Youth crime crackdown and how it can impact child offenders

Background

On 22 March 2023, the Strengthening Community Safety (‘SCS’) Act 2023 came into effect amending the youth justice sentencing frameworks.

Collectively, the aim of the amendments to the youth justice laws is to strengthen community safety, despite strong opposition from human rights campaigners and experts who warned that this would result in more children being incarcerated.

 

What are the amendments and what do they mean for young offenders?

Amendments have been made to the Youth Justice Act 1992 and other legislation which impact the bail and sentencing frameworks for young offenders.

 

How do I apply for bail as a young offender?

Bail may be granted by the police or by a court. If the police do not grant you bail, they must bring you to a court at the earliest possible opportunity so that you can apply for bail through the court. If you are under 18 years of age, you will be brought to the Children’s Court.

When the court is considering whether to grant bail or not, they have regard to a number of factors including the nature of the alleged offence, any risks you would pose to other members of the community if released on bail, your living situation and support people in the community, and your criminal history.

In some circumstances, there is a presumption against bail being granted to you depending on the criminal charge you are facing. In other words, depending on your charge, you may need to “show cause” that you are not an unacceptable risk and should be granted bail.

The new amendments to the Youth Justice Act 1992 have expanded the list of indictable offences where a young offender must “show cause” that they should be granted bail.

For example, young offenders who are passengers in stolen vehicles or who enter premises with intent to commit an indictable offence are now presumed to not be granted bail unless they can show good reasons as to why they should be released on bail.

 

What happens if I am on bail and breach my bail conditions?

The new amendments have now made it an offence for a young offender to breach a condition of their bail. However, this offence only applies where the bail undertaking was entered into after the amendment took place.

Bail is a written promise entered into by an offender to attend court and face the charges against you. To get bail, an offender may have to agree to a range of conditions, such as living at a certain address, a requirement to report to police, abiding by a curfew, a prohibition on contacting other persons, or wearing an electronic monitoring device.

If you are a young offender currently on bail and you fail to comply with any of your bail conditions (for example, failing to report to police if you are required to do this), it is important that you are aware you can now be charged with breaching your bail conditions.

The legislation has further been amended to allow a court to take into account a young offender’s bail history when sentencing.

 

What happens if I am under 18 years of age and have been charged with a criminal offence whilst on bail?

If you are a young offender facing a criminal charge whilst you are on a bail undertaking, it is important that you are aware that the police are no longer required to consider alternatives to arrest in certain circumstances.

For example, if you are on bail for a prescribed indictable offence or certain domestic violence offences, or you have contravened a bail condition, the police can arrest you.

Previously, it was mandatory for police to consider alternatives to arrest in these circumstances. However, the Police Powers and Responsibilities Act 2000 has been amended to allow police to exercise their discretion to consider alternatives in these circumstances.

 

What changes have been made in relation to electronic monitoring devices?

The Youth Justice Act 1992 has been amended to expand the trial of electronic monitoring devices as a condition of bail to include young offenders aged 15 and over (instead of the previous 16 and over). This means that if you are charged with a criminal offence and you are 15 years of age, the court may impose an electronic monitoring device as one of your bail conditions.

Currently, the use of electronic monitoring devices as a condition of bail is a trial period, however, the trial has now been extended for a further two years until 30 April 2025 and includes additional locations such as Mount Isa, Toowoomba and Cairns.

 

What is a ‘serious repeat offender’ and can I be declared one?

A serious repeat offender (‘SRO’) is where a young offender is being sentenced for:

• A prescribed indictable offence (i.e.an offence as described in Schedule 4 of the Youth Justice Act 1992 and includes life offences, offences which would attract a penalty of 14 years or more imprisonment for an adult and various personal, property and motor vehicle offences under the Criminal Code); and
• Has previously been sentenced to at least one detention order for a prescribed indictable offence; and
• The court is satisfied that there is a high probability that the child would commit a further prescribed indictable offence.

 

Upon application by the prosecution, the Youth Justice Act 1992 has now been amended to empower a sentencing court to declare a child a ‘serious repeat offender’.

When a declaration is made, the court is required to give consideration to:

• the need to protect members of the community;
• the nature or extent of any violence used during the offence;
• the extent of any disregard by the child for public safety during the offence;
• the impact of the offence on the public; and
• the child’s criminal and bail history.

If you are unsure of whether your offence may be a ‘prescribed indictable offence’ and you may be declared a ‘serious repeat offender’, you should obtain legal advice.

Further, if you are a young offender with a serious repeat offender declaration and are being sentenced for a further prescribed offence committed within the relevant period, you should seek legal advice immediately.

 

What is a Conditional Release Order and how has this been amended?

A CRO is an intensive community-based order that can be imposed when a period of imprisonment is suspended and sees the young offender be released into the community subject to supervision and participation in any necessary programs.

The Youth Justice Act 1992 has been amended to increase the maximum duration of a conditional release order (CRO) from three months to six months.

If you are a young offender on a CRO for more serious offences and you breach that Order, the legislation has been amended to ensure that young offenders are more likely to serve their suspended term of detention. In other words, if you breach your CRO you will be required to complete the remaining period of your CRO in detention, rather than in the community.

If you are on a CRO and unsure of your legal obligations and what may constitute a breach of your CRO, you should seek legal advice.

 

Can I be sent to a correctional centre if I am 18 years of age?

If you are 18 years of age or older, you may be transferred to a correctional centre rather than a detention centre in certain circumstances pursuant to the amendments made to the Youth Justice Act 1992. For example:

• if you are a young offender who is currently detained you are liable for transfer to a correctional centre if you turn 18 and have more than two months left to serve; or
• if you are a young offender newly remanded in custody and you are over 18 years of age, you will go straight to adult custody (as opposed to the previous requirement that the offender be 19 years-old prior to being transferred to a correctional centre).

 

Ultimately, the youth justice bail and sentencing frameworks have been amended to place more stringent obligations upon young offenders.

If you are a young offender facing a criminal charge in Queensland, you should seek our advice immediately on how these amendments may impact you.

 

Need Legal Advice? We Can Help

If you find yourself in a similar situation, don’t hesitate to reach out to our firm for expert legal representation and guidance tailored to your specific circumstances.

Request a free online consultation or call our Gold Coast Legal Office on (07) 5532 3133 or our Brisbane Legal Office on (07) 3221 4999.