Crack appears in juvenile detention plan

Farah Farouque | The Age | 10 November 2011

A CHINK has emerged in the Baillieu government's law and order crackdown as it confirmed plans to defer mandatory minimum custodial sentences for youths aged 16 and 17 convicted of ''gross violence'' offences.

While the government says it is still committed to the controversial laws to incarcerate teenagers, legislation introducing four-year minimum prison terms for adults convicted of the violence offences will proceed first.

Laws tackling adults will be introduced in the first tranche next year, leaving time to consult further on two-year minimum youth detention terms for juvenile offenders - a concession welcomed by the legal profession.

Attorney-General Robert Clark was responding yesterday after a key expert body said that when teenagers were charged with gross violence offences such cases should be automatically transferred out of the Children's Court into the jurisdiction of a higher court where they would be afforded more rights.

Professor Arie Freiberg, chairman of the Sentencing Advisory Council, said it was important ''not to compromise the operation of sentencing'' in the Children's Court, which included rehabilitation.

Professor Freiberg said the council had not been asked to assess the merits of the government's election commitment to introduce statutory minimum sentences for gross violence offences, subject to limited exceptional circumstances.

But the council's report noted most submissions it had received on children from bodies ranging from the Victorian Bar and the Law Institute to the Uniting Church argued that a minimum sentence should not be applied to juveniles.

Incoming Law Institute president Michael Holcroft said he hoped to persuade the government to abandon the plans to incarcerate more juveniles.

"We will be working with the government to do all we can to ensure that the focus for dealing with juvenile offenders is on rehabilitation rather than ensuring they follow a life of crime beginning in a youth justice centre," he said.

In the report, which Mr Clark has been considering since September, the council proposed that two new offences be created to cover circumstances involving ''gross violence''.

The proposed offences are: intentionally causing severe injury and recklessly causing severe injury.

The council has urged that ''severe'' injury be defined in the legislation to cover ''injuries of a long-term nature involving serious impairment to, or loss of, a body function or serious disfigurement''. Such injuries would also cover loss of a foetus.

Professor Freiberg noted that at present the gradation between causing ''injury'' and ''serious injury'' was vague. The Court of Appeal had held that injuries such as two black eyes and a grazed forehead could constitute ''serious injury'' and, given the potential for loss of liberty under the new laws, there should be a higher injury threshold for gross violence.