The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that non-custodial sentencing options were underused partly due to limited understanding of Aboriginal culture and a lack of awareness or willingness among decision-makers. In some cases, there were also practical issues due to a lack of resources and systems of support for alternatives to custody.

For imprisonment to be a last resort, sentencing authorities need to be well informed:

If the full range of sentencing options are to be considered, so that imprisonment truly is the option of last resort, it is essential that all sentencing authorities are made fully familiar with the legislation and also with the administrative arrangements which apply to persons placed on community-based orders.

In Victoria work was underway towards sentencing guidelines for the courts. It was recognised that explicit guidance could increase the use of non-custodial options:

…under-usage of non-custodial options cannot be overcome by simply leaving the matter to the discretion of the sentencers— some legislative direction or encouragement is required. There is some evidence to suggest that such explicit guidance does increase the usage of non-custodial options.

In 2024-25, Youth Justice and Corrections Victoria within the Department of Justice and Community Safety provided updates on the implementation of this recommendation:

Youth Justice

A Review of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (Vic) was developed in the context of high-profile and critical incidents in the community and at the Youth Justice precincts. The Youth Justice Reform Act required relevant ministers to undertake a review of the amendments made by the Act within three years of them coming into operation. The review was conducted by an independent reviewer, supported by a small secretariat within Youth Justice. The Statutory Review, tabled in Parliament in May 2022, made 20 recommendations for potential improvements to the Youth Justice system, including suggestions for legislative reform. One of the recommendations related to the state-wide diversion scheme and youth control orders (YCOs).

On 1 June 2018, amendments to the Children, Youth and Families Act 2005 (CYFA) created a new sentencing option called a 'youth control order'. This order is a non-custodial sentencing option that is available for young people who would otherwise be sentenced to a period of detention in a Youth Justice Centre or a youth residential centre, because of the gravity or habitual nature of their offending. The YCO provides a period of intense supervision, with targeted rehabilitation, education, training, and or employment support, as well as restrictions on the young person’s freedom, to assist them to cease offending. YCOs are available across the state and include judicial monitoring, to ensure the conditions of the order remain appropriate to the young person’s circumstances, and conducive to their successful completion of the order.

As a community-based order, YCOs sit below a sentence of detention. Young people on YCOs and other community-based orders are supported by regionally based Youth Justice case managers and a range of community support organisations. This includes the Aboriginal Intensive Support Program, delivered by Aboriginal Intensive Support Practitioners, with the support of Koori Court Advice Workers, and Aboriginal focussed teams. These initiatives form part of the broader Aboriginal Youth Justice Program.

Children’s Court Youth Diversion Program

In addition to YCOs, the Youth Justice Reform Act introduced the Children’s Court Youth Diversion (CCYD) program. This program provides an opportunity for children and young people with limited or no criminal history to accept responsibility for their behaviour and address the underlying reasons for their offending before they enter a plea in court. Young people who successfully complete the program can have their charges discharged and avoid the stigma associated with a criminal record, without the need for statutory supervision from Youth Justice. The program was established in line with evidence that shows that prevention, diversion and early intervention are the best ways to support young people and prevent their progression into the criminal legal system.

A 2020-22 evaluation found the CCYD program had a positive impact on reoffending rates:

• less than a quarter of participants reoffended within six months of completing their diversion

• over half of participants had not reoffended after two years

• reoffending among participants was less frequent and less serious than among young people with similar offending history and characteristics who received an alternative court outcome.

Youth Justice Act 2024 (Vic)

The Youth Justice Act 2024 introduces principles that require a sentence imposed on a child to be the minimum intervention required, with a custodial sentence imposed as a last resort and for the minimum period appropriate and necessary.

The Act also introduces Aboriginal-specific sentencing principles that courts must consider when determining which sentence to impose on an Aboriginal child. These principles recognise that, for Aboriginal children, offending behaviour does not occur in isolation, and sentencing must be considered in the context of each child’s family, kin, community and culture, but also in the context of discriminatory systemic institutional and historical factors that have resulted in Aboriginal children being over-represented in the criminal legal system.

The Aboriginal-specific principles require sentencing courts to consider matters such as supporting the right to self-determination, as well as the impact of the unique and systemic disadvantage that Aboriginal children have faced in the legal system.

The Youth Justice Act gives practical effect to these principles by:

• requiring the court to outline how it has considered the Aboriginal-specific sentencing principles when sentencing an Aboriginal child to custody, and
• allowing the court to hear submissions about the unique and systemic background factors affecting the child, which could highlight the strengths and experiences of the child, their family and community or identify culturally appropriate responses for them.

Youth Justice Court Advice Service

The Youth Justice Court Advice Service (YJCAS) continues to advise and share information with sentencing authorities regarding the effectiveness of non-custodial sentencing orders. YJCAS staff are present at all courts across Victoria where Children’s Court matters are heard. The purpose of the service is to provide quality, evidence-based, impartial advice to assist the court in its decision making to support the rehabilitation of young people. Staff prepare and provide written and verbal advice for the court, conduct key assessments and screenings with young people regarding their suitability for various orders and services, and liaise with case managers and stakeholders about court outcomes.

The Youth Justice Strategic Plan 2020-2030 includes an action for Youth Justice to review its court service to strengthen the quality of advice provide to the courts. This occurred during 2021-22 with Youth Justice introducing a new practice guideline in 2021 to strengthen advice and provide greater clarity on the specialised positions within YJCAS.

In 2023 the Youth Justice Bail After-hours Service (YJBAS) commenced. It delivers a Youth Justice-run bail assessment and advice service for after-hours decision-makers. This includes both bail justices and magistrates in the Children’s Court Weekend Online Remand Court (WORC). When police seek to remand a young person after-hours, this application must be heard by either a magistrate of the WORC or a bail justice. YJBAS staff conduct bail assessments with young people, to determine their suitability for Youth Justice supervised bail, and provide written and verbal advice to after-hours bail decision-makers to support their deliberations.

In locations where regional court user meetings are convened, Youth Justice will also participate in meetings to strengthen and maintain stakeholder relationships and address any local court related issues.

Corrections Victoria

Since June 2016, more than $322 million has been invested in strengthening Community Correctional Services (CCS) in Victoria; $89 million was invested in 2015-16 and $233 million in 2016-17 to deliver an expansion and reform program which significantly changed the management of offenders subject to Community Correction Orders (CCOs). This investment supported required changes to CCS case management practice due to the increasing complexity and risk of people under CCS supervision. This was a result of a guideline judgement and the increased use of CCOs combined with imprisonment orders (which the abolition of suspended sentences contributed to). The investment included an additional 300 staff (including 100 new advanced case managers), specialist training to support sentencing advice to the judiciary, new practice and standards positions to ensure the application of evidence-based case management practice, new treatment services, and workforce development. In line with this system overhaul, the way sentencing authorities are advised on the scope and effectiveness of non-custodial sentences continues to evolve.

Day-to-day operations sees trained teams of skilled CCS Court Assessment and Prosecutions Service staff providing sentencing courts with advice about administration of non-custodial orders. They provide evidence-based recommendations about a person’s suitability for a CCO, information about their identified risks and recommend order conditions targeted to address their needs. Cultural considerations inform this advice. Established in 2017 as part of CCS service reforms, Court Assessment and Prosecutions Staff provide a professional and specialist court service across the state, including Koori Courts across both the Magistrates’ and County Court jurisdictions. Consultation between Justice Services in the department and the Magistrates’ and County Courts occurs at least quarterly. The nature of this consultation varies but does include meetings that focus on statewide CCS practice trends and themes, data and CCS performance and provides the judiciary with a forum to raise issues and express their views about CCS service delivery.

Locally, CCS management teams routinely meet with regional coordinating magistrates to discuss trends and themes specific to their catchment areas. Information about programs and services available to key groups such as Aboriginal people is also shared at these meetings.

Outputs

Youth Justice

• Implemented legislative amendments to the Children, Youth and Families Act 2005 in 2018 to create a new sentencing option — the Youth Control Order (YCO).
• Established statewide access to YCOs, providing intensive community-based supervision and judicial monitoring for eligible young people.
• Provided targeted rehabilitation, education, training, and employment support to young people under YCOs to reduce reoffending.
• Delivered Aboriginal-specific supports for young people on YCOs through the Aboriginal Intensive Support Program, Koori Court Advice Workers, and Aboriginal focussed teams as part of the broader Aboriginal Youth Justice Program.

Youth Justice Court Advice Service:

• Deployed Youth Justice Court Advice Service (YJCAS) staff across all Victorian courts where Children’s Court matters are heard.
• Provided written and verbal advice to courts on non-custodial sentencing options and young people’s rehabilitation needs.
• Conducted assessments and screenings with young people to determine suitability for specific orders and services.
• Implemented a new practice guideline in 2021 to strengthen court advice quality and clarify specialised YJCAS roles.
• Commenced the Youth Justice Bail After-hours Service (YJBAS) in 2023, providing after-hours bail assessments and advice to magistrates and bail justices.
• Delivered written and verbal advice after-hours to bail decision-makers through YJBAS to support informed determinations.
• Participated in regional court user meetings to maintain stakeholder relationships and address local court-related issues.

Corrections Victoria

Performance data, including the rate of return to corrective services and the successful completion of community-based orders is published in the DJCS annual report. Information about the effectiveness and efficiency of corrective services in Victoria, alongside all other Australian jurisdictions is published annually in the Australian Government, Productivity Commission Report on Government Services. The Sentencing Advisory Council (SAC) also publishes information about CCOs and Aboriginal people in the justice system.

The manner, extent or frequency with which CCS advises sentencing authorities on the scope or effectiveness of non-custodial sentencing options is not formally captured.

Outcomes

Youth Justice

In 2022-23, Youth Justice commissioned an independent review of the key reforms delivered by the Children and Justice Legislative Amendment (YJ Reform) Act 2017, which included the introduction of Youth Control Orders, strengthening of the Children’s Court Youth Diversion program and other miscellaneous reforms.

This review was conducted with the involvement of the Victorian Aboriginal Legal Service, Aboriginal Justice Caucus, First People’s Assembly of Victoria, Commissioner for Aboriginal Children and Young People, key government departments, community agencies, and young people with lived experience.

The review concluded that these programs had contributed to positive outcomes and effort should be made to:

• enhance opportunities for young people from groups who are over-represented in the Youth Justice system to participate in the Children’s Court Youth Diversion program
• build on positive features associated with Youth Control Orders in the new Act, and
• strengthen cultural considerations for Aboriginal children and young people when making orders.

Corrections and Justice Services

Corrections and Justice Services were not aware of any reviews or evaluations that reflected the views of Aboriginal individuals, communities or organisations in relation to the advice CCS provide to sentencing authorities in Victoria.