Follow this procedure when making a sentencing recommendation to the children’s court or adult court jurisdiction.

 

When to use this procedure

When youth justice are required to provide a recommendation for an appropriate sentencing disposition.

 

What else you need to know

 

Practice context and legislation

  • The court can request a recommendation from youth justice by ordering a pre-sentence report or youth justice centre suitability assessment.
  • Youth justice is required to provide the court with a suitable recommendation for any breach action initiated.
  • The rationale for the recommendation of a court order should be based on accurate and factual information. Provide clear references to the legislation and consider the core principles of diversion, rehabilitation, accountability and community safety.
  • Youth justice in Victoria is guided by policy to divert young people from entering or progressing further into the criminal justice system, to provide better rehabilitation of high-risk offenders, and to deliver pre-release, transition and post-release support programs to reduce their risk of re-offending.
  • Youth justice should recommend the least intrusive disposition the court is able to impose, given the criminal history of the young person and the offences before the court.
  • The recommendation should focus on a sentence that enables offence-related factors to be addressed, one which facilitates current or increased connectedness to family, significant others and also promotes engagement with services.
  • Recommending a youth justice centre order or youth residential centre order should only be made as a final resort, and only if the court is satisfied that a community-based disposition is not appropriate.
  • All youth justice areas have staff trained in the provision of court advice.
  • Under the Charter of Human Rights and Responsibilities Act 2006, people must be treated fairly and with dignity and respect. The Children Youth and Families Act 2005 must be interpreted in light of the Charter and these rights must be considered when applying the legislation. Rights under the Charter can be limited, but only to the extent that the limit is necessary, reasonable and proportionate. The least restrictive means of limiting a person's Charter rights must be applied.
 

Roles and key tasks

Area case manager

  • Compile information, undertake assessment and determine a recommendation for an appropriate sentencing disposition.

Team leader / teammanager

  • Endorse report and recommendation prepared by case manager.

Assistant Director / Manager Individual and Family Support

  • Provide oversight, direction and monitoring of the area youth justice program.
  • Provide case consultation regarding young people exhibiting high-risk behaviours.

Youth Justice Senior Practice Advisor

Provide case consultation regarding the recommendation, particularly for young people exhibiting high-risk behaviours. This should occur subject to local area agreements between Assistant Director / Manager Individual Family Support and the Senior Practice Advisor.

 

The procedure in detail

Sentencing hierarchy

The sentencing hierarchy in the children’s court jurisdiction includes:

  • fine
  • good behaviour bond
  • group conference
  • probation
  • youth supervision order (‘with community work’ optional for young people over 15)
  • youth attendance order (young people over 15)
  • youth residential centre order (10 to 14 year olds)
  • youth justice centre order (15 to 19 year olds).

Consideration should also be given to recommending a young person’s participation in a group conference, where appropriate.

Section 414 of the Children Youth and Families Act makes provision for the court to defer sentencing for this purpose.

Refer to the procedure for 'Court-based suitability assessment for group conferencing' for more information.

Youth justice involvement can also occur in the adult jurisdiction.

An adult court can request that youth justice provide bail supervision and progress reports for young adults aged 18 to 20, where diversion from a more intensive adult justice outcome is possible.

Also, under s. 32 of the Sentencing Act 1991, some 18 to 20 year olds appearing in the adult jurisdiction can be detained in a youth justice centre if they are assessed suitable by youth justice.

Refer to the procedures for 'Assessment process for supervised bail and deferral of sentence' and 'Youth justice centre suitability assessments – presentence reports' for more information.

Recommending the least intrusive option

While imposing the least intrusive sentence is legislated, at times a range of factors can result in a more intrusive sentencing option being assessed as appropriate.

For example, it may be appropriate to recommend that a young person, already subject to one order, is suitable for a further disposition at the same level of the sentencing hierarchy.

In other instances a disposition of lesser or greater severity may be recommended. This is assessed on a case-by-case basis and with consideration of the factors listed below.

For young people aged 10–14 who are in need of therapeutic treatment for sexually abusive behaviour, youth justice can recommend that the children's court make a therapeutic treatment report to child protection for investigation under s. 349(2) of the Children, Youth and Families Act 2005.

This recommendation should be made in consultation with child protection.

Subject to an assessment, youth justice may also recommend that a young person participate in a group conference.

Refer to the procedure for 'Recommending a youth justice group conference in a presentence report' for more information.

Considerations in recommending a children’s court order

Section 361(1) of the Children, Youth and Families Act 2005 requires consideration of the following factors when recommending a court order:

  • strengthening and preserving the relationship between the young person and their family
  • the desirability of allowing the young person to live at home
  • the desirability of the young person maintaining employment or education without interruption
  • minimising the stigma to the young person
  • the severity of the offending and that the recommended order is proportionate to the offence/s
  • suitability of the sentence to the young person
  • the young person’s awareness and acceptance of responsibly for their actions against the law
  • protecting the community from the violent or wrongful acts of the young person
  • increasing the young person’s prospects for rehabilitation
  • the frequency of the offending
  • the age of the young person
  • the manner in which the young person has complied with prior, or is complying with current, statutory intervention
  • the least intrusive sentencing option available
  • other individual circumstances where relevant.

Recommending special conditions

On occasion, youth justice workers may also recommend that a magistrate or judge attach special conditions to a court order. Special conditions must be relevant to offence related factors and the rationale and potential benefit of the special conditions must be clearly articulated within the report.

Special conditions can be attached to probation orders, youth supervision orders and youth attendance orders.

The Youth Parole Board can attach special conditions to youth parole orders with or without the recommendation of youth justice workers.

Recommending the duration of an order in children’s and adult court jurisdictions

Specifications in the Children, Youth and Families Act 2005 regarding duration of orders differ by disposition and circumstance.

When making a recommendation for an order, it is not appropriate to recommend a specific duration. However, it may be relevant to make general comments, such as the benefit of a short or medium order length.

Unless specifically requested by the court to make comment about the possible length of an order, the above principle applies in both the children and adult court jurisdictions.

Jurisdiction of recommended order

When recommending a court order always refer to legislation to ensure the disposition being recommended is legally permissible.

In reports submitted to the court, document the specific section of the legislation that applies to the recommendation being made.

Reports – written recommendations

Recommendations may be made to the court by written or verbal means.

When submitting written reports to the court all documents must be prepared in the Client Relationship Information System (CRIS) using approved templates.

The report should provide information that supports the recommendation. The rationale for the recommendation should be stated clearly and concisely in the summary section of the written report.

The recommendation should be clearly stated in the recommendation section of the report template and should reference the legislation relevant to the recommended disposition.

Consult with the Youth Justice Senior Practice Advisor when considering appropriate recommendations, particularly for high-risk young people.

All court reports and recommendations, must be endorsed by the worker’s line manager or a team leader, Individual and Family Support Manager or, where agreed, the Youth Justice Senior Practice Adviser.

Verbal recommendations

Verbal recommendations and disposition advice are frequently requested by legal representatives and for the judiciary.

If the matter is contentious, advice may be sought from the youth justice worker’s team leader or manager before making a verbal recommendation to the court. In these cases, simply request that the court stand the matter down for this discussion to occur.

Verbal recommendations should be followed up in a timely manner with written documentation in order to provide a record for the court and CRIS file.

Recommendations in the magistrates', County and Supreme court

In the adult courts, a recommendation is required in a presentence report when assessing suitability for a youth justice centre order, as per s. 32 of the Sentencing Act 1991.

Youth justice workers do not have the authority to recommend community-based dispositions in the adult court jurisdiction.

In certain circumstances, however, it may be appropriate to indicate in a written summary that a particular disposition may be suitable.

This advice may also be provided verbally upon request of the legal representative or the judiciary.

In these cases, consult with Department of Justice or Community Corrections court representatives beforehand.

The same principles relevant to recommending an order in the children’s court apply in the adult court jurisdiction.

Recommendations must be based on factual information and be supported by clearly articulated evidence.

When recommending an order, it is not appropriate to recommend a specific sentence length.

Liaising with custodial services (children's and adult court jurisdictions)

It is imperative that area and youth justice precinct workers liaise to ensure agreement and suitability of the recommended disposition for young people who are in custody or who are facing a sentence to be served in a youth justice precinct.

The report must contain an account of the interaction between the area and youth justice precinct staff and that the recommendation is agreed upon.

In the event of disagreement between area and youth justice precinct, the Youth justice court adviceguidelines contain clear dispute resolution processes.

Liaising with child protection

Where it is known that a young person is a dual order client, youth justice must consult with child protection prior to making a recommendation to the court. Information should be discussed during preparation of court reports for consistent content from both programs as all departmental staff are delegates of the Secretary and are required to present an agreed position in court. Refer to the Protocol between child protection and youth justice for more information

Insufficient information or time to form a recommendation (children's and adult court jurisdictions)

Recommendations may not always be possible due to the absence of reliable information on which to base an assessment. Where possible, a recommendation should be provided.

Whether or not a specific recommendation is included, you must provide the court with advice, upon request, about the features and the appropriateness of an order supervised by the youth justice service.

If there is not enough time or information to provide an informed recommendation, youth justice may request further time to complete an assessment, in writing, to the court or through consultation with the legal representative.