Criminal division – sentencing

11.7 Criminal Division Statistics

11.7.1 Victorian statistics

Chart 1 sets out sentences imposed in the Criminal Division of the Children’s Court on children who pleaded guilty or were found guilty of one or more criminal offences between 01/07/2005 and 30/06/2011. The chart contains a count of sentencing orders, not of individual charges. It does not include the few cases in which all charges were found proved but dismissed. It includes only the most intensive sentencing order made in a particular case, not every sentencing order in the case. So, for example, if in a particular case the child was fined on some charges and placed on a youth supervision order on others, only the youth supervision order – the most intensive of the orders – is counted. The number of children sentenced to detention is a very small percentage of the total.

The total number of sentencing orders made in 2011/12 is by far the lowest of any of the preceding six years shown in chart 1. There was a further substantial drop in 2012/13. The spikes in 2006/07 & 2007/08 are a consequence of an increased number of sentencing orders (primarily fines) made in respect of transit offences. Since then most children’s transit offences have been processed through the Children and Young Persons Infringement Notice System [CAYPINS], as to which see Chapter 7. The CAYPINS outcomes are not included in charts 1 or 2.

1 SENTENCES IN FINALIZED VICTORIAN CHILDREN’S COURT CRIMINAL CASES COMMENCING 01/07/2005
ORDER	2005/06	2006/07	2007/08	2008/09	2009/10	2010/11	2011/12	2012/13
Non-accountable undertaking	41	47	60	48	33	39	33	27
Accountable undertaking	481	514	616	626	640	593	481	430
Good behaviour bond	1691	1778	1914	1963	1947	1793	1684	1524
Fine	2393	7151	5030	2349	1672	1236	802	752
Probation	717	870	939	984	1113	1038	882	829
Youth supervision order	245	288	340	368	407	391	367	368
Youth attendance order	47	47	55	79	101	82	57	49
Youth residential centre order	14	9	20	7	14	18	7	7
Youth justice centre order	149	158	179	202	232	229	212	162
TOTAL	5778	10862	9153	6626	6159	5419	4525	4148

Chart 2 shows the respective percentages of the three sentencing types imposed in the Criminal Division of the Children’s Court. “Non-supervisory” orders are undertakings, bonds and fines. “Supervisory orders” are probation, youth supervision orders and youth attendance orders. “Detention orders” are youth justice centre orders and youth training centre orders but do not include remand orders. The percentages in 2006/07 & 2007/08 ought be treated with caution because of the disproportionate pre-CAYPINS spike of fines.

2 PERCENTAGES OF SENTENCING TYPES IN FINALIZED VICTORIAN CHILDREN’S COURT CRIMINAL CASES
TYPES	2005/06	2006/07	2007/08	2008/09	2009/10	2010/11	2011/12	2012/13
Non-supervisory	80%	87%	83%	75%	70%	68%	66%	66%
Supervisory orders	17%	11%	15%	22%	26%	28%	29%	30%
Detention orders	3%	2%	2%	3%	4%	4%	5%	4%

11.7.2 Australian & world statistics

The data contained in charts 3 & 4 was collected by the Australian Institute of Criminology and is taken from the Institute’s website www.aic.gov.au. Both charts provide a snapshot of the comparative rate of detention of persons aged 10-17 in Juvenile Corrective Institutions – both as sentenced detainees and as remandees – in each of the Australian States & Territories in each of the listed years. In chart 3 Tasmanian figures are not available from 1997 to 2002. Data formatted as in chart 3 is not available after 2008 and has been superseded by chart 4. In chart 4 W.A. & N.T. figures are not available for 2009-2010.

Chart 3 is a comparative study of the overall rate of detention of young detainees across each of the Australian States and Territories between 1981 & 2008. The rate is measured as the number per 100,000 of the 10-17 population being detained on 30 June in each of the listed years. The study demonstrates that there has been a general decline in the number of persons aged 10-17 in juvenile detention over the period from 30 June 1981 - when 1352 young people [64.94 per 100,000] were detained in juvenile detention facilities throughout Australia – to 30 June 2004 – when 564 juveniles [25.50 per 100,000] were so detained. The trend reversed thereafter with 32.80 per 100,000 juveniles being detained on 30 June 2007 and 37.00 per 100,000 detained on 30 June 2008.

3 RATE PER 100,000 OF PERSONS AGED 10-17 IN JUVENILE CORRECTIVE INSTITUTIONS
Year	NSW	Vic	Qld	WA	SA	Tas	NT	ACT	Aust
1981	87.60	59.63	32.90	84.28	41.34	54.26	5.53	77.32	64.94
1982	91.63	53.04	30.67	78.10	38.78	36.99	55.89	48.47	62.76
1983	84.57	49.83	31.91	49.03	32.89	53.21	72.11	55.41	57.30
1984	59.61	49.50	28.98	41.18	22.12	43.41	78.88	24.32	46.01
1985	38.75	47.57	34.13	55.70	23.44	27.40	103.35	34.53	40.84
1986	40.42	46.41	25.79	49.30	23.80	35.69	132.22	47.08	39.88
1987	55.08	36.38	26.09	42.19	23.73	36.61	135.70	33.59	41.43
1988	38.24	36.64	26.89	40.50	26.61	35.62	177.45	35.89	36.50
1989	40.01	31.68	21.98	66.65	18.20	29.43	208.56	15.51	36.57
1990	51.84	29.26	29.70	63.04	22.92	17.52	137.98	23.62	40.39
1991	48.17	13.75	20.68	58.32	28.74	29.88	166.17	18.54	34.21
1992	38.88	10.34	20.06	46.49	33.25	8.79	127.06	26.80	28.55
1993	46.40	10.23	22.68	51.59	38.45	15.83	102.71	16.15	32.19
1994	54.77	12.89	24.93	64.31	36.42	17.59	57.45	24.27	36.89
1995	57.83	14.87	35.06	49.33	24.44	17.51	74.78	37.77	38.33
1996	49.33	13.98	34.44	50.41	51.64	45.38	56.14	18.91	37.66
1997	51.39	14.12	25.00	51.95	47.80	N/A	88.34	43.53	37.12
1998	48.06	13.23	33.64	62.72	30.95	N/A	103.59	30.44	37.04
1999	39.47	11.79	33.57	56.99	20.99	N/A	57.40	44.62	32.78
2000	38.30	10.12	25.20	51.90	36.40	N/A	60.70	42.24	31.46
2001	32.20	12.70	20.30	43.30	34.40	N/A	24.00	68.40	27.40
2002	27.90	10.80	22.70	35.00	28.90	N/A	83.60	41.20	24.90
2003	30.50	14.40	23.20	46.30	43.70	34.60	92.10	64.20	29.10
2004	27.20	11.70	20.60	51.90	31.50	32.70	39.80	45.10	25.50
2005	29.70	11.80	21.70	46.50	36.40	63.50	66.80	28.40	27.20
2006	35.00	7.10	29.90	46.60	25.20	54.60	97.50	48.60	29.10
2007	38.00	9.00	32.30	59.40	36.50	29.10	127.90	37.00	32.80
2008	50.10	14.30	26.40	66.40	32.90	47.60	90.00	22.90	37.00

Chart 3 shows some interesting - perhaps surprising - things about incarceration of 10-17 year olds in Victoria-

1. 
   Victoria has by far the smallest rate of juvenile detention of any Australian State or Territory.
   
2. 
   The rate of detention has decreased by a factor of more than four over 27 years between 1981 & 2008.
   
3. 
   The greatest annual decrease occurred between 1990 & 1991, a reduction of more than 50% in one year coinciding with the commencement of operation of the CYPA.
   
4. 
   Since 1991 the rate of detention has nearly always been substantially less than in any other State or Territory. In 2008, the NSW rate was 3½ times higher, the WA rate 5 times higher, and so on.
   
5. 
   The Victorian rate increased significantly in 2003, as did the Australian average numbers and rates of detainees, but in 2004 the Victorian rate declined again to about the average of the 2001 & 2002 rates. The Victorian rate declined significantly in 2006, increased by a small factor in 2007 but increased significantly in 2008 to just below the 2003 figure.
   
6. 
   The Victorian rate of detention on 30/06/2008 was just over one-third of the total Australian rate.
   

As the following bar graph shows, the Australian rate of youth detention in 2008 was vastly greater than the rate in Japan and much greater than the rates in Finland & Sweden. That year the Australian rate – described as 24.9 per 100,000 – was about 3 times greater than the Victorian rate. Both rates – but especially the Victorian rate – compare very favourably with those in the British Isles, New Zealand, the Netherlands and South Africa and extremely favourably with the extraordinarily high rate in U.S.A., a rate which is of the order of 40 times greater.

2008

Chart 4 is a comparative study of the rate of detention of indigenous and non-indigenous young persons aged 10-17 in each of the Australian States & Territories in each financial year from 2006-07 to 2009-10. The rate is measured as the number per 1,000 of the 10-17 population. The total rate of detention in Victoria in each of the years from 2006-07 to 2009-10 is substantially lower than in any other State or Territory – rarely more than one-half of the second lowest State/Territory. Overall, the rate of indigenous detention in Victoria is lower than in any other State or Territory but the rate of over-representation of indigenous detainees remains grossly disproportionate, varying between 16 and 18 times the rate of non-indigenous detention.

4 RATE PER 1,000 OF PERSONS AGED 10-17 IN JUVENILE CORRECTIVE INSTITUTIONS INDIGENOUS [UPPER] – NON-INDIGENOUS [MIDDLE] – TOTAL [LOWER]
	NSW	Vic	Qld	WA	SA	Tas	NT	ACT	Aust
2006-07
Indig.	25.73	7.86	13.88	42.67	27.93	10.95	11.17	42.61	21.48
Non-ind	1.74	0.46	0.66	1.43	1.84	1.33	0.72	2.78	1.18
Total	2.82	0.57	1.48	3.79	2.71	2.00	5.16	3.68	2.11
2007-08
Indig.	28.70	10.44	14.01	48.18	34.57	10.96	10.50	46.99	23.60
Non-ind	1.92	0.62	0.68	1.38	1.97	1.69	0.91	2.95	1.30
Total	3.13	0.74	1.52	4.06	3.06	2.34	4.99	4.06	2.33
2008-09
Indig.	28.72	11.22	12.04	N/A	35.25	10.33	10.53	37.58	20.49
Non-ind	1.92	0.62	0.69	N/A	2.02	1.91	0.99	3.73	1.31
Total	3.16	0.75	1.40	4.43	3.15	2.49	5.08	4.53	2.37
2009-10
Indig.	28.98	11.76	13.51	N/A	32.72	10.68	N/A	44.11	24.10
Non-ind	1.93	0.75	0.84	N/A	1.94	1.98	N/A	3.78	1.44
Total	3.19	0.89	1.65	N/A	3.02	2.58	N/A	4.78	2.51

In a paper entitled “State based comparative assessment of juvenile justice in Australia”, Ms Kasey Tyler (Senior Police Advisor, Children’s Court of Victoria) has analysed Australian-wide data on the numbers and characteristics of youth in Australian Children’s Courts and subject to juvenile justice supervision in Australia. By “juvenile justice supervision”, Ms Tyler is referring to children on bail or on probation, youth supervision orders, youth attendance orders, youth detention orders or their interstate equivalents. In an overview of Children’s Courts in Australia, Ms Tyler noted, inter alia:

• 
  In 2010-11, youth aged 10-19 make up 15% of the general Australian population but make up 28% of Australia’s offender population.
  
• 
  In 2010-11 the lowest number of accused were recorded since collection began in 2006-07. Victoria recorded a drop of 22%. Males accounted for 79% of all accused finalised.
  
• 
  On an average day in 2010-11, 79% of all accused pleaded or were proved guilty, 4% were acquitted and 17% of all prosecutions were withdrawn, transferred to other courts or closed via non-adjudicated finalisations. Of the 29,961 young persons whose charges were heard in Australia in 2010-11, 95% were found guilty of at least one offence.
  
• 
  The national average length of sentenced detention for young persons in 2009-10 was 111 days, very slightly greater than the Victorian average of 110 days. The national average length of detention on remand was 36 days, very slightly less than the Victorian average of 38 days.
  
• 
  On an average day in 2009-10, approximately 0.3% of young persons in Australia were under juvenile justice supervision. Of these 84% were male, up to 37% of whom were indigenous. Of the 16% of females under supervision, 43% were indigenous. Most young persons supervised in 2009-10 had first entered supervision when they were aged 14 17 years. Victoria’s supervision rate in 2009-10 was 3.69 per 1,000 compared to a national average of 5.11 per 1,000. Victoria had the lowest average number of community-based orders per person (1.8) in 2009-10.
  
• 
  The average number of days a young person spent under juvenile justice supervision in 2009-10 varied from 218 in Tasmania to 152 in A.C.T. The Victorian average of 179 days was just above the Australian average of 177 days. The more remote a young person’s residence, the more likely he/she is to be subject to supervision. Membership of the lowest socio-economic group increases a young person’s chance of being under supervision by a factor of more than four.
  
• 
  Overall 10 to 19 year olds made up 28% of all offenders in 2010-11. Offending rates are at their highest (23% of all offenders) for youths aged 15 to 19. The most common offence was theft. For males offending peaked at age 18, for females at age 16.
  

Australian youth offender rates per 100,000 from 2008-2011
It is interesting to note that Victoria – which has by far the lowest youth detention rate – also has the lowest rate of youth offending of any Australian State or Territory other than the A.C.T. whose data is described in notes to the chart below as “understated”. So much for the ‘law and order’ philosophy that increasing the detention rate lowers the crime rate. Modern thinking about child brain development referred to in CNK v The Queen [2011] VSCA 228 at [77] explains why this old ‘law and order’ philosophy is flawed, at least so far as children are concerned: “The risk that a period of detention will be counter-productive for an offender – and hence for the community – is never higher than in relation to a young offender who has not previously been in custody. Research to which the Chief Scientist of New Zealand has recently drawn attention has highlighted the potential for the immature brain to respond to punitive punishments in such a way as to make recidivism more rather than less likely."