of diversion argue that this is particularly important in regards to young people, since evidence shows that the majority of crimes committed by juveniles involve low level offences,27 and that most young people grow out of offending as they mature.28 Furthermore, statistics indicate that ‘the later a young person enters the criminal justice system, the less likely they are to have continued involvement.’29 Therefore, a unique opportunity exists in relation to young people to reduce or even prevent offending by intervening at the early stages of police contact, and directing young people away from more formal interventions to community-based programs.30 Whilst shielding young people from the criminal justice system is a key aim of diversionary practice, it is unclear whether diversion achieves this. Theoretically, referring young people to diversionary programs diverts them away from the formal CJS, however an unintended consequence of diversion may be that young people who would previously have been (a) cautioned by police or (b) given a reprimand by the Magistrate, are instead referred to a diversion program, and thus subject to some form of social control.31 This concept, referred to as ‘net widening’, is a key criticism of diversion and has led to claims that diversion, particularly youth justice conferencing programs, are merely alternative forms of ‘justice processing.’32 Maxwell et al (2002) investigated the impact of changes to the Children, Young Persons and Their Families Act 1989 (NZ) that were designed to ‘limit the use of criminal proceedings as a method of responding to youth crime’ in New Zealand.33 Their study, which focused on net widening in relation to the youth justice conferencing program, found that the number of young people receiving sanctions largely remained unchanged after the introduction of the Act in 1989.34 A follow up study by Maxwell (2003) found that post 1989 police were referring a greater portion of cases to the Youth Court.35 These findings suggest that the implementation of restorative justice practices in New Arnold Binder and Virgina L. Binder, ‘Juvenile Diversion’ (1983) 11(2) The Counselling Psychologist 69, 69. Department of Justice, Practical Lessons, Fair Consequences: Improving Diversion for Young People in Victoria, Report (2012) 4. 28 Ibid III. 29 Victoria Police, Child and Youth Strategy 2009-2013 <http://onv.org.au/wp-content/uploads/2010/07/41065_vicpol_youth_strategy.pdf>. 30 Peter Murphy, Review of Effective Practice in Juvenile Justice, Report (2010) 68. 31 See, e.g. Kelly Richards, ‘Police-referred restorative justice for juveniles in Australia’ (2010) 13 Review of Effective Practice in Juvenile Justice, Report (2010) 7; Jeremy Prichard, ‘Net-Widening and the Diversion of Young People from Court: A Longitudinal Analysis with Implications for Restorative Justice’ (2010) 43 Australian & New Zealand Journal of Criminology 112, 115; Arnold Binder and Virgina L Binder, ‘Juvenile Diversion’ (1983) 11(2) The Counselling Psychologist 69, 69; Stephanie Bechard et al ‘Arbitrary Arbitration: Diverting Juveniles Into the Justice System – A Reexamination After 22 years’ (2011) 55(4) International Journal of Offender Therapy and Comparative Criminology 605, 606. 32 Polk, K. (1994) ‘Family conferencing: Theoretical and evaluative questions’ In C Alder and J Wundersitz (Eds.) Family conferencing and juvenile justice (pp. 123–140); 130 Canberra, Australia: Australian Institute of Criminology. 33 Gabrielle Maxwell, Jeremy Robertson and Venezia Kingi, ‘Achieving The Diversion and Decarcertion of Young Offenders in New Zealand’ (2002) 19 Social Policy Journal of New Zealand 76, 93. 34 Ibid 85. 35 Gabrielle Maxwell, ‘Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice’, Paper presented at the Juvenile Justice: From Lessons of the Past to a Road 26 27 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -6- Zealand have resulted in net widening, notwithstanding the fact that more than half of the young people sent to the Children’s Court were subsequently referred to group conferencing.36 As Maxwell et all observed; ‘…the net has been widened in the sense that an increased number [of young people] are now receiving some sort of sanction. But much of the widening is due to increasing restorative and reintegrative or rehabilitative outcomes rather than the use of restrictive sanctions.’37 Whilst the author considers the increased used of Youth Group Conferencing in New Zealand to be a positive outcome of the introduction of the Act, the net has nonetheless been widened as a result of legislative changes that were actually intended to have the opposite effect. A more recent study of a juvenile diversion program in California aimed at first-time, non-violent offenders, also found a relationship between diversion and net widening. Bechard et al (2001), found that the majority of participants referred to the program had committed petty crimes and that in most cases diversion was unwarranted.38 In particular, the authors found that the program accepted offences such as ‘theft of less than $5’ and ‘hair pulling’, leading them to conclude that ‘the program’s goal of diverting delinquent and at-risk juveniles away from the juvenile justice system simply have not been adequately met.’39 Bechard et al (2011) revealed that their findings replicated the results of an earlier study of juvenile diversion by Berg (1986), which found that a particular Florida based diversion program cast an unreasonably wide net to ‘justify its own existence’. 40 Whilst these results suggest that diversion fails to divert young people from the criminal justice system, a more likely explanation is that these findings can be attributed to certain issues with the programs in question. Furthermore, the Bechard et al (2011) study focused on a juvenile program accepting referrals from a wide range of stakeholders, such as police, parents, schools and probation officers,41 whilst the KIDS project observed by Berg (1986) accepted participants based on recommendations by volunteer run arbitration hearings.42 Consequently, it is unsurprising that both studies reported a link between juvenile diversion programs and net widening, since stakeholders such as parents, schools and volunteers have a vested interest in the young persons welfare and are more likely to refer them to a diversion program as a preventive measure to address minor antisocial behaviour. This helps explain referrals for petty offenses such a ‘hair pulling’ and ‘theft for the Future’ (2010) Conference convened by the Australian Institute of Criminology in conjunction with the NSW Department of Juvenile Justice, Sydney, 1-2 December. 36 Gabrielle Maxwell, Jeremy Robertson and Venezia Kingi ‘Achieving The Diversion and Decarcertion of Young Offenders in New Zealand’ (2002) 19 Social Policy Journal of New Zealand 76, 93. 37 Ibid 85. 38 Stephanie Bechard et al ‘Arbitrary Arbitration: Diverting Juveniles Into the Justice System – A Reexamination After 22 years’ (2011) 55(4) International Journal of Offender Therapy and Comparative Criminology 605, 605. 39 Ibid 623. 40 Bruce Lee Berg, ‘Arbitrary arbitration: Diverting juveniles into the justice system’ (1986) 37 Juvenile and Family 31. 41 Stephanie Bechard et al ‘Arbitrary Arbitration: Diverting Juveniles Into the Justice System – A Reexamination After 22 years’ (2011) 55(4) International Journal of Offender Therapy and Comparative Criminology 605, 609-10. 42 Bruce Lee Berg, ‘Arbitrary arbitration: Diverting juveniles into the justice system’ (1986) 37 Juvenile and Family 31, 32. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -7- less than $5’ observed in the Bechard et al (2011) study. These programs differ substantially from current Victorian programs ROPES, Right Step, and Youth Justice Group Conferencing, where referrals are made by police and approved by a Magistrate. This important difference helps explain why similar results regarding diversion and net widening are normally not replicated in Australian juvenile diversion studies. According to Prichard (2010) few researchers have focused on the relationship between diversion and net widening in Australia,43 and the research that has been conducted has produced varying results. A study of diversion practice in South Australia, which incorporates police referrals, compared the total number of formal interventions pre and post the introduction of the Young Offenders Act 1993.44 The study found an overall reduction in the number of young people who came into contact with the CJS after the introduction of the Act, which suggests that South Australian measures are successfully diverting young people from the CJS. A similar study exploring the impact of the introduction of Youth Justice Act (1997) in Tasmania also found no evidence of net widening, leading Prichard (2010) to conclude that ‘net-widening is not an axiomatic characteristic of diversionary systems.’45 However in an Australian wide study of police referred conferencing programs, Richards (2010) noted that in many jurisdictions similar rates of female and male juveniles were being referred to conferencing, despite the fact that males typically engage in more serious offending than females.46 This finding suggests that conferencing may have a net widening impact on females.47 The study also revealed that a substantial number of juveniles referred to youth conferencing were aged 10 to 14 years, even though it might be expected that younger juveniles would be given a warning or caution rather than referred to conferencing. 48 This suggests that conferencing programs may have a net widening effect on younger offenders, which is concerning given that evidence shows the earlier a young person comes into contact with the CJS, the more likely the young person will engage in future offending.49 However, Prichard (2010) suggests that net widening is not necessarily a negative consequence of diversion given that early intervention can help delay or prevent a young person’s progression into the CJS. Prichard (2010) suggests that by addressing the causes of young people’s offending before their antisocial behaviour escalates, conferencing can significantly reduce recidivism.50 Jeremy Prichard, ‘Net-Widening and the Diversion of Young People from Court: A Longitudinal Analysis with Implications for Restorative Justice’ (2010) 43 Australian & New Zealand Journal of Criminology 112, 115. 44 Wundersitz (1996) cited in Jeremy Prichard, ‘Net-Widening and the Diversion of Young People from Court: A Longitudinal Analysis with Implications for Restorative Justice’ (2010) 43 Australian & New Zealand Journal of Criminology 112, 115. 45 Jeremy Prichard, ‘Net-Widening and the Diversion of Young People from Court: A Longitudinal Analysis with Implications for Restorative Justice’ (2010) 43 Australian & New Zealand Journal of Criminology 112, 125. 46 Kelly Richards, ‘Police-referred restorative justice for juveniles in Australia’ (2010) 13 Review of Effective Practice in Juvenile Justice, Report (2010) 5. 47 Ibid 6. 48 Ibid. 49 See e.g. Jason Payne, ‘Recidivism in Australia: findings and future research’ (2007) Australian Institute of Criminology, Research and Public Policy Series, No 80, xiii; NSW Government, Attorney General & Justice, ‘Youth on Track: A model for early intervention with young people’, Report 4 <http://www.youthontrack.lawlink.nsw.gov.au/yot/about_us.html?s=1001> 50 Jeremy Prichard, ‘Net-Widening and the Diversion of Young People from Court: A Longitudinal Analysis with Implications for Restorative Justice’ (2010) 43 Australian & New Zealand Journal of Criminology 112, 114. 43 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -8- Victorian practice and experience It is clear that evidence on the connection between juvenile diversion and net widening is inconclusive; suggesting that, in some cases, programs may be failing in their aim to divert young people from the criminal justice system. Fortunately this finding is not consistent with current Victorian experience. Firstly, unlike many of the jurisdictions considered, Victorian police cannot refer young people directly to diversion programs such as ROPES and Right Step, which are only available to offenders appearing before the Children’s Court. Consequently, the Victorian system limits the possibility of net widening prevalent in other jurisdictions where police are able to directly refer young people to diversion for minor offending. Thus, the question is whether Victorian Police arrest rates of juvenile offenders have significantly increased since the introduction of the Children, Youth and Families Act 2005 (Vic), as has occurred in several other jurisdictions after the introduction of similar legislation.51 Victoria Police Crime Statistics indicate that the number of ‘alleged juvenile offenders’ (<18 years) processed by police increased noticeably between 2005/06 to 2008/09,52 however, this figure has steadily declined since 2008/09, from 35,956 juveniles to 25,956 juveniles in 2012/2013.53 This decline is likely due to the implementation of the Victoria Police Child and Youth Strategy 20092013,54 which identifies ‘reducing recidivism’ and ‘increasing effective diversion processes’ as two priority areas for the organisation. It is evident that the strategy has significantly impacted police procedure by encouraging officers to bear these aims in mind when interacting with juvenile offenders. This change is evidenced by the increased use of ROPES to finalise cases appearing in the Children’s Court, from 0.4per cent in 2006 to 9.0per cent by 2009.55 Whilst the statistics do not indicate how many juveniles are arrested each year,56 they illustrate that overall recorded police contact with young people in Victoria has generally not increased since the introduction of the Act. These findings indicate that diversion practice in Victoria has not had a netwidening affect on young people. It is evident that legislative changes and the implementation of police strategies have helped to divert young offenders from the Victorian CJS. This conclusion is reflected in current experience. None of the interviewees consulted reported evidence of a relationship between an increased focus on diversion and net widening amongst juvenile offenders. A Neighbourhood Justice Centre (NJC) lawyer believes that, in his experience, it does not appear police are charging more young people for minor offences, and that this is evidenced by the fact that the Neighbourhood Justice Centre only 51 See discussion earlier. Victoria Police Crime Statistics eBooks, accessed <https://www.police.vic.gov.au/content.asp?Document_ID=40111>. Please note, the definition of ‘juvenile offender’ changed on 1 July 2005 to include young persons aged 18 years, as compared to previous years when the definition only included juveniles aged up to 17 years. This change may explain the increase of alleged juvenile offenders processed by police between 2004/052006/06. 53 Ibid. 54 Victoria Police, Child and Youth Strategy 2009-2013 <http://onv.org.au/wp-content/uploads/2010/07/41065_vicpol_youth_strategy.pdf>. 55 Sentencing Advisory Council, Sentencing Children and Young People in Victoria, Report (2012) 93. 56 ‘alleged juvenile offenders’ refers to person who have allegedly committed a criminal offence and have been processed for that offence by arrest, summons, caution or warrant or apprehension. 52 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria -9- has one Children’s Court day a month. Furthermore, the NJC lawyer’s experience with local police suggests that officers tend to give kids opportunities before arresting them by using the Police Youth Liaison Officer to connect young offenders to support services. Similarly, a representative from Right Step does not believe that diversion programs result in net widening, and a Legal Aid lawyer reported that, in her opinion, the number of young people appearing before the Children’s Court has not remarkably increased in recent years. These responses illustrate officers’ preference for reprimanding or cautioning young offenders in line with the organisations Police Child and Youth Strategy. Both uniformed officers consulted for this project agreed that police are generally reluctant to arrest young kids unless they consider their behaviour to be particularly ‘bad’. However, interestingly the officers were unsure whether this was a good thing given that early intervention might help address the causes of antisocial behaviour and reduce further reoffending. Officer A explained, ‘It might be a good thing to let them go but it might be a bad thing because there’s not an intervention, which might be really helpful. I think it’s possible that net widening occurs, but we don’t tend to see it here.’ This response may help explain evidence of net widening apparent in jurisdictions where police are able to directly refer juveniles to diversion.57 In some case, police officers may refer juveniles to diversion for minor offences because they believe that early intervention will assist young people with behavioural issues such as drug and alcohol addiction. In regards to Youth Group Justice Conferencing, concerns of net widening highlighted in international studies are not replicated in Victoria. Unlike other jurisdictions, police are unable to refer offenders for conferencing in Victoria, which is only available for young persons who have plead guilty to an offence considered serious enough for a Magistrate to impose a Youth Supervision Order.58 By restricting access in this way, the Victorian conferencing program is limited to young people who are already involved in the criminal justice system.59 According to an NJC lawyer, this feature of the Victorian program means that YJGC does not result in net widening, in actual fact the program has the opposite affect since it helps to divert young people from more intensive supervisory orders. The fact that three quarters of the young people who participated in Youth Justice Group Conferencing between April 2007 and June 2009 received non-supervisory orders and were diverted from further progression into the Youth Justice System supports the lawyer’s contention.60 These findings suggest that criticisms regarding the tendency of diversion programs to divert young people to, rather than away from the CJS are not applicable to the Victorian experience. More specifically, the introduction of ROPES, Right Step and YJGC programs have not led to an increase in the number of young people coming into contact with the CJS. Rather these programs, in particular, YJGC and Right Step, are aimed at young people whose offending would likely have 57 Polk, K. (1994) Family conferencing: Theoretical and evaluative questions. In C Alder and J Wundersitz (Eds.) Family conferencing and juvenile justice (pp. 123–140); 130 Canberra, Australia: Australian Institute of Criminology. 58Children, Youth and Families Act 2005 (Vic) s 415. 59 Kelly Richards, ‘Police-referred restorative justice for juveniles in Australia’ (2010) 13 Review of Effective Practice in Juvenile Justice, Report. 60 KPMG, Review of the Youth Justice Group Conferencing Program, Final Report (2010). Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 10 - brought them into contact with the CJS regardless. However, these young people are increasingly being given the opportunity to participate in diversion programs to try and prevent them progressing further into the criminal justice system. b. Reducing recidivism Advocates of diversion argue that diverting young people away from the CJS can reduce further offending by limiting the impact of negative consequences and labelling associated with more formal sanctions.61 Labelling theory hypothesises that young people who come into contact with CJS are being labelled as ‘deviant’ and their subsequent treatment as such likely leads to further antisocial or criminal behaviour.62 This theory is particularly relevant to young people who receive a custodial sentence and criminal record, since this ‘label’ has a significant impact on the young person’s future life choices. In addition, juveniles who receive a custodial sentence are removed from their home environment, work or school, thereby severing contact with family and friends who are important support systems for many young people. In prison, inmates may be exposed to violence, intimidation, disease and drug use,63 which can inflict long-term damage, ‘…thereby squandering the opportunity for rehabilitation that is presented with young people.’64 Difficult conditions combined with limited access to rehabilitation programs means that many prisoners are ill equipped to meet the challenge of reintegration,65 and have difficulty gaining employment, accommodation, forming relationships and reconnecting with family and friends.66 Unsurprisingly, the trauma associated with incarceration coupled with the numerous challenges faced by inmates upon their release; lead many ex prisoners to reoffend. A recent report of adult recidivism rates by the Australian Institute of Criminology found that two in every three prisoners in Australia have previously been incarcerated and that between 35per cent and 41per cent of prisoners will be imprisoned within two years of being released.67 Whilst this study concerned adult offenders, the results are comparable to juvenile recidivism rates in many jurisdictions.68 See, e.g. ‘Reinvestment in Diversion’, Smart Justice for Young People’s Response to the Senate Committee on Legal and Constitutional Affairs’ (2013); Department of Justice, Practical Lessons, Fair Consequences: Improving Diversion for Young People in Victoria, Report (2012) 2. 62 Robert Marsh and Steven Patrick, ‘Juvenile Diversion: Results of a Three Year Experimental Study’ (2005) 16 (1) Criminal Justice Policy Review 59, 70. 63 AIHW, ‘The health of Australia's prisoners 2009’, Report <https://www.aihw.gov.au/publication-detail/?id=6442468371> 64 ‘Reinvestment in Diversion’, Smart Justice for Young People’s Response to the Senate Committee on Legal and Constitutional Affairs’ (2013). 65 Alison J Shinkfield and Joseph Graffam, ‘Community Reintegration of Ex-Prisoners: Type and Degree of Change in Variables Influencing Successful Reintegration’ (2009) 53(1) International Journal of Offender Therapy and Comparative Criminology 29. 66 ‘Reinvestment in Diversion’, Smart Justice for Young People’s Response to the Senate Committee on Legal and Constitutional Affairs’ (2013). 67 Jason Payne, ‘Recidivism in Australia: findings and future research’ (2007) Australian Institute of Criminology, Research and Public Policy Series, No 80. 68 See, for instance a study by Carlos Carcach and Simon Leverett, which found 37.3per cent of juvenile offenders in the cohort under analysis subsequently appeared in court during the period under observation, ‘Recidivism Among Juvenile Offenders: An Analysis of Times to Reappearance in Court’ (1999) Australian Institute of Criminology, Research and Public Policy Series, No. 17. 61 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 11 - The relationship between diversion and improved outcomes for young people has been the subject of considerable criminological analysis, but studies examining the impact of diversion on reoffending have produced mixed results.69 For instance, Marsh and Patrick (2005) conducted a three-year study exploring the impact of different interventions on recidivism rates of first time juvenile offenders charged with tobacco or alcohol possession.70 Participants were randomly assigned to one of four treatment groups: Magistrates Court, Youth Court diversion program, non-judicial diversion program or a control group. The authors found there was no significant difference in recidivism rates between the four groups, leading them to conclude that, ‘what authorities do to first time status offenders does not seem to affect recidivism rates.’71 Similar results were reported in a meta-analysis of experimental studies of diversion programs for juvenile offenders. Schwalbe et al (2012) collated evaluations of diversion programs published between 1980 and 2011; the authors found no significant difference in recidivism rates across the program categories identified; case management services, individually orientated treatment, youth court and restorative justice.72 In contrast, a more recent meta-analysis of 45 juvenile diversion programs by Wilson and Hoge (2013) found that only 31.5 per cent of young people sent to diversion reoffended, compared to 41.3 per cent of offenders processed using traditional means.73 In relation to the impact of the New Zealand conferencing program, Maxwell (2003) found that a third of young conference participants were involved in further detected offending within three years of attending a conference.74 Australian studies have similarly produced mixed results. Smith and Weatherburn (2012) compared recidivism rates between young people processed in NSW with a Youth Justice conference compared with young people who were eligible for a conference but were processed in the Children’s Court.75 Their comparison revealed no significant difference between the rates of reoffending or the seriousness of the reoffending of the two groups. This finding led the authors to conclude that the conference regime established under the Young Offenders Act 1997 (NSW) is no more effective than the NSW Children’s Court in reducing juvenile re-offending.76 However, a similar comparison by Vignaendra and Fitzgerald (2010) reported that whilst 58 per cent of young people conferenced for the first time in NSW in 1999 had reoffended within five years,77 only 10.8 per cent Craig S Schwalbe et al, ‘A meta-analysis of experimental studies of diversion programs for juvenile offenders’ (2012) 32 Clinical Psychology Review 26. 70 Robert Marsh and Steven Patrick, ‘Juvenile Diversion: Results of a Three Year Experimental Study’ (2005) 16(1) Criminal Justice Policy Review 59. 71 Ibid 70. 72 Craig S Schwalbe et al, ‘A meta-analysis of experimental studies of diversion programs for juvenile offenders’ (2012) 32 Clinical Psychology Review 26. 73 Holly A Wilson and Robert D Hoge ‘The Effect of Youth Diversion Programs on Recidivism: A Meta-Analytic Review’ (2013) 40 Criminal Justice and Behaviour 497. 74 Gabrielle Maxwell (2003) ‘Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice’, Paper presented at the Juvenile Justice: From Lessons of the Past to a Road for the Future Conference convened by the Australian Institute of Criminology in conjunction with the NSW Department of Juvenile Justice, Sydney, 1-2 December, 8. 75 Nadine Smith and Don Weatherburn, ‘Youth Justice Conferences versus Children’s Court: A comparison of reoffending’ (2012) Contemporary Issues in Crime and Justice, NSW Bureau of Crime Statistics and Research, No 160. 76 Ibid 1. 77 Sumitra Vignaendra and Jacqueline Fitzgerald, ‘Reoffending among young people cautioned by police or who participated in a youth justice conference’ (2006) 103 Contemporary Issues in Crime and Justice 1, 4. 69 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 12 - of young people who committed further offending received a custodial sentence.78 This finding suggests that whilst diversion programs do not always reduce recidivism rates, they may help reduce the severity of future offending. The studies discussed illustrate that the correlation between diversion and lower recidivism rates is not as strong as might be expected; in some cases diversion reduces reoffending whilst in others it appears to have a negligible effect. These differences may be due to a range of factors. Firstly, diversion programs differ in each jurisdiction and are often aimed at particular offenders and consequently have different referral processes. For instance, it is likely that a program for first time juvenile offenders that have engaged in minor offending, such as theft or property damage, will have a lower recidivism rate than a program targeting repeat offenders who have committed more serious offences, such as assault or armed robbery. Furthermore, programs are provided by various stakeholders in each jurisdiction, therefore the accessibility and scope of each program will depend on its resources. More importantly, the level of monitoring and reporting on recidivism rates varies considerably with each program,79 making it difficult to compare programs and identify a best practice approach. Irrespective of these issues, the question remains; if diverting juveniles away from the criminal justice system does not reduce the likelihood of reoffending, is the provision of programs justified? The simple answer is yes. In many cases, diversion does reduce recidivism. Even if this is not the case, there is no evidence to suggest that juveniles who participate in diversion reoffend more than those who do not.80 Furthermore, diversion programs have a range of other benefits, such as addressing drug and alcohol problems, depression or other environmental issues that can contribute to offending. These issues are often ignored by the traditional CJS, where the primary focus is on detention as a form of deterrence. The potential for diversion programs to address these problems, coupled with the fact that it is significantly cheaper to divert people away from the CJS than it is to incarcerate them,81 suggest that diversion is generally to be preferred over traditional formal sanctions. As Marsh and Patrick (2005) contend, ‘in the current political environment society is not willing to let juveniles go and not hold them accountable. Therefore, the method that is least costly and more humane should be the method used.’82 Victorian practice and experience The fact that Victoria has one of the lowest rates of juvenile offenders in custody suggests that diversion programs such as ROPES, Right Step and YJGC are helping to reduce recidivism rates in this state. Investigating the recidivism rates of each program supports this contention. 78 Ibid 5. Craig S Schwalbe et al, ‘A meta-analysis of experimental studies of diversion programs for juvenile offenders’ (2012) 32 Clinical Psychology Review 26. 80 Robert Marsh and Steven Patrick, ‘Juvenile Diversion: Results of a Three Year Experimental Study’ (2005) 16(1) Criminal Justice Policy Review 59. 81 The Victorian government estimates that it costs approximately $528 a day to keep a young person in a youth justice facility, compared to approx. $54 a day for community based supervision – Minister for Community Services (Victoria) ‘Strengthening Youth Justice and Helping Young People avoid a life of crime’, Media release, 3 May 2011. 82 Robert Marsh and Steven Patrick, ‘Juvenile Diversion: Results of a Three Year Experimental Study’ (2005) 16(1) Criminal Justice Policy Review 59, 72. 79 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 13 - ROPES A 2010 audit by KPMG revealed that rates of re-offending by young people participating in ROPES are around 10-12 per cent.83 However, recidivism rates for individual programs are often unavailable, making it difficult to evaluate them individually. For instance, only 13 of the 163 young people who completed the Boronia ROPES program between 2003 and 2005 reportedly reoffended during this period,84 however it is unclear whether this result is consistent with other programs. Notwithstanding specific program statistics, it is evident that rates of re-offending by ROPES participants are considerably less than the 57 per cent recidivism rate amongst individuals in youth detention.85 These results are likely due to the fact that ROPES is aimed at first time offenders who have committed minor crimes such as vandalism or shop theft, rather than repeat offenders who are more likely to receive a custodial sentence and who are therefore at a greater risk of reoffending. Despite the low recidivism rates reported by KPMG, the police officers consulted for this project doubt that the program has significantly reduced recidivism rates in their jurisdiction. Both officers interviewed believe that ‘…a lot of young people who go through the diversion process can get something out of it, although those benefits have not really be evaluated.’ Further, Officer B admitted, ‘It [ROPES] hasn’t been quite as successful as we would have wanted it to be, most of our kids who go through the program, the ones we know of, generally reoffend.’ Officer A agreed, ‘Kids who have gone to diversion for assault are continuing to assault…’ These comments illustrate that programs may produce different results depending on their location, participant’s personal circumstances and the nature of their offending. They also highlight the importance of improving reporting and evaluation of ROPES to assess its impact on recidivism rates. Both officers agreed that improving evaluation methods would help Youth Liaison Officers to advocate the benefits of diversion to their colleagues, who are reluctant to embrace the program ‘If we had something that we were very confident had strong result, and we could go to the police and say, ‘in general we will reduce recidivism by X… but at the moment we don’t that information. It’s hard to advocate.’ One of the issues the officers raised in relation to the ROPES program and reoffending was their concern regarding participants mixing with other offenders, as one officer explained: ‘…I don’t think there’s enough care taken in putting young people together, I think it [ROPES] was put together for the right reasons, but there’s a lot of research that shows when you’re dealing with young people who may be at risk of getting into serious offending, you don’t put them together.’ 83 KPMG, Evaluation of the Ropes Program, Final Report (2010). Selma Milovanovic, ‘Teenage offenders shown the Ropes’, The Age, February 8 2005. 85 Department of Human Services (Victoria) Recidivism Among Victorian Juvenile Justice Clients 1997-2001 (2001) 9. 84 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 14 - One of the officers recalled a particular situation when they overheard two young boys planning to engage in further offending. Whilst the officer stressed that this situation is exceptionally rare, this incident highlights the potential for group diversion programs to facilitate further offending. Hemphill and Smith (2010) identified this issue in their study on preventing youth violence. The authors argue that ‘…consistently negative effects have been found for prevention approaches that involve grouping high-risk antisocial youth together in groups or programs.’86 This finding highlights the need to improve mechanisms to manage the types of young people who are assigned to complete the ROPES program together. Right Step According to a representative from Right Step, statistics regarding young people who participate in the program show a marked reduction in recidivism rates. A pilot evaluation report of Right Step supports the interviewee’s assertion. The 2012 report revealed that between October 2009 and October 2013, 100 people completed the program, and that a further 5 people were proposed for referral by police but were refused by the court.87 During this time, 67per cent of young people who completed the program did not reoffend, whilst the reoffending of the remaining 33per cent ‘…has been less serious than might otherwise have been expected.’88 Given that Right Step is aimed at juveniles who have committed more serious crimes, and who are presumably at a greater risk of reoffending, these findings are significant. Firstly, the reported recidivism rate of 33per cent is considerably less than the 57per cent recidivism rate amongst juveniles in detention.89 This finding illustrates the benefits of treating the issues that may have contributed to the young person’s offending rather than imposing more formal sanctions to try and deter future criminal behaviour. Furthermore, it is estimated that the cost of Right Step is no greater than approximately $2,500 - $3,000 per participant compared to approximately $528 a day to keep a young person in a youth justice facility in Victoria.90 Given that Right Step has reduced recidivism rates amongst people who have engaged in more serious offending and who might otherwise have been placed on Probation or a Youth Supervision order, the program should be expanded to other areas that report a similar rate of youth offending. For instance, internal VLA data reveals that Greater Dandenong, Frankston, Brimbank, Casey and Hume had the highest number of VLA clients for the 2012-2013 financial year and that a substantial portion of these clients were young offenders. These clients were generally charged with fairly serious offences such as assault, burglary, theft and possession of a weapon, and were facing an average of 2-3 charges each. This data suggests that Right Step should be expanded to help address social, behavioural, and economic issues that might contribute to juvenile offending in these areas. Sheryl A Hemphill and Rachel Smith, ‘Preventing Youth Violence: What does and doesn’t work and why?’ (2010) vi. 87 YouthConnect, ‘A step in the Right Direction: Diverting Young People from the Victorian Justice System, Pilot Evaluation Report (2012) 9. 88 Ibid. 89 Department of Human Services (Victoria) Recidivism Among Victorian Juvenile Justice Clients 1997-2001, Report (2001) 9. 90 Minister for Community Services (Victoria) ‘Strengthening Youth Justice and Helping Young People avoid a life of crime’ Media Release, 3 May 2011. 86 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 15 - Youth Justice Group Conferencing The more serious offending a young person engages in, the more likely they are to reoffend.91 Since conferencing in Victoria is only available to young people who are facing a Supervisory Order, it might be expected that recidivism rates amongst these individuals would be reasonably high. However, results of a Department of Human Services (DHS) review into group conferencing in Victoria illustrates that conferencing can help reduce reoffending amongst at risk young offenders. The review, conducted between September 2009 and September 2010, found that conferencing in Victoria has been successful in reducing recidivism rates compared to more formal sanctions.92 For instance, only 18.6 per cent of participants reoffended within 12 months of completing a group conference, compared to 27.6 per cent of young people who were given Probation or a Youth Supervision Order but who did not attend conferencing.93 Whilst it might be expected that the rate of reoffending would increase substantially after this period, the review found that only 19.2 per cent of participants had reoffended after 24 months, compared to 42.9 per cent of young people who were given more formal sanctions.94 These results are significantly lower than recidivism rates reported by conferencing programs in other jurisdictions such as New Zealand95 and New South Wales.96 A representative from Community Justice Group Conferencing (CJGC) believes the advantage of group conferencing is that it involves key stakeholders, such as police, victims, family and friends of the accused, as well as the young person themselves, in the justice process. In particular, group conferencing gives victims the opportunity to explain the impact the young person’s offending has had on them, thereby increasing the offender’s ‘capacity to empathise and understand the victim’s experience’ and reduce the likelihood of future offending. Furthermore, the conference gives participants the opportunity to explain their behaviour, and ‘…include others in that discussion, often airing personal challenges and issues faced that may lead to their offending.’ Facilitating dialogue between stakeholders has a number of benefits, as the CJGC representative explains, ‘The conference process allows space to address these issues and leave a young person feeling empowered to control their destiny…’ Completing an outcome plan is an example of this. As part of their plan, participants undertake to address the causes of their offending, repair harm done to their victims and seek to improve their own lives by setting educational, vocational, or behavioural goals. Involving the young person in determining suitable sanctions makes compliance with these outcomes more likely, thereby reducing the likelihood of reoffending. This is also supported by the fact that 91per cent of offenders 91 Jason Payne, ‘Recidivism in Australia: findings and future research’ (2007) Australian Institute of Criminology, Research and Public Policy Series, No 80, xiii. 92 KPMG, Review of the Youth Justice Group Conferencing Program, Final Report (2010). 93 Ibid 39. 94 Ibid. 95 For example, Maxwell (2003) found that one third of conference participants in NZ who participated in the study were involved in further offending within three years of completing a conference, Gabrielle Maxwell (2003) ‘Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice’, Paper presented at the Juvenile Justice: From Lessons of the Past to a Road for the Future Conference convened by the Australian Institute of Criminology in conjunction with the NSW Department of Juvenile Justice, Sydney, 1-2 December. 96 For example, Vignaendra and Fitzgerald (2006) found that of the 1711 young people conferenced in NSW in 1999, 58per cent of participants reoffended at least once in the 5 years after their conference, Sumitra Vignaendra and Jacqueline Fitzgerald, ‘Reoffending among young people cautioned by police or who participated in a youth justice conference’ Contemporary Issues in Crime and Justice (2006) 103, 7. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 16 - surveyed as part of the DHS review were ‘strongly satisfied’ with the conference overall, suggesting that YJGC in Victoria is certainly succeeding in its aims to reduce reoffending amongst at risk youth. 3. Criticisms and concerns regarding current Victorian diversion practice Research and analysis of Victorian diversion programs reveals several criticisms and issues regarding current practice. This report will focus on concerns regarding police discretion to recommend young people to diversion, claims that current programs do not adequately address the underlying causes of offending nor provide sufficient follow up support for participants. a. Police discretion In many jurisdictions the responsibility of referring young offenders to diversion lies with police. In Victoria, a police informant makes an assessment about an individual’s suitability for diversion, which they provide to the police prosecutor, who may then recommend to the Magistrate that the young person be referred to diversion.97 Although the Magistrate has the ultimate decision whether to refer a young person to diversion, a Magistrate will only consider diversion if this option has been recommend by police.98 However, there are few guidelines to assist police in defining ‘suitability’, and referral is inevitably discretionary, giving rise to a range of issues. Firstly, ‘research suggests that the arbitrary nature of police discretionary powers generally works against the interests of young people.’99 Secondly, a wide range of variables may influence an informant’s decision to recommend diversion, such as the officer’s opinion and experience of diversion, whether the officer is aware of available programs, the type of offence involved, the officer’s interaction with the young person and the offender’s behaviour towards the informant. For example, an officer who is subject to verbal or physical abuse when arresting a young offender for shop theft may be unwilling to recommend the individual for diversion, notwithstanding the minor nature of the offence. Furthermore, the discretionary nature of referral means that young people who have engaged in like offending may be recommended for different outcomes, depending on the situation and the police informant. This suggests that diversionary practice characterised by police discretion can result in irregular and inconsistent delivery of programs, thereby undermining the ethos and objectives of diversion. Most interviewees agreed that police discretion is a significant issue affecting the successful implementation of diversion programs in Victoria. A senior lawyer from the NJC believes that the current system gives too much power to police, which is problematic if there is a lack of impartiality on the part of the police, ‘particularly where police are abused by the client.’ The NJC lawyer explained that getting some informants to agree to diversion is ‘often a hurdle’ and that the current system leads to inconsistences where ‘one person in one location may get diversion for something that might be identical offending and another one [offender] wont.’ Another NJC lawyer agreed, 97 Please note that whilst the police prosecutor can recommend to a Magistrate that a young person participate in YJGC, referral to the program also depends on a suitability assessment conducted by a DHS Youth Justice Court Advice worker at court. In order for a young person to qualify for referral to Right Step the offender must have pled guilty to an offence serious enough to warrant either Probation or a Youth Supervision Order. 99 Lucinda Jordan and James Farrell, ‘Juvenile Justice Diversion in Victoria: a Blank Canvas?’ (2013) 24(3) Current Issues in Criminal Justice 419, 424. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 17 - ‘That’s the problem at the moment, ultimately whether an offender is sent to diversion is the Magistrate’s decision, but for the Magistrate to have discretion there needs to be a decision made on the part of police…if the police, for whatever reason, do not identify that this young person may benefit from referral to a program then they’re losing a big opportunity.’ The lawyer described the situation currently facing one of his clients who engaged in fairly minor offending, which would ordinarily qualify for diversion to ROPES. However, the interviewee explained that due to ‘negative interaction on both sides’ the young person was not recommend for diversion, and therefor the Magistrate was not in a position to consider this option. The NJC lawyer also believes that a major issue with the current system is the timeframe in which police lay charges. The interviewee explained that he has several clients who were arrested and interviewed at the time of their offence but who were not charged until 6 months later. During this time the clients had committed further offending, which, when the matter got to court, prevented the young person being referred to diversion. Both the NJC lawyers explained that if charges were laid in a more timely manner, more young people could be referred for diversion, thereby reducing the likelihood of these individuals committing further offending. A further issue identified by a senior NJC lawyer, is that in some instances, an informant and the police prosecutor may disagree about referral. In these cases it is even more difficult for lawyers to get diversion for their clients since the Magistrate is unlikely to refer a young person to diversion when the key stakeholders involved do not agree that diversion is a suitable option. The Right Step ‘Pilot Evaluation Report’ also identified current police referral practices in Victoria as an area for improvement. Firstly, the report found that many of the police officers in the relevant catchment areas were unaware of the program or understood how it worked; although the report acknowledged that upon learning more about Right Step, ‘most [police officers] have been willing to give it a go.’100 Furthermore, the report highlighted the importance of the Police Youth Resource Officers in coordinating various aspects of the program, but admitted that the ‘effectiveness of coordination depends on the overall workload orientation’ of these Officers.101 Thus, additional education, training and support for police will help improve the delivery of diversion programs. ‘The longer-term sustainability of the program depends on a mechanism being developed within Victoria Police to support the broad framework of diversion initiatives in Victoria.’ Interestingly, the police interviewees identified similar issues with the current system. Both officers acknowledged ‘police attitudes towards the young person’ might influence whether an officer recommends the individual for diversion, ‘particularly if the police have had a bad experience with the person.’ Furthermore, the officers believe there is a ‘big divide’ between police who are interested in and supportive of diversion, and those who ‘don’t see the benefits’ of current programs. This observation is consistent with the NJC lawyer’s belief that ‘some police underestimate the value of diversion’, and that in some cases requests for diversion are rejected, with the police preferring a tougher approach to deter reoffending. Officer A believes one of the reasons some police are reluctant to recommend diversion is because there is ‘no training for police to assess suitability for YouthConnect, ‘A step in the Right Direction: Diverting Young People from the Victorian Justice System, Pilot Evaluation Report (2012) 11. 101 Ibid 13. 100 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 18 - referral’. Furthermore, ‘police may be looking for a strong outcome rather than thinking about the long term outcomes for the young person.’ Officer A explained, ‘There needs to be a lot of information and training given to police so they can feel satisfied that that they’re not just doing all this hard work and then the court are going soft on them [the offender]’ When asked about the possibility of expanding the option of recommending diversion to enable Magistrates to refer young people to programs irrespective of police recommendation, all interviewees acknowledged this would be a valuable change. For instance, an NJC lawyer gave the example of a bail application for a young offender, where police would be able to make submissions as to why bail should or should not be granted, ‘but the ultimate discretion in the first place would lie with the Magistrate.’ The NJC interviewee suggested that this would give more young people ‘equal access to diversion’, thereby addressing the current irregular and inconsistent delivery of such programs. Whilst the Police interviewees agreed that Magistrates should play a more active role in recommending diversion, they believe police still need to be involved in this process. Furthermore, the officers explained that if Magistrates are to have more power over diversion, there would need to be an expansion of current programs, as it would be futile to involve an informant in diversion where they objected to this outcome. Officer A explained, ‘I think it definitely should be widened so that Magistrates can be involved but you need to allow the informant to be a part of that too because otherwise they might feel they are being undermined.’ Officer A agreed and suggested that rather than police, lawyers, and the court each focusing on their own objectives and outcomes, stakeholders should work together to overcome some of the issues with the current system to ensure the best outcomes for young offenders ‘There needs to be more cooperation between people for the good of the young person…if we all worked together surely we could get a better outcome for the young person.’ b. Addressing the causes of offending Several stakeholders consulted for this study submitted that current Victorian programs do not adequately address the underlying causes of offending. Whether this is a valid criticism depends on the diversion program being examined. Both Right Step and YJGC focus considerable attention on identifying and remedying the behavioural and/or environmental issues that contribute to participants offending. For instance, Right Step ‘…engages more fully with the issues that may have led to the criminal behaviour of the young person, including issues such as substance abuse, mental health, family breakdown and disengagement from education, training or employment.’102 YouthConnect, ‘A step in the Right Direction: Diverting Young People from the Victorian Justice System, Pilot Evaluation Report (2012) 5. 102 Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 19 - The program does this by assigning a Case Manager to each client who works closely with the young person over 8 weeks to identify their specific problems and concerns, and refer them to suitable support services. Similarly, YJGC also focuses on addressing the underlying causes of participant’s offending. The YJGC representative explains that this aspect of the program enables young people to seek assistance for issues that might otherwise not be addressed, ‘…they get a chance to tell their own personal story and include others in that discussion, often airing personal challenges and issues faced that may have lead to the offending behaviour.’ Where appropriate, both YJGC and Right Step also involve the client’s family in the rehabilitation process. Given that research shows improving familial support can significantly reduce the likelihood of future antisocial behaviour,103 this is an important aspect of both programs. However, it is unclear whether Right Step or YJGC continue to provide ongoing supervision or support to young people once they have completed their programs. Furthermore, the availability and delivery of support services in Victoria is fragmented, thereby creating missed opportunities for organisation to work together to achieve the best outcomes for young people. Police officer A explained, ‘There will be a Youth Worker, and then their funding will drop off, so they [the young person] will have to go somewhere else...or the Youth Support Worker will refer them to YSAS, and then YSAS will refer them to a GP…it would be better to have them all (support services) in the same place so that everyone is looking at the same problems.’ In contrast, ROPES, being a single day diversion program, is limited in its capacity to provide ongoing support and services for young offenders. Whilst stakeholders agree that the program helps improve young people’s self confidence and relationships with police, it does not address the reasons for, or the circumstances surrounding, the young persons arrest. Whilst this is presumably to prevent exposing young participants to each other’s offending, the result is that environmental or behavioural issues that contribute to the young person’s offending often go unresolved. Officer A explained, ‘Something as simple as a day diversion for a young person who has other issues is of limited benefit…kids with a lot of risk factors in their lives, the [diversion] system at the moment is not functioning in their favour.’ Officer B agreed, ‘If they [participants] have drug or alcohol issues, those problems don’t get addressed, they may get mentioned, but they don’t really get addressed, or if there’s any other issues, such as problems at school or at home. ROPES probably isn’t going to make them [young offenders] stop taking drugs or go 103 For example, research from NZ shows that young people who attend a conference with their family members (as opposed to a non-parent caregiver) were less likely to re offend, Gabrielle Maxwell et al, ‘Achieving Effective Outcomes in Youth Justice’ Final Report (2004) 209. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 20 - to school, it might make them want to do that, but they might not have the capacity to do that.’ The main aim of ROPES is to improve participant’s self-confidence and relationships with police. The program is not designed, nor does it have the capacity to properly identify and remedy underlying issues that contribute to young peoples offending. However, since ROPES is currently the main Victorian diversion program for first time minor offenders, it would be beneficial if the program had the capacity to address these issues and provide ongoing support for particularly vulnerable offenders. Expanding ROPES in this way could help reduce recidivism, by providing an early, targeted intervention for at risk youth, rather than a simple day diversion. If such changes are impracticable or beyond the scope of ROPES, programs that are better equipped to address behavioural and environmental factors affecting young people’s offending should be established. Adults who have engaged in first time minor offending have a wide range of treatment and diversion options available to them as a consequence of s 59 of the Criminal Procedure Act (Vic); young people are entitled to the same. As a senior NJC lawyer explains, ‘I’d like to see an expansion of the types of programs that are available, if you look at the list of different Corrections order for adults…I really can’t see why a similar approach isn’t taken with kids. I think that’s really unfair.’ Conclusion Since the emergence of labelling theory in the 1960s and 1970s, much criminological research has focused on the issue of diversion and restorative justice practices. An examination of this research and investigation into current diversion practice and experiences in Victoria has revealed the following: Victoria’s current youth diversion system is ‘ad hoc’ at best. Without a state-wide statutory framework, availability of and access to youth diversion programs is inconsistent and largely dependent on where an offender is located. ROPES and Right Step are successfully diverting increasing numbers of young people from the criminal justice system in Victoria. Youth Justice Group Conferencing has diverted a high percentage of participants from more intensive supervisory outcomes. Current Victorian practice regulating referral to diversion prevents net widening. Access to diversion programs should remain available only to young people appearing before the Children’s Court. The correlation between diversion and lower recidivism rates in some jurisdictions is not as strong as might be expected. However, ROPES, Right Step and YJGC have all reported significantly lower recidivism rates compared to more formal sanctions. Diversion is more cost-effective than other criminal justice sanctions. Significant savings could be made by referring the majority of young offenders to diversion for their first offence. These cost savings could be used to improve, expand, and develop new diversion programs, thereby helping to reduce juvenile offending. Diversionary practice characterised by police discretion has lead to irregular and inconsistent delivery of such programs in Victoria. Despite a recent push by Victoria Police to reduce recidivism and increase effective diversion processes, there remains a lack of understanding of the benefits of diversion amongst some police and doubt as to the effectiveness of these measures compared to more formal sanctions. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 21 - The success of Right Step and YJGC can largely be attributed to each program’s capacity to focus on the underlying issues that may contribute to a young person’s offending, thereby helping to reduce recidivism amongst vulnerable youth. However, ROPES, being a single day program, is limited in its ability to follow up client outcomes or provide ongoing support. Consequently, the opportunity for comprehensive early intervention in regards to first time offenders who are prone to reoffending, may be being missed Current availability and delivery of support services in Victoria is fragmented, thereby creating missed opportunities for these organisations to work together to achieve the best outcomes for young people. Recommendations Based on the aforementioned conclusions, the following aspects of Victoria’s diversion system have been identified for improvement. Program-specific recommendations ROPES Introducing mechanisms to improve police participation in ROPES. For example, ensuring stations are adequately staffed to allow officers to attend ROPES, and providing incentives for stations that actively support the program. Improving mechanisms to manage the types of young people who are assigned to complete the ROPES program together. Expanding the ROPES program, particularly in regional Victoria. Expanding the scope of ROPES to provide follow up support and ongoing monitoring of vulnerable at risk young people. Right Step Expanding the Right Step program to other areas that report high levels of serious youth offending, such as Greater Dandenong, Frankston, Brimbank, Casey and Hume. Ensuring cost savings associated with diverting young people away from formal sanctions are invested in Right Step to facilitate its expansion. General recommendations Improving current evaluation of Victorian diversion programs. It is recommended that uniform minimum-reporting guidelines be introduced for ROPES, Right Step and YJGC so that program outcomes can be accurately and consistently evaluated against their key objectives. Better education and training for police officers about the benefits of diversion and the availability of current programs in Victoria. Enable Magistrates to refer young people to diversion, irrespective of police recommendation. In making this decision Magistrates can take into account the Police Prosecutors submission on diversion, however the final decision on referral is reserved for the Magistrate. If the current referral system based on police discretion is to be retained, Victoria police should introduce mandatory training and education to enable officers to better assess the suitability of young people to participate in diversion. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 22 - Introduction of measures to improve co-operation and co-ordination between various community and government support agencies to better deliver key services. For example, creating interorganisational databases that enable service providers to access client’s information and keep informed of their progress and utilisation of support services. Amending the Children, Youth and Families Act 2005 (Vic) to provide that all first time offenders aged <18 years are entitled to participate in diversion. This will ensure the expansion and improvement of current programs and guarantee equitable access to diversion for young people. Furthermore, amending the Victorian legislation will improve police compliance with Victoria Police diversion objectives. Expansion of the types of diversion programs available in Victoria, particularly In regards to programs for first time minor offenders. Despite its proven results, ROPES is unlikely reduce recidivism amongst young offenders with complex behavioural issues. Presently, the opportunity to intercept these vulnerable young people before they engage in more serious offending is being squandered. A best practice approach for Victoria A best practice model of diversion in Victoria would involve amending current legislation to ensure all young people aged <18 years have access to diversion. To ensure equitable access, the option of recommending diversion should be widened to allow Magistrates to refer young offenders to diversion, irrespective of police recommendation. The provision of ROPES, Right Step and YJGC would continue, albeit with these programs being expanded, particularly in regional areas. It would also involve the introduction of a new program aimed at first time offenders whose offending can be attributed to specific behavioural or environmental factors, rather than delinquency. This new scheme would ideally incorporate several aspects of the current programs, such as conferencing and working with police, but on a lesser scale. For example, diversion for a young person with substance abuse issues might involve a day diversion such as ROPES, to help improve self-esteem and relationships with police, as well as a conference with the victim and other stakeholders to formulate a suitable sanction. The young person would be partnered with a case manager who would be responsible for overseeing their care and facilitating their referral to specialist support services. Therefore, a best practice approach requires measures to improve co-operation and coordination between various community and government support agencies. Improved delivery of key services would help identify at risk individuals before they engage in more serious antisocial behaviour, as well as divert young offenders in the CJS away from more formal sanctions, thereby benefitting the young person and the community in general. Whilst critics may argue that this approach would result in net strengthening, it is argued that the current system, characterised by limited diversion options, poor coordination between services and typically late intervention is not adequately addressing the needs of first time offenders whose offending can be attributed to specific behavioural or environmental factors. Thus a more rigorous and collaborative approach is needed to assist these particular young people. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 23 - References Articles Alison J Shinkfield and Joseph Graffam, ‘Community Reintegration of Ex-Prisoners: Type and Degree of Change in Variables Influencing Successful Reintegration’ (2009) 53(1) International Journal of Offender Therapy and Comparative Criminology 29 Arnold Binder and Virgina L. Binder, ‘Juvenile Diversion’ (1983) 11(2) The Counselling Psychologist 69 Bruce Lee Berg, ‘Arbitrary arbitration: Diverting juveniles into the justice system’ (1986) 37 Juvenile and Family 31 Craig S Schwalbe et al, ‘A meta-analysis of experimental studies of diversion programs for juvenile offenders’ (2012) 32 Clinical Psychology Review 26 Gabrielle Maxwell, Jeremy Robertson and Venezia Kingi, ‘Achieving The Diversion and Decarcertion of Young Offenders in New Zealand’ (2002) 19 Social Policy Journal of New Zealand 76 Holly A Wilson and Robert D Hoge ‘The Effect of Youth Diversion Programs on Recidivism: A MetaAnalytic Review’ (2013) 40 Criminal Justice and Behaviour 497 Jason Payne, ‘Recidivism in Australia: findings and future research’ (2007) Australian Institute of Criminology, Research and Public Policy Series, No 80, xiii; Jeff Latimer et al, ‘The Effectiveness of Restorative Justice Practices: A Meta-analysis’ (2001) Ontario: Department of Justice, Canada Jeremy Prichard, ‘Net-Widening and the Diversion of Young People from Court: A Longitudinal Analysis with Implications for Restorative Justice’ (2010) 43 Australian & New Zealand Journal of Criminology 112 Lucinda Jordan and James Farrell, ‘Juvenile Justice Diversion in Victoria: a Blank Canvas?’ (2013) 24(3) Current Issues in Criminal Justice 419 Nadine Smith and Don Weatherburn, ‘Youth Justice Conferences versus Children’s Court: A comparison of reoffending’ (2012) Contemporary Issues in Crime and Justice, NSW Bureau of Crime Statistics and Research, No 160. Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 24 - Robert Marsh and Steven Patrick, ‘Juvenile Diversion: Results of a Three Year Experimental Study’ (2005) 16 (1) Criminal Justice Policy Review 59 Sheryl A Hemphill and Rachel Smith, ‘Preventing Youth Violence: What does and doesn’t work and why?’ Journal or Publisher? 2010) Stephanie Bechard et al ‘Arbitrary Arbitration: Diverting Juveniles Into the Justice System – A Reexamination After 22 years’ (2011) 55(4) International Journal of Offender Therapy and Comparative Criminology 605 Sumitra Vignaendra and Jacqueline Fitzgerald, ‘Reoffending among young people cautioned by police or who participated in a youth justice conference’ (2006) 103 Contemporary Issues in Crime and Justice 1 Books C Alder and J Wundersitz (Eds.) Family conferencing and juvenile justice, Canberra, Australia: Australian Institute of Criminology Year? Reports Australian Institute of Health and Welfare (AIHW) , ‘The health of Australia's prisoners 2009’ Report Carlos Carcach and Simon Leverett, ‘Recidivism Among Juvenile Offenders: An Analysis of Times to Reappearance in Court’ (1999) Australian Institute of Criminology, Research and Public Policy Series, No. 17 Gabrielle Maxwell et al, Achieving Effective Outcomes in Youth Justice, Final Report (2004) Kelly Richards, ‘Police-referred restorative justice for juveniles in Australia’ (2010) 13 Review of Effective Practice in Juvenile Justice, Report (2010) KPMG, Review of the Youth Justice Group Conferencing Program, Final Report (2010) KPMG, Evaluation of the Ropes Program, Final Report (2010) New South Wales. Attorney General & Justice, Youth on Track: A model for early intervention with young people, Report Year? Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 25 - Peter Murphy, Review of Effective Practice in Juvenile Justice, Report (2010) Sentencing Advisory Council, Sentencing Children and Young People in Victoria, Report (2012) Smart Justice for Young People. Reinvestment in Diversion’, Smart Justice for Young People’s Response to the Senate Committee on Legal and Constitutional Affairs’ (2013) Victoria. Department of Justice, Practical Lessons, Fair Consequences: Improving Diversion for Young People in Victoria, Report (2012) Victoria. Department of Human Services Recidivism Among Victorian Juvenile Justice Clients 19972001 (2001) YouthConnect, A step in the Right Direction: Diverting Young People from the Victorian Justice System, Pilot Evaluation Report (2012) Online resources Peter Power, ‘Sentencing’, Chapter 11 (12 July 2012) <http://www.childrenscourt.vic.gov.au/legal/research-materials/sentencing>. Victoria Police, Child and Youth Strategy 2009-2013 <http://onv.org.au/wpcontent/uploads/2010/07/41065_vicpol_youth_strategy.pdf>. Victoria Police Crime Statistics eBooks, accessed <https://www.police.vic.gov.au/content.asp?Document_ID=40111> Victoria. Department of Human Services, General group conference fact sheet <http://www.dhs.vic.gov.au/_data/assets/pdf_file/0005/660272/General-group-conferencefactsheet.pdf> Legislation Charter of Human Rights and Responsibilities Act 2006 (Vic) Children, Young Persons and Their Families Act 1989 (NZ) Children, Youth and Families Act 2005 (Vic) Criminal Procedure Act 2009 (Vic) Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 26 - Young Offenders Act 1993 (SA) Young Offenders Act 1997 (NSW) Media Release Minister for Community Services (Victoria), ‘Strengthening Youth Justice and Helping Young People avoid a life of crime’, (Media release, 3 May 2011) Victoria Police, ‘Victoria Police Shows Local Youth The Ropes’ (Media Release, Wednesday 14 February 2007) Other Sources Selma Milovanovic, ‘Teenage offenders shown the Ropes’, The Age, February 8 2005. Gabrielle Maxwell, ‘Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice’, presented at the Juvenile Justice: From Lessons of the Past to a Road for the Future’ (2010) Conference convened by the Australian Institute of Criminology in conjunction with the NSW Department of Juvenile Justice, Sydney, 1-2 December Victoria Legal Aid – Appropriate Legal Interventions for Children and Young People in Victoria - 27 -
