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Published: 03 June 2020
Author: Penny Savidis

Reforms welcomed to avoid sending young offenders to jail

In typically inflammatory language, the Herald Sun has labelled suggestions by Victoria’s Sentencing Advisory Council (“the Council”) to reform how the justice system deals with young offenders who have experienced trauma, including abuse, as a “Radical call for soft sentencing laws for teenage thugs”.

However, the report, “‘Crossover Kids’: Vulnerable Children in the Youth Justice System Report 3: Sentencing Children Who Have Experienced Trauma”, contains a number of well researched and reasoned suggestions for reform to address injustices experienced by traumatised children who are involved in both the criminal justice and child protection systems.

In its third and final report released yesterday, the Council examined 5,063 Victorian children who were sentenced or diverted in the Children’s Court of Victoria between 1 January 2016 and 31 December 2017. The Council looked at how and why the studied group became involved with the criminal justice system, and, in particular, how the experience of trauma contributed to this involvement.

According to the Council, children entering the youth justice system should face courts that are equipped with sufficient information about them and the context of their offending to ensure just and effective sentencing. However, instead the report found that there is currently only limited guidance regarding how courts should consider childhood trauma in sentencing children.

The Report also found that the current structural separation of the Children’s Court into two divisions - child protection (Family Division) and criminal justice (Criminal Division) can lead to a lack of access to relevant information regarding “crossover kids” involved with both systems, and to their overrepresentation in the criminal justice system.

According to the Report, there are a number of ways to improve the capacity of sentencing courts to be better informed about a child’s protection history and experience of trauma, including a dedicated “crossover list” to deal with child protection and criminal justice matters holistically when they intersect.

Residential care a factor

The Report notes the over-representation of children who have been in residential care in the youth justice system.

Given the significant over-representation of Aboriginal and Torres Strait Islander children in the child protection and youth justice systems, the Report also states that systemic, culturally responsive and local responses and services need to be designed, developed and led by Aboriginal people in keeping with the principle of self-determination.

As noted in the Report, many of the proposed reforms would help reduce the number of crossover children appearing before the Criminal Division because of earlier interventions aimed at dealing with the causes of their offending. The report states:

“[u]ltimately, investment in responses that identify and address the trauma-related and other needs contributing to children’s offending will enhance community safety through more effective rehabilitation while also allowing abused, neglected and otherwise vulnerable children to recover from their trauma and to thrive.”

Reform welcome

RCT Law welcomes the Council’s call for holistic reform in this area.

Many of our Abuse Law clients have been involved in the criminal justice system from an early age – sometimes as a precursor to being placed in care, sometimes as a result of abuse suffered in institutions, and sometimes both. As a result of their abuse and experience of trauma, many of our clients have had ongoing involvement in the criminal justice system as adults.

Some of our clients remain incarcerated to this day, often battling the effects of complex trauma with limited support, leading to a vicious cycle of reoffending. If their trauma had been identified and tackled at the outset, their lives may have been radically difference.

In the words of Lisa Ward, Sentencing Advisory Council Deputy Chair:

“We know that a child’s early involvement in the criminal justice system predicts ongoing involvement in crime. If we can effectively address their trauma, we can help avoid a lifetime of damage to children, their families and the community.”

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