6. A specialised approach to the application of the CMIA in the Children’s Court

Introduction

6.1 The supplementary terms of reference (page xiv) ask the Commission to consider whether the application of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) should be further extended to the Children’s Court of Victoria (the Children’s Court). In particular, the Commission has been asked to consider:

  • the Court of Appeal decision in CL, A Minor (by his Litigation Guardian) v Director
    of Public Prosecutions (on behalf of Lee)
    1
  • whether the process for determining fitness to stand trial in the CMIA should be adapted for application in the Children’s Court
  • in relation to fitness and the defence of mental impairment, whether a different process for determination should apply in the Children’s Court than any that may be proposed by the Commission with regard to the Magistrates’ Court
  • what orders should be available in the Children’s Court on a finding of unfitness or mental impairment
  • whether the current jurisdiction of the Children’s Court should apply, so that it could hear and determine any matter before it if fitness or mental impairment should arise, apart from those currently required to be committed to the Supreme Court.
  1. 6.2 In the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children’s Court of Victoria: supplementary consultation paper (‘the supplementary consultation paper’), the Commission sought feedback on the issues raised by the supplementary terms of reference. In addition, the Commission asked for input on:
  • the principles and rights that should apply to young people2 who raise unfitness to stand trial and/or the defence of mental impairment
  • the issues caused by the current application of the CMIA in the Children’s Court
  • whether the CMIA should be extended to apply further in the Children’s Court, and
  • the appropriate extent of any expansion and approach to be taken in relation to young people under the CMIA.

 

  1. 6.3 This chapter focuses on recommendations to give effect to the extension of the CMIA’s application to young people in the Children’s Court and the higher courts. As with the Commission’s findings on the application of the CMIA in the Magistrates’ Court, detailed in Chapter 5, it was evident from submissions and consultations that the limited application of the CMIA results in a gap in the CMIA’s operation in relation to young people. Closing this gap, by extending the CMIA, would result in a system that is more just, effective and consistent with the principles that underlie the CMIA, and significantly, would result in a more appropriate response to the complexities of cases under the CMIA involving young people.
  2. 6.4 The recommendations made in this chapter provide a legislative framework for the CMIA’s operation in the Children’s Court, in specialised provisions in the Children, Youth and Families Act 2005 (Vic) (‘CYFA’). The chapter explains the model and the reasoning behind the Commission’s recommendations to:
  • allow the Children’s Court to determine unfitness to stand trial and criminal responsibility following a finding of unfitness
  • give the Children’s Court the power to make fixed-term therapeutic supervision orders following a finding of not guilty because of mental impairment3 or a finding that the accused committed the offence charged4
  • develop a specialised approach and model for the operation of CMIA processes in the Children’s Court, including the introduction of a new ‘assessment order’ together with a case worker program to optimise the fitness of young people and encourage a diversionary approach
  • provide a regime for the making, review and variation of therapeutic supervision orders in the Children’s Court
  • identify the requirements for supervision and the need for a specialised youth forensic facility and services to support the extension of the CMIA to young people.
  1. 6.5 Other recommendations that relate to young people are covered in earlier chapters. Chapter 2 sets out the statutory principles that the Commission considers should be applied by decision makers in relation to young people and Chapters 3 and 4 include a discussion of the criteria for the test for unfitness and the defence of mental impairment respectively as they relate to young people.

The specialist jurisdiction of the Children’s Court

  1. 6.6 The Children’s Court is a specialist court operating under the authority of the CYFA.
    The purpose of the Act is to ‘make provision in relation to children who have been charged with, or who have been found guilty of, offences and to continue the Children’s Court of Victoria as a specialist court dealing with matters relating to children’.5
  2. 6.7 The Children’s Court has all the powers and authorities of the Magistrates’ Court in relation to all of the matters over which it has jurisdiction.6
  3. 6.8 The purpose of the Children’s Court is to provide a ‘modern, professional, accessible and responsive specialist court system focussed on the needs of children, young persons and their families’.7

 

  1. 6.9 The Court is presided over by the President—a County Court judge appointed by the Governor in Council8—and magistrates. When appointing magistrates to the Children’s Court, the President must have regard to their experience in child welfare matters.9
  2. 6.10 The Court is divided into the family, criminal and Koori (criminal) divisions, as well as the neighbourhood justice division.10 The Criminal Division of the Children’s Court has jurisdiction to hear and determine summarily all summary offences and indictable offences charged against young people, except seven indictable offences that result in death.11 A matter involving an indictable offence may be transferred from the Children’s Court to a higher court if the young person (or in some situations, their parents) objects to a summary hearing12 or if the Court considers that there are ‘exceptional circumstances’ which justify a hearing in the higher courts.13
  3. 6.11 Section 534 of the CYFA provides that reports of proceedings in the Children’s Court must not (except in limited circumstances) contain any particulars likely to lead to the identification of a child or other party or a witness before the Children’s Court.
    This report, and this chapter in particular, are expressed in conformity with that
    important provision.

Current application of the CMIA in the Children’s Court

Unfitness to stand trial

  1. 6.12 Currently, the Children’s Court does not have jurisdiction to determine whether a young person is unfit to stand trial or make orders following a finding of not guilty because of mental impairment.
  2. 6.13 The Court of Appeal in the case of CL, A Minor (by his Litigation Guardian) v Director of Public Prosecutions (on behalf of Lee)14 (‘CL on appeal’) confirmed the decision by the Supreme Court,15 that the Children’s Court does not have jurisdiction to determine unfitness. If a real and substantial question of unfitness arises in the Children’s Court,
    the Court must direct the young person to be tried in the higher courts.
  3. 6.14 As stated above at [6.1], in considering whether the application of the CMIA should be further extended to the Children’s Court, the supplementary terms of reference ask the Commission to have regard to the Court of Appeal decision in CL on appeal. The case is outlined below.

The case of CL

  1. 6.15 CL, a child, had been charged with numerous serious offences and appeared before the Criminal Division of the Children’s Court. A question of CL’s unfitness to stand trial arose.16 The magistrate concluded that as there was some doubt as to whether the Children’s Court has the power to determine the matter and there were ‘exceptional circumstances’, the matter should proceed by way of committal proceeding to the County Court. CL, by a litigation guardian (CL’s mother), sought judicial review in the Supreme Court of Victoria of that decision.17 In CL (A Minor) v Lee (‘CL at trial’),18the Supreme Court held that the Children’s Court did not have jurisdiction to hear and determine the question of unfitness to plead. Leave to appeal from that decision was sought.
  2. 6.16 The Victorian Court of Appeal19 refused leave to appeal, holding that the decision of the Supreme Court was not in error.20 Acting Justice of Appeal Sifris delivered the primary judgment, in which Chief Justice Warren agreed, stating:

When looked at as a whole, the CYFA Act, despite dealing with a number of related and important procedural matters, does not vest the Children’s Court with jurisdiction
to determine fitness to plead.21

  1. 6.17 As outlined in the supplementary consultation paper,22 the 2010 decision of CL at trial sets out the reasons, affirmed by the Victorian Court of Appeal,23 why the Children’s Court does not have jurisdiction to determine matters of unfitness.24
  2. 6.18 Subsequent to the Court of Appeal decision to confirm that the Children’s Court did not have the power to determine unfitness, CL was committed to the County Court for an investigation of unfitness to stand trial by a jury. The jury found CL fit to stand trial and the matter resolved by way of guilty pleas to a number but not all of the charges.25
    CL was sentenced to a youth supervision order of 12 months.26

The defence of mental impairment

  1. 6.19 In relation to the defence of mental impairment, the CMIA provides for the defence to apply to summary offences and to indictable offences heard and determined summarily in the Magistrates’ Court.27 The CMIA provides, however, that if the Magistrates’ Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence heard and determined summarily, the Magistrates’ Court must discharge the person.28 The Magistrates’ Court therefore has no power to make orders in relation to people found not guilty because of mental impairment.29
  2. 6.20 The Children’s Court has all the ‘powers and authorities’ that the Magistrates’ Court has in relation to all matters over which it has jurisdiction.30 The CMIA therefore applies in the Children’s Court in the same way that it does in the Magistrates’ Court. This means that while the defence of mental impairment can be relied on in the Children’s Court as part of the determination of criminal responsibility of an accused for an offence, the court does not have the power to make orders in relation to people found not guilty because
    of mental impairment.

The need for a specialised approach for young people

Young people in the criminal justice system

  1. 6.21 Young people involved in the criminal justice system typically experience a range of complex issues. Of the young people in custody in Victoria in 2012–13:
  • 35 per cent had mental health issues
  • 64 per cent were victims/survivors of abuse, trauma or neglect
  • 89 per cent had alcohol or drug abuse related to their offending
  • 27 per cent had a history of self-harm or suicidal ideation
  • 27 per cent presented with issues concerning their intellectual functioning
  • 9 per cent were registered with Disability Services.31
  1. 6.22 A recent study considering bail and remand for young people found that young people involved in the criminal justice system have complex needs, including substance use issues, physical and mental health issues, intellectual and cognitive disabilities, incomplete education and complex family issues.32 The study concluded:

This finding is also consistent with a body of existing research that demonstrated that young people in contact with the criminal justice system—especially those entrenched in the most serious end of the system—are far more likely to have a constellation of these complex problems than other young people.33

  1. 6.23 The Youth Parole Board and Youth Residential Services explain the issues faced by young people with a disability in the criminal justice system as follows:

Young people with a disability are a particularly vulnerable group within the criminal justice system … Failure to identify an appropriate response to the distinct needs of young people with a disability can result in poor outcomes that have ongoing consequences such as repeated contact with the criminal justice system.34

  1. 6.24 Young people in the criminal justice system may also face a range of mental health conditions such as anxiety, depression, schizophrenia and other psychotic disorders.35

Young people with mental conditions in the criminal justice system

  1. 6.25 These studies show that young people with a mental illness or other cognitive impairment are particularly vulnerable to involvement in the criminal justice system.
  2. 6.26 The Department of Human Services (DHS) informed the Commission that young people with a disability presenting in court with unfitness to plead issues are at an elevated risk of involvement with Child Protection and the criminal justice system and that many of these young people ‘already have established relationships with DHS or are involved in a DHS program’.36 To recognise that a joined-up response to such dual clients is required there are established protocols within DHS to support a collaborative practice between Child Protection, Youth Justice and Disability Services.37

 

  1. 6.27 Approximate information provided to the Commission38 on recent cases involving young people who had been involved in the CMIA process also illustrated the high level of contact across a range of system levels by such young people. Figure 4 shows the proportions of the 25 young people in the dataset who had previous or current involvement across four system levels.

 

 

Source: Office of Public Prosecutions; Department of Human Services

Figure 4: Previous or current involvement with system by young people in the dataset,
by percentage

 

  1. 6.28 The patterns of involvement outlined above were also evident in case examples provided to the Commission by DHS of young people who had been involved in CMIA proceedings. These case examples demonstrated that young people with a mental condition in the criminal justice system are dealing with complex issues such as domestic violence, abuse and neglect, post-traumatic stress and attachment disorders and often have both a mental illness and an intellectual or cognitive disability. As such, this group of young people often have complicated histories of contact with a range of government services as outlined above.

Offending behaviour of young people

  1. 6.29 A study looking at the role of the Children’s Court across Australia found that the needs and problems of young people involved in the criminal justice system are becoming increasingly complex:

Study participants across Australia reported that, relative to a decade ago, the court now served a much more challenging clientele. While the children, young people and families who appear in court remain highly socio-economically disadvantaged and marginalised, what is ‘new’ is the complexity of their problems and needs and, in Victoria and NSW, the increase in clients from a refugee background. Alcohol and drug abuse, domestic violence, mental health problems and, indeed, prior involvement with the child protection system, are now common among the child protection jurisdiction. Young offenders manifest similar problems and have increasingly engaged in serious
(i.e. violent) criminal activity.39

  1. 6.30 One study that examined the types of offences committed by young offenders with an intellectual disability, found that they tend to commit crimes against people more often than offenders without an intellectual disability.40 A possible explanation for this finding suggested in the study was that young people with an intellectual disability often experience anger and aggression.41
  2. 6.31 Approximate information provided to the Commission42 on 25 cases of young people involved in the CMIA process indicated that the alleged offences tended to be property, injury or sex offences. There were six cases where the offences included both property43 and injury44 offences and a further six cases where the offences were property offences.45 Eleven cases involved sexual offences.46

Issues caused by the limited application of the CMIA
in the Children’s Court

  1. 6.32 In the supplementary consultation paper, the Commission outlined the issues that had already been identified concerning the limited application of the CMIA in the Magistrates’ Court and asked whether these issues also applied in the Children’s Court, and whether there were further specific issues that existed in the Children’s Court. The Commission asked for views as to whether the Children’s Court’s jurisdiction should be extended and if so, how any extension should be provided.

Lack of power to determine unfitness to stand trial

  1. 6.33 During consultations on the terms of reference, issues were raised about the lack of power to determine unfitness in the Magistrates’ Court. These are detailed in Chapter 5 at [5.18]–[5.34].
  2. 6.34 In consultations on the supplementary terms of reference, these issues were also identified to exist in the Children’s Court. Particular concerns were that there is no ‘outcome’ for the person in terms of treatment or intervention, the offending behaviour related to the person’s mental illness, intellectual disability or other cognitive impairment is not addressed, and issues may arise in relation to the safety of the community, once the person is released.

Lack of power to make orders following a finding of not guilty
because of mental impairment

  1. 6.35 Consultations on the terms of reference also identified issues with the requirement in the Magistrates’ Court to discharge an accused following a finding of not guilty because of mental impairment. These are detailed in Chapter 5 at [5.43]–[5.53].
  2. 6.36 The Commission found that the issues related to the lack of jurisdiction in the Magistrates’ Court were also prevalent among young people appearing in the Children’s Court because of the lack of jurisdiction to determine unfitness or make orders following a finding of not guilty because of mental impairment.
  3. 6.37 The court in CL at trial noted that the lack of jurisdiction in the Children’s Court to determine unfitness was unsatisfactory and made recommendations to address this, which were endorsed by the Court of Appeal.47 The judge in CL at trial recommended that the CMIA be amended to provide the Children’s Court with the jurisdiction to deal with issues of unfitness to stand trial.48

Effects of lack of powers on cases involving young people

  1. 6.38 Approximate information provided to the Commission on 25 cases49 involving young people where issues of unfitness to stand trial or the defence of mental impairment were raised demonstrates the effect of the limited powers of the Children’s Court to deal with unfitness and the defence of mental impairment.
  2. 6.39 In 13 cases, the issue was one of unfitness to stand trial, in two cases there were issues of unfitness and the mental impairment defence and one case related solely to the mental impairment defence. Almost half of the matters where issues of unfitness were raised did not ultimately proceed under the CMIA provisions. Table 10 in Appendix D shows that of the 13 cases where the issue of unfitness was raised, six cases proceeded to a determination of unfitness. The remaining seven were resolved by guilty pleas, transfer back to the Children’s Court, dismissal of charges or had not been finalised.
  3. 6.40 All the offences were either summary offences or indictable offences able to be heard within the criminal jurisdiction of the Children’s Court.50 Sixteen of the 25 cases were transferred to the County Court.51
  4. 6.41 As detailed in Table 9 in Appendix D, almost all matters where unfitness was raised (either separately or in conjunction with the defence of mental impairment) were transferred to the County Court.52 The one case where only the defence of mental impairment was raised was not transferred.
  5. 6.42 Of the 16 cases that were transferred from the Children’s Court to the County Court, four young people were found unfit and were placed on a non-custodial supervision order
    (all were 18 years or over when the order was imposed) and one young person was found unfit and the court was awaiting a certificate of available services. Table 11 in Appendix Ddetails the outcomes in the remaining cases according to whether they were uplifted to the County Court.

Extending the jurisdiction of the Children’s Court

Approach in other jurisdictions

  1. 6.43 Children’s Courts in the Australian Capital Territory, Western Australia, South Australia and Tasmania have the power to determine unfitness.53 In Queensland, the Children’s Court may determine unfitness in relation to indictable offences only.54 In the Northern Territory, there is no power to determine unfitness, so the charges must be dismissed or the young person diverted into treatment.55
  2. 6.44 With the exceptions of Queensland and the Northern Territory, courts in all other Australian states and territories are able to make orders on a finding of not guilty because of mental impairment in the summary jurisdiction.56

Views in submissions and consultations

  1. 6.45 The majority of submissions and consultations were supportive of extending the jurisdiction of the Children’s Court to determine unfitness.57 The reasons for extending the jurisdiction of the Children’s Court were both to address concerns about the inappropriateness of these matters having to go through the committal process and be transferred to the higher courts and to address the ‘artificial decision making’ that occurs without transparency and judicial oversight.58
  2. 6.46 The Victorian Equal Opportunity and Human Rights Commission argued that young people with a mental impairment do not have the same right as other young people to have their matter heard in the specialist jurisdiction of the Children’s Court:

The current process under the CMIA where children and young people with the additional vulnerability of a mental condition are removed from this specialist jurisdiction where a question of unfitness is raised conflicts with children’s rights. Namely, the right to a criminal procedure that takes into account his or her age and potentially also with the human right of children to such protection as is required in his or her best interests by reason of being a child. This process also potentially conflicts with the right of every person to enjoy their human rights without discrimination and with the fundamental principle that ‘persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities’.59

  1. 6.47 Victoria Legal Aid explained that under the current CMIA regime, practitioners avoid raising unfitness or the defence of mental impairment and that ‘judicial officers try to creatively negotiate appropriate solutions for the accused external to the CMIA’.60
  2. 6.48 The Criminal Bar Association agreed with this view, arguing that leaving the therapeutic jurisdiction of the Children’s Court often means that parties involved have to resort to solutions outside the criminal justice system to reach a good outcome for the young person, where lawyers and police try ‘to find pragmatic resolutions of matters’ to avoid the matter being committed to the higher courts.61 Approaching matters in this way
    was said to be time-consuming, inconsistent and lacking the benefit of judicial oversight and transparency.62
  3. 6.49 The Commission for Children and Young People agreed that inconsistent decision making can result from engaging in ‘artificial decision making’ in the absence of judicial oversight.63 It was also argued that a lack of outcome in the Children’s Court means the young person does not have the benefit of early and therapeutic interventions that ‘benefit all parties [by] providing improved protection of the community’.64
  4. 6.50 Inconsistency in decision making can result from a lack of guidance, such as in the exercise of prosecutorial discretion, which is critically important when applied to young people who need to understand the link between offending behaviour and consequences including therapeutic intervention.65
  5. 6.51 One submission argued that ‘the lack of resources available for assessment and optimisation of fitness for young people consequently discriminates against young people on the basis of their age’.66 This view was supported by the Victorian Equal Opportunity and Human Rights Commission who argued that providing an equivalent process to a special hearing in the Children’s Court is required to meet human rights requirements, and suggested that section 522 may provide some assistance:

Section 25(3) of the Charter states the right of children to ‘a procedure that takes account of his or her age.’ Consistently with this right, if special hearings do apply in the Children’s Court the procedural requirements in section 522 of the CYFA, or procedural requirements equivalent to those, should apply to make such hearings appropriate for young people.67

The Commission’s conclusion

  1. 6.52 In Chapter 5, the Commission recommended an extension of the CMIA to the Magistrates’ Court to remedy the inefficiencies in the system, the divergent approaches taken by those who work within it and the unsatisfactory and often unfair results for accused, victims and the community. The Commission is of the view that the Children’s Court should similarly be given an express power in the CYFA to determine unfitness, conduct special hearings to determine criminal responsibility after a finding of unfitness and make orders following findings of unfitness and the defence of mental impairment. The reasoning provided in support of the recommendations in Chapter 5 also applies in relation to the Children’s Court.68
  2. 6.53 Additionally, in light of the information available to the Commission that issues of unfitness to stand trial are more common than issues of mental impairment among young people and are largely underpinned by intellectual disability (see [2.33] in Chapter 2), it is particularly important to provide the power to the Children’s Court to determine unfitness. This will avoid young people being dealt with in the County Court and will enable the issues of unfitness to be dealt with more appropriately and expeditiously in
    the specialised jurisdiction of the Children’s Court.
  3. 6.54 The Commission considers that the CYFA is the most appropriate legislation to incorporate the power to determine unfitness and expand the powers to make orders, given its specialised approach to dealing with young people in criminal proceedings.
  4. 6.55 The Commission is of the view that the jurisdiction of the Children’s Court should not be extended unless a youth forensic facility is established to provide treatment and supervision to young people subject to CMIA hearings (see further [6.208]–[6.249]).

 

Recommendations

39 The Children, Youth and Families Act 2005 (Vic) should be amended to provide for the Children’s Court to:

(a) determine whether a young person is unfit to stand trial

(b) conduct special hearings after a finding of unfitness, and

(c) make orders following a finding that the young person is not criminally responsible because of mental impairment or that the young person’s conduct has been proved on the evidence available (but the young person is unfit to stand trial).

The amendments should be provided for in a new part in Chapter 5 of the Children, Youth and Families Act 2005 (Vic).

40 Recommendation 39 should be implemented in conjunction with Recommendation 49 to establish a youth forensic facility in Victoria to provide for the assessment, treatment and supervision of young people in relation to unfitness to stand trial and the defence of mental impairment.

 

  1. 6.56 The Commission is of the view that the establishment of a youth forensic facility is required for the successful implementation of the recommendation to extend the application of the CMIA to the Children’s Court.

Criminal jurisdiction of the Children’s Court

  1. 6.57 The supplementary terms of reference ask the Commission to consider whether the current criminal jurisdiction of the Children’s Court should apply when unfitness to stand trial or the defence of mental impairment is raised.
  2. 6.58 Given the special vulnerability of young people with mental conditions such as a
    mental illness or intellectual disability, consideration of this issue raises questions about whether young people with mental conditions should be dealt with in the higher courts in any circumstance.
  3. 6.59 In its supplementary consultation paper, the Commission sought views on whether any changes were required to the current criminal jurisdiction of the Children’s Court if the application of the CMIA were to be further extended in the Children’s Court. In particular, the Commission sought views on:
  • whether all indictable and summary offences (excluding death-related offences and ‘exceptional circumstances’) should be dealt with in the Children’s Court when mental impairment or unfitness is an issue, and
  • what factors should be considered in deciding whether a matter should proceed via committal and transfer to higher courts where unfitness or the defence of mental impairment is raised.

Embracive jurisdiction of the Children’s Court

  1. 6.60 Where a young person is charged with an indictable offence (other than a death-related offence), the matter may be committed from the Children’s Court to a higher court—either the Supreme Court or County Court. This may occur when the young person
    (or their parents, in some situations)69 objects to a summary hearing,70 or where the judge decides that ‘exceptional circumstances’71 justify a hearing by judge and jury in the
    higher courts.72
  2. 6.61 In D (a Child) v White,73 Justice Nathan stated that as the Children’s Court has an ‘embracive’ jurisdiction relating to children, reasons to transfer a matter must be ‘special; not matters of convenience or to avoid difficulties’74 and that ‘special’ in the statutory form means ‘very unusual’.75 This was approved and furthered by Justice Cummins in A Child v A Magistrate of the Children’s Court,76 in which he added that ‘exceptional’ in the statutory form means ‘very unusual’, and that construction of the legislation as a whole—noting the comprehensive nature of the Court’s scheme—makes it apparent that the Children’s Court should give up its jurisdiction ‘only with great reluctance’.77
  3. 6.62 Justice Vincent described the legislative scheme relating to young people in criminal proceedings as having a very different approach to that relating to adults ‘for a very good reason’. He was of the view that only ‘very special, unusual or exceptional circumstances’ can warrant the transfer of a matter to an adult jurisdiction.78

Conduct of committal proceedings

  1. 6.63 If it considers that exceptional circumstances exist, the court will conduct a committal proceeding in order to determine whether the evidence has sufficient weight to support a finding of guilt against the young person.79 The court must then provide reasons for choosing not to determine the matter summarily.80
  2. 6.64 The Children’s Court is provided with two possible outcomes following such a
    committal hearing:
  • discharging the young person
  • directing the young person to be tried in the higher courts,81 either remanded in custody or bailed until that time.82
  1. 6.65 The procedure to be followed in a committal proceeding is found in the Criminal Procedure Act 2009 (Vic).83

Offences excluded from jurisdiction

  1. 6.66 The seven death-related indictable offences specifically excluded from the Children’s Court’s jurisdiction are:
  • murder
  • attempted murder
  • manslaughter
  • child homicide
  • defensive homicide
  • arson causing death
  • culpable driving causing death.
  1. 6.67 Aside from the seven excluded offences listed above, the Children’s Court must generally determine all matters involving summary and other indictable offences relating to an accused who is a young person, or was a child at the time of the alleged commission of the offence. However, there are particular circumstances in which such matters can be heard in adult courts, either by transfer to the Magistrates’ Court or by committal to the Supreme Court or County Court.

Views in submissions and consultations

Retaining the current jurisdiction of the Children’s Court

  1. 6.68 Consultations supported retaining the current jurisdiction of the Children’s Court but participants were of the view that matters involving mental impairment or unfitness should be dealt with in the Children’s Court where possible.84
  2. 6.69 One participant in a consultation with the President and magistrates of the Children’s Court in Melbourne was of the opinion that it was beneficial for vulnerable young people to have their matter dealt with in the Children’s Court because the Children’s Court has the capacity to hear these cases, the approach it takes is appropriate and there were advantages in relation to time, cost and the environment.85

The exceptional circumstances criteria

  1. 6.70 Some submissions supported the application of the exceptional circumstances criteria in CMIA matters to determine which matters are dealt with in the higher courts.86 However, other stakeholders felt that the seriousness of the offence was not an appropriate factor to be considered in determining the jurisdiction of matters where issues of unfitness or the mental impairment defence is raised.
  2. 6.71 It was suggested in a consultation with the President and magistrates of the Children’s Court in Melbourne that while there is a need to consider exceptional circumstances in some cases, summary and indictable offences often must be dealt with together in this jurisdiction and it was therefore important that both types of offence remain within the jurisdiction of the Children’s Court in relation to these matters.87

 

  1. 6.72 The Office of Public Prosecutions considered that the seriousness of the offence, community protection and the adequacy of the dispositions available in the Children’s Court should be factors taken into account in considering when a matter should proceed by way of committal and transfer to a higher court.88 The Victorian Equal Opportunity and Human Rights Commission supported this view. However, it proposed that the human rights of the young person should also be considered in relation to their best interests and the right to a fair trial, including the right to expeditious and age-appropriate proceedings.89
  2. 6.73 In a consultation with judges of the County Court, however, it was suggested that there is a need to ‘look beyond the charge and the nature of offending’ given the differences between offending behaviour in young people and adults.90 One judge provided the example of the offence of armed robbery, explaining that in the County Court, this charge tended to relate to the use of guns and knives in a robbery, whereas in the Children’s Court, it would be more likely to relate to young people robbing other young people with a pocket knife.91

Expertise of the Melbourne Children’s Court

  1. 6.74 Two consultations raised the issue that regional courts may not have the capacity given their current workloads to adopt a specialised approach in the Children’s Court to CMIA cases.92 In a consultation meeting with the President and magistrates of the Children’s Court, it was proposed that this issue could be addressed if regional courts could transfer cases to the Melbourne Children’s Court which has the scope and ability to undertake this work.93 It was also suggested in consultations that if all special hearings took place in Melbourne, the young person would benefit from the specialised approach of the Children’s Court that is not always available in regional areas.94
  2. 6.75 It was also suggested in a consultation with judges of the County Court of Victoria that where experts agree that the young person is unfit, a regional magistrate could dispose of the matter with only matters requiring a special hearing being transferred to the Melbourne Children’s Court.95
  3. 6.76 Another participant in the meeting with judges of the County Court supported the view that resources and expertise are required in dealing with these matters, but suggested that given the relative infrequency of CMIA matters, magistrates from the Melbourne Children’s Court could be sent to regional areas to conduct special hearings.96

The Commission’s conclusion

  1. 6.77 The Commission recognises the vulnerability of young people with a mental condition in the criminal justice system and the specialist jurisdiction of the Children’s Court. It is therefore of the view that all matters involving young people should be managed as far as possible using the principles and processes available in the Children’s Court and that if ‘a real and substantial question of fitness’ has been raised, the court should consider keeping the matter within the specialist jurisdiction of the Children’s Court.

 

  1. 6.78 Given the expertise and specialist services that are being proposed as part of the model for the CMIA in the Children’s Court and measures to optimise fitness, the Commission proposes that wherever the question of unfitness or the defence of mental impairment is raised, the matter should be transferred to and heard in the Melbourne Children’s Court. The purpose of this recommendation is to concentrate the expertise in applying the principles and processes, and the services supporting the proposed model in the Children’s Court.
  2. 6.79 Accordingly, the Commission makes three recommendations to preserve the current criminal jurisdiction of the Children’s Court in CMIA matters and ensure matters regarding unfitness to stand trial are given specific consideration in decisions regarding the committal of young people.
  3. 6.80 The Commission proposes that the model initially be adopted in the Melbourne Children’s Court, with the possibility of extending its operation to regional courts following a review after implementation (see Recommendation 14).

Recommendations

41 The current criminal jurisdiction of the Children’s Court should apply, so that all summary and indictable matters currently within the jurisdiction of the Children’s Court should continue to be heard in the Children’s Court where unfitness to stand trial or the defence of mental impairment is raised.

42 Any matter over which the Children’s Court has jurisdiction where unfitness to stand trial or the defence of mental impairment is raised should be transferred to and dealt with in the Melbourne Children’s Court.

43 The exceptional circumstances criteria in section 356(3) of the Children, Youth and Families Act 2005 (Vic) should include consideration of whether a matter should remain in the Children’s Court jurisdiction where ‘there is a real and substantial question of unfitness to stand trial’.

 

The Commission’s approach to developing a model
for the Children’s Court

  1. 6.81 The supplementary terms of reference ask the Commission to consider whether the process for determining unfitness to stand trial in the CMIA should be adapted for application in the Children’s Court. The Commission was also asked to consider, in relation to unfitness and the defence of mental impairment, whether a different process for determination should apply in the Children’s Court than any that may be proposed by the Commission with regard to the Magistrates’ Court.
  2. 6.82 In the following section, the Commission sets out the model it recommends to extend the application of the CMIA in the Children’s Court.

 

  1. 6.83 The following section details:
  • the creation of a presumption in favour of diverting young people who raise issues
    of unfitness to stand trial or the defence of mental impairment from the criminal justice system
  • the process that should apply when a question of unfitness to stand trial is raised in the Children’s Court jurisdiction
  • processes to give effect to the presumption of a diversionary approach
  • processes to ‘optimise fitness’—through the creation of an ‘assessment order’
  • the process of determining criminal responsibility following a finding of unfitness to stand trial
  • the power to make orders following a finding of not criminally responsible or following a special hearing
  • the orders the Commission recommends to be available in the Children’s Court.
  1. 6.84 Changes to the criteria for unfitness and the processes to optimise fitness (see Recommendations 15–21 in Chapter 3), and the definition of mental impairment and the test for establishing the defence of mental impairment (see Recommendations 24 and 25 in Chapter 4), will also apply in the Children’s Court.
  2. 6.85 The process for determining unfitness and criminal responsibility in the Magistrates’ Court is outlined in Chapter 5. The Commission is proposing a different process to apply in the Children’s Court.

Prevalence of indictable offences involving young people

  1. 6.86 As part of its approach to developing a model for the CMIA in the Children’s Court, the Commission has had regard to the prevalence of cases under the CMIA involving young people charged with indictable offences.
  2. 6.87 Nine of the 11 people who were dealt with in the higher courts under the CMIA from 2000–01 to 2011–12 who were aged under 21 years had been charged with offences that were within the jurisdiction of the Children’s Court (non-death-related indictable offences).97 Given the time that matters take to proceed and be heard in the higher courts (discussed at [2.39]), it can be assumed that most if not all nine cases involved an accused who was under 18 at the time of the offence. If so, these cases would have come within the criminal jurisdiction of the Children’s Court. Overall, they comprise 5.7 per cent of the 159 cases dealt with in the higher courts and 8 per cent of the 112 matters dealt with in the County Court. This provides some indication of the number of cases that could have been dealt with in the Children’s Court had it the power to deal with unfitness or impose orders after a finding of not guilty because of mental impairment.

A diversionary approach for young people

  1. 6.88 In the supplementary consultation paper, the Commission sought views on whether a program should be introduced in the Children’s Court to divert young people away from the criminal justice system where unfitness or the defence of mental impairment is raised.
  2. 6.89 The Commission asked whether a diversion program should be introduced in the Children’s Court and in particular, what eligibility factors should be considered and how a diversion program should interact with other powers that may be recommended to deal with unfitness and the defence of mental impairment in the Children’s Court.

Diversion programs for young people in Victoria

  1. 6.90 There is currently no formal diversion program for young people appearing in the Children’s Court in Victoria. However, both Victoria Legal Aid and the Sentencing Advisory Council have supported the introduction of diversion options for young people in Victoria:
  • Victoria Legal Aid’s submission to the Department of Justice on ‘Improving Diversion for Young People in Victoria’ expressed strong support for reforms to introduce ‘pre-plea based diversion’ and identified benefits of diversion for young people.98
  • The Victorian Sentencing Advisory Council has stated that ‘the absence of a comprehensive state-wide diversion program for young people can lead to inequitable outcomes and possibly also to net-widening in certain areas’.99
  1. 6.91 The New South Wales Law Reform Commission has recently published an extensive report on diversion in the criminal justice system where it was argued that:

The evidence of high rates of cognitive and mental health impairment in young people in custody at least suggest that paying attention to effective diversion of young people with cognitive and mental health impairments may have long term benefits for the individual and society.100

Views in submissions and consultations

Support for a diversionary focus
  1. 6.92 There was strong support in submissions and consultations for a diversionary focus in any approach to extend the application of the CMIA in the Children’s Court, and for the view that young people should be diverted away from the criminal justice system wherever possible.101 One participant in a consultation with judges of the County Court stated that there should be a ‘legislative preference’ for young people to remain in the community to receive treatment, support and supervision prior to considering custodial options.102
  2. 6.93 Victoria Legal Aid highlighted the importance of both the court process and the potential outcomes for young people being ‘appropriately diversionary and therapeutic in nature’ and consistent with the objectives of the CYFA.103
  3. 6.94 The Criminal Bar Association argued that formal criminal proceedings should always be the last resort and that courts should have ‘broad diversionary powers to adjourn matters and allow appropriate therapeutic intervention with a view to ultimately dismissing matters’.104 The Criminal Bar Association was of the view that formal proceedings ‘should only be pursued where diversion has failed (through non-compliance or reoffending) or is inappropriate for other reasons (eg. the seriousness of the offending)’.105
  4. 6.95 One participant in the Commission’s roundtable with legal practitioners on the Children’s Court argued that diversion is a useful method in avoiding delays in proceedings and delivering good outcomes.106
Eligibility criteria
  1. 6.96 In considering eligibility criteria for a diversionary program in the Children’s Court,
    some submissions proposed the seriousness of the offence as the main factor to be
    taken into consideration.107
  2. 6.97 The Office of Public Prosecutions agreed that diversionary options should be considered and that criteria for diversion could include consideration of the seriousness of the offence, the need to protect the community and the rehabilitation of the young person.108
  3. 6.98 The Commission for Children and Young People argued that the eligibility criteria for participation in a diversionary program should be wide. However, it raised concerns about the requirements for participation being realistic so that a young person is able to comply with them and that programs meet the cultural and geographical needs of participants:

It has also been argued that for Indigenous offenders especially, having a focus on illicit drugs misses that the major issue is alcohol … This example demonstrates the importance of the program being tailored to respond to the actual needs of the young people concerned. Those young people from CALD and refugee or asylum seeker backgrounds will similarly require programs that are culturally appropriate with suitably trained staff. It is also important that consideration is given to how young people from rural and remote areas will be able to effectively participate in the program given the paucity of services in many areas.109

  1. 6.99 The Australian Clinical Psychological Association highlighted the need for any diversion program to focus on the rehabilitative needs of the young person:

For children and young people an educational [program] which addresses …
A language impairment or learning disorder and allows them to re-enter the education system would be advantageous. Income and accommodation support, pre-employment training and employment services should also be investigated and made available
if possible.110

  1. 6.100 One participant in the Commission’s clinician roundtable consultation on the Children’s Court stressed the importance of addressing the underlying causes of the young person’s behaviour in a diversion program:

A child with a standard clinical history in this area cannot live at home, has drug
and alcohol issues, and may resort to theft to support those activities. The provision
of structure, stable housing and attachments cost money—that is where the
functional problem lies. If those structures are in place then all the other behaviour would ameliorate.

  1. 6.101 In a consultation with representatives of Victoria Police, early detection and engagement in treatment were considered as a means of protecting the community:

Obtaining/accessing treatment may be the best outcome for the child and for the protection and safety of the community—incarceration is really only contemplated when all other options are exhausted. This makes for a less formal and more co-operative jurisdiction—both sides become slightly more flexible as they are working towards a ‘common purpose’.111

The Commission’s conclusion

  1. 6.102 As discussed at [6.21], there are multiple layers of vulnerability faced by young people who come into contact with the criminal justice system. Young people who are likely to come under the CMIA regime may be dealing with a mental illness, intellectual disability, other cognitive impairment, drug and alcohol use, language and communication difficulties, developmental issues, emotional irregularity, backgrounds of trauma and contact with the child protection system.112
  2. 6.103 In many cases, factors in the life of a young person may be responsible for their offending behaviour and therefore programs that address these underlying issues have been found to reduce reoffending. As one study argued, ‘[t]he broader service system is required to identify and respond to a series of risk and protective factors if young people’s criminal and other risky behaviours are to be curbed, and if more positive and sustainable outcomes are to be achieved [citation omitted]’.113
  3. 6.104 The Commission agrees that young people with a mental illness or other cognitive impairment require a special response from the criminal justice system. Unlike adults, the brains of young people have not fully matured.114 This can result in problems with impulse control and social behaviour on the one hand, while potentially providing a higher capacity for rehabilitation on the other.115
  4. 6.105 It has also been found that young people ‘grow out’ of crime with offending rates peaking in late adolescence and declining in early adulthood.116 Given these factors,
    it has been argued that ‘[a]s juveniles are neither fully developed nor entrenched within the criminal justice system, juvenile justice interventions can impact upon them and
    help to foster juveniles’ desistance from crime’.117
  5. 6.106 Further, there is evidence to suggest that custodial settings themselves may contribute to recidivism in young people. Research has indicated that the effects of institutionalisation can lead young people to reoffend:

It has also been shown that when incarcerated for long periods of time; young people may experience institutionalisation (a decreasing ability to live independently), poor self-concept, and have less developed psycho-social maturity … Finally, young people can strengthen criminal social networks and be socialised into deeper criminal lifestyles.118

  1. 6.107 Accordingly, the Commission supports the principle that young people who appear in the criminal justice system and raise issues of unfitness to stand trial or the defence of mental impairment should be diverted away from the criminal justice system and where appropriate, a diversion program should support a young person to remain in
    the community.
  2. 6.108 The Commission therefore recommends the introduction of statutory principles in the CYFA to support this diversionary approach under the proposed extension of the powers of the Children’s Court under the CMIA.

 

Recommendation

44 The Children, Youth and Families Act 2005 (Vic) should be amended to require that in matters in the Children’s Court involving young people where unfitness or the defence of mental impairment is raised there are presumptions in
favour of:

(a) diverting the young person from the criminal justice system, and

(b) the young person’s treatment and support taking place in the community.

 

  1. 6.109 This presumption is to be exercised in the context of the statutory principles recommended in Recommendations 4 and 5 in Chapter 2 to apply to young people under the CMIA and is supported by the proposed process for determining unfitness and criminal responsibility in the Children’s Court as set out below.

Process when a question of unfitness to stand trial is raised in the
Children’s Court

Current process for determining unfitness

  1. 6.110 As discussed in Chapter 3, the criteria for determining whether a person is unfit to stand trial are outlined in section 6 of the CMIA. Where the question of unfitness is raised, the matter must be transferred to a committal hearing which may result in an order by the Children’s Court that the person be tried in a higher court. Where the young person is charged with a summary offence and unfitness is raised, the only option is for the prosecution to withdraw the charges or for the Court to discharge the accused.
  2. 6.111 There is currently no process for determining unfitness to stand trial in the Children’s Court. It is the clear intention of the CYFA that wherever possible, young people should be dealt with in the specialist jurisdiction of the Children’s Court. However, the current practice in the Children’s Court is to use the ‘exceptional circumstances’ provision in section 356(3) of the CYFA to order that a young person be tried in the higher courts in cases involving indictable matters where the issue of unfitness is raised. Under this provision, a committal proceeding must be conducted and reasons must be provided as to why the court considers that the charge is unsuitable to be determined summarily by reason of exceptional circumstances.

Current process for determining criminal responsibility after a finding of unfitness

  1. 6.112 A special hearing as currently provided for in the CMIA is a means of determining the criminal responsibility of a person who has been found unfit to stand trial. The process
    for conducting a special hearing is outlined in Chapter 9.
  2. 6.113 There is currently no jurisdiction to conduct special hearings in the Children’s Court. As part of the usual criminal process in the Children’s Court, the Court must take steps to ensure the young person understands the ‘nature and implications of the proceedings’ and is allowed to ‘participate fully in proceedings’. These requirements are contained in section 522 of the CYFA.

 

  1. 6.114 In recognition of the fact that any young person may have difficulties in understanding and participating in proceedings because of their stage of development, the judge or magistrate must undertake an assessment for all young people coming before the Children’s Court, not just those with a mental condition. In doing so, the magistrate must necessarily consider and form a view about the capacity of all young people in the criminal jurisdiction to understand and participate in proceedings.
  2. 6.115 The Commission sought views on whether procedural modifications would be required to make hearings appropriate for young people if special hearings were to apply in the Children’s Court.

Processes involving young people in the higher courts

  1. 6.116 Aside from the seven excluded offences listed above at [6.66], the Children’s Court must generally determine all matters involving summary and other indictable offences relating to people who are young people, or were children at the time of the alleged commission of the offence. However, there are particular circumstances in which such matters can be heard in adult courts, either by transfer to the Magistrates’ Court or by being transferred to the Supreme Court or County Court (see [5.6]–[5.11] on the committal process).
  2. 6.117 Currently, where matters involving young people are transferred to the higher courts,
    the CMIA processes apply. Difficulties are associated with trying young people in the higher courts given that the courtroom environment can be intimidating and the processes confusing. This is even more so for young people who may be unfit.
  3. 6.118 The inappropriateness of the formal setting of a higher court in matters involving vulnerable young people and the need for support and modifications to proceedings was an issue discussed in the case of CL at trial. While not binding, the court in the case of CL at trial endorsed the Practice Direction of the Lord Chief Justice of England and Wales of 16 February 2000, which lists support measures that should be implemented by higher courts when conducting trials involving young people.119 These measures have now been incorporated into a new Practice Direction in the United Kingdom on the treatment of vulnerable defendants and include:
  • Participants should all be on the same or almost the same level.
  • The young person should be allowed to sit with members of their family or others.
  • The course of proceedings should be explained to the young person in terms they are able to understand.
  • The trial should be conducted with regular and frequent breaks to take into account the inability of a young person to concentrate for long periods of time.
  • Robes and wigs should not be worn and police officers should not be in uniform.
  • Trial attendance should be restricted to a small number of people.120
  1. 6.119 This was endorsed by Acting Justice of Appeal Sifris with whose judgment Chief Justice Warren agreed, in the Court of Appeal in CL on appeal.121

Views in submissions and consultations

Process for determining unfitness in the Children’s Court
  1. 6.120 In a meeting with judges of the County Court it was proposed that in matters where the issue of unfitness is raised and the young person is charged with a summary offence, the matter should be withdrawn either through a determination of unfitness or through agreement between the parties.122
Process for determining criminal responsibility in a special hearing in the
Children’s Court
  1. 6.121 A participant in a meeting with the President and magistrates of the Children’s Court in Melbourne advised that section 522 of the CYFA contained provisions that were tantamount to a special hearing and that introducing special hearings into the Children’s Court ‘wouldn’t change much’ as these processes are already provided for in the system.123
  2. 6.122 The Australian Clinical Psychology Association suggested that something more than the requirements of section 522 would be required in conducting special hearings in the Children’s Court. The Australian Clinical Psychology Association argued that the young person’s level of language and cognition must be taken into account in conducting special hearings. It submitted that to communicate effectively with young people, there is a need to:

have [a] basic understanding of their development especially their language and cognitive development. This will allow us to understand their thinking and language capabilities and ask developmentally appropriate questions. Logic dictates that if
children are to be treated fairly, then the court must accommodate itself to their level
of cognition and communication.124

  1. 6.123 The Commission for Children and Young People agreed with this view, expressing reservations about the applicability of the participation requirement in section 522.
    It submitted:

If special hearings were to apply in the Children’s Court, it would seem that section 522 of the Children, Youth and Families Act 2005, would provide a process for managing such matters. However, the requirement that the child be allowed to participate fully may need to be modified to ‘the child participate to the extent that he/she is capable of’ given that in special hearings for cases involving adult defendants, the accused person is not expected to participate in the hearing.125

  1. 6.124 In considering the timeframes that might apply in a special hearing process in the Children’s Court, it was suggested that a 12-month adjournment as is currently specified under the CMIA would be too long for young people ‘in terms of delivering a therapeutic response [as] early assistance is required’.126 A participant in a meeting with the President and magistrates of the Children’s Court in Melbourne raised developmental issues in relation to timeframes for special hearings with young people, stating that a ‘complicating issue’ is that young people may develop the capacity with time.127

 

  1. 6.125 The Commission for Children and Young People also raised concerns about timeframes
    in the process of conducting a special hearing where delays may impact on the assessment process:

As young people are continually developing, significant changes can occur within shorter timeframes, making an assessment report compiled a few months earlier potentially no longer relevant. The generation of multiple reports given this scenario may represent systems abuse of the young person, raise issues of ‘test fatigue’ and impact upon test reliability, and reduce the efficacy of treatment given a lack of timely commencement and an inappropriate use of scarce therapeutic resources.128

  1. 6.126 Two groups in submissions and consultations were of the view that a special hearing should be able to be conducted in the Children’s Court by magistrate alone.129
Processes involving young people in the higher courts
  1. 6.127 Where a matter is transferred to the higher courts under the exceptional circumstances criteria or as one of the seven death-related offences, one judge consulted by the Commission was supportive of these superior courts adopting special processes for young people, saying:

In the superior courts there is a need for special processes for children in matters under the CMIA and the measures that were talked about in CL, such as not wearing wigs or robes. The need for such support measures only arises in unusual circumstances in respect of very serious crimes. However, there are cases where modifications have been made to the process for the benefit of the accused.130

  1. 6.128 The judge gave an example of a case involving a child who had been committed to a higher court. Counsel was instructed not to robe and the child sat with their social workers in the court who were attending as support people, as the child did not have contact with their parents. The process was run in an informal way, similar to that run in Children’s Court.131

The Commission’s conclusion

  1. 6.129 The Commission is of the view that greater flexibility is required in the ways in which young people who may be unfit or have a mental impairment are managed in criminal proceedings in the Children’s Court. The current process requiring a young person to be committed to the higher courts where the issue of unfitness is raised is inconsistent with the principles underlying the CMIA and is not in line with current research that supports the use of diversion programs and a specialised approach to young people in the criminal justice system.
  2. 6.130 Under the proposed model for the application of the CMIA, the Children’s Court will have the discretion to impose the following outcomes at various stages in the process:
  • make an ‘assessment order’
  • adjourn the matter for voluntary referral to a case worker program
  • discharge the matter after voluntary referral or assessment order
  • unconditionally release or declare a young person liable to supervision after a finding
  • impose a custodial or non-custodial therapeutic supervision order.

 

  1. 6.131 The following recommendations are made to support the proposed approach in the model detailed in Figure 5 below.
Figure 5: proposed model for determining unfitness in the Children's Court 

Figure 5: Proposed model for determining unfitness in the Children’s Court under an extension
of the CMIA

Recommendations

45 New provisions should be inserted into the Children, Youth and Families Act 2005 (Vic) to create the following process to apply if the question of unfitness arises in a proceeding in the Children’s Court for a summary offence or an indictable offence within the court’s jurisdiction:

(a) In the Children’s Court, the question of the accused’s unfitness to stand trial is to be determined on the balance of probabilities by the President or a magistrate.

(b) When the question of unfitness to stand trial is raised during the course of proceedings for an offence within the jurisdiction of the Children’s Court, the President or a magistrate must determine whether there is a real and substantial question as to the unfitness of the accused.

(c) If the President or a magistrate determines that there is a real and substantial question as to the unfitness of the accused, they must either:

(i) conduct an investigation into the unfitness of the accused to stand trial, without unnecessary delay and as soon as is practicably possible within three months from the determination that there is a real and substantial question as to unfitness, or

(ii) make an order under paragraph (f).

(d) Upon determining there is a real and substantial question of unfitness
to stand trial and for the purposes of paragraphs (c) and (e), if the
President or magistrate considers it is in the interests of justice to do so, they may make an ‘assessment order’ for the accused to undergo a
multi-disciplinary examination by accredited clinicians, at least one of whom must be a registered medical practitioner, as to:

(i) whether the accused is unfit to stand trial

(ii) whether the accused is likely to become fit within a particular period and what measures (education or treatment) would assist to restore the accused’s fitness in that period, and

(iii) whether the accused is suitable for a voluntary referral to a case worker for treatment, services and support.

(e) Upon consideration of the assessment order, the President or a magistrate must:

(i) proceed to determine unfitness

(ii) adjourn the matter for a specified period to optimise the accused’s fitness (with recommended measures to optimise fitness), or

(iii) adjourn the matter for a specified period for a voluntary referral to an established case worker program.

(f) At any time during the course of proceedings, after the President or a magistrate determines there is a real and substantial question as to the unfitness of the accused, and before the special hearing, the President
or magistrate may discharge the accused with or without conditions if they consider:

Recommendations cont’d

(i) that the accused does not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the discharge, and

(ii) the accused is receiving treatment, support or services in
the community.

(g) For the purposes of paragraph (e), the Children’s Court may adjourn a matter as many times as required within a 12-month period. In considering adjournments, delay to the accused should be minimised
and the court should take a proactive approach to judicial management in the specialist jurisdiction of the Children’s Court. The overall period
of adjournments must not exceed 12 months.

(h) If the Children’s Court finds an accused fit to stand trial before the special hearing, the proceedings should be resumed in accordance with the usual criminal procedures.

(i) If the Children’s Court finds a person unfit to stand trial, it must either:

(i) proceed to hold a special hearing as soon as practicable within a period of three months

(ii) adjourn the matter for a specified period for a voluntary referral to an established case worker program, or

(iii) adjourn the matter for a referral for a Therapeutic Treatment Order.

(j) A special hearing must be conducted as nearly as possible as if it were a criminal procedure in the Children’s Court, including the relevant provisions in section 16(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

(k) Notwithstanding paragraphs (a)–(j), if the question of an accused’s unfitness to stand trial arises in a matter that involves an offence that is excluded from the Children’s Court jurisdiction or in a committal proceeding, the committal proceeding must be completed.

(l) If the accused is committed for trial, the question of the accused’s unfitness must be reserved for consideration by the trial judge.

(m) If the accused is not committed for trial, and the matter is to be heard in the Children’s Court, the question of the accused’s unfitness must be investigated by the President or a magistrate in accordance with paragraphs (a)–(j).

46 To support the assessment order, a case worker program should be implemented and resourced.

47 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to specify that as far as possible, proceedings in the Magistrates’ Court, County Court and Supreme Court involving young people who raise unfitness and the defence of mental impairment should be conducted in accordance with applicable principles and approaches in the Children, Youth and Families Act 2005 (Vic).

Diversion under the proposed model in the Children’s Court
  1. 6.132 Under the proposed model, where ‘a real and substantial question of unfitness’ is raised in the Children’s Court, the court may:
  • make an assessment order
  • proceed straight to a determination of unfitness.
  1. 6.133 If the court makes an assessment order, a multi-disciplinary team that includes psychiatrists, psychologists, neuropsychologists, speech pathologists and other health
    and medical professionals should assess the young person and identify any action that could be taken to address factors that may have contributed to the young person’s offending behaviour.
  2. 6.134 A requirement of an assessment order would be that a report be provided to the court upon completion and that it:
  • assess whether the young person is unfit to stand trial using the criteria for unfitness (outlined in Chapter 3 at [3.69]–[3.105])
  • make recommendations about support measures to optimise the young person’s fitness (outlined in Chapter 3 at [3.106]–[3.143])
  • identify the young person’s needs in terms of treatment and support services (for example, income support, homelessness, education, employment).
  1. 6.135 The purpose of ordering an assessment is to provide the President or magistrate of the Children’s Court with information that will enable them to make a decision about whether the young person should be diverted from the justice system or be discharged before proceeding to a determination of criminal responsibility.
  2. 6.136 An assessment order should not be made solely to obtain an unfitness report for a young person. An assessment order should be only contemplated in circumstances where it is considered that the young person requires support to either optimise fitness or address their offending behaviour.
  3. 6.137 Under the model, the magistrate would review the report and would then have the following options:
  • proceed to a determination of unfitness, or
  • refer the young person to a voluntary case worker program, or
  • refer the person for treatment, services or an education program to optimise fitness, or
  • discharge the young person.
  1. 6.138 This process will create a diversion program for matters involving unfitness to stand trial and the defence of mental impairment in the Children’s Court where the charges are adjourned to allow an opportunity to deal with the issues underlying the offending through the case worker program, or to work with the young person to optimise their fitness through an education program or treatment. This process is meant to serve
    these purposes:
  • enable a proper assessment to occur in a stable environment (in a suitable youth forensic secure facility as is recommended later in this chapter)
  • provide an opportunity to address the factors underlying the alleged offending behaviour
  • provide an opportunity to access measures to optimise a young person’s fitness
  • where appropriate, divert the young person away from the criminal justice system
    and ‘CMIA pathway’.
  1. 6.139 The diversion program should be voluntary and should link the person with a dedicated case worker. The program may involve engaging the person in treatment, linking the person with disability supports, assisting the young person to find accommodation or employment and providing supports for the young person to continue or start education or employment. The case worker may also link the young person with income support services or services to help them form stable relationships in the community.
  2. 6.140 The young person could also be diverted to an education program as outlined in Recommendation 20 in Chapter 3, in order to optimise fitness where this is recommended in the report obtained following an assessment order.
  3. 6.141 Following referral to the case worker program, the young person would come before the magistrate in the Children’s Court, who can then decide whether to:
  • discharge the young person
  • refer the person for support measures to optimise fitness, or
  • proceed to a determination of unfitness.
Determination of unfitness
  1. 6.142 Where the person has engaged in treatment, services or an education program to optimise fitness, they will then proceed to a determination of unfitness. The criteria for determining unfitness are outlined in Chapter 3 and include a consideration of the developmental stage of the young person.
  2. 6.143 The same processes regarding an investigation of unfitness as outlined in the CMIA should apply in the Children’s Court, with the exception that findings will be made by
    a magistrate or the President.
  3. 6.144 As in the higher courts, there is no limit on the number of times a magistrate or the President may adjourn proceedings to refer the young person for measures to optimise fitness but the overall period of adjournment must not exceed 12 months. In adjourning proceedings, however, the magistrate or the President in the Children’s Court must consider the impact of delays on young people and take a proactive approach to
    judicial management in prioritising these cases. Adjournments must be consistent with the statutory principle outlined in this chapter to minimise delays in proceedings for
    young people.
  4. 6.145 In determining if the young person is unfit to stand trial, a magistrate or the President
    may:
  • find the young person unfit and refer them for support measures to optimise fitness, or
  • find the young person unfit and refer them to the Family Division of the Children’s Court for a Therapeutic Treatment Order (under Part 4.8, Division 3 of the CYFA), or
  • find the young person unfit and proceed to a determination of criminal responsibility in a special hearing in the Children’s Court, or
  • find the young person fit and proceed to a determination of criminal responsibility in the Children’s Court under the usual criminal processes in Part 5 of the CYFA, or
  • find the young person fit and refer them to the Family Division of the Children’s Court for a Therapeutic Treatment Order (under Part 4.8, Division 3 of the CYFA).
Special hearings in the Children’s Court
  1. 6.146 Section 16(2) of the CMIA relating to special hearings will also apply in the Children’s Court.
  2. 6.147 If a magistrate finds a young person unfit to stand trial, a special hearing must be conducted within three months and should be conducted as nearly as possible as if it were a criminal procedure in the Children’s Court.
  3. 6.148 The requirement to consider measures to optimise an accused’s participation in proceedings as discussed at [3.123]– [3.126] in Chapter 3 should also apply to young people in the Children’s Court, as far as possible. The Children’s Court has expertise in allowing young people to ‘participate fully in proceedings’ given the requirements in section 522 of the CYFA. Recommendation 18 in Chapter 3 regarding optimising participation will support the operation of section 522.
  4. 6.149 Following a special hearing, the court may make a finding of:
  • not guilty of the offence charged
  • the accused’s conduct is proved but not criminally responsible because of mental impairment, or
  • the accused’s conduct is proved on the evidence available.
Special hearings involving young people in the higher courts
  1. 6.150 Where matters involving young people are transferred to the higher courts under the exceptional circumstances criteria or as a death-related offence, the higher courts should conduct proceedings using the same principles and processes wherever possible.
  2. 6.151 A young person should be subject to the same specialised approach in the higher
    courts that is available in the Children’s Court. However, the higher courts will have a wider range of orders available that would be appropriate for the more serious types
    of offences.
The process in committals
  1. 6.152 As with the recommendation made in relation to the Magistrates’ Court, the Commission recommends that where a matter is an offence that is excluded from the Children’s Court
    jurisdiction or in a committal proceeding, the committal proceeding should be completed.
    A separate procedure for committals will give the young person the benefit of a discharge,
    while ensuring that matters that should be heard in a higher jurisdiction can proceed through the committal process and be transferred in accordance with the usual procedures. The Commission’s recommendations in relation to committals in Chapter 5 (Recommendations 37 and 38) should also apply in the Children’s Court.
  2. 6.153 If there is a determination of the committal proceeding, and the young person is committed for trial, the question of unfitness to stand trial is reserved for determination by the trial judge in the jurisdiction to which the person is committed. If at the determination of the committal proceeding, the accused is not committed for trial,
    the court must discharge the young person.
  3. 6.154 Prior to the determination of the committal proceeding, if the court determines that the matter should be tried in the Children’s Court, the question of the young person’s unfitness should be investigated by the President or a magistrate in the Children’s Court.

Outcomes and orders in the Children’s Court

  1. 6.155 The Commission has been asked to consider what orders should be available
    following a finding of unfitness or not guilty because of mental impairment. In this section, the options for providing a power in the Children’s Court to make orders
    in relation to unfitness and the defence of mental impairment are considered.
  2. 6.156 The process that follows particular findings in the unfitness and mental impairment process and the orders available under the CMIA process in the Supreme Court and County Court are outlined in Chapter 9.
  3. 6.157 As explained at [6.19], in the Children’s Court, the only option available to a magistrate
    if they find a young person not guilty because of mental impairment is to discharge
    the person.

Indefinite orders and young people

  1. 6.158 A supervision order under the CMIA is an indefinite order.132 This means that the person can be subject to the order for an indefinite period, possibly for the rest of their life. Given the different principles that apply in the Children’s Court in dealing with young people, it is important to avoid creating a regime which lacks the flexibility to set an appropriate timeframe for an order to apply.

Orders available in the criminal jurisdiction of the Children’s Court

  1. 6.159 Orders that are currently available without a conviction under the CYFA include dismissing the charges, undertakings, good behaviour bonds, fines, probation or youth supervision orders that range from 6–18 months in duration.133
  2. 6.160 Custodial orders require a conviction and are imposed for a maximum period of three years. They include:
  • a youth residential order (10–14-year-olds)134
  • a youth justice centre order (15–20-year-olds).135
  1. 6.161 A youth attendance order can also be made with a conviction and requires the young person to attend a youth justice centre for a period of up to 10 hours per week while residing in the community.136
  2. 6.162 The Commission sought views on whether the Children’s Court should be given the power to make orders following findings in relation to unfitness and the defence of mental impairment. In particular, the Commission asked what orders should be available in both the Children’s Court and in the higher courts when a matter is transferred under the exceptional circumstances provision or as one of the seven death-related offences’ described at [6.66].
  3. 6.163 The Commission also questioned the suitability of indefinite supervision orders for young people in the supplementary consultation paper.

Therapeutic treatment order

  1. 6.164 A therapeutic treatment order is available under the CYFA for young people between the ages of 10 and 15 years who have exhibited sexually abusive behaviours.137 A therapeutic treatment order requires the young person to participate in an appropriate therapeutic treatment program.138 It remains in force for a period of up to 12 months to ensure the young person’s access to or attendance at the program.139
  2. 6.165 Where a young person has participated in a therapeutic treatment program as part of
    the conditions of the order, the Children’s Court is required to discharge the young person without any further hearing of the related criminal proceedings.140

Views in submissions and consultations

Concerns about indefinite orders
  1. 6.166 The majority of submissions did not support the imposition of indefinite orders for young people.141 One clinician expressed concern about subjecting young people to indefinite supervision orders, stating that limited supervision orders with more frequent reviews are more likely to ensure that young people remain engaged.142
  2. 6.167 Liberty Victoria supported this view arguing that they do ‘not see any circumstance where it would be appropriate for a young person to be placed on an indefinite order’.143 The Criminal Bar Association agreed with this view, stating that indefinite orders for young people would create a disincentive to raising the issue of unfitness or mental impairment and imposing such orders on young people with a mental condition would ‘fundamentally violate the overriding aims of the Children’s Court, particularly the minimisation of stigma’.144
  3. 6.168 The Victorian Equal Opportunity and Human Rights Commission considered that the use of indefinite orders for young people could not be justified under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) as a necessary limitation on their human rights:

the indefinite nature of an order is contrary to the therapeutic aim of the process. The Commission considers that an indefinite order could limit a number of human rights protected in the Charter … The Commission does not consider the limitations on these rights resulting from imposing an indefinite order on a child or young person could be justified as necessary or reasonable in accordance with section 7(2) of the Charter.145

  1. 6.169 The Commission for Children and Young People agreed with this view, arguing that indefinite orders do not take into account the continual development of the young person:

Making young people subject to indefinite orders means that the orders will not be responsive to the changing nature and needs of the young person for support and supervision. Indefinite orders may also have a detrimental effect, given their nature,
on the recovery of young people subject to the CMIA, as the young person may come
to believe that there is no goal for them to work towards, thus undermining
the therapeutic aim of the process.146

 

  1. 6.170 The Commission for Children and Young People also raised the issue of the message indefinite orders may send to victims and their families and the community, that ‘there
    is no prospect for improvement for them’.147
Support for limited supervision orders
  1. 6.171 One participant in a meeting with judges of the County Court of Victoria considered that a limited supervision order may be an appropriate option in certain circumstances. Their view was that where an accused is unfit to stand trial and charged with summary offences, the charges could be withdrawn or dismissed, and that for unfit accused charged with indictable offences, the ‘response should depend on the seriousness of the offence’. It was proposed that for less serious indictable offences, options could include dismissing the charges or diversion and that for serious indictable offences, a time-limited non-custodial supervision order could be imposed. It was suggested that such an order could be reviewed every six months until the young person is 21 years of age.148
  2. 6.172 One participant in a meeting with the President and magistrates of the Children’s Court highlighted the importance of a magistrate having a range of options to take into account the wide jurisdiction of the Children’s Court.149 It was suggested that a ‘whole new framework of therapeutic orders’ is required as magistrates in the Children’s Court currently do not have sufficient powers at their disposal to provide appropriate supervision and therapeutic supports.150
  3. 6.173 Youthlaw supported this view, arguing for a flexible approach in relation to orders
    and that young people could be engaged in intensive supervision and support through
    a range of options, from unconditional discharges to limited non-custodial supervision orders.151
Decision-making principles
  1. 6.174 The Victorian Equal Opportunity and Human Rights Commission considered the decision-making principles that may apply when considering the appropriate order for a young person under the CMIA:

Taking into account the differences between sentencing a young offender and deciding on the disposition of a young offender under the CMIA, it may be appropriate that the Court is directed to be guided by certain decision-making principles, such as the decision-making principles in Part 1.2 of the CYFA, or to take certain matters into account, such as those matters the Children’s Court currently takes into account ‘in determining which sentence to impose on a child’ in section 362 of the CYFA.152

  1. 6.175 Clinicians in a roundtable consultation considered there is a place for a treatment component to supervision orders, advising that the Therapeutic Treatment Order was quite useful and suggested this as a possible model to be adapted for use with young people under the CMIA.153 It was suggested at the clinician roundtable that the model developed in the Children’s Court should incorporate the current Therapeutic Treatment Order to allow young people to be referred for these orders, where appropriate.154

 

  1. 6.176 Some submissions also expressed support for the model underpinning the Therapeutic Treatment Orders in the process. The Criminal Bar Association suggested that magistrates could adjourn proceedings prior to a finding of guilt and impose something similar to a Therapeutic Treatment Order.155 It was suggested that this would allow the charges to be withdrawn or discharged upon successful completion of the conditions of the order. Victoria Police submitted that the adoption of a process similar to the Therapeutic Treatment Order ‘may assist in avoiding placing vulnerable children through a contested matter’.156 Victoria Police gave an example of the ‘AWARE’ treatment program but noted that service providers face resourcing challenges which can impact on outcomes for some children.157

The Commission’s conclusion

  1. 6.177 The Commission is of the view that the indefinite supervision regime that currently exists under the CMIA is inappropriate for matters in the Children’s Court. Applying the current CMIA regime in the Children’s Court would have a detrimental effect to the recovery of young people and would be contrary to the therapeutic aim of the process.
  2. 6.178 The Commission therefore recommends that the orders available under the CMIA in the Children’s Court should be subject to a time limit, and that there should be an emphasis on the young person remaining in the community where possible. For summary offences, the possibility of discharging the young person should be considered, where appropriate.
  3. 6.179 There is no discretion regarding jurisdiction for the seven death-related offences and where ‘exceptional circumstances’ exist and in such cases the Children’s Court must commit the young person to trial in the higher courts. This process would still be available for matters that might warrant a more restrictive order that may be imposed in the higher courts.
  4. 6.180 The Commission proposes that similar criteria to sections 39 and 40 in the CMIA should apply in the Children’s Court in decisions regarding the making, reviewing and variation of orders as set out in Appendix G. The exercise of this discretion will also be underpinned by the set of statutory principles for young people recommended to apply to decision makers in Chapter 2 in Recommendations 3, 4 and 5.
  5. 6.181 The Commission also recommends that an equivalent provision to sections 41 and 42 of the CMIA for providing for court reports be incorporated into the CYFA.

Recommendation

48 New provisions should be inserted into the Children, Youth and Families Act 2005 (Vic) to create the following regime for the imposition of orders:

(a) Upon a finding that an accused is not criminally responsible because of mental impairment or that conduct has been proved on the evidence available (but the accused is unfit to stand trial) in the Children’s Court, the court must:

(i) declare the young person liable to supervision, or

(ii) order that the young person be released unconditionally.

 

Recommendation cont’d

(b) A young person is to be unconditionally released unless the court is satisfied that they pose an unacceptable risk of causing physical or psychological harm to another person or other people generally.

(c) If the court declares a young person to be liable for supervision, it must impose a ‘therapeutic supervision order’. The court must make either:

(i) a custodial therapeutic supervision order, or

(ii) a non-custodial therapeutic supervision order.

(d) If the court imposes a therapeutic supervision order, it must set a fixed term of the therapeutic supervision order of two years with a progress review to be set for every six months. The order can be revoked at any time and there should be a presumption that the order will be made less restrictive at each review.

(e) The person subject to the order or the person having the custody,
care, control or supervision of that person may apply to the court for
a variation of the order (in the case of a custodial therapeutic supervision order) or a variation or revocation of the order (in the case of a
non-custodial therapeutic supervision order) during the term set by
the Children’s Court.

(f) On application under paragraph (e), the court must either:

(i) confirm the order

(ii) vary the conditions of the order

(iii) for a custodial therapeutic supervision order, vary the order to a
non-custodial therapeutic supervision order, or revoke the order, or

(iv) for a non-custodial therapeutic supervision order, vary the order to custodial therapeutic supervision order, or revoke the order.

(g) Part 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), including sections 40, 41 and 42, should apply to the Children’s Court’s consideration of whether to act on an assessment order or to make, vary or revoke a therapeutic supervision order.

 

Process for making orders in the Children’s Court
  1. 6.182 Where the Children’s Court makes a finding of ‘conduct proved but not criminally responsible because of mental impairment’ or ‘conduct proved on the evidence available’, the Court may make the young person liable to supervision or make an order for unconditional release.

 

  1. 6.183 Part 6 of the CMIA contains relevant provisions that a court must comply with prior to releasing a person unconditionally, declaring a person liable to supervision or reducing the level of supervision to which a person is subject. In Chapter 10, the Commission makes recommendations to improve the principles in section 40 and the procedures in Part 6 concerning the report on the person’s mental condition in section 41 of the CMIA and the certificate of available services. The Commission has formed the view that the same key features of the CMIA as it operates in the higher courts (subject to the Commission’s recommendations in Chapter 10) should apply to decision making in relation to CMIA orders in the Children’s Court.
  2. 6.184 After a finding that the young person is not criminally responsible because of mental impairment or that their conduct has been proved on the evidence available, a court report, certificate of available services and a victim and family member report (where
    one is made) should be provided to the Children’s Court. After considering the report,
    the Court may make either of the following orders:
  • unconditional release
  • therapeutic supervision order (custodial or non-custodial).
  1. 6.185 Given the importance of the principle that restrictions on the young person’s freedom and personal autonomy should be the minimum consistent with the safety of the community, there should be a presumption in favour of unconditional release unless the Court is satisfied that the young person poses an unacceptable risk of harm to the community.
  2. 6.186 A therapeutic supervision order will be for a fixed term of two years, with a progress review every six months.
  3. 6.187 In deciding whether to make, vary or revoke a therapeutic supervision order, the magistrate would consider a range of issues outlined above that qualify the principle of least restriction for the young person with the need for community protection.
  4. 6.188 Once a young person is under a therapeutic supervision order, the arrangements
    for supervision under the proposed model will depend on whether the Commission’s recommendations to establish a case worker program and a youth forensic facility (Recommendations 46 and 49) are adopted and implemented. The Commission considers that it would desirable for a case worker model to underpin the approach to supervision of young people under a therapeutic supervision order. Accordingly, there may be options to combine the two initiatives, so that the case worker program is established as part of, or in connection with, the youth forensic facility, and so be based on a multi-disciplinary approach.
  5. 6.189 The model of supervision under therapeutic supervision orders should operate in the same way as the case worker program recommended to be established as a diversionary option under the model. It should operate by assessing the needs of the young person and linking them with supports and services in the community. This process supports the principle of gradual reintegration and aims to ensure that the young person develops relationships and supports in the community to address the factors that may have contributed to their offending behaviour.
  6. 6.190 Another purpose of the case worker program is to minimise the effects of institutionalisation on young people in custody by empowering them to become
    self-reliant with appropriate supports in the community.
  7. 6.191 The young person will be reviewed every six months, with a presumption of release
    at each review. The therapeutic supervision order will expire after two years and the young person will be released.
Managing breaches of supervision orders in the Children’s Court
  1. 6.192 The CMIA outlines processes for managing a person who has breached their supervision order.158 These processes are described in more detail in Chapter 11. The Commission also makes recommendations in Chapter 11 to provide greater flexibility in managing breaches of supervision orders under the CMIA. The Commission considers that the processes for breaches in the CMIA, amended to adopt Recommendation 99 in Chapter 11, will be sufficiently broad for managing breaches of supervision orders in the Children’s Court. The Commission therefore proposes that breaches of supervision orders in the Children’s Court be dealt with in this way. Consideration will need to be given to the implementation of these provisions and to whether there should be any variation in approach once the model of care and the requirements for service delivery, supervision arrangements and management of young people subject to the CMIA, in conjunction with a youth forensic facility, have been developed as proposed by the Commission in Recommendations 49 and 50 below.

Supervision of young people

Treatment pathway

  1. 6.193 Provision of services to young people involved in the criminal justice system can be complex, and young people may be receiving services from or have a history with different government departments or agencies.
  2. 6.194 As discussed at [6.26], many young people in the criminal justice system are also involved in the child protection system. Where a young person is involved in both services, senior practitioners from Youth Justice and Child Protection in the Department of Human Services (DHS) must ‘agree and document the rationale for the decision on which program will hold primary case management’.159
  3. 6.195 Young people in the criminal justice system may also be a client of Disability Services, which provides supports and services for young people who are six years of age and over with intellectual, physical, sensory and multiple disabilities, neurological impairments and acquired brain injury.160
  4. 6.196 Where young people in the criminal justice system are receiving services from a range of agencies with several case managers, it is important to identify which service has primary responsibility for the young person’s treatment and care:

A young person involved with Child Protection, Youth Justice and Disability Services will have allocated workers with each service. The primary case manager must always be identified at the outset. For ‘dual order’ clients, case management responsibility will as
a rule sit with Child Protection unless there are extraordinary circumstances.161

  1. 6.197 Currently there is limited recognition of co-morbidity between mental health problems and substance abuse problems in juvenile offenders.162 As a result, there may be poor coordination between the agencies responsible for providing different services in prison.163 This may, however, be addressed by DHS’s new integrated human services model.164

 

  1. 6.198 Research has indicated that stable case management is crucial in providing services to young people in custody:

Stable case management that provides the case worker as a secure base for the young person during his custodial sentence helps to mitigate the stresses experienced as a result of incarceration. The objective of case management is the tailoring or adaptation of services to meet the needs of each offender in an individual case plan. It facilitates interagency cooperation to assist with the provision of a seamless service between each client between conviction, discharge, and post discharge re-integration.165

  1. 6.199 Accessing mental health programs in the community can be difficult for offending youth because many programs do not deal with offending behaviour.166 Young people in the criminal justice system are often in most need of mental health services, yet as one study explains, those with the most complex needs are often excluded from services:

Young people with complex needs require specific services in the community. While a small proportion of young people with highly complex needs repeatedly cycle through the youth justice system … it is precisely this group that is most frequently excluded from services and programs that might address their criminogenic and other needs. Stakeholders interviewed for this research repeatedly raised concerns that mainstream services that should assist young people to remain in the community on bail often exclude particular groups of young people with complex histories and needs—such as those who are very young, those with histories of violence and/or those who are ‘clients’ of statutory child protection agencies.167

  1. 6.200 The Youth Parole Board and Residential Services Annual Report explains that mental health treatment can reduce reoffending and that these young people should be provided with access to treatment.168
  2. 6.201 The supplementary consultation paper asked whether a treatment pathway for young people should differ from that for adults under the CMIA.

Views in submissions and consultations

  1. 6.202 The Criminal Bar Association proposed a treatment system that is ‘youth specific’:

Treatment pathways for young people should be tailored to take into account their youth, stage of development and the particular illness/impairment from which they suffer. In our experience young people are often best treated by youth specific services in relation to numerous issues, including their mental health. It may be that a youth forensic mental health service needs to exist as part of Forensicare, or alongside it,
to monitor young people under the Act.169

  1. 6.203 The Criminal Bar Association also proposed that orders should focus on connecting young people with mental health or disability services and suggested that the ‘supervisory experience of Youth Justice can be used in conjunction with the impairment-specific agency, depending on the needs of the young person and the circumstances of
    the offending’.170

 

  1. 6.204 The need to provide timely treatment services was also raised as an issue in providing services to young people:

In the specific context of CMIA matters, young people in the CMIA process may need access to care, which makes it especially crucial for the trial to occur as quickly as possible so that any necessary intervention can be decided upon and taken. Timely access to necessary assessment and care is crucial.171

  1. 6.205 However, while timely access to treatment is crucial, as one participant in a clinician roundtable meeting argued, ensuring enough time is allocated for treatment is equally important in providing treatment services to young people. An example was provided of practice in Europe, where the system provides ‘for greater period of time for things to happen’ and it was suggested that six months is too short a period to address some of the issues with young people in this cohort.172

The Commission’s conclusion

  1. 6.206 The Commission is of the view that the establishment of a case worker program to which young people can be diverted under Recommendations 45(e) and 46 will assist in providing stable case management for these vulnerable young people.
  2. 6.207 The Commission supports the establishment of a graduated treatment pathway for young people with a mental condition. The successful establishment of a treatment pathway is dependent, however, on the availability of timely, accessible and appropriate services and facilities that provide specialist treatment and care for the youth forensic population. These issues are discussed in the following section.

Facilities and services

Services for young people in the criminal justice system in Victoria

  1. 6.208 Youth Justice is responsible for the statutory supervision of young people in Victoria. There are three youth custodial facilities in Victoria:
  • Parkville Youth Residential Centre (10–14-year-olds)
  • Melbourne Youth Justice Centre (15–20-year-olds)
  • Malmsbury Youth Justice Centre (15–20-year-old males).
  1. 6.209 In Victoria, there is no dedicated secure forensic mental health or disability facility for children. Thomas Embling Hospital is a high-secure facility for mentally ill patients but it is specifically for adults. The only facility for the detention of young people in the criminal justice system is the Youth Justice Precinct at Parkville, operated by the Department of Human Services (DHS).173
  2. 6.210 Child and adolescent mental health services or child and youth mental health services provide voluntary and compulsory mental health services in the civil system. However, none of these services are secure. DHS provides voluntary and compulsory care to young people with an intellectual disability, but there is limited dedicated specialist accommodation in the community for young people with a disability.
  3. 6.211 Based on their assessed risks and needs, young people identified as vulnerable,
    who may have an intellectual disability or mental condition, can reside in a specialised residential unit. A disability liaison position is established at the Youth Justice Centre to support the care and treatment of children and young people assessed as having an intellectual disability.174
  4. 6.212 In 2010, the Victorian Ombudsman released Investigations into conditions at the Melbourne Youth Justice Precinct. This report identified that there is no facility comparable to Thomas Embling Hospital for young offenders who have a mental illness and have received custodial sentences. It was noted that while the Adolescent Forensic Health Service is situated on-site at the Parkville Youth Justice Precinct, it ‘does not oversee the well-being of young people on a 24 hour a day basis’.175 It was therefore recommended that the Department of Human Services:

Review the adequacy of the current response to young offenders with significant mental heath problems who are detained in custodial centres. This review should also consider establishing a purpose built facility operated by trained health professionals.176

  1. 6.213 As part of DHS’s response to the Ombudsman’s report, Youth Justice Custodial Services agreed to ‘review the response to detainees with significant mental health issues to identify service improvements’.177
  2. 6.214 It has been demonstrated that the stable environment in prison can improve the mental
    health of some juveniles, especially if they were previously in dysfunctional homes
    or homeless.
    178

Approach in other jurisdictions

  1. 6.215 New South Wales has the only dedicated high-secure mental health facility for adolescent forensic patients in Australia.179 This facility is located as one unit within the Malabar Forensic Mental Health Hospital.
  2. 6.216 In the United Kingdom there are seven different adolescent-specific medium-secure mental health facilities located throughout the country.180 The local health departments run these facilities. The facilities tend to have slightly different focuses so individuals can be matched to the best facility for their treatment.181
  3. 6.217 Children in the United Kingdom who are found to be unfit to be tried or not guilty by reason of mental impairment are detained in these facilities.182 The facilities are also open to youth currently under the civil mental health system. In order for these individuals to be admitted they must pose a risk to the community and have exhibited specified types of risky behaviour in the past, even if that behaviour has not been proved in a court.183

View in submissions and consultations

  1. 6.218 The majority view in submissions and consultations was that an appropriate facility should be created to meet the needs of young people with a mental impairment.184 Common themes emerged about the facilities and services available for young people affected by the CMIA.
A lack of appropriate facilities and services for young people under the CMIA
  1. 6.219 The President and magistrates of the Children’s Court were supportive of extending the jurisdiction of the Children’s Court to determine unfitness; however, they stressed that this ‘should not happen without an appropriate supervision and treatment system to support it, which is currently lacking’. It was said:

While it is critical that there are changes to the law, an inadequate response to what happens in terms of service delivery would be disastrous. It is clear that the Children’s Court should be doing CMIA work but it needs to be clarified what happens at the
very end of the process.185

  1. 6.220 This view was also expressed by a judge of the County Court who stated that the ‘lack of dedicated facility for young people with CMIA issues under custodial supervision orders’ was a ‘major issue’.186 While acknowledging the need for young people to remain in the community wherever possible, another judge of the County Court stated that ‘where a custodial order is necessary, there should be a special facility for children’.187
  2. 6.221 The urgency of need for a specialised facility for young people with a mental condition was highlighted by one participant in the clinician roundtable meeting, who argued that there is currently nowhere to contain young people with ‘seriously flawed backgrounds’ and while the numbers are not large, there is a small group of young people ‘that need
    to be catered for and who have never been catered for’.188
  3. 6.222 Dr Adam Deacon, an experienced clinician in this area, advised the Commission that while adults with a mental illness in prison can be transferred to Thomas Embling Hospital, there is no facility to manage a young person in custody with mental health issues.189
  4. 6.223 The Commission for Children and Young People argued that there is a ‘glaring gap’ in custodial services for young people who are experiencing mental illness as identified in the 2010 Ombudsman’s report, and that this:

has very serious implications for the mental health and wellbeing, and future development of all the young people concerned, as the behaviour of those with serious mental health issues can heavily impact on those around them as well as themselves. In addition to this lack of appropriate facilities distorting the type of order that the judiciary are able to make, we know that young people are unable to receive treatment in a timely manner and are likely to develop more severe and more prolonged difficulties that are more complex to treat effectively, and that custody itself can lead to an exacerbation of mental ill health.190

  1. 6.224 The lack of available treatment facilities was also raised as an issue for young people
    in relation to optimising fitness.
    191 One clinician identified that while there is a need for beds in mental health facilities to optimise fitness for young people, the resource requirements are ‘multi modal and include acute psychiatric treatment facilities not currently available in Victoria’.192
Difficulties and barriers to accessing mainstream mental health and disability services
  1. 6.225 Another theme to emerge from submissions and consultations, similar to that expressed in the adult system, was the difficulties for young people in the forensic population to access mental health and disability services in the civil system.
  2. 6.226 A key barrier identified was that mainstream mental health services often do not have the capacity or expertise to meet the needs of young people with a mental illness in the criminal justice system.
  3. 6.227 As one participant in the clinician roundtable explained, not all services would feel well equipped to deal with this ‘niche cohort’ of young people who are a ‘very specific group’ and Child and Adolescent Mental Health Services do not address criminogenic factors
    and are built around particular presentations and particular illnesses.193
  4. 6.228 Another participant in the clinician roundtable highlighted the difficulties in placing a young person with a mental impairment and an offending history in a child and adolescent mental health facility where other vulnerable young people are unwell, explaining that many young women in the facility would have experienced sexual abuse and it is therefore inappropriate to place someone who has committed sexual offences in the same unit.194 Many young people under the CMIA have ‘aggressive or problematic behaviour’ and while the Child and Adolescent Mental Health Services may not be able to meet their needs,
    it may also be unsuitable for other young people to be in the same facility as young people under the CMIA.
    195
  5. 6.229 Another clinician supported this view, arguing that it is almost impossible for a young person in custody to access mainstream mental health services, which results in the young person being risk-managed within a unit at the Parkville Youth Justice Centre.196 It was explained that a further difficulty is that clinicians often have to ring several hospitals until they can find one that will take the young person as the triage system will generally exclude people who did not live in Melbourne or have no address because they are not within the catchment area of the service.197
  6. 6.230 As with the Youth Justice Centre, it was argued that it is difficult to maintain a therapeutic environment for a young person in custody at a child and adolescent mental health service given the length of stay, as the young person is often moved back to custody as soon as their mental state improves, and they often ‘cycle through the system’.198 It was also highlighted that it would be good for these young people to be in an environment where ‘they can learn to improve’, as young people can learn bad habits from others in a residential facility.199
  7. 6.231 The difficulties in accessing mental health treatment for young people in custody were attributed to:
  • insufficient beds
  • a lack of understanding by the hospitals or service providers that the custody environment is inappropriate for a young person
  • reluctance to take people from the forensic system
  • insufficient training of mainstream mental health clinicians so that they feel uncomfortable with forensic clients

 

  • logistical barriers to obtaining a bed (for example, the requirement that the young person be supervised by Youth Justice staff while in hospital)
  • the distinction made between mental health issues and behavioural issues—Child and Adolescent Mental Health Services (CAMHS) and Child and Youth Mental Health Services (CYHMS) will manage mental health issues but will not deal with what they consider to be behavioural issues, particularly if the behaviour involves offending
  • the types of conditions that can be admitted (for example, a young person could
    have a psychotic illness but not meet the criteria for schizophrenia).200
  1. 6.232 The Commission was informed that there is also a lack of facilities in the disability sector, with ‘no residential options for children within disability services’.201
A new facility to address the current gap in facilities and services
  1. 6.233 While there was a range of views expressed about the most suitable type of facility, it was argued that the Youth Justice Centre at Parkville was not appropriate for young people who may come under the CMIA.202
  2. 6.234 There was general and strong support for the creation of a separate new custodial
    facility. Two submissions were supportive of a new facility, but were opposed to it being
    co-located with the Parkville Youth Justice Centre. One clinician highlighted the difference in approach taken by the Youth Justice Centre at Parkville and argued that co-location of a facility for young people with a mental condition was not appropriate and that the service should be distinguished from units in which referrals are based on ‘custodial management concerns’ rather than on psychiatric illness.203 Another clinician supported this view, stating that the facilities at the Youth Justice Centre in Parkville were inadequate for young people within the CMIA cohort and the culture at the Youth Justice Centre was ‘correctional’ rather than therapeutic.204
  3. 6.235 It was estimated in consultations that the numbers in this cohort are small. However, uncertainty as to the possible demand was also expressed. The Commission was informed in a consultation with DHS that the number of young people who might come under the CMIA provisions is unknown.205 An experienced child psychiatrist argued that the number of young people who require a ‘therapeutic environment’ in a custodial setting is currently underestimated, stating that there are approximately 5–10 young people on average per
    day in the Parkville Youth Justice Centre who would benefit from being treated in a therapeutic environment, ‘but this could arguably include many more’.206
  4. 6.236 In a meeting with judges of the County Court, diverse views were expressed about the most appropriate location of a specialist facility for young people.207 One judge suggested that a version of Thomas Embling Hospital for young people should be established whereas another judge suggested that existing facilities could be suitable for some of the young people that came under the CMIA, providing the example of the ‘residential facility that exists for young sex offenders that operates on a three-year stepped process’.208
The approach that should underpin the new facility
  1. 6.237 The Commission was advised that many young people who may come under the CMIA are also in the child protection system. A participant in the Commission’s clinician roundtable said:

We want to avoid the child protection model where they are subject to multiple case workers—it is highly destabilising … It’s about establishing reparative relationships
for the child.209

  1. 6.238 The impact that a background of trauma can have on a young person was considered to be of major relevance in developing ways to deal with young offenders. One clinician consulted by the Commission stated that:

Trauma has a profound effect on children. It has a significant influence on their functioning and there is an organic element to it … Approximately a third of young people in DHS’s care would be ‘trauma children’ who are low functioning. A number would be unfit if they committed offences.210

  1. 6.239 The Australian Clinical Psychology Association explained that trauma can arise from ‘multiple disruptions in primary care, such as emergency placements, voluntary/involuntary foster care/residential care, kinship care, or significant disruption in primary care’ and that there is ‘a link between exposure to early trauma, [post-traumatic stress disorder] and offending behaviours in children and young people’.211
  2. 6.240 One clinician in the roundtable meeting on the Children’s Court explained that the model underlying therapeutic residential accommodation considers that children who have experienced trauma need to have reparative relationships established to enable them to experience attachment and trust.212 This view was supported by another clinician at the roundtable meeting who stated that the aim of the youth justice system should be to establish reparative relationships for the young person.213 It was argued that subjecting young people to multiple case workers is ‘highly destabilising’ and in creating a specialised youth justice facility, ‘the person doing the assessments should form stable attachments [with the young person] together with qualified workers who can withstand those volatile environments to form parallel attachments’.
  3. 6.241 The Commission for Children and Young People supported a gradualist approach in providing treatment to young people, stating that:

[w]hilst young people may be able to adapt more quickly, they need extensive support to navigate a treatment pathway to counter the destabilizing effects of adolescent development combined with an emerging mental illness or cognitive impairment. Young people in these circumstances have challenges in dealing with stigma, potentially not accepting that they need treatment and/or believing that they do not have an impairment, and may be transitioning from high dependency services to those offering lower support. Development of a formal treatment pathway for young people also ensures that there are not service gaps, service demand issues are apparent and that integrated and coordinated services are being offered.214

  1. 6.242 The Commission was informed in a consultation with staff of DHS that practice advice could be developed by the department about supervision for the cohort of young people who would be subject to CMIA orders. It was further noted that the model for supervision should consider the dynamic developmental needs of young people.215

 

  1. 6.243 Specific suggestions were made as to what model could be used to develop a new facility for the supervision and treatment of young people under the CMIA, including:
  • Hurstbridge Farm216—a therapeutic residential facility for young people ‘who have been traumatised and suffered disrupted attachment’.217 The therapeutic care model ‘includes the farm environment, additional training of staff, a trauma and attachment-informed model and a therapeutic specialist’.218
  • Facilities in the United Kingdom and New South Wales219—for example, the Forensic Hospital in New South Wales provides a 16-bed adolescent unit and Ardenleigh in Birmingham, the United Kingdom, is a 20-bed medium-secure inpatient treatment facility for young people up to the age of 19 years.

The Commission’s conclusion

  1. 6.244 The Commission is of the view that there is a need for a youth forensic unit in Victoria. It is unacceptable that young people with a mental illness, intellectual disability or other cognitive impairment are being detained in custodial facilities that are not appropriate
    for meeting the needs of this vulnerable group of young people.
  2. 6.245 The Commission acknowledges that there are significant cost implications in its recommendation. While the Commission is mindful of this, it is not in a position to cost such a facility, given the variables involved, such as the location of the facility, the number of beds required, the needs of the patients/residents and the security requirements. Another unknown variable is the extent to which work to develop the facility can be combined with work to implement the case worker program recommended by the Commission, discussed at [6.282]–[6.283]. However, the Commission emphasises that the development of a youth forensic facility is necessary to provide a secure and therapeutic environment in which assessments can be conducted, and young people can undertake treatment and services to optimise fitness and receive treatment and services while under supervision under the CMIA. The facility is recommended on the basis that it would provide an appropriate place for vulnerable young people with a mental condition to receive treatment and services in custody, while ensuring the safety of the community is protected consistent with the underlying principles of the CMIA. The development of a youth forensic facility therefore underpins all of the recommendations made in this chapter.
  3. 6.246 The Commission also acknowledges the need for a therapeutic environment for young people who have experienced trauma to allow them to establish reparative relationships and to experience attachment and trust. These specialised services cannot be provided in the existing youth justice facility. The Commission is of the view that the impact of trauma must be addressed, given the link between trauma and offending and reoffending behaviour in young people. Addressing trauma in vulnerable young people will seek to reduce reoffending and provide greater protection for the community.
  4. 6.247 The outcomes in CMIA cases that have involved young people suggest that the demand for the youth forensic facility for the purpose of supervision on CMIA orders may be lower than it is for adults. However, modelling of the facility should also take into account the demand for accommodation for assessments of unfitness (under the Commission’s proposed ‘assessment order’) and for treatment and services to optimise the fitness of young people under the model proposed by the Commission.

 

  1. 6.248 This cohort of young people has complex needs and the Commission considers that any recommendation on an appropriate facility will require a multi-disciplinary analysis that is beyond the scope of this reference. It is therefore proposed that a multi-disciplinary team develop a model of care, including service delivery, supervision arrangements and management requirements for a youth forensic facility.

Recommendations

49 A multi-disciplinary youth forensic facility should be established in Victoria.

50 The Victorian Government should commission a multi-disciplinary team to develop a model of care to identify and develop the requirements for service delivery, supervision arrangements, management and operation of the youth forensic facility.

 

  1. 6.249 Work commissioned to develop the model of care for the basis of the youth justice facility should include consideration of the extent to which the facility could cater for young people subject to the CMIA who are not ‘children’ within the meaning of the CYFA (that is under 18 years) but are under 21 years at the time the order is imposed and are particularly vulnerable. The Commission’s view is that a model similar to the ‘dual track’220 approach available under sentencing of young offenders in Victoria is desirable.

Implementing a workable model—cost implications

  1. 6.250 The Children’s Court provides a forum to determine CMIA matters in a way that is more flexible, expeditious and less intimidating than having the matter determined in a higher court. Furthermore, the Children’s Court’s embracive and specialist jurisdiction should be preferred in all matters within its jurisdiction involving young people in CMIA matters, given their heightened vulnerability. Like the Magistrates’ Court, the Children’s Court has the ability to conduct proceedings in a flexible manner and use a less formal approach
    for young accused who come under the CMIA.
  2. 6.251 The Commission considers that the extension of the CMIA to the Children’s Court will ensure that the CMIA operates in a way that is more flexible and appropriate, having regard to the specific needs and risks of young people who come under the regime. Broadening the powers of the Children’s Court under the CMIA will enable a more appropriate balancing of the principles underlying the CMIA, in particular community protection, treatment and recovery, applied within the specialised approach proposed by the Commission for young people, in determining the most appropriate outcome.
  3. 6.252 As has been observed by the Commission in relation to the Magistrates’ Court, there are many good reasons from a policy and practice perspective for the CMIA to apply to a greater extent in the Children’s Court. These are documented in detail in this chapter and have been influential in the Commission’s recommendations.
  4. 6.253 As required in the terms of reference, the Commission has also had regard to the cost implications of its recommendations to extend the application of the CMIA in the Children’s Court.

 

  1. 6.254 Extending the application of the CMIA in the Children’s Court will require appropriate and sufficient resources. As with the Magistrates’ Court, resources will be required for the set up and ongoing support of the processes and procedures, as well as more personnel, court listing time and an expansion of the services available to support aspects of the process, such as expert reports and the creation of treatment and supervision services and facilities (under Recommendations 49 and 50 to establish a youth forensic unit and develop an underpinning model of care).
  2. 6.255 However, the two key areas identified as producing cost savings through the creation of new processes in the Magistrates’ Court also apply to the Children’s Court:
  • Costs associated with court hearings to determine criminal matters would be lower in the Children’s Court compared to the County Court, in particular the costs associated with the involvement of a jury in the higher courts.
  • Costs associated with the outcomes proposed in the Children’s Court would be lower, in particular the power to discharge at any stage after a real and substantial question of unfitness has been established and prior to a determination of criminal responsibility (Recommendation 45(f)) and the introduction of fixed-term supervision orders in the Children’s Court (Recommendation 48), compared to the regime in the County Court which requires a choice between unconditional release or the imposition of an indefinite supervision order.221

Cost implication modelling work by the University of Melbourne

  1. 6.256 To enable an accurate estimate to be made of the cost implications in the two areas at [6.255], the Commission engaged the services of consultants at the Melbourne School of Population and Global Health, University of Melbourne222 to model and analyse the cost implications of its recommendations in relation to the further application of the CMIA to the Magistrates’ Court and Children’s Court. The scope of the work and methodology is described in Chapter 5 at [5.174] and [5.178]–[5.179].
  2. 6.257 The University of Melbourne provided the Commission with a report223 that documented the methodology and results of the modelling exercise. The Commission has drawn from the report in considering the cost implications in this area of proposed reform.

Cost of hearing CMIA matters in the Children’s Court instead of the County Court

  1. 6.258 The Commission’s recommendations to create new processes and procedures in the Children’s Court support the power to:
  • determine unfitness to stand trial and criminal responsibility in a special hearing following a finding of unfitness
  • make orders following findings of not criminally responsible because of mental impairment and that conduct has been proved on the evidence available (but the accused is unfit to stand trial).

 

  1. 6.259 Under the proposed process and procedures, it will be possible for matters that come within the Children’s Court jurisdiction—those involving accused under the age of 18 years at the time of the offence charged with summary offences and/or all indictable offences (except for the seven death-related offences outside of the Children’s Court jurisdiction)—where issues of unfitness and the defence of mental impairment are raised to remain in the summary jurisdiction for determination. Therefore, the Commission’s recommendations provide an alternative to the requirement that matters go through the committal process and be transferred to the County Court due to a lack of power to determine unfitness and the lack of power to make orders.
Results
  1. 6.260 Overall, the results indicate that extending the application of the CMIA in the Children’s Court will reduce the cost to the justice system through a reduction in procedural costs for court hearings.
  2. 6.261 The analysis of the distribution of cost outcomes in the current model for young people charged with an indictable offence as a child in the Children’s Court and County Court indicated that there were two cost outcomes that were more likely than others:
  • $52,802 occurring in 27.0 per cent of cases
  • $24,498 occurring in 24.8 per cent of cases.224
  1. 6.262 The analysis of the distribution of costs under the proposed model for young people charged with an indictable offence as a child in the Children’s Court and County Court produced two cost outcomes that were more likely than others:
  • $10,240 occurring in 34.6 per cent of cases
  • $26,931 occurring in 27.6 per cent of cases.
  1. 6.263 Comparing the two models, the most likely path in the current model for young people would cost an estimated $52,802, while the most likely path in the proposed model would cost an estimated $10,240—representing a cost saving of $42,562 per case.
  2. 6.264 A comparison of the overall mean costs of the current and proposed models for young people charged with an indictable offence triable in the Children’s Court and County Court shows that there is an average cost saving of $32,930 for each matter that can be heard in the Children’s Court instead of the County Court. The minimum cost saving is $17,913225 and the maximum cost saving is $80,769. The costs between the two models on various points of comparison are set out in Table 4.

Table 4: Cost comparison between current and proposed models for young people
charged as children with indictable offences triable in the Children’s Court under
the CMIA

Table 4: cost comparison between current and proposed models in the Children's Court 

 

  1. 6.265 The large decrease in the mean cost associated with the proposed model can be attributed to the following:
  • lower personnel costs in the Children’s Court compared with the County Court
  • lower costs for prosecution services (Victoria Police instead of the Office of
    Public Prosecutions)
  • removal of costs associated with a jury in the County Court226
  • removal of fees payable to Victoria Legal Aid and the prosecutions costs for committal hearings, and
  • removal of rental costs incurred by the County Court.227
  1. 6.266 Analysis of the cases heard under the CMIA over a 12-year period from 2000–01 to 2011–12228 indicated that there were nine cases dealt with in the County Court that could have been dealt with under the proposed model had it been available. In these nine cases the accused were aged under 21 years and had been charged with offences that were within the jurisdiction of the Children’s Court (non-death-related indictable offences). Given the time that matters take to proceed and be heard in the higher courts, it can be assumed that most if not all nine cases involved an accused who was under 18 at the time of the offence. If so, these cases would have come within the criminal jurisdiction of the Children’s Court.229 If jurisdiction had been granted for these cases to be determined in the Children’s Court and the proposed model had been available for them to be heard and determined in the Children’s Court, the nine cases represent an estimated collective cost saving of over $380,000 to the justice system from court proceedings alone.

Cost of supervision and treatment on custodial supervision orders

  1. 6.267 Due to a lack of information about the current cost of supervision and treatment for young people under the CMIA, it was not possible to estimate the cost implications of the Commission’s proposal to introduce fixed-term therapeutic supervision orders in the Children’s Court.  
  2. 6.268 Currently, young people who are subject to a custodial supervision order under the CMIA would be detained in the only custodial facility for children in Victoria: Parkville Youth Justice Centre. The average cost per day, per young person subject to detention-based supervision in Victoria in 2012–13 was $1,109.69 (approximately $405,037 per year).230
    A reduction in the time for supervision and treatment under an indefinite order imposed on a young person in the higher courts and a two-year order would produce a corresponding reduction in cost for that particular case, albeit an unquantifiable reduction.
  3. 6.269 There will be obvious cost implications of the Commission’s recommendation to establish a youth forensic facility (Recommendation 49) and for work to develop a model of care for service delivery requirements, supervision arrangements, management and operation of such a facility (Recommendation 50). It was suggested in submissions and consultations that the demand for such a facility may be small, although some people were uncertain as to the possible demand.
  4. 6.270 The outcomes in the cases that have involved young people in CMIA matters indicate that a small number of young people have been ultimately placed on custodial supervision orders under the current operation of the CMIA:
  • One of the nine cases determined in the County Court from 2000–01 to 2011–12 that involved young people aged under 21 years and that the Commission identified as cases which could have been determined in the Children’s Court, involved the imposition of a custodial supervision order for armed robbery.231 However, three people aged under 21 years were placed on custodial supervision orders in CMIA matters determined in the Supreme Court.232
  • None of the approximately 25 cases identified by the Department of Human Services and Office of Public Prosecutions to involve young people raising issues of unfitness and the defence of mental impairment, resulted in the imposition of a custodial supervision order. Four young people (all of whom were 18 years or over when the order was imposed) dealt with in the County Court were ultimately placed on a
    non-custodial supervision order and one young person was found unfit and the
    court was awaiting a certificate of available services.233
  1. 6.271 This suggests that the number of cases involving young people that may call for a custodial supervision order is likely to be small, compared with adults. However, the outcomes in these cases may have been a product of ‘artificial decision making’ whereby decisions were made to impose non-custodial supervision orders due to a lack of appropriate custodial facilities for young people.
  2. 6.272 The Commission considers that further scoping of the demand for such a facility ought to be included in the work done under Recommendation 50 to develop a model of care and requirements for the facility.
  3. 6.273 The Commission acknowledges that even if it is established that demand is relatively low and such a facility would require a small number of beds, the establishment and running of such a facility represents a significant resource investment. Given the number of unknown variables, the Commission has not attempted to undertake an assessment
    of its cost implications.

The potential to widen the net

  1. 6.274 The Commission’s recommendations to create new processes and orders in the Children’s Court under the CMIA may provide an incentive for accused to go down the CMIA pathway, where there was a previous disincentive. The same factors that were noted in relation to the Magistrates’ Court apply in the Children’s Court to the availability of a process to determine unfitness to stand trial and a limited term supervision order in the Children’s Court. It could result in more lawyers advising their client to rely on the CMIA. Prosecutors may pursue charges more often if discharges or discontinuances (following a finding of not guilty because of mental impairment, or where a question of unfitness is raised in relation to a summary offence) are no longer the only option, particularly in relation to summary offences.
  2. 6.275 There is a lack of data available on how many young people could potentially be drawn into the CMIA cohort if the CMIA was extended to the Children’s Court. It is unclear how many times a question of unfitness is raised in the Children’s Court in relation to a matter that can be heard there. There is also a lack of data on how often a matter is discontinued because the question of unfitness is raised. There is a lack of data on the frequency of discharges following a finding of not guilty because of mental impairment.
  3. 6.276 It is clear from information available in relation to young people who have been subject to CMIA processes that unfitness to stand trial is more likely to be raised as an issue than the defence of mental impairment.234 However, overall, cases where issues of unfitness to stand trial have been raised represent a small proportion of the young people appearing in the Children’s Court. For example, in the Children’s Court, in 2012–13, there were four referrals for an assessment of unfitness (of a total 262 criminal referrals).235
  4. 6.277 Similarly to the observation made in the Magistrates’ Court, it is clear, however, that prosecutors and lawyers encounter potential unfitness or mental impairment cases more frequently than these cases reach court.236
  5. 6.278 As discussed at [5.192] in relation to the extension of the CMIA in the Magistrates’ Court, the analysis by the University of Melbourne suggested that as the proposed model provides substantive cost savings per case, any increase in overall operating costs for
    the justice system would primarily result from a ‘net-widening’ effect. It is not expected that the cost of cases in the proposed model would exceed the maximum costs in the current model.
  6. 6.279 It was estimated that, given the cost savings for mean court processing costs in the adult model ($15,744 for the proposed model compared to $48,674 for the current model), any net-widening effect would need to exceed 380 per cent (assuming no difference to distribution) before additional costs to the court system would be incurred.
  7. 6.280 The Commission also notes Victoria Police’s submission that if recidivist offending is reduced by the ability of the Magistrates’ Court to provide a more appropriate and expedient response in cases involving unfitness to stand trial and the defence of mental impairment, this may ultimately reduce the number of CMIA matters. This observation is equally applicable to the Children’s Court.

Other resource requirements to support the model in the Children’s Court

Increases to existing resources

  1. 6.281 As identified in relation to the Magistrates’ Court, change may be required in several areas to ensure a workable model in the Children’s Court:
  • education and training needs as a result of a new area of practice under the CMIA in the Children’s Court (addressed by Recommendations 10–13)
  • increasing demands on court personnel, court listings and services and prosecution services through an increase in the number of matters being heard in the Children’s Court that would no longer be required to be heard in the County Court or that may not have proceeded under the CMIA (see [5.198]–[5.202)
  • additional funding for expert reports and resources to increase the capacity of experts to conduct assessments.237 The need for funding of reports sought by Victoria Police, in the absence of a court-ordered report, identified in relation to the Magistrates’ Court at [5.206] also applies in this context. If the CMIA is to be expanded, it is important that police prosecutors have adequate information where issues of unfitness to stand trial or the defence of mental impairment are raised, to enable a proper basis for decision making in the exercise of their prosecutorial functions.
  • cost implications of de novo appeals to the County Court if there is an increase in the number of matters heard and determined under the CMIA in the Children’s Court (see Chapter 5 at [5.212]–[5.213] and Chapter 9 at [9.199]–[9.203]).

Establishment of the case worker program

  1. 6.282 A key difference between the models proposed for the Children’s Court and the Magistrates’ Court is the establishment of a case worker program in the Children’s Court to which a person who raises the issue of unfitness to stand trial could be diverted (Recommendations 45 and 46 discussed at [6.132]–[6.141]). The Commission notes that resources will be required to implement and operate this program. However, the resource requirements could be streamlined by combining the work to implement this recommendation with the work to implement Recommendations 49 and 50 to establish a youth forensic facility. In particular, there may be options to combine the two initiatives, so that the case worker program is established as part of, or in connection with the youth forensic facility, and accordingly is based on a multi-disciplinary approach.
  2. 6.283 Further, the Commission notes that the investment of resources in this program, together with the youth forensic facility, could result in cost savings under the diversionary approach underpinning the model in the Children’s Court. The Commission’s recommendations to divert young people who raise issues of unfitness to stand trial or the defence of mental impairment from the criminal justice system, or if they cannot be diverted, to provide appropriate and early intervention to optimise their fitness, could result in a reduction in the demand for supervision and treatment of young people by
    way of therapeutic supervision orders.

The Commission’s conclusion

  1. 6.284 Similarly to the Magistrates’ Court, to a large extent the cost implications of the Commission’s recommendations can be properly characterised as one of ‘resource shifting’—whereby the demand for resources is shifted from one court to another producing cost savings in the conduct of court proceedings and length of supervision—rather than increasing the overall demand and requiring additional resources. The costs savings of the Commission’s proposed process for dealing with matters under the CMIA in the Children’s Court demonstrate that there would need to be a significant ‘net widening’ of people who make use of these new processes before the costs savings
    were diminished.
  2. 6.285 In addition to resource shifting, the Commission’s recommendations to establish a case worker program and a youth forensic facility to support the extension of the CMIA in the Children’s Court will require additional resources in implementation and operation.
  3. 6.286 However, the Commission considers that the benefits to young people charged with offences, victims of crime and the community—ensuring there is an appropriate, humane and safe facility for young people with multiple and complex needs dealt with under the CMIA—outweigh the implementation and operational costs that will be incurred. Further, there is now significant research that shows that ‘early investment of support for people with mental health disorders and cognitive impairment can dramatically increase the person’s well-being, divert them from prison, and provide savings to the government over an individual’s lifetime’.238 The case for early investment is even stronger in relation to young people who are still developing cognitively and forming attachments and therefore especially vulnerable to institutionalisation and criminogenic pathways.

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