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The first sentencing hearing under Victoria’s controversial “adult time adult crime” laws exposed confusion over courtroom procedures, sentencing frameworks, and justice reports. Asked whether the legal profession was prepared for the reforms, an experienced criminal lawyer’s answer was unequivocal: no.
A 16-year-old girl charged with the aggravated carjacking of a taxi became the first minor to face the County Court of Victoria under the state’s contentious “adult time adult crime” legislation, introduced by Premier Jacinta Allan last December amid protests.
According to media reports, the courtroom was left confused over what it had to do – including whether the judge should wear a robe and whether the teenager should be sentenced under the Sentencing Act 1991 (Vic) or the Children’s, Youth and Families Act 2005.
The hearing was then adjourned to allow for the completion of a youth justice report, which the teenager’s lawyer submitted would provide the court with a more “holistic” assessment of her needs.
Asked whether there was a sufficient amount of education across the legal profession prior to the legislation taking effect, criminal law expert and the co-founder and director of EAS Legal, Joseph Stephenson, told Lawyers Weekly: “The short answer is no.”
While Stephenson acknowledged the idea was borne from increased media and political attention on crime rates, it failed to consider the perspectives of those from the “boots on the ground level”. For lawyers like Stephenson, there has not been enough consultation.
“No one really knows how it’s operating, be it from the bench or solicitors, [and] it’s all a bit of trial and error at the moment in terms of how this whole framework is going to work. I definitely think there could have been more consultation with the industry in terms of what the intention behind the legislation is and how it’s going to work practically, because there is a bit of a grey area at the moment,” Stephenson said.
Under the legislation, the offences of aggravated home invasion, home invasion, intentionally causing injury in circumstances of gross violence, recklessly causing injury in circumstances of gross violence, and aggravated carjacking were removed from the Children’s Court.
The latter was to be automatically uplifted to the County Court unless there were substantial and compelling reasons. For the 16-year-old girl, it means the maximum sentence of three years in the Children’s Court has been increased to a maximum term of life behind bars.
In a joint statement shortly after the legislation was announced, the Victorian Bar and the Criminal Bar Association
(CBA) said they were disappointed they had not been consulted. Evidence-based policy, they said, is critical to securing “the best outcomes” and ensuring the system of criminal justice “maintains community confidence”.
CBA’s executive committee chair, Christopher Carr SC, told Lawyers Weekly: “Community confidence will best be maintained by a careful process of reform that involves consultation with those who understand the operation of the system and understand how it might be improved, and consideration of the evidence which assists in understanding how to best address problems with the system.”
Stephenson said the practicalities of the legislation are “still teething”, and it is likely more courtrooms will need to debate certain procedures before the profession will know for sure what’s allowed, such as whether to permit youth sentencing reports into the adult jurisdiction.
“It’s just one of those things that, as more cases play out, it will get fine-tuned, but I think the implementation of it has been very quick,” he said.
Another concern is the lack of reporting on Magistrates Court sentencings, at least in comparison to data from the county and supreme courts. This, Stephenson said, could make it harder to consider how sentencing factors like general deterrence will work.
This will also need to be weighed against community expectations, particularly if the legislation was introduced under the assumption it would protect it. Stephenson explained the question would then become one of whether there is continuity across sentencings.
“Where are these matters going to sit overall in terms of sentencing statistics, and what would an adult person who commits this offence normally get, and where does a child or minor in the adult system sit in terms of the sentencing there?” Stephenson said.
Further, Stephenson pointed out that age will always be a factor under the Sentencing Act, regardless of the jurisdiction in which the accused person sits. Whether that cancels things out is yet to be seen.
“It’s all good and proper to say [that] if you do adult crime, you’re going to get adult time, but part of the sentencing under the Sentencing Act is a magistrate also needs to consider one’s age, one’s prospects of rehabilitation, [and] certain presumptions that favour rehabilitation over punitive sentencing for young offenders,” Stephenson said.
“That is all written into the legislation anyway, so again, it’s how both of those are going to interact and play out.”
Although Parliament has indicated the reforms should be implemented regardless of concerns within the legal profession, it is clear that the practical framework is yet to be fully developed. For now, it’s defendants like the 16-year-old girl who are testing the system.
“Do these people get subjected to adult corrections reports, or are they going to get subjected to adult corrections reports instead? How does that work? I guess that’s the question mark at the moment.” Stephenson said.
“As time goes on and there [are] more cases that get heard through this, I feel like the industry will get a bit more of an idea in terms of where the bench sits on it and the bench’s interpretation on it, too. It’s just too early to tell at this point.”
