Criminal division – sentencing

11.9 Temporary leave from detention

In relation to a person detained in a remand centre, YRC or YJC, s.485(1) of the CYFA empowers the Secretary or the officer in charge to permit a detainee to take temporary leave of absence, with or without escort or supervision, for any purpose stated in the permit. Such purpose is not limited to but may include any of the following:

(a) to engage in employment, whether with or without remuneration;

(b) to attend an educational or training institution;

(c) to visit his or her family, relatives or friends;

(d) to participate in sport, recreation or entertainment in the community;

(e) to attend a hospital or a medical, dental or psychiatric clinic or like place for receiving treatment or for examination;

(f) to attend a funeral;

(g) to accompany members of the police force for a specified purpose or for assisting in the administration of justice;

(h) to seek employment;

(i) to live in any other accommodation specified in the permit for any purpose specified in the permit.
Such permit may be subject to any conditions, limitations or restrictions that the Secretary thinks fit to impose: s.485(2). A detainee permitted temporary leave is deemed to continue to be in legal custody: s.485(3).
A permit under s.485(1) may be granted at any time, whether or not the non-parole or non-remission part of his or her sentence has been completed. This is because the underlying philosophy of both YRC and YJC detention is rehabilitation. The aim is to work intensively with each detainee and to provide him or her with supervision, support, education, training and rehabilitation programs to maximise any possibility of rehabilitation ["New Directions for Juvenile Justice: Melbourne Juvenile Justice Centre", Juvenile Justice Branch, Dept of Human Services, June 1995, Publication No.92/0121].

11.10 Transfers between custodial institutions

Administrative transfers between custodial institutions are authorized and regulated by s.484 and by the following provisions of the CYFA:

FROM YRC		FROM YJC		FROM PRISON
TO YJC	ss.464-466	TO PRISON	ss.467-469 s.473 [transfer back]	TO YRC	s.472
TO PRISON	s.467-469 s.473 [transfer back]	TO YRC	s.470	TO YJC	s.471

Cases in which the Supreme Court or Court of Appeal has recommended to the Adult Parole Board that it consider transferring a young person from prison to a YJC pursuant to s.244 of the CYPA [now s.471 of the CYFA] include DPP v Karipis [2005] VSCA 119 at [18] & [23]; DPP v Reynolds & Ors [2004] VSC 533 at [34]; R v PP [2002] VSC 533 at [38]-[39] and on appeal [2003] VSCA 100 at [11]; R v LMA [2005] VSC 152 at [10]-[11]; R v Ty [2005] VSC 109 at [10]; R v Speedie [2005] VSC 194 at [38].

11.11 Further custodial sentence imposed on detainee

The following sections of the CYFA regulate the service of a subsequent custodial sentence imposed on a person who is already serving a custodial sentence.

CYFA	SUBJECT MATTER
474	Person in YRC sentenced to detention in YJC or to imprisonment
475	Person in YJC sentenced to imprisonment
476	Person in YJC sentenced to detention in YRC
477	Person in prison sentenced to detention in YJC

By and large these provisions confer powers on the Youth Residential Board, the Youth Parole Board and the Adult Parole Board. The only power conferred on the Court, albeit indirectly, is a power to direct that certain sentences be served cumulatively or part-concurrently. Provisions relevant to the Court are as follows:

CYFA	SUBJECT MATTER
475(2)	If a person has been sentenced to YJC and before the end of the sentence is sentenced to a cumulative term of imprisonment, service of the YJC detention is suspended until the person has served the sentence of imprisonment.
475(3)	Every sentence of imprisonment must, unless otherwise directed by the Court at the time, be served concurrently with any uncompleted sentence of YJC detention imposed either before or at the time the sentence of imprisonment was imposed.
477(1)	If a person has been sentenced to imprisonment and before the end of the sentence is sentenced to a cumulative term of YJC detention, service of the YJC detention is suspended until the person has served the sentence of imprisonment.
477(2)	Every sentence of YJC detention must, unless otherwise directed by the Court at the time, be served concurrently with any uncompleted sentence of imprisonment imposed either before or at the time the sentence of YJC detention was imposed.

For a brief judicial comment on ss.475(2) & 475(3) of the CYFA [formerly ss.246(2) & 246(3) of the CYPA] see the judgment of O'Bryan AJA - with which Vincent JA & Smith AJA agreed - in R v Caleb James O'Connor [2004] VSCA 8.