Guide to youth control orders for lawyers

• to provide a judicially supervised intensive supervision regime
• to penalise the child by imposing restrictions on liberty
• to provide intensive targeted supervision to help the child develop an ability to abide by the law
• to engage the child in education training or work (paid or unpaid)
• to give the child an opportunity to demonstrate a desire to cease offending.

A YCO is available if the court considers that the child would otherwise be sentenced to detention: s. 409B(1). It is to last no longer than 12 months and must not extend beyond the twenty-first birthday: ss. (2).

Section 409C sets out restrictions on the power to make a YCO, including that it is only available if:

• the offence, or one of the offences, is punishable by imprisonment, and
• the secretary has satisfied the court that the child is a suitable person to be placed on a YCO, and
• the child consents, and
• a YCO plan has been developed for the child.

Section 409E sets out the matters for the court to consider, where applicable, in deciding whether to make a YCO:

• behaviour on any bail supervision program
• behaviour on remand
• extent of acknowledgment of responsibility for the offending
• availability of education, training or work opportunities
• the child's willingness to engage in education, training or work opportunities
• the report of the YCO planning meeting
• any other matters the court considers relevant.

Adjournment to a YCO planning meeting

The process leading to the making of a YCO, includes the court first referring the child to a YCO planning meeting under s. 409D. This involves:

• after a finding of guilt, the magistrate decides that the appropriate sentence would be detention in a youth justice centre or youth residential centre, but that a youth control order might be an alternative
• the matter is stood down for youth justice (YJ) to conduct a suitability assessment considering:
  • legislative criteria
  • whether or not the young person consents
  • assessment tools (using the 'Risk Needs Responsivity' model raised in the 2017 Armytage Ogloff report)
• usually on the same day, but possibly after a short adjournment of up to 7 days in some cases, YJ will provide advice about suitability and make recommendations about participants (including a general recommendation to permit the convenor to invite others)
• whilst it is not mandatory under the legislation, YJ will routinely ask the court to order a pre-sentence report under s. 409(4) for the return date, which will usually be eight weeks away.

The court has set up a toll-free number for any questions about bookings or adjournments for planning meetings: 1800 531 574.

YCO planning meetings

Planning meetings may be held at different stages of the process:

• before the making of a YCO to develop a YCO plan: s. 409S(a)
• after the making of a YCO to review or vary a YCO plan that is in force: s. 409S(b).

Requirements for the meetings are set out in s. 409T which deals with:

• the meeting being chaired by a convenor (who is an employee of the court based in Melbourne but travelling to where they are needed)
• the convenor fixing a date for the meeting (this will be about six weeks after the finding of guilt and about a fortnight before the return date, with priority given to young people in custody)
• who is to attend the meeting (child, child's legal practitioner, youth justice officer, the convenor and others as directed by the court for example, members of the child's family, persons of significance to the child, police officers, child protection workers).

The convenor will spend several weeks preparing for the meeting. This will include:

• engaging with the young person and family
• assessing the particular needs of the young person
• referrals to providers for assessments
• working with services to identify interventions.

After a preliminary process with the young person and their lawyer taking up to an hour, the planning meeting itself is likely to run for two hours along similar lines to a group conference (although with no police or victim presence) and will involve:

• Stage 1 – introduction: young person (YP) and their legal representative are brought into the room first
• Stage 2 – first discussion: YP share hopes and goals to stop offending, YJ makes suggestions, open discussion

• Stage 3 –​ first break: purpose for convenor to draft conditions as discussed and for YP​ to have quiet time with their legal representative to ensure that they have understood and have not been pressured
• Stage 4 – second discussion: mandatory conditions ('requirements' under the Act), consolidated conditions, identified gaps
• Stage 5 – accountability discussion (services are to set out what they can actually provide and when)
• Stage 6 – second break: convenor will draft the plan, YP will check in with legal representative
• Stage 7 – review of YCO plan: to be read out in full with open discussion; YP and services to sign plan (team and collaborative approach)
• Stage 8 – closing: group reflection, advice from the convenor as to what happens next.

Other provisions under the CYFA covering the meetings include:

• the purpose of the plan (to assist the child take responsibility, reduce the likelihood of reoffending, provide opportunities to the child and provide information to the court): s. 409U
• confidentiality of meeting (confidential except with the leave of the court or with the consent of all who attended the meeting): s. 409Y.

The return date

On returning to court the following will be available:

• the convenor's report of meeting: ss. 409V–409X and 409Z
• the agreed YCO plan
• the YJ pre-sentence report (which may address reasons why a lesser order might be more appropriate but will also be particularly relevant in the event the court decides not to make a YCO but to order detention instead).

The matters for the court to take into account under s. 362. Include subsection (4A) akin to the group conferencing provision indicating that a child is not to be sentenced more severely if they do not participate in a YCO planning meeting than had sentencing not been deferred.

Under s. 409B(1), a YCO is to last no longer than 12 months and must not extend beyond the twenty-first birthday: ss. (2).

Conditions (requirements) of YCOs

Section 409F sets out the core 'requirements' of the YCO:

• not to reoffend during the order, whether in Victoria or elsewhere
• to report to the secretary within two working days of the making of the order (as with other orders involving supervision, it may be common for this requirement to be met by meeting with the worker at court immediately after the making of the order)
• report to the secretary as required during the period of the order
• comply with lawful and reasonable directions
• attend court as directed by the court
• participate in education, training or work
• notify the secretary of any change of residence, school or employment within two working days
• not to leave Victoria without permission of the secretary.

It also sets out the category of 'additional requirements' (which may become known as 'conditions'), having regard to the YCO plan and the child's personal circumstances:

• participation in one or more community service activities
• treatment for drug or alcohol dependence
• counselling or treatment service of any kind
• specified residence
• curfew
• non-contact provisions
• participation in a group conference
• culturally specific programs and services
• prohibition of use of specified social media if required for the protection of the community
• prohibition of visiting places or areas totally or at specified times
• participation in disability services if a pre-sentence report indicates that the child has a registerable intellectual disability
• any other requirement that the court considers appropriate.

The court will be required to consider principles of proportionality and the objects of a YCO in deciding on the attachment of requirements to an order: s. 409(3).

Parental undertakings

A parent may be ordered to give an undertaking to the court under s. 409G, but under s. 409H the court must not take any action if there is a breach of the undertaking.

Concurrency or cumulativity

A child may be placed on concurrent orders but the aggregate period of YCOs must not exceed 12 months: s. 409I(1)(a).

If the young person is sentenced to both detention in a youth justice centre and YCO then the aggregate must not exceed four years: s. 409I(1)(b). If the child is sentenced to both detention in a youth residential centre and YCO then the aggregate must not exceed two years: s. 409I(4).

Note: there has been some doubt thrown on whether a magistrate could or should order a combined detention-YCO sentence. There is no structure around whether a post-detention YCO would commence upon a person being released on parole (or for those on sentences of six months or less, on release after remissions) or on the expiry of the order. This lack of clarity means that a combined order does not make sense. This is a provision that might be subject to future amendment.

The court may order that a new YCO be served either concurrently with another YCO or wholly cumulatively: ss. (3).

In cases where the child is in custody, whether at the time of making the YCO or afterwards, the Secretary may suspend the YCO by giving notice under s. 409M. It may be possible for the YCO to be served concurrently with parole under ss. (4).

Reporting, monitoring and variation

After an initial YCO planning meeting and the making of the YCO the court will retain supervisory jurisdiction through s. 409L:

• the court may direct attendance to consider compliance with the order and the ongoing suitability of the requirements (conditions) of the order
• for the first half of the order attendance must be at least monthly (but there have been suggestions that YJ could recommend more frequent attendance in some cases, especially as experience with the order develops
• the secretary must provide a report about compliance before each attendance
• a copy of the report must be given to the child and legal practitioner at least three working days before the attendance
• the court must consider whether the order should be varied each time the child attends
• the court must be constituted by the original magistrate unless they are no longer a magistrate, or the matter was remitted from another court (ie the County Court or Supreme Court).

Consistency is considered to be important in multi-disciplinary court processes so continuity of representation (maintaining the same lawyer throughout) will be even more important than usual.

At each attendance, the court may give a warning to the child about possible variation of the order if the child is failing to comply with the requirements of the order: 3. 409O.

However, it is not necessary for the court to give a warning: s. 409P(b).

Section 409N deals with variation:

• the court may vary an order if it considers this appropriate based on an assessment of compliance having regard to reports and discussions at attendances at court
• variations may be made on the court's own initiative or after a written or oral application by the child, the child's parent (if the child is under 15) or the secretary
• if the child's compliance has been unsatisfactory the court may vary the YCO to make it more restrictive
• if the child's compliance has been satisfactory, or if it has been unsatisfactory but compliance would be made easier, the variation may be to make it less restrictive.

Variations may be made without the consent of the child: s. 409P(a).

• the child has breached the order by failing to comply to such an extent that he or she is no longer suitable for the order
• the child has committed an offence punishable on first conviction with imprisonment for life or a term of five or more years
• the child, the child's parent (if the child is under 15), the secretary or, if the child is convicted of an offence punishable on first conviction with imprisonment for life or a term of five or more years during the term of the YCO, a police officer, has made application.

There are time limits for an application for revocation depending on the type of breach:

• if based on new charges, within three months of the finding of guilt
• any other act, within 14 working days after the alleged breach.

If a YCO is revoked, the court must impose a sentence of detention unless the court considers that this is not appropriate because exceptional circumstances exist: s. 409R(1).

The length of the detention must not be for a period longer than the remaining period of the YCO: s. 409R(2).

The court must have regard to both the period the YCO has been in force and the extent of compliance with the order: s. 409R(3).

• addition of a new paragraph (da) to s. 525(2)(d) requiring a child to be legally represented in proceedings to vary a YCO to make the order more restrictive or revoking a YCO
• adding YCO after youth attendance order in s. 525(2)(e) so that representation is mandatory in breach proceedings
• addition of orders varying YCOs to s. 527(4) meaning that this is included in the list of orders requiring careful explanation by the court
• addition of YCO planning meeting reports to the list of reports in s. 547 to which the report provisions of the CYFA apply.

There has also been the addition of YCO planning meeting reports to the list of reports in s. 547 to which the report provisions of the CYFA apply.

It is important to stress at the outset that continuity of representation is particularly important in this problem-solving part of the process. The court is expecting that whoever attends the YCO planning meeting (preferably the client’s usual lawyer, not any barrister who appeared on the plea unless they are willing to commit to all future appearances) will then appear at all monitoring hearings.

Youth law practice resources

Resources available include new precedents available to members of the private practitioner panel youth crime subset upon request to Suzanne.Bettink@vla.vic.gov.au:

• KCCRLCL0310 - Ltr Client at court adjourned for youth control order planning meeting
• KCCRLCL0485 - Ltr_Client_youth control order made
• KCCRLCL0487 - Ltr_Client_youth control order monitoring progress
• KCCRLCL0488 - Ltr_Client_youth control order revoked and sentenced
• KCCRLCL0489 - Ltr_Client_youth control order successful completion

When the court and YJ have completed preparation of their own resources, a new set of paragraphs in the standard youth crime brief to counsel will be added. Until then it is recommended that if you are delivering a brief to counsel in a matter where a YCO is in range that you include something along the following lines in the brief:

• The court will ask that the matter be assessed for suitability for a youth control order (YCO). If so, Youth Justice should do a same day assessment but if this is not possible then the matter should be adjourned for no more than 7 days. If the matter is adjourned for this reason, you are asked to retain the brief for the return date as you will be part heard in the plea.
• If the matter is assessed as suitable for a YCO, it will be adjourned for a planning meeting to take place before an order is formally made. You will be advised of the YCO planning meeting date, time and location. As the court will expect the same person to appear at the planning meeting and then at all subsequent hearings for monitoring, I ask that you [obtain a date suitable to yourself if you are willing to commit to appearing on each subsequent occasion which, after sentencing, will attract a fee [see current fee schedule] OR [obtain a date that I will be able to attend {insert suggested dates} and seek to be excused from the return date after the planning meeting as I will appear myself at all subsequent hearings]
• If the matter is adjourned for a YCO planning meeting we have been asked by the court’s convenors to ask that the following orders are made:

1. Unless there is a particular reason, the court make any orders about those attending the meeting under s. 409T(4) rather than (3)(e). The reason for this is that if the order is made under (3)(e) and the person does not attend, the planning meeting will need to be vacated. If the order is made under ss (4) then the decision about whether or not to vacate can be made depending on all the circumstances on the day.
2. Under s. 409(4) – ‘any person the convenor assesses as significant’. This is because during the preparation for the planning meeting it may become apparent that there is an important person (especially a service provider) who could play a valuable part at the planning meeting but the convenor would have no power to invite them unless the court included this proviso.
3. That YJ provide a pre-sentence report. The reason for this is two-fold. Youth Justice might form the view after the planning meeting that a lesser order would be more appropriate. This order would give them the chance to explain this view in detail. Alternatively, the court may decide that an immediate period of detention is necessary in which case the availability of the PSR avoids further delay.

Court resources

The court should be issuing Guidelines for planning meetings. When available, it is expected that they will be published on the Children’s Court website's Guidelines page.

In the meantime, the YCO planning meeting convenors are contactable on 1800 531 574 to answer any questions about the process, including questions raised by yourself, YJ or the court on the day a matter is to be adjourned for a planning meeting.

Magistrate Peter Power’s Research materials chapter 11 include information about YCOs in parts 11.1.5-11.1.6.

Youth justice resources

At this stage the Youth Justice Community Practice Manual still does not include any information about YCOs so we are reliant on their training resources (available o members of the private practitioner panel youth crime subset upon request to Suzanne.Bettink@vla.vic.gov.au).

When available, there should be a specific webpage for YCOs in the Orders part of the Manual website.

We anticipate that the process may need to be adjusted from time to time, especially if they become more popular. This page will be regularly updated regarding any changes.