Shaping a fairer, more effective criminal justice system

Shaping a fairer, more effective criminal justice system

Friday, 22 October 2021

We’ve shared our key focusses for reform with the inquiry into Victoria’s criminal justice system.

‘People’s legal issues are often linked very clearly to the social issues in their lives…Today we want to talk about the importance of investing in or improving other systems that are linked-to or pathways into the criminal justice system,’ our CEO Louise Glanville told the Legal and Social Issues Committee.

Dan Nicholson, Executive Director of Criminal Law told the committee we need ‘(B)etter targeted responses at every stage of the journey into and through the criminal justice system. That will mean that criminal justice responses are used where they are really needed and effective – rather than casting the net too wide and dragging people into the system unnecessarily.’

Our evidence was based on a recent submission, that shared four client stories that show how we see the disproportionate impact of the criminal justice system on marginalised Victorians.

One of our clients is Ezra, an 11-year-old boy from a refugee family. Ezra initially found himself in trouble for stealing four cans of coke. He was placed on strict bail conditions which he breached with another shop theft and lighting a small pile of leaves alight. Ezra was arrested and taken to a police station, where he was held until midnight. A bail justice refused him bail and he was transported to youth custody. Due to COVID restrictions Ezra was in isolation overnight.

Youth Justice workers were concerned about Ezra’s welfare as he was clearly distressed and couldn’t stop crying. Ultimately the prosecution withdrew all charges, accepting that due to his age Ezra did not possess the necessary knowledge required to have criminal intent.

Read Ezra's story.

Children like Ezra need a health and welfare response rather than harmful criminal justice responses which can be traumatising and likely to cause ongoing offending. Our submission repeats our call to raise the age of criminal responsibility from 10 to 14 years old. ‘The younger a child is at their first sentence, the more likely they are to reoffend generally, reoffend more frequently, reoffend violently, continue offending and be sentenced to a term of imprisonment as an adult,’ Dan Nicholson told the committee.

There has been a large increase in the number and proportion of Victorian prisoners who spend a short time in custody. We shared our support for tailored sentences for young people and our recommendation for a presumption against short sentences, with the committee.

Dan said, ‘Short periods of imprisonment are long enough to disrupt the things that may be helping you like housing or mental health supports, but not long enough to get into programs in prison or to deal with the underlaying causes of offending…They are particularly harmful for children,’ he said.

Improving the system

The focus of our submission is on four key areas that reflect a person’s journey into and through the criminal justice system:

  1. Improving other systems (including mental health, disability, child protection and civil legal need) to prevent people coming into the criminal justice system.
  2. Better targeting the criminal justice system through expansion of cautioning and diversion, raising the age of criminal responsibility, improving the response to low level offending including bail and minor offences reform.
  3. Address the impact of the criminal justice system on First Nations people by recognising overrepresentation and the role of systemic racism and bias, implementing the recommendations of the Royal Commission into Aboriginal Deaths in Custody, appointing an Aboriginal Justice Commissioner and support culturally appropriate judicial decision-making.
  4. Build a user-centred, problem-solving criminal justice system which addresses the causes of crime and better supports victims of crime.

‘No reform of the criminal justice system should take place if it is not based on the principle of self-determination for First Nations people and every reform must address the urgent need to reduce the very high rates of imprisonment of Aboriginal people in Victoria,’ said Louise.

‘People responsible for low harm offending should be diverted away from the criminal justice system as quickly as possible,’ said Dan. ‘The reforms we propose would also reduce churn in the system and that is particularly important during COVID-19’.

More information

Read ‘Towards a fairer and more effective criminal justice system for Victoria' Submission to the Inquiry into Victoria’s Criminal Justice System.

Case study – an 11-year-old boy arrested and held in custody for stealing from a shop

Ezra (not his real name) is an 11-year-old boy from a refugee background living with his family in Metropolitan Melbourne. On a Friday night in June 2021, Ezra was at home with his family when the police came to his home and arrested him for stealing from a supermarket two weeks earlier.

Ezra was already on bail for stealing four cans of coke from a shop. Ezra had been placed on very strict bail conditions after he stole the soft drinks, which included exclusion from the local shopping centre, a curfew and a condition that he did not associate with certain other children. Because he was on bail at the time of the second theft, Ezra was in a reverse onus position for bail.

Ezra was also accused of lighting a small fire in a pile of leaves in a playground. No damage was caused or intended, he was charged with a summary offence of lighting a fire in a public place.

Ezra was taken to the police station where he was held until midnight and a hearing was conducted in front of a bail justice. His family did not understand what was happening and his teenage sister was required to translate for his mother. He did not have legal advice or representation before the bail justice.

Bail was refused as the bail justice considered that there was a risk that Ezra would reoffend.

Ezra was transported to Parkville where he was placed in the custody of Youth Justice. Due to the COVID-related quarantine arrangements, Ezra was placed in isolation.

Ezra spent a night in isolation at Parkville and the staff became increasingly concerned about his welfare and levels of distress. Ezra was scared and couldn’t stop crying in custody. Ultimately the prosecution withdrew all charges, accepting that the presumption of doli incapax applied to Ezra (meaning that due to his age he did not possess the necessary knowledge required to have criminal intent).


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