Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017

Authorised by the Chief Parliamentary Counsel Authorised Version i Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 3 3 Principal Act 3 Part 2—Criminal justice changes 4 Division 1—Recruiting children to engage in criminal activity 4 4 New Division 11A of Part I inserted 4 Division 2—When certain proceedings may be heard in higher courts 5 5 New section 356A inserted 5 Division 3—Consistent magistrate to oversee proceedings 6 6 New section 522A inserted 6 Division 4—Aggregate sentences 7 7 New section 362B inserted 7 8 New section 32A inserted 9 Part 3—Youth control orders 12 9 Definitions 12 10 Court may only consider certain matters and other reports 12 11 Sentences 12 12 Matters to be taken into account 12 13 New Division 8A of Part 5.3 inserted 13 14 Group conferences 32 15 New section 480A inserted 32 16 Standard of services 33 17 Proceedings in which a child is required to be legally represented 34 18 Explanation of and reasons for orders 34 19 Reports to which Part applies 34 -- 1 of 88 -- Section Page ii Authorised by the Chief Parliamentary Counsel Part 4—Serious youth offences 35 Division 1—Amendments of the Sentencing Act 1991 35 20 Definitions 35 21 Youth justice centre or youth residential centre order 36 Division 2—Amendments of the Children, Youth and Families Act 2005 37 22 Definitions 37 23 Procedure for indictable offences that may be heard and determined summarily 38 24 Matters to be taken into account 40 Division 3—Amendments of the Criminal Procedure Act 2009 40 25 Definitions 40 26 Court may transfer certain charges to Magistrates' Court or Children's Court 41 27 New section 168A inserted 42 Division 4—Mandatory parole conditions 43 28 Release of person from remand centre etc. 43 29 New section 458A inserted 44 Part 5—Custodial management powers 47 30 New section 487A inserted 47 31 New section 488AA inserted 47 Part 6—Amendments relating to youth justice placement decisions 48 Division 1—Amendments relating to transfer and co-location 48 32 Form of care, custody or treatment 48 33 Removal of person from remand centre etc. 48 Division 2—Amendments relating to remand 49 34 When is a person in the legal custody of the Secretary? 49 35 Power to adjourn proceeding 49 36 Power to return accused to youth justice centre 50 37 New section 3C of the Bail Act 1977 inserted 51 38 Power to return accused to youth justice centre 51 Part 7—Information sharing 53 39 New Division 4 of Part 5.5 inserted 53 40 Restriction on publication of proceedings 54 -- 2 of 88 -- Section Page iii Authorised by the Chief Parliamentary Counsel Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres 56 Division 1—Consequences of assaults on staff 56 41 Definitions 56 42 Matters to be taken into account 57 43 Youth residential centre orders 57 44 Youth justice centre orders 58 45 Definitions 60 46 Custodial sentence for certain offences against emergency workers and custodial officers on duty 61 47 Special reasons relevant to imposing minimum non-parole periods 62 48 Assaults 62 49 Assaulting, etc. emergency workers, custodial officers or local authority staff on duty 63 50 Sentences—whether concurrent or cumulative 64 51 Sentence to be concurrent unless otherwise directed 64 Division 2—Increase in penalties 65 52 Youth justice centre orders 65 53 Offence to escape or attempt to escape etc. 65 54 Offence to harbour or conceal person 65 55 Offence to counsel or induce person to escape 65 56 Offences in relation to persons held in centres 66 57 Offence to obstruct Secretary or employee 66 58 Youth justice centre or youth residential centre order 66 Part 9—Youth diversion and other amendments 67 59 New Division 3A inserted in Part 5.2 67 60 Offences in relation to community service etc. 73 61 Offences in relation to persons held in centres 74 62 Circumstances in which Koori Court (Criminal Division) may deal with breach of a sentence imposed by it or another Division of the Children's Court 74 63 Circumstances in which Koori Court (Criminal Division) may deal with certain offences 74 Part 10—Transitional provisions 75 64 Transitional provisions 75 Part 11—Amendments relating to review of Act 80 65 New Part 5.9 inserted 80 Part 12—Repeal of amending Act 83 66 Repeal of amending Act 83 ═════════════ -- 3 of 88 -- Section Page iv Authorised by the Chief Parliamentary Counsel Endnotes 84 1 General information 84 -- 4 of 88 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 † No. 43 of 2017 [Assented to 26 September 2017] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are— (a) to amend the Crimes Act 1958 to create an offence of recruiting a child to engage in criminal activity; and Victoria -- 5 of 88 -- Part 1—Preliminary Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 2 Authorised by the Chief Parliamentary Counsel (b) to amend the Children, Youth and Families Act 2005 in relation to— (i) hearing proceedings in higher courts; and (ii) providing for the same magistrate to hear proceedings; and (iii) aggregate sentences; and (iv) a new sentencing order to be known as a youth control order; and (v) the removal to and from, and detention of, persons at remand centres, youth residential centres and youth justice centres; and (vi) the management of detainees and other persons; and (vii) information sharing in relation to certain persons; and (viii) increase penalties for certain offences; and (ix) the provision of diversion in the Criminal Division and the Koori Court (Criminal Division) of the Children's Court; and (c) to amend the Sentencing Act 1991, the Children, Youth and Families Act 2005 and the Criminal Procedure Act 2009 in relation to serious youth offences; and (d) to amend the Corrections Act 1986, the Bail Act 1977 and the Criminal Procedure Act 2009 in relation to remand; and (e) to amend the Children, Youth and Families Act 2005, the Crimes Act 1958 and the Summary Offences Act 1966 in relation to -- 6 of 88 -- Part 1—Preliminary Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 3 Authorised by the Chief Parliamentary Counsel offences committed in remand centres, youth residential centres and youth justice centres. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 June 2018, it comes into operation on that day. 3 Principal Act In this Act, the Children, Youth and Families Act 2005 is called the Principal Act. -- 7 of 88 -- Part 2—Criminal justice changes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 4 Authorised by the Chief Parliamentary Counsel Part 2—Criminal justice changes Division 1—Recruiting children to engage in criminal activity 4 New Division 11A of Part I inserted After Division 11 of Part I of the Crimes Act 1958 insert— "Division 11A—Recruiting a child to engage in criminal activity 321LA Definitions In this Division— child means a person aged under 18 years; criminal activity means conduct that constitutes an offence punishable on first conviction with imprisonment for life or for a term of 5 years or more; recruit means incite, direct or induce. 321LB Recruiting a child to engage in criminal activity (1) An adult aged 21 years or more must not recruit another person to engage in criminal activity, knowing that the other person is a child. Penalty: Level 5 imprisonment (10 years maximum). (2) For an adult to be guilty of an offence under subsection (1), the adult must know that it is likely the child will engage in the criminal activity that is the subject of the recruiting. -- 8 of 88 -- Part 2—Criminal justice changes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 5 Authorised by the Chief Parliamentary Counsel (3) For the purposes of subsection (1), the ages of the adult and the child are to be ascertained at the time of the recruitment. 321LC Child need not engage in conduct or be prosecuted or found guilty of an offence A person may be found guilty of the offence referred to in section 321LB(1) whether or not the child referred to in that section— (a) engages in criminal activity; or (b) is prosecuted for, or is found guilty of, any offence. 321LD Limitation on prosecution A person is not liable to be convicted in respect of the same conduct of both— (a) an offence under section 321LB(1); and (b) an offence under section 321G(1).". Division 2—When certain proceedings may be heard in higher courts 5 New section 356A inserted After section 356 of the Principal Act insert— "356A Exceptional circumstances (1) For the purposes of section 356(3)(b), exceptional circumstances exist, in relation to a charge referred to in section 356(3) in respect of a child, if the Court considers that the sentencing options available to it under this Act are inadequate to respond to the child's offending. -- 9 of 88 -- Part 2—Criminal justice changes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 6 Authorised by the Chief Parliamentary Counsel (2) In determining whether the sentencing options available to the Court under this Act are inadequate to respond to the child's offending, the Court must have regard to— (a) the seriousness of the conduct alleged, including the impact on any victims of the conduct and the role of the accused in the conduct; and (b) the nature of the offence concerned; and (c) the age and maturity of the child, and any disability or mental illness of the child, at the time of the offence and the time of sentencing; and (d) the seriousness, nature and number of any prior offences committed by the child; and (e) whether the alleged offence was committed while the child was in youth detention, on parole or in breach of an order made under this Act; and (f) any other matter the Court considers relevant.". Division 3—Consistent magistrate to oversee proceedings 6 New section 522A inserted After section 522 of the Principal Act insert— "522A Consistent magistrate to oversee criminal proceedings (1) If— (a) criminal proceedings are brought in the Court against a child; and -- 10 of 88 -- Part 2—Criminal justice changes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 7 Authorised by the Chief Parliamentary Counsel (b) the child has previously been brought before the Criminal Division of the Court constituted by a particular magistrate— the Court is to be constituted by that magistrate, unless— (c) that magistrate does not still hold office as a magistrate; or (d) it is otherwise impracticable for that magistrate to constitute the Court; or (e) the child consents to another magistrate constituting the Court. (2) If a child is before the Criminal Division of the Court in relation to more than one proceeding, the Court must, as far as practicable, ensure that the Court is constituted by the same magistrate for all the proceedings. (3) This section does not apply to contested proceedings.". Division 4—Aggregate sentences 7 New section 362B inserted After section 362A of the Principal Act insert— "362B Aggregate sentence of detention (1) This section applies if a child is convicted by the Court of 2 or more offences which— (a) are founded on the same facts; or (b) form, or are part of, a series of offences of the same or a similar character. (2) The Court may impose an aggregate sentence of detention in respect of those offences in place of a separate sentence of -- 11 of 88 -- Part 2—Criminal justice changes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 8 Authorised by the Chief Parliamentary Counsel detention in respect of all or any 2 or more of them. (3) The term of the aggregate sentence of detention must not exceed the total effective period of detention that could have been imposed in respect of the offences in accordance with this Act if the Court had imposed a separate sentence of detention in respect of each of them. (4) If the Court proposes to impose an aggregate sentence of detention it must, before doing so, announce in open court, in language likely to be readily understood by the child— (a) the decision to impose an aggregate sentence and the reasons for doing so; and (b) the effect of the proposed aggregate sentence. (5) If the Court imposes an aggregate sentence of detention in respect of 2 or more offences, the Court— (a) is not required to identify separate events giving rise to specific charges; and (b) is not required to announce— (i) the sentences that would have been imposed for each offence, had separate sentences been imposed; or (ii) whether those sentences would have been imposed concurrently or cumulatively. -- 12 of 88 -- Part 2—Criminal justice changes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 9 Authorised by the Chief Parliamentary Counsel (6) To avoid doubt, an aggregate sentence of detention may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge. Note A representative charge is a charge in an indictment for an offence that is representative of a number of offences of the same type alleged to have been committed by the accused. A rolled-up charge is a charge in an indictment that alleges that the accused has committed more than one offence of the same type between specified dates. (7) Nothing in this section affects the requirements of— (a) section 362A (sentence discount for guilty plea); or (b) section 411 (youth residential centre orders); or (c) section 413 (youth justice centre orders).". 8 New section 32A inserted After section 32 of the Sentencing Act 1991 insert— "32A Aggregate sentence of detention (1) This section applies if a young offender is convicted by a court of 2 or more offences which— (a) are founded on the same facts; or (b) form, or are part of, a series of offences of the same or a similar character. (2) The court may impose an aggregate sentence of detention in respect of those offences in place of a separate sentence of detention in respect of all or any 2 or more of them. -- 13 of 88 -- Part 2—Criminal justice changes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 10 Authorised by the Chief Parliamentary Counsel (3) The term of the aggregate sentence of detention must not exceed the total effective period of detention that could have been imposed in respect of the offences in accordance with this Act if the court had imposed a separate sentence of detention in respect of each of them. (4) If the court proposes to impose an aggregate sentence of detention it must, before doing so, announce in open court, in language likely to be readily understood by the young offender— (a) the decision to impose an aggregate sentence and the reasons for doing so; and (b) the effect of the proposed aggregate sentence. (5) If the court imposes an aggregate sentence of detention in respect of 2 or more offences, the court— (a) is not required to identify separate events giving rise to specific charges; and (b) is not required to announce— (i) the sentences that would have been imposed for each offence, had separate sentences been imposed; or (ii) whether those sentences would have been imposed concurrently or cumulatively. -- 14 of 88 -- Part 2—Criminal justice changes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 11 Authorised by the Chief Parliamentary Counsel (6) To avoid doubt, an aggregate sentence of detention may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge. Note A representative charge is a charge in an indictment for an offence that is representative of a number of offences of the same type alleged to have been committed by the accused. A rolled-up charge is a charge in an indictment that alleges that the accused has committed more than one offence of the same type between specified dates. (7) Nothing in this section affects the requirements of section 6AAA (sentence discount for guilty plea).". -- 15 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 12 Authorised by the Chief Parliamentary Counsel Part 3—Youth control orders 9 Definitions In section 3(1) of the Principal Act insert the following definitions— "youth control order means an order made under section 409B; youth control order plan means a plan referred to in section 409C(d); youth control order planning meeting means a meeting ordered under section 409D; youth control order planning meeting report means a report prepared under section 409V;". 10 Court may only consider certain matters and other reports After section 358(b) of the Principal Act insert— "(ba) a youth control order planning meeting report;". 11 Sentences After section 360(1)(h) of the Principal Act insert— "(ha) convict the child and make a youth control order under section 409B; or". 12 Matters to be taken into account (1) After section 362(4) of the Principal Act insert— "(4A) If sentencing of a child is deferred for the purpose of the child's participation in a youth control order planning meeting and the child has failed to participate in the meeting, the Court must not impose a sentence more severe than it would have imposed had sentencing not been so deferred.". -- 16 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 13 Authorised by the Chief Parliamentary Counsel (2) After section 362(6) of the Principal Act insert— "(7) A reference in subsection (3) or (4) to a group conference does not include a reference to a group conference ordered under section 409F(2)(g).". 13 New Division 8A of Part 5.3 inserted After Division 8 of Part 5.3 of Chapter 5 of the Principal Act insert— "Division 8A—Youth control orders Subdivision 1—Youth control orders 409A Objects of a youth control order The objects of a youth control order in respect of a child are— (a) to provide a judicially supervised, intensive supervision regime for the child; and (b) to penalise the child by imposing restrictions on his or her liberty; and (c) to provide intensive, targeted supervision to the child, to help him or her to develop an ability to abide by the law; and (d) to engage the child in education, training or work (whether paid or unpaid); and (e) to give the child an opportunity to demonstrate a desire to cease offending. -- 17 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 14 Authorised by the Chief Parliamentary Counsel 409B Court may make youth control order (1) The Court may make a youth control order in respect of a child if— (a) the Court convicts the child of one or more offences whether indictable or summary; and (b) the Court considers that the child would otherwise be sentenced to detention in a youth justice centre or a youth residential centre as a result of the gravity or habitual nature of the child's unlawful behaviour. (2) The term of a youth control order must not exceed 12 months and must not extend beyond the child's twenty-first birthday. (3) The power to make a youth control order is subject to the restrictions set out in section 409C. 409C Restrictions on power to make a youth control order The Court does not have power to make a youth control order in respect of a child under section 409B(1) unless— (a) the offence or one of the offences committed by the child is punishable by imprisonment; and (b) the Court has made enquiries of the Secretary and is satisfied that the child is a suitable person to be placed on a youth control order; and (c) the child has consented to the youth control order being made; and (d) a youth control order plan has been developed for the child. -- 18 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 15 Authorised by the Chief Parliamentary Counsel 409D Court order for youth control order planning meeting (1) The Court must order that a youth control order planning meeting be held for a child if the Court is considering making a youth control order in respect of the child. (2) The Court may order that a youth control order planning meeting be held for a child if— (a) a youth control order is in force in respect of the child; and (b) the Court considers that such a meeting is necessary. Note The requirements for youth control order planning meetings are set out in Subdivision 2 of this Division. (3) Before ordering that a youth control order planning meeting be held for a child, the Court must make inquiries of the child, the Secretary and any other person the Court considers appropriate about the people who should attend the meeting, having regard to— (a) the objects of a youth control order (see section 409A); and (b) the purpose of the meeting (see section 409S). (4) Nothing in this section affects the obligation of the Court to direct that a pre-sentence report be prepared in respect of the child under section 571. -- 19 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 16 Authorised by the Chief Parliamentary Counsel 409E Matters to which Court is to have regard in determining whether to make a youth control order In determining whether to make a youth control order in respect of a child, the Court must have regard to the following— (a) the child's behaviour on any bail supervision program in which he or she has participated; (b) the child's behaviour on remand, if applicable; (c) the extent to which the child has acknowledged responsibility for his or her offending; (d) the availability of education, training or work opportunities (whether paid or unpaid) for the child; (e) the child's willingness to engage in education, training or work (whether paid or unpaid); (f) the report of the youth control order planning meeting held for the child (see Subdivision 2); (g) any other matter the Court considers relevant. 409F Court to impose certain requirements (1) A youth control order in respect of a child is subject to the following requirements— (a) that the child not commit another offence, whether within or outside Victoria, during the period that the order is in force; -- 20 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 17 Authorised by the Chief Parliamentary Counsel (b) that the child report to the Secretary within 2 working days after the order is made; (c) that the child report to the Secretary, as required by the Secretary, during the period that the order is in force; (d) that the child comply with any lawful and reasonable directions given by the Secretary; (e) that the child attend the Court as directed by the Court under section 409L; (f) that the child participate in education, training or work (whether paid or unpaid), for some or all of the period that the order is in force; (g) that the child notify the Secretary of any change in the child's residence, school or employment within 2 working days after the change; (h) that the child not leave Victoria without the permission of the Secretary. (2) When making a youth control order, the Court may, having regard to the child's youth control order plan and personal circumstances, impose on the child any of the following requirements— (a) that the child participate in one or more community service activities; (b) that the child undergo treatment for drug or alcohol dependence; (c) that the child attend a counselling or treatment service of any kind; -- 21 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 18 Authorised by the Chief Parliamentary Counsel (d) that the child reside at a specified address; (e) that the child not leave his or her place of residence between specified hours on specified days; (f) that the child not contact specified persons; (g) that the child attend and participate in a group conference; (h) that the child participate in cultural programs or attend culturally specific community support services; (i) that the child not use specified social media if this is required for the protection of the community; (j) that the child not visit particular places or areas, or only visit the places or areas at specified times; (k) if a pre-sentence report includes a statement from the Secretary that the child has an intellectual disability within the meaning of the Disability Act 2006, that the child participate in disability services available under that Act as directed by the Secretary; (l) any other requirement that the Court considers appropriate, having regard to the circumstances of the child. (3) The Court must attach requirements to a youth control order in accordance with— (a) the principle of proportionality; and (b) the objects of a youth control order, as set out in section 409A. -- 22 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 19 Authorised by the Chief Parliamentary Counsel (4) If a requirement of a youth control order is that the child attend and participate in a group conference, the group conference is to be held in accordance with section 415(2) to (11). 409G Non-accountable parental undertaking If the Court makes a youth control order in respect of a child, the Court may make an order that the child's parent give an undertaking, with or without conditions, to support the child to comply with the youth control order for a period not exceeding the period of the youth control order. 409H Breach of undertaking If an undertaking under section 409G is breached, the Court must not take any action. 409I Concurrent orders (1) If a child is convicted on the same day, or in the same proceeding, of more than one offence— (a) the aggregate period of any youth control orders made in respect of the offences must not exceed 12 months or extend beyond the child's twenty-first birthday; and (b) if the Court— (i) makes a youth control order in relation to an offence; and (ii) directs that the child be detained in a youth justice centre in respect of another offence— the aggregate term of detention and youth control orders in respect of all of the offences must not exceed 4 years. -- 23 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 20 Authorised by the Chief Parliamentary Counsel (2) Subject to subsection (3), a youth control order in respect of a child must be served, from the date the order commences, concurrently with any uncompleted youth control order in respect of that child. (3) If the Court makes a youth control order in respect of a child who has not completed another youth control order, it may, at the time of making the order, direct that the order be served— (a) in part concurrently with the other order; or (b) wholly cumulatively on the other order. (4) If the Court— (a) makes a youth control order in respect of a child in relation to one or more offences; and (b) directs that the child be detained in a youth residential centre in respect of one or more other offences— the aggregate term of detention and youth control orders must not exceed 2 years. 409J Copy of order to be given (1) A youth control order must be in the prescribed form. (2) The Court, when it makes a youth control order in respect of a child, must cause a copy of the order to be given or sent by post to— (a) the child and, if the child is aged under 15 years, the child's parent; and (b) the Secretary. -- 24 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 21 Authorised by the Chief Parliamentary Counsel 409K Remission of monitoring etc. to the Court If a court other than the Court makes a youth control order, the court that made the order must remit to the Court the matters in respect of the order in— (a) section 409L (reporting and monitoring); and (b) section 409N (variation); and (c) subject to section 423, section 409Q (revocation). 409L Reporting and monitoring (1) A child in respect of whom a youth control order is in force must attend the Court from time to time as directed by the Court, for the Court to consider— (a) the child's compliance with the order; and (b) the ongoing suitability of the requirements of the order. (2) The Court must direct that the child attend the Court at least monthly for the first half of the order. (3) The Secretary must provide a report to the Court about the child's compliance before each attendance by the child before the Court. (4) A report under subsection (3) must be filed with the appropriate registrar at least 3 working days before the attendance, or otherwise as directed by the Court. -- 25 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 22 Authorised by the Chief Parliamentary Counsel (5) The author of a report under subsection (3) must provide a copy of the report, at least 3 working days before the attendance to— (a) the child who is the subject of the report and, if the child is aged under 15 years, the child's parent; and (b) the legal practitioner representing the child; and (c) any other person the Court has ordered is to receive a copy of the report. (6) When the child attends the Court, the Court must consider whether the order should be varied under section 409N. (7) The Court is to be constituted by the magistrate who sentenced the child, unless— (a) that magistrate does not still hold office as a magistrate; or (b) the matters in this section were remitted to the Court under section 409K; or (c) it is otherwise impracticable for that magistrate to constitute the Court. 409M Suspension of youth control order (1) This section applies if— (a) at the time the Court makes a youth control order in respect of a child, the child is in custody in a remand centre, youth residential centre, youth justice centre or prison; or (b) after the making of a youth control order in respect of a child, the child is taken into custody in a remand centre, youth residential centre, youth justice centre or prison. -- 26 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 23 Authorised by the Chief Parliamentary Counsel (2) The Secretary may, by notice served on the child and, if the child is aged under 15 years, the child's parent, suspend the child's service of the order throughout the period of custody. (3) The Secretary must, after consultation with the appropriate parole board, superintendent of a youth residential centre or youth justice centre— (a) determine a time at which, and a date on which, a person must commence or recommence service of the order; and (b) serve a notice on the child specifying the time at and date on which the child is first required to report to the Secretary. Note Sections 593 to 596 deal with service of documents. (4) The Secretary may, with the consent of the appropriate parole board, direct that the term of operation of a youth control order be served concurrently with a period of parole, but that service must not be a condition of the parole. 409N Variation of youth control order (1) The Court may vary a youth control order in respect of a child from time to time if the Court considers it appropriate to do so, based on its assessment of the child's compliance having regard to reports and discussions at attendances at the Court under section 409L. (2) The Court may vary an order under subsection (1) on its own initiative, or on the application of— -- 27 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 24 Authorised by the Chief Parliamentary Counsel (a) the child or, if the child is aged under 15 years, the child's parent; or (b) the Secretary. (3) An application under subsection (2) may be made— (a) orally, when the child attends Court under section 409L; or (b) by filing an application with the Court and serving a copy of the application— (i) if the application is made by the child or the child's parent—on the Secretary; or (ii) if the application is made by the Secretary—on the child and, if the child is aged under 15 years, the child's parent. Note Sections 593 to 596 deal with service of documents. (4) Variations of a youth control order may— (a) make the order more restrictive, if the Court considers that the child's compliance is unsatisfactory and the Court considers that making the order more restrictive would assist the child's compliance with the order; or (b) make the order less restrictive if— (i) the Court considers that the child's compliance is satisfactory; or (ii) the Court considers that the child's compliance is unsatisfactory but that making the order less restrictive would assist the child's compliance with the order. -- 28 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 25 Authorised by the Chief Parliamentary Counsel (5) When varying a youth control order, the Court must have regard to the matters set out in section 409F(2) and (3). 409O Warning of possible variation of a youth control order The Court may give a warning to a child when the child attends the Court under section 409L, stating that the Court may at a later time vary a youth control order in respect of the child, if— (a) the Court considers that the child is failing to comply with the requirements of the order; and (b) the Court considers it appropriate to give such a warning. 409P Neither consent nor warning required To avoid doubt, a youth control order in respect of a child may be varied or revoked— (a) without the consent of the child; and (b) without a warning being given to the child under section 409O. 409Q Revocation of youth control order (1) The Court must revoke a youth control order in respect of a child if an application for revocation has been made and— (a) the Court is satisfied that the child has breached the order, by failing to comply with the order to such an extent that he or she is no longer suitable for the order; or -- 29 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 26 Authorised by the Chief Parliamentary Counsel (b) the child commits an offence punishable on first conviction with imprisonment for life or for a term of 5 years or more during the period that the youth control order is in force. (2) The youth control order may be revoked on the application of— (a) the child or, if the child is aged under 15 years, the child's parent; or (b) if it appears to the Secretary that the child has breached the order for any reason—the Secretary; or (c) if the child has been convicted of an offence punishable on first conviction with imprisonment for life or for a term of 5 years or more during the period that the youth control order is in force—a police officer. (3) If the breach is constituted by— (a) an act that is the subject of a charge before a court, the application for revocation must be made not later than 3 months after a finding of guilt in respect of the charge; or (b) any other act, the application for revocation must be made not later than 14 working days after the alleged breach. (4) An application under subsection (2) may be made by filing an application with the Court and serving a copy of the application— (a) if the application is made by the child or the child's parent—on the Secretary; or -- 30 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 27 Authorised by the Chief Parliamentary Counsel (b) if the application is made by the Secretary—on the child and, if the child is aged under 15 years, the child's parent; or (c) if the application is made by a police officer—on the Secretary and the child and, if the child is aged under 15 years, the child's parent. Note Sections 593 to 596 deal with service of documents. (5) The Court is to be constituted by the magistrate who made the youth control order, unless— (a) that magistrate does not still hold office as a magistrate; or (b) the matters in this section were remitted to the Court under section 409K; or (c) it is otherwise impracticable for that magistrate to constitute the Court. (6) Before the Court considers an application to revoke an order under this section, notice of the hearing concerning the revocation must be served by the Court on— (a) the child and, if the child is aged under 15 years, the child's parent; and (b) the applicant for revocation— and the Court may order that a warrant to arrest be issued against the child if he or she does not attend for the hearing. Notes 1 For requirements relating to breach of sentence see section 423. 2 Sections 593 to 596 deal with service of documents. -- 31 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 28 Authorised by the Chief Parliamentary Counsel 409R Consequences of revocation of youth control order (1) If the Court revokes a youth control order in respect of a child, the Court must impose a sentence of detention on the child, unless the Court considers that detention is not appropriate because exceptional circumstances exist. (2) The sentence of detention must not be for a period longer than the remaining period of the youth control order. (3) In sentencing the child, the Court must have regard to— (a) the period for which the youth control order has been in force; and (b) the extent of the child's compliance with the order. Subdivision 2—Youth control order planning meetings 409S Purpose of youth control order planning meeting The purpose of a youth control order planning meeting for a child is— (a) to develop, through discussion, a youth control order plan for the child; or (b) to review or vary a youth control order plan that is in force for a child. 409T Requirements for youth control order planning meetings (1) A youth control order planning meeting for a child must be chaired by a convenor appointed by a service approved under section 480A. -- 32 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 29 Authorised by the Chief Parliamentary Counsel (2) The convenor of the meeting is to fix the date on which, and the time and place at which, the meeting is to be held. (3) The meeting must be attended by the following— (a) the child; (b) the child's legal practitioner; (c) a youth justice officer, other than an honorary youth justice officer; (d) the convenor; (e) any other person directed by the Court to attend. (4) The meeting may be attended by one or more of the following, as directed by the Court— (a) members of the child's family; (b) persons of significance to the child; (c) persons of significance within the child's community; (d) police officers; (e) representatives of the Department of Education and Training; (f) social workers; (g) representatives of drug and alcohol services, mental health services, counselling services or other services; (h) child protection workers; (i) any other person permitted to attend by the convenor; (j) any other person. -- 33 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 30 Authorised by the Chief Parliamentary Counsel 409U Youth control order plan (1) A youth control order plan for a child is a plan designed to— (a) assist the child to take responsibility for his or her actions; and (b) reduce the likelihood of the child re-offending; and (c) provide the child with opportunities to receive instruction, guidance, assistance and experiences that will assist the child to develop the ability to abide by the law and complete the requirements of the youth control order; and (d) provide the Court with information about which requirements of the youth control order would best meet the objects of the order (as set out in section 409A). (2) A youth control order plan must be agreed to by the child. 409V Requirements for report of meeting The convenor of a youth control order planning meeting must— (a) prepare a report of the meeting for the Court; and (b) include in the report the youth control order plan agreed to by the child. 409W Youth control order planning meeting report to be filed with registrar A youth control order planning meeting report must be filed with the appropriate registrar at least 3 working days before the return date for proceedings in relation to the youth control order. -- 34 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 31 Authorised by the Chief Parliamentary Counsel 409X Access to youth control order planning meeting report The author of a youth control order planning meeting report must, at least 3 working days before the return date referred to in section 409W, send a copy of the report to— (a) the child who is the subject of the report and, if the child is aged under 15 years, the child's parent; and (b) the legal practitioner representing the child; and (c) any other person the Court has ordered is to receive a copy of the report. 409Y Confidentiality of meeting (1) Subject to section 409V and Division 1 of Part 7.8, the proceedings of a youth control order planning meeting are confidential except with the leave of the Court or consent of all the people who attended the meeting. (2) Nothing in subsection (1) prevents any of the following— (a) the convenor making a record of the proceedings at the youth control order planning meeting; (b) discussions taking place between any person who attended the meeting; (c) discussions taking place between the legal representatives of persons who attended the meeting. 409Z Report by appellate court (1) If an appellate court finds a person guilty of an offence and adjourns the proceedings for the purpose of a youth control order planning -- 35 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 32 Authorised by the Chief Parliamentary Counsel meeting, it must order a youth control order planning meeting report. (2) The report must be prepared by the convenor of the youth control order planning meeting. (3) Sections 430N and 430O apply to youth control order planning meeting reports under this section in the same way as they apply to group conference reports. Subdivision 3—Secretary 409ZA References to the Secretary In this Division— Secretary means the Secretary to the Department of Justice and Regulation.". 14 Group conferences In section 415(1) of the Principal Act— (a) in paragraph (e), for "412." substitute "412; or"; (b) after paragraph (e), insert— "(f) convicting the child and making a youth control order under section 409B.". 15 New section 480A inserted After section 480 of the Principal Act insert— "480A Approval of service as a youth control order planning meeting program (1) The Secretary to the Department of Justice and Regulation may— (a) approve a service operated by any person or body of persons (other than the Department of Justice and Regulation or the Department of -- 36 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 33 Authorised by the Chief Parliamentary Counsel Health and Human Services) as a youth control order planning meeting program; or (b) authorise a service operated by a person or class of persons employed by the Department of Justice and Regulation or the Department of Health and Human Services (other than a person working in an area of either Department that is responsible for youth justice or child protection)— as a youth control order planning meeting program. (2) An approval under subsection (1)— (a) may be of general or limited application; and (b) is given by sending by post to the person or body of persons concerned a notice of approval; and (c) may, if at any time the Secretary is satisfied that a youth control order planning meeting program is unable to provide services of an adequate standard, be withdrawn by sending by post to the person or body of persons concerned a notice of withdrawal of approval.". 16 Standard of services In section 481 of the Principal Act for "or 480" substitute ", 480 or 480A". -- 37 of 88 -- Part 3—Youth control orders Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 34 Authorised by the Chief Parliamentary Counsel 17 Proceedings in which a child is required to be legally represented (1) After section 525(2)(d) of the Principal Act insert— "(da) proceedings in respect of varying a youth control order to make the order more restrictive or revoking a youth control order;". (2) In section 525(2)(e) of the Principal Act, for "or youth attendance order" substitute ", youth attendance order or youth control order". 18 Explanation of and reasons for orders In section 527(4) of the Principal Act— (a) in paragraph (m), for "sentence." substitute "sentence;"; (b) after paragraph (m) insert— "(n) an order varying a youth control order.". 19 Reports to which Part applies In section 547 of the Principal Act— (a) in paragraph (h), for "reports." substitute "reports;"; (b) after paragraph (h) insert— "(i) youth control order planning meeting reports; (j) reports under section 409L(3) (child's compliance with youth control order).". -- 38 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 35 Authorised by the Chief Parliamentary Counsel Part 4—Serious youth offences Division 1—Amendments of the Sentencing Act 1991 20 Definitions In section 3(1) of the Sentencing Act 1991 insert the following definitions— "Category A serious youth offence means any of the following offences— (a) murder; (b) attempted murder; (c) manslaughter; (d) child homicide; (e) an offence against any of the following sections of the Crimes Act 1958— (i) section 15A (intentionally causing serious injury in circumstances of gross violence); (ii) section 77B (aggravated home invasion); (iii) section 79A (aggravated carjacking); (iv) section 197A (arson causing death); (v) section 318 (culpable driving causing death); (f) an offence against a provision of Division 101 of the Criminal Code of the Commonwealth; -- 39 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 36 Authorised by the Chief Parliamentary Counsel Category B serious youth offence means an offence against any of the following sections of the Crimes Act 1958— (a) section 15B (recklessly causing serious injury in circumstances of gross violence); (b) section 38 (rape); (c) section 39 (rape by compelling sexual penetration); (d) section 77A (home invasion); (e) section 79 (carjacking);". 21 Youth justice centre or youth residential centre order (1) In section 32(1) of the Sentencing Act 1991, for "and (2B)" substitute "(2B), (2C) and (2D)". (2) After section 32(2B) of the Sentencing Act 1991 insert— "(2C) If a young offender is to be sentenced for a category A serious youth offence, a court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist. (2D) If— (a) a young offender is to be sentenced for a category B serious youth offence; and -- 40 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 37 Authorised by the Chief Parliamentary Counsel (b) the young offender has previously been convicted of another offence that is a category A serious youth offence or a category B serious youth offence— a court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist.". Division 2—Amendments of the Children, Youth and Families Act 2005 22 Definitions In section 3(1) of the Principal Act insert the following definitions— "Category A serious youth offence means any of the following offences— (a) murder; (b) attempted murder; (c) manslaughter; (d) child homicide; (e) an offence against any of the following sections of the Crimes Act 1958— (i) section 15A (intentionally causing serious injury in circumstances of gross violence); (ii) section 77B (aggravated home invasion); (iii) section 79A (aggravated carjacking); (iv) section 197A (arson causing death); -- 41 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 38 Authorised by the Chief Parliamentary Counsel (v) section 318 (culpable driving causing death); (f) an offence against a provision of Division 101 of the Criminal Code of the Commonwealth; Category B serious youth offence means an offence against any of the following sections the Crimes Act 1958— (a) section 15B (recklessly causing serious injury in circumstances of gross violence); (b) section 38 (rape); (c) section 39 (rape by compelling sexual penetration); (d) section 77A (home invasion); (e) section 79 (carjacking).". 23 Procedure for indictable offences that may be heard and determined summarily (1) After section 356(3)(a) of the Principal Act insert— "(ab) subsection (6) applies; or". (2) After section 356(5) of the Principal Act insert— "(6) If a child is charged before the Court with a Category A serious youth offence committed when the child was aged 16 years or over, other than murder, attempted murder, manslaughter, child homicide, an offence against section 197A of the Crimes Act 1958 (arson causing death) or an offence against section 318 of the Crimes Act 1958 (culpable driving causing death), the Court must not hear and determine the charge summarily unless— -- 42 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 39 Authorised by the Chief Parliamentary Counsel (a) the child or the prosecution requests that the charge be heard and determined summarily; and (b) the Court is satisfied that the sentencing options available to it under this Act are adequate to respond to the child's offending; and (c) any of the following applies— (i) it is in the interests of the victim or victims that the charge be heard and determined summarily; (ii) the accused is particularly vulnerable because of cognitive impairment or mental illness; (iii) there is a substantial and compelling reason why the charge should be heard and determined summarily. (7) In determining whether there is a substantial and compelling reason why the charge should be heard and determined summarily, the Court must have regard to the intention of the Parliament that a charge for a Category A serious youth offence should not normally be heard and determined summarily. (8) If a child is charged before the Court with a Category B serious youth offence committed when the child was aged 16 years or over, the Court must consider whether subsection (3) has the effect that the offence should not be heard and determined summarily. (9) If a charge has been transferred to the Children's Court under section 168 of the Criminal Procedure Act 2009 because of the operation of section 168A of that Act— -- 43 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 40 Authorised by the Chief Parliamentary Counsel (a) the child or the prosecution may apply to the Court for the charge not to be heard and determined summarily; and (b) if such an application has been made, the Court must not hear and determine the charge summarily unless subsection (6) or (8), as the case requires, applies.". 24 Matters to be taken into account For section 362(1)(g) of the Principal Act substitute— "(g) the need to protect the community, or any person, from the violent or other wrongful acts of the child— (i) in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or (ii) in any other case—if it is appropriate to do so.". Division 3—Amendments of the Criminal Procedure Act 2009 25 Definitions In section 3 of the Criminal Procedure Act 2009 insert the following definitions— "Category A serious youth offence means any of the following offences— (a) murder; (b) attempted murder; (c) manslaughter; (d) child homicide; -- 44 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 41 Authorised by the Chief Parliamentary Counsel (e) an offence against any of the following sections of the Crimes Act 1958— (i) section 15A (intentionally causing serious injury in circumstances of gross violence); (ii) section 77B (aggravated home invasion); (iii) section 79A (aggravated carjacking); (iv) section 197A (arson causing death); (v) section 318 (culpable driving causing death); (f) an offence against a provision of Division 101 of the Criminal Code of the Commonwealth; Category B serious youth offence means an offence against any of the following sections the Crimes Act 1958— (a) section 15B (recklessly causing serious injury in circumstances of gross violence); (b) section 38 (rape); (c) section 39 (rape by compelling sexual penetration); (d) section 77A (home invasion); (e) section 79 (carjacking);". 26 Court may transfer certain charges to Magistrates' Court or Children's Court In section 168(2) of the Criminal Procedure Act 2009 for "The" substitute "Subject to section 168A, the". -- 45 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 42 Authorised by the Chief Parliamentary Counsel 27 New section 168A inserted After section 168 of the Criminal Procedure Act 2009 insert— "168A Category A and Category B serious youth offences—transfer (1) Despite section 168(2), the court may, under section 168(1), transfer a charge in respect of an accused who is a child to the Children's Court if— (a) the charge is for a Category A serious youth offence committed when the child was aged 16 years or over, other than murder, attempted murder, manslaughter, child homicide, an offence against section 197A of the Crimes Act 1958 (arson causing death) or an offence against section 318 of the Crimes Act 1958 (culpable driving causing death); and (b) the Children's Court has refused to hear and determine the charge summarily; and (c) the child or the prosecution requests that the charge be heard and determined summarily; and (d) the court is satisfied that the sentencing options available to the Children's Court under the Children, Youth and Families Act 2005 are adequate to respond to the child's offending; and (e) any of the following applies— (i) it is in the interests of the victim or victims that the charge be heard and determined summarily; -- 46 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 43 Authorised by the Chief Parliamentary Counsel (ii) the accused is particularly vulnerable because of cognitive impairment or mental illness; (iii) there is a substantial and compelling reason why the charge should be heard and determined summarily. (2) In determining whether there is a substantial and compelling reason why the charge should be heard and determined summarily, the court must have regard to the intention of the Parliament that a charge for a Category A serious youth offence should not normally be heard and determined summarily. (3) Despite section 168(2), the court may, under section 168(1), transfer a charge to the Children's Court if the charge is for a Category B serious youth offence committed when the child was aged 16 years or over, after considering whether section 356(3) of the Children, Youth and Families Act 2005 has the effect that the offence should not be heard and determined summarily.". Division 4—Mandatory parole conditions 28 Release of person from remand centre etc. For section 458(4) of the Principal Act substitute— "(4) Subject to any determination of the Youth Parole Board, a parole order is subject to— (a) the prescribed terms and conditions; and (b) any conditions imposed under section 458A.". -- 47 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 44 Authorised by the Chief Parliamentary Counsel 29 New section 458A inserted After section 458 of the Principal Act, insert— "458A Certain conditions to be imposed in relation to certain offences (1) The Youth Parole Board must impose the conditions referred to in subsection (3) on a parole order in relation to a person if— (a) the person was detained in a youth justice centre or a youth residential centre or was otherwise subject to the jurisdiction of the Youth Parole Board; and (b) the person was detained in respect of— (i) a Category A serious youth offence committed when the person was aged 16 years or over; or (ii) a Category B serious youth offence committed when the person was aged 16 years or over, if the person had previously been convicted of a Category A serious youth offence or a Category B serious youth offence. (2) Despite subsection (1), the Youth Parole Board is not required to impose the conditions referred to in subsection (3) if the Youth Parole Board considers that the person has demonstrated a history of good behaviour and positive engagement with rehabilitation programs throughout the period of detention for the offence referred to in subsection (1)(b). -- 48 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 45 Authorised by the Chief Parliamentary Counsel (3) For the purposes of subsection (1), the conditions that the Youth Parole Board must impose are as follows— (a) the person must not break any law; (b) the person must be supervised by a parole officer; (c) the person must obey any lawful instructions of that parole officer; (d) the person must report as and when reasonably directed by that parole officer; (e) the person may be interviewed by that parole officer at any reasonable time and place directed by that parole officer; (f) the person must, within 2 days of changing his or her address, advise that parole officer of the change of address; (g) the person must not leave Victoria without the written permission of the Youth Parole Board; (h) any other condition the Youth Parole Board considers necessary for the protection of any victim of an offence referred to in subsection (1)(b); (i) if the Youth Parole Board considers it appropriate having regard to the circumstances of any offence referred to in subsection (1)(b), one or more of the following— (i) that the person not visit particular places or areas, or only visit the places or areas at specified times; -- 49 of 88 -- Part 4—Serious youth offences Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 46 Authorised by the Chief Parliamentary Counsel (ii) that the person not contact specified persons or classes of person; (iii) that the person undergo rehabilitation and treatment ordered by the Youth Parole Board; (iv) that the person attend a day program specified by the Youth Parole Board.". -- 50 of 88 -- Part 5—Custodial management powers Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 47 Authorised by the Chief Parliamentary Counsel Part 5—Custodial management powers 30 New section 487A inserted After section 487 of the Principal Act insert— "487A Exemption from liability Without affecting the liability of the Crown or any other body or person, an officer is not personally liable for injury or damage caused by the use of reasonable force in accordance with section 487.". 31 New section 488AA inserted After section 488 of the Principal Act insert— "488AA Reporting on use of reasonable force and isolation (1) This section applies if an officer takes any of the following actions at a remand centre, youth justice centre or youth residential facility in relation to a detainee— (a) uses physical force; (b) places the detainee in isolation in accordance with section 488(7). (2) As soon as possible after taking the action, the officer must report the taking of the action to the Officer in Charge of the remand centre, youth residential centre or youth justice centre in which the detainee is detained or to or from which the detainee is being transported. (3) As soon as possible after receiving a report under subsection (2), the Officer in Charge must report the taking of the action by the officer to the Secretary to the Department of Justice and Regulation.". -- 51 of 88 -- Part 6—Amendments relating to youth justice placement decisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 48 Authorised by the Chief Parliamentary Counsel Part 6—Amendments relating to youth justice placement decisions Division 1—Amendments relating to transfer and co-location 32 Form of care, custody or treatment For section 482(1)(c)(ii) of the Principal Act substitute— "(ii) either— (A) the persons on remand consent; or (B) the persons on remand have previously served a period of detention, it is in the best interests of each person on remand to be accommodated with persons who are serving a period of detention and it is reasonably necessary to accommodate persons on remand with persons who are serving a period of detention; and". 33 Removal of person from remand centre etc. After section 484(5) of the Principal Act insert— "(6) When making a decision under this section to cause the removal of a person under subsection (1)(a), (b) or (c), the Secretary to the Department of Justice and Regulation, in the Secretary's complete discretion, may have regard to the following— (a) the availability and appropriateness of accommodation for the combination of all persons detained across all remand centres, youth residential centres and youth justice centres; -- 52 of 88 -- Part 6—Amendments relating to youth justice placement decisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 49 Authorised by the Chief Parliamentary Counsel (b) the safety, security and good order of any remand centre, youth residential centre or youth justice centre; (c) the safety, security and needs of any person detained at any remand centre, youth residential centre or youth justice centre; (d) the safety of any person at any remand centre, youth residential centre or youth justice centre; (e) any matter that the Secretary to the Department of Justice and Regulation considers relevant. (7) For the avoidance of doubt, the Secretary to the Department of Justice and Regulation is not required to afford procedural fairness in making any decision under this section.". Division 2—Amendments relating to remand 34 When is a person in the legal custody of the Secretary? After section 6A(2) of the Corrections Act 1986 insert— "(2A) Subsection (2) applies despite an order of the Children's Court or any other court that the person is to be remanded as a child.". 35 Power to adjourn proceeding For the note at the foot of section 331(2) of the Criminal Procedure Act 2009 substitute— "Notes 1 See section 333 of this Act and section 5A of the Bail Act 1977 where the accused is undergoing a sentence of detention in a youth justice centre. -- 53 of 88 -- Part 6—Amendments relating to youth justice placement decisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 50 Authorised by the Chief Parliamentary Counsel 2 If an order is made under paragraph (a) or (c) and the accused is the subject of a youth remand warrant that was issued in another criminal proceeding, the youth remand warrant remains in effect. 3 If an accused is remanded into custody under paragraph (b), section 6A(2A) of the Corrections Act 1986 provides that the remand order under paragraph (b) takes effect despite the existence of a youth remand warrant.". 36 Power to return accused to youth justice centre (1) In section 333(1) of the Criminal Procedure Act 2009, after "court may," insert "subject to subsection (3),". (2) After section 333(2) of the Criminal Procedure Act 2009 insert— "(3) If the prosecution in a criminal proceeding objects to the accused being returned to a youth justice centre under subsection (1), the court may only order that the accused is to be returned to the youth justice centre if the court has considered— (a) the antecedents and behaviour of the accused; and (b) the age and maturity of the accused; and (c) any evidence of the behaviour of the accused in custody; and (d) whether an application has been made to the Youth Parole Board regarding the custody of the accused; and (e) any other relevant factor.". -- 54 of 88 -- Part 6—Amendments relating to youth justice placement decisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 51 Authorised by the Chief Parliamentary Counsel 37 New section 3C of the Bail Act 1977 inserted After section 3B of the Bail Act 1977 insert— "3C Determination in relation to a person of or over the age of 18 years in a remand centre If— (a) the accused in a criminal proceeding in any court is of or over the age of 18 years and is in a remand centre (within the meaning of the Children, Youth and Families Act 2005), pursuant to a remand warrant issued when the accused was aged under 18; and (b) the criminal proceeding relates to one or more offences alleged to have been committed when the accused was of or over the age of 18 years— in making a determination under this Act in relation to the accused, the court must take into account (in addition to any other requirements of this Act)— (c) whether the accused has engaged in conduct that threatens the good order and safe operation of the youth remand centre; and (d) whether the accused can be properly controlled in the youth remand centre.". 38 Power to return accused to youth justice centre (1) In section 5A(1) of the Bail Act 1977, after "Court may," insert "subject to subsection (3),". -- 55 of 88 -- Part 6—Amendments relating to youth justice placement decisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 52 Authorised by the Chief Parliamentary Counsel (2) After section 5A(2) of the Bail Act 1977 insert— "(3) The Supreme Court or the County Court may only order that the accused is to be returned to a youth justice centre under subsection (1) if the Supreme Court or the County Court has considered— (a) the antecedents and behaviour of the accused; and (b) the age and maturity of the accused; and (c) any evidence of the behaviour of the accused in custody; and (d) whether an application has been made to the Youth Parole Board regarding the custody of the accused; and (e) any other relevant factor.". -- 56 of 88 -- Part 7—Information sharing Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 53 Authorised by the Chief Parliamentary Counsel Part 7—Information sharing 39 New Division 4 of Part 5.5 inserted After Division 3 of Part 5.5 of the Principal Act insert— "Division 4—Information sharing 454 Information sharing by Secretary about incidents (1) The Secretary to the Department of Justice and Regulation must notify the Youth Parole Board in writing within 48 hours of becoming aware that a person detained in a youth residential centre or a youth justice centre— (a) has been involved in an incident that has threatened the safety or security of the centre; or (b) has engaged in conduct that has threatened the safety of another person, or damaged property, at the centre. (2) After receiving a notice under subsection (1), the Youth Parole Board may request further additional information about the incident or conduct and may specify a reasonable period within which the additional information is to be provided. (3) If the Youth Parole Board requests further additional information under subsection (2), the Secretary must provide the additional information within the specified period. -- 57 of 88 -- Part 7—Information sharing Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 54 Authorised by the Chief Parliamentary Counsel (4) If the Secretary notifies the Youth Parole Board of a person's involvement in an incident or conduct under subsection (1)— (a) the Secretary must notify the person that he or she has done so; and (b) the Youth Parole Board must give the person an opportunity to comment on that involvement or conduct. 455 Information sharing by Youth Parole Board about release (1) The Youth Parole Board must notify Victoria Police of— (a) the release on parole, or scheduled release on parole, of a person detained in a youth residential centre or a youth justice centre, if the detention related to at least one Category A serious youth offence or Category B serious youth offence; and (b) any conditions of the parole. (2) The Youth Parole Board may notify Victoria Police of— (a) the release on parole, or scheduled release on parole of any other person detained in a youth residential centre or a youth justice centre; and (b) any conditions of the parole.". 40 Restriction on publication of proceedings (1) After section 534(3) of the Principal Act insert— "(3A) The Secretary to the Department of Justice and Regulation may grant permission for the publication of any identifying particular of any person who has escaped from a remand centre, a youth residential centre or a youth -- 58 of 88 -- Part 7—Information sharing Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 55 Authorised by the Chief Parliamentary Counsel justice centre if the Secretary is satisfied that publication— (a) is reasonably necessary for the safety of the person who has escaped or any other person; or (b) will assist in apprehending the person or protecting the community. (3B) In making a decision under subsection (3A), the Secretary must— (a) have regard to the desirability of minimising the stigma to the person and the child's family; and (b) grant permission for publication only to the extent necessary to apprehend the person.". (2) In section 534(4) of the Principal Act, for "and (3)" substitute ", (3), (3A) and (3B)". -- 59 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 56 Authorised by the Chief Parliamentary Counsel Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Division 1—Consequences of assaults on staff 41 Definitions (1) In section 3(1) of the Principal Act insert the following definitions— "offence involving an assault means an offence against any of the following sections of the Crimes Act 1958— (a) section 15A (intentionally causing serious injury in circumstances of gross violence); (b) section 15B (recklessly causing serious injury in circumstances of gross violence); (c) section 16 (intentionally causing serious injury); (d) section 17 (recklessly causing serious injury); (e) section 18 (intentionally or recklessly causing serious injury); offence involving property damage means— (a) an offence against section 197 of the Crimes Act 1958 (criminal damage); or (b) an offence against section 9(1)(c) of the Summary Offences Act 1966 (wilful damage); -- 60 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 57 Authorised by the Chief Parliamentary Counsel youth justice custodial worker means a person— (a) who is employed or engaged by the Secretary to the Department of Justice and Regulation in a remand centre, a youth residential centre or a youth justice centre; and (b) whose duties include duties in relation to detainees in the custody of the Secretary;". (2) After section 3(4) of the Principal Act, insert— "(5) For the purposes of the definition of youth justice custodial worker in subsection (1), a youth justice custodial worker is on duty at any time when the youth justice custodial worker is performing a function or exercising a power as a youth justice custodial worker.". 42 Matters to be taken into account In section 362 of the Principal Act— (a) in paragraph (g), for "child." substitute "child; and"; (b) after paragraph (g) insert— "(h) if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.". 43 Youth residential centre orders (1) In section 411(2)(a) of the Principal Act for "any" (where first occurring), substitute "subject to subsection (2A), any". -- 61 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 58 Authorised by the Chief Parliamentary Counsel (2) After section 411(2) of the Principal Act insert— "(2A) If one or more of the offences referred to in subsection (2) is— (a) an offence involving an assault on a youth justice custodial worker on duty; or (b) an offence constituted by escape from a remand centre, youth justice centre or a youth residential centre; or (c) an offence involving property damage to a remand centre, a youth justice centre or a youth residential centre— any period of detention imposed on the child for that offence or those offences must be served cumulatively with any period of detention in respect of any of the other offences, unless the Court, at the time of sentencing, states that the sentences are concurrent and gives reasons for its decision.". (3) In section 411(5) of the Principal Act, for "32 and", substitute "32, 32A and". 44 Youth justice centre orders (1) In section 413(3)(a) of the Principal Act, for "any" (where first occurring) substitute "subject to subsection (3A), any". (2) After section 413(3) of the Principal Act insert— "(3A) If one or more of the offences referred to in subsection (3) is— (a) an offence involving an assault on a youth justice custodial worker on duty; or -- 62 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 59 Authorised by the Chief Parliamentary Counsel (b) an offence constituted by escape from a remand centre or a youth justice centre; or (c) an offence involving property damage to a remand centre or a youth residential centre or a youth justice centre— any period of detention imposed on the child for that offence or those offences must be served cumulatively with any period of detention in respect of any of the other offences, unless the Court, at the time of sentencing, states that the sentences are concurrent and gives reasons for its decision.". (3) In section 413(4) of the Principal Act for "Every", substitute "Subject to subsection (4A), every". (4) After section 413(4) of the Principal Act insert— "(4A) If one or more of the offences to which a sentence of detention referred to in subsection (4) is— (a) an offence involving an assault on a youth justice custodial worker on duty; or (b) an offence constituted by escape from a remand centre or a youth justice centre; or (c) an offence involving property damage to a remand centre or a youth justice centre— any period of detention imposed on the child for that offence or those offences must be served cumulatively with any uncompleted sentence or sentences of detention in a youth justice centre imposed on the child, unless -- 63 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 60 Authorised by the Chief Parliamentary Counsel the Court, at the time of sentencing, states that the sentences are concurrent and gives reasons for its decision.". 45 Definitions In section 3(1) of the Sentencing Act 1991 insert the following definitions— "offence involving an assault means an offence against any of the following sections of the Crimes Act 1958— (a) section 15A (intentionally causing serious injury in circumstances of gross violence); (b) section 15B (recklessly causing serious injury in circumstances of gross violence); (c) section 16 (intentionally causing serious injury); (d) section 17 (recklessly causing serious injury); (e) section 18 (intentionally or recklessly causing injury); offence involving property damage means— (a) an offence against section 197 of the Crimes Act 1958 (criminal damage); or (b) an offence against section 9(1)(c) of the Summary Offences Act 1966 (wilful damage);". -- 64 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 61 Authorised by the Chief Parliamentary Counsel 46 Custodial sentence for certain offences against emergency workers and custodial officers on duty (1) In section 10AA(1), (2), (4) and (5)(a) of the Sentencing Act 1991 for "or a custodial officer on duty" substitute ", a custodial officer on duty or a youth justice custodial worker on duty". (2) In section 10AA(5)(b) of the Sentencing Act 1991, after "custodial officer" insert "or a youth justice custodial worker". (3) In section 10AA(8) of the Sentencing Act 1991— (a) in the definition of hospital, for "1988." substitute "1988;"; (b) insert the following definition— "youth justice custodial worker means a person— (a) who is employed or engaged by the Secretary to the Department of Justice and Regulation in a remand centre, a youth residential centre or a youth justice centre; and (b) whose duties include duties in relation to detainees in the custody of the Secretary.". (4) After section 10AA(10) of the Sentencing Act 1991 insert— "(11) For the purposes of this section, a youth justice custodial worker is on duty at any time when he or she is performing a function or exercising a power as a youth justice custodial worker.". -- 65 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 62 Authorised by the Chief Parliamentary Counsel (5) For the heading to section 10AA of the Sentencing Act 1991 substitute— "Assaulting, etc. emergency workers, custodial officers and youth justice custodial workers on duty". 47 Special reasons relevant to imposing minimum non-parole periods In section 10A(2A) of the Sentencing Act 1991, for "or a custodial officer on duty " substitute ", a custodial officer on duty or a youth justice custodial worker on duty". 48 Assaults (1) In section 31(1)(b) of the Crimes Act 1958— (a) after "duty" insert "or a youth justice custodial worker on duty,"; (b) after "was an emergency worker" insert "or a youth justice custodial worker". (2) In section 31(1)(ba) of the Crimes Act 1958— (a) after "duty" insert "or a youth justice custodial worker on duty,"; (b) after "was assisting an emergency worker" insert "or a youth justice custodial worker". (3) In section 31(2A) of the Crimes Act 1958, in the definition of emergency worker on duty and emergency worker, for "emergency worker on duty and emergency worker" substitute "emergency worker on duty, emergency worker, youth justice custodial worker on duty and youth justice custodial worker". -- 66 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 63 Authorised by the Chief Parliamentary Counsel 49 Assaulting, etc. emergency workers, custodial officers or local authority staff on duty (1) For the heading to section 51 of the Summary Offences Act 1966 substitute— "Assaulting, etc. emergency workers, custodial officers, youth justice custodial workers or local authority staff on duty". (2) In section 51(1) of the Summary Offences Act 1966— (a) in the definition of emergency worker on duty and emergency worker, for "1991." substitute "1991;"; (b) insert the following definition— "youth justice custodial worker on duty and youth justice custodial worker have the same meanings as in section 10AA of the Sentencing Act 1991.". (3) In section 51(2) of the Summary Offences Act 1966, for "duty or a custodial officer on duty" substitute "duty, a custodial officer on duty or a youth justice custodial worker on duty". (4) In section 51(4) of the Summary Offences Act 1966, for "duty or a custodial officer on duty" insert "duty, a custodial officer on duty or a youth justice custodial worker on duty". (5) For section 51(5) of the Summary Offences Act 1966 substitute— "(5) In addition to imposing a penalty under this section, the court may order and award a sum sufficient to cover any damage which an emergency worker, a custodial officer, a youth justice custodial worker or a member of staff of a local authority or a person lawfully assisting an emergency worker, a custodial officer or a youth justice custodial -- 67 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 64 Authorised by the Chief Parliamentary Counsel worker has sustained by the assault, resistance, obstruction, hindrance or delay.". 50 Sentences—whether concurrent or cumulative In section 16(1A) of the Sentencing Act 1991— (a) in paragraph (e), for "offence." substitute "offence; or"; (b) after paragraph (e) insert— "(f) on a young offender because of the operation of section 33(1A).". 51 Sentence to be concurrent unless otherwise directed (1) In section 33(1) of the Sentencing Act 1991, for "Every" substitute "Subject to subsection (1A), every". (2) After section 33(1) of the Sentencing Act 1991 insert— "(1A) If one or more of the offences referred to in subsection (1) is— (a) an offence of escape from a remand centre, a youth residential centre or a youth justice centre; or (b) an offence involving property damage to a remand centre, a youth residential centre or a youth justice centre— any period of detention imposed on the young offender for that offence or those offences must be served cumulatively with any uncompleted sentence or sentences of detention in a youth justice centre imposed on the child, unless the Court, at the time of sentencing, states that the sentences are concurrent and gives reasons for its decision.". -- 68 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 65 Authorised by the Chief Parliamentary Counsel Division 2—Increase in penalties 52 Youth justice centre orders (1) In section 413(2) of the Principal Act, for "2 years" substitute "3 years". (2) In section 413(3)(b) of the Principal Act, for "3 years" substitute "4 years". 53 Offence to escape or attempt to escape etc. In the penalty at the foot of section 498(1) of the Principal Act— (a) in paragraph (a), for "3 months" substitute "6 months"; (b) in paragraph (b), for "6 months" substitute "12 months"; (c) in paragraph (c), for "6 months" substitute "12 months". 54 Offence to harbour or conceal person In the penalty at the foot of section 499 of the Principal Act— (a) for "15 penalty units" substitute "120 penalty units"; (b) for "3 months" substitute "12 months". 55 Offence to counsel or induce person to escape In the penalty at the foot of section 500 of the Principal Act— (a) for "15 penalty units" substitute "120 penalty units"; (b) for "3 months" substitute "12 months". -- 69 of 88 -- Part 8—Responding to offences in remand centres, youth residential centres and youth justice centres Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 66 Authorised by the Chief Parliamentary Counsel 56 Offences in relation to persons held in centres (1) In the penalty at the foot of section 501(1) of the Principal Act— (a) for "15 penalty units" substitute "120 penalty units"; (b) for "3 months" substitute "12 months". (2) In the penalty at the foot of section 501(2) of the Principal Act— (a) for "15 penalty units" substitute "120 penalty units"; (b) for "3 months" substitute "12 months". 57 Offence to obstruct Secretary or employee In the penalty at the foot of section 503 of the Principal Act— (a) for "15 penalty units" substitute "120 penalty units"; (b) for "3 months" substitute "12 months". 58 Youth justice centre or youth residential centre order In section 32(3)(b) of the Sentencing Act 1991, for "3 years" substitute "4 years". -- 70 of 88 -- Part 9—Youth diversion and other amendments Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 67 Authorised by the Chief Parliamentary Counsel Part 9—Youth diversion and other amendments 59 New Division 3A inserted in Part 5.2 After Division 3 of Part 5.2 of the Principal Act insert— "Division 3A—Diversion 356B Application of Division (1) This Division does not apply to— (a) an offence punishable by a minimum or fixed sentence or penalty, including cancellation or suspension of a licence or permit to drive a motor vehicle and disqualification under the Road Safety Act 1986 or the Sentencing Act 1991 from obtaining such a licence or permit or from driving a motor vehicle on a road in Victoria but not including the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act; or (b) an offence against section 49(1) of the Road Safety Act 1986 not referred to in paragraph (a). (2) This Division does not affect the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act. 356C Purposes of diversion The following purposes of diversion are to guide the operation of this Division— (a) a child should be diverted away from the criminal justice system where possible and appropriate; -- 71 of 88 -- Part 9—Youth diversion and other amendments Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 68 Authorised by the Chief Parliamentary Counsel (b) the risk of stigma being caused to a child by contact with the criminal justice system should be reduced; (c) a child should be encouraged to accept responsibility for unlawful behaviour; (d) a child's offending should be responded to in a manner that acknowledges the child's needs and assists with rehabilitation; (e) a child should be provided with opportunities to strengthen and preserve relationships with family and other persons of importance in the child's life; (f) a child should be provided with ongoing pathways to connect with education, training and employment. 356D Adjournment to undertake diversion program (1) Subject to this Division, at any time before taking a formal plea from a child in a criminal proceeding for an offence, the Court may, on its own motion or on application by the child or the prosecutor, adjourn the proceeding for a period not exceeding 4 months to enable the child to participate in and complete a diversion program. (2) The Court may refuse to accept a plea of guilty from a child in a criminal proceeding for an offence, or may allow the child to withdraw such a plea, if— (a) there has been no application for an adjournment under subsection (1); and (b) the Court considers it necessary to consider the appropriateness of diversion; and -- 72 of 88 -- Part 9—Youth diversion and other amendments Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 69 Authorised by the Chief Parliamentary Counsel (c) the Court has not heard any evidence in the proceeding; and (d) in the case of a withdrawal of a plea, the Court is satisfied that the prosecutor does not object to diversion. (3) Despite anything to the contrary in subsection (1), the Court may not adjourn a proceeding for the purpose of the child completing a diversion program if— (a) the prosecutor does not consent to the adjournment; or (b) the child does not consent to the adjournment in accordance with section 356E. (4) The Court, as far as practicable, must consider the following matters when determining whether to grant an adjournment under subsection (1)— (a) the seriousness and the nature of the offending; (b) the seriousness and the nature of any previous offending; (c) the impact on the victim (if any); (d) the interests of justice and any other matter the Court considers appropriate. (5) In considering the matters in subsection (4), the Court may inform itself in any way it considers appropriate. -- 73 of 88 -- Part 9—Youth diversion and other amendments Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 70 Authorised by the Chief Parliamentary Counsel 356E Acknowledgement of responsibility and consent to diversion by the child (1) An adjournment must not be granted under section 356D(1) unless the child— (a) acknowledges to the Court responsibility for the offence; and (b) consents to the Court adjourning the proceeding for the purpose of the child participating in a diversion program. (2) A child's acknowledgement to the Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea. (3) A plea withdrawn under section 356D(2) is inadmissible as evidence in a proceeding for the offence and does not constitute a plea. 356F Prosecutorial consent to diversion A prosecutor must consider the following matters when determining whether to consent to an adjournment under section 356D(1)— (a) the availability of suitable diversion programs; (b) the impact on the victim (if any); (c) the child's failure to complete previous diversion programs (if any); (d) the alleged level of involvement of the child in the offending; (e) any other matter that the prosecutor considers relevant. -- 74 of 88 -- Part 9—Youth diversion and other amendments Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 71 Authorised by the Chief Parliamentary Counsel 356G Matters to be considered when determining the type of diversion program (1) The Court, as far as practicable, must consider the following matters when determining the type of diversion program to be ordered— (a) the diversion program should not be more punitive than the sentence that would have been imposed had the child been found guilty; (b) the diversion program should be achievable by the child and measurable; (c) the personal characteristics and circumstances of the child; (d) the desirability of maintaining a child's engagement in education, training and employment; (e) the diversion program should be culturally appropriate; (f) the impact on the victim (if any); (g) the appropriateness of a restorative approach; (h) any other matter the Court considers appropriate. (2) In considering the matters in subsection (1), the Court may inform itself in any way it considers appropriate. 356H Extension of adjournment (1) Despite anything to the contrary in section 356D, the Court may adjourn the proceeding for a further period not exceeding 2 months if it considers it to be appropriate -- 75 of 88 -- Part 9—Youth diversion and other amendments Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 72 Authorised by the Chief Parliamentary Counsel to enable the completion of the diversion program. (2) The total period of the adjournment under section 356D(1) and subsection (1) must not exceed 6 months. 356I Conclusion of the diversion program (1) If a child completes a diversion program to the satisfaction of the Court— (a) no plea to the charge is to be taken, or if a plea to the charge was withdrawn under section 356D(2) no further plea to the charge is to be taken; and (b) the Court must discharge the child without any finding of guilt; and (c) the fact of participation in the diversion program is not to be treated as a finding of guilt except for the purposes of— (i) Division 1 of Part 3 and Part 10 of the Confiscation Act 1997; and (ii) section 9 of the Control of Weapons Act 1990; and (iii) section 151 of the Firearms Act 1996; and (iv) Part 4 of the Sentencing Act 1991; and (d) the fact of participation in the diversion program and the discharge of the child is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances. Note In relation to subsection (1)(c)(iv) see section 417. -- 76 of 88 -- Part 9—Youth diversion and other amendments Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 73 Authorised by the Chief Parliamentary Counsel (2) If a child does not complete a diversion program to the satisfaction of the Court and the child is subsequently found guilty of the charge, the Court must take into account the extent to which the child complied with the diversion program when sentencing the child. 356J Diversion program and community service activities If an adjournment is granted under section 356D(1) and the diversion program requires a person to engage in community service activities, section 407(3) of this Act applies as if a reference to a direction under subsection (1) were a reference to a diversion program. 356K Natural justice Nothing in this Division affects the requirement to observe the rules of natural justice.". 60 Offences in relation to community service etc. At the end of section 497 of the Principal Act insert— "(2) For the purposes of subsection (1)(c), the Secretary may issue a written instruction to any person directing the person not to attempt to have contact with a child placed under an interim accommodation order or by the Secretary under section 173. (3) An instruction under subsection (2) must be served in accordance with section 593.". -- 77 of 88 -- Part 9—Youth diversion and other amendments Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 74 Authorised by the Chief Parliamentary Counsel 61 Offences in relation to persons held in centres After section 501(4) of the Principal Act insert— "(5) For the purposes of subsection (1)(a), the Secretary may issue a written instruction to any person directing the person not to communicate or attempt to communicate with a person held in a remand centre, youth residential centre, youth justice centre or youth justice unit in contravention of the instruction. (6) An instruction under subsection (5) must be served in accordance with section 593.". 62 Circumstances in which Koori Court (Criminal Division) may deal with breach of a sentence imposed by it or another Division of the Children's Court (1) In section 518A(c)(iii) of the Principal Act, for "Division; and" substitute "Division; or". (2) After section 518A(c)(iii) of the Principal Act insert— "(iv) intends to consent to the adjournment of the proceeding under section 356D to enable the child to participate in a diversion program; and". 63 Circumstances in which Koori Court (Criminal Division) may deal with certain offences (1) In section 519(1)(c)(iii) of the Principal Act, for "Division; and" substitute "Division; or". (2) After section 519(1)(c)(iii) of the Principal Act insert— "(iv) intends to consent to the adjournment of the proceeding under section 356D to enable the child to participate in a diversion program; and". -- 78 of 88 -- Part 10—Transitional provisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 75 Authorised by the Chief Parliamentary Counsel Part 10—Transitional provisions 64 Transitional provisions (1) After section 160 of the Sentencing Act 1991 insert— "161 Transitional provision—Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (1) The amendments made to section 32 of this Act by section 21 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the sentencing of an offender for an offence alleged to have been committed on or after the commencement of that section, irrespective of when the previous offence referred to in section 32(2D)(b) of this Act (as inserted by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017) was committed. (2) The amendments made to this Act by Division 1 and 2 of Part 8 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply respectively to the sentencing of an offender, or the hearing of a charge, for an offence alleged to have been committed on or after the commencement of that Part. (3) For the purposes of subsection (1) and (2), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, the offence is alleged to have been committed before that commencement.". -- 79 of 88 -- Part 10—Transitional provisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 76 Authorised by the Chief Parliamentary Counsel (2) After Schedule 5 to the Children, Youth and Families Act 2005 insert— "Schedule 6—Transitional provisions relating to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 1 Transitional provisions—Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (1) The amendments made to this Act by Division 2 of Part 4 of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the sentencing of an offender for an offence alleged to have been committed on or after the commencement of that Part. (2) The amendments made to this Act by section 29 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the detention of a person for an offence for which the person has been convicted on or after the commencement of that section, irrespective of when the previous offence referred to in section 458A(1)(b)(ii) of this Act (as inserted by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017) was committed, being an offence committed when the person was aged 16 years or over. -- 80 of 88 -- Part 10—Transitional provisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 77 Authorised by the Chief Parliamentary Counsel (3) The amendments made to this Act by Divisions 1 and 2 of Part 8 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (other than by section 52 of that Act) apply respectively to the sentencing of an offender, or the hearing of a charge, for an offence alleged to have been committed on or after the commencement of that Part.". (3) After section 63 of the Summary Offences Act 1966 insert— "64 Transitional provision—Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (1) The amendments made to this Act by Division 1 of Part 8 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the sentencing of an offender for an offence alleged to have been committed on or after the commencement of that Part. (2) For the purposes of subsections (1), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, the offence is alleged to have been committed before that commencement.". -- 81 of 88 -- Part 10—Transitional provisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 78 Authorised by the Chief Parliamentary Counsel (4) After Schedule 4 of the Criminal Procedure Act Act 2009 insert— "Schedule 5—Transitional provisions relating to the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 1 Transitional provision—Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (1) The amendments made to this Act by Division 3 of Part 4 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 apply to the hearing of a charge for an offence alleged to have been committed on or after the commencement of that Division. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Division 3 of Part 4 of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, the offence is alleged to have been committed before that commencement.". (5) After section 628 of the Crimes Act 1958 insert— "629 Transitional provision—Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (1) The amendments made to this Act by Division 1 of Part 8 of the Children and Justice Legislation Amendment -- 82 of 88 -- Part 10—Transitional provisions Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 79 Authorised by the Chief Parliamentary Counsel (Youth Justice Reform) Act 2017 apply to the sentencing of an offender for an offence alleged to have been committed on or after the commencement of that Part. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Division 1 of Part 8 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, the offence is alleged to have been committed before that commencement.". -- 83 of 88 -- Part 11—Amendments relating to review of Act Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 80 Authorised by the Chief Parliamentary Counsel Part 11—Amendments relating to review of Act 65 New Part 5.9 inserted After Part 5.8 of Chapter 5 of the Principal Act insert— "Part 5.9—Review of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 492B Review of Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (1) The Minister must undertake a review of the amendments made to this Act and other Acts by the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 to determine whether the policy objectives of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 remain valid and whether the amendments made by that Act remain appropriate to achieve those objectives. (2) The review is to be undertaken as soon as possible after the third anniversary of the first day on which all the provisions of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 have commenced. (3) Without limiting the matters that the review may consider, the review must cover the following matters— (a) the effects of the amendments made by the Children and Justice Legislation Amendment (Youth Justice Reform) -- 84 of 88 -- Part 11—Amendments relating to review of Act Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 81 Authorised by the Chief Parliamentary Counsel Act 2017, whether adverse or otherwise, on the following— (i) rates of offending and re-offending; (ii) incarceration of young people; (iii) community safety; (iv) the long-term well-being of children and young people in contact with the justice system; (b) the operation of youth control orders; (c) the operation of youth diversion strategies and programs; (d) the operation of the system known as the dual track system; (e) the categorisation of certain offences as serious youth offences, and the effect of this categorisation on decisions about bail, non-custodial sentences and the placement of young adults in youth justice centres; (f) whether the incarceration of Aboriginal or Torres Strait Islander children and young people has increased or decreased as a proportion of the total incarcerated population of young people in Victoria since the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 received the Royal Assent; (g) whether any additional legislative, administrative or policy reform is necessary to improve the operation of Victoria's youth justice system. -- 85 of 88 -- Part 11—Amendments relating to review of Act Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 82 Authorised by the Chief Parliamentary Counsel (4) The Minister must cause a report on the review to be laid before each House of the Parliament not later than 12 months after the third anniversary of the first day on which all the provisions of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 have commenced.". -- 86 of 88 -- Part 12—Repeal of amending Act Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 83 Authorised by the Chief Parliamentary Counsel Part 12—Repeal of amending Act 66 Repeal of amending Act This Act is repealed on 1 June 2019. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═════════════ -- 87 of 88 -- Endnotes Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 No. 43 of 2017 84 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 25 May 2017 Legislative Council: 8 June 2017 The long title for the Bill for this Act was "A Bill for an Act to amend the Crimes Act 1958 in relation to recruiting children to engage in criminal activity, to amend the Children, Youth and Families Act 2005 in relation to the hearing of proceedings, sentencing, the removal to and from, and detention of, persons at remand centres, youth residential centres and youth justice centres, and to deal with offences committed at those centres, to further provide for management of detainees and youth offenders, to provide for the increase of penalties for certain offences, to make provision in relation to information sharing, to amend the Sentencing Act 1991 and other Acts in relation to serious youth offences, to amend the Corrections Act 1986 and other Acts in relation to remand, and for other purposes." -- 88 of 88 --