By Emma Breheny. This article is part of our July focus on the rights of children and youth. Read our Editorial for more on this theme.
Diversion is one of many sentencing options available in Victoria’s criminal justice system. It aims to direct people away from formal involvement with this system in recognition of the fact that this is often ineffective in preventing re-offending.
Rather than simply punishing people, diversionary programs seek to rehabilitate offenders by focusing on the causes of a person’s offending. For young people, diversion is particularly appropriate due to their greater potential for rehabilitation and the low-level offences they tend to commit.
Unfortunately in Victoria, young people do not have the right to a diversion when they appear before court due to the absence of any legislation relating to youth diversionary schemes. This is in contrast to the adult system, where certain offences automatically qualify for a diversion.
So, what exactly is involved when someone receives a diversion and why should we ensure young people have access to diversionary schemes?
Diversion: The basics
Diversion can take many forms, including police cautions, group conferencing or participation in a court-approved program. The defining feature of diversion is its non-punitive nature.
The logic underpinning diversion is that, for some offences and for some groups of people, punitive sentencing is not effective in stopping them from committing further offences. While prison sentences aim to stop people from re-offending by removing them from the community and punishing them for their behaviour, diversion looks at what may be causing a person to offend and then seeks to address these factors.
The principle of diversion for young offenders is enshrined in both local and international legislation, including Victoria’s Children, Youth & Families Act and the United Nations Convention on the Rights of the Child, both of which state that imprisonment should be the last resort for young people. A recent study also found that young people have a “unique capacity to be rehabilitated”, making them particularly suitable for diversionary programs.
Given that many young people offend due to underlying issues (including substance abuse, homelessness and a history of neglect or abuse), diversion can be an effective intervention in their lives.
Take the example of a homeless young person who has shoplifted. Sending them to prison is likely to create a host of negative outcomes, including receiving a criminal record, which can limit their ability to gain employment in the future. Further, the environment of a prison can have a detrimental effect on someone who is young and impressionable, potentially turning a fairly minor offender into a career criminal. Experts call this the “criminogenic effect” of prison.
By diverting young offenders away from the criminal justice system, we can avoid hardening these young people and accelerating their offending trajectory.
Court-based diversion
Court-based diversions present a rare opportunity to link up vulnerable young people with appropriate support services while ensuring the young person has a stake in this process. If completed successfully, these programs result in matters being discharged. This is a unique feature of court-based diversion and means that young people can avoid the stigma associated with a criminal record, enabling them to move on with their lives.
Diversion is obviously not appropriate for all offences. However, those engaging in low-level and intermediate offending, such as property damage or theft, would benefit far more from an intervention that is therapeutic, rather than a prison sentence or excessive fines that may further criminalise someone who is likely to grow out of their offending behaviour.
With the majority of young offenders in Victoria committing fairly minor crimes, diversion would usually be the most suitable sentencing option, but this is not uniformly available to them under Victoria’s current system. The two programs that are available at court – ROPES and Right Step – both have certain limitations that mean a number of young people are not eligible.
The limited reach of effective programs such as Right Step, coupled with the lack of dedicated funding and legislation for youth diversion, means that too many young people in Victoria continue to miss out on the benefits of diversion.
Diversion: A smart sentencing option
The issues of young people in detention in Victoria point to the necessity of programs that focus on the factors causing offending. In 2010, 35 per cent of detainees had previous child protection involvement, 66 per cent had been suspended or expelled from school, 55 per cent had been victims of abuse, trauma or neglect and more than a third presented with mental health issues.
Judge Paul Grant, President of the Children’s Court of Victoria, has said, “These young people need our most innovative and intensive interventions to help them rebuild their fractured lives.” Diversion is a smart and effective way to do this.
Diversion reduces recidivism
Available evidence indicates that non-custodial sentences are more effective in reducing young people’s re-offending. An evaluation of Victoria’s ROPES program found it to be effective in reducing youth re-offending, with only 10 to 12 per cent of participants going on to commit any further offences. Of a small sample of Youthlaw clients who participated in ROPES, none went on to re-offend and all of them considered it to be a positive experience.
Right Step, which deals with more complex cases than ROPES, has a 65 per cent success rate amongst participants. This is compared to re-offending rates of over 50 per cent amongst young people sentenced to detention in Victoria.
Diversion enables rehabilitation
This evidence is complemented by criminology research that recognises sending people to prison is ineffective in reducing re-offending. The reasons behind this include the criminogenic effect prison has on people, the stigma associated with a criminal record and the dislocation from community that occurs during incarceration.
Diversion is cost effective
Diversion is also a significantly cheaper option than sending people to prison. The Victorian Government estimates that it currently costs about $528 a day to keep a young person in a youth justice facility, equating to $192,720 per year. This is compared to $52 per day for someone on community-based supervision. In the case of someone who does not offend again, there are long-term savings to be had on prison and court-related costs.
The situation in Victoria
Currently in Victoria there is no court-based diversionary program for young offenders that is upheld by state legislation. While most adults across Victoria have access to court-based diversion, there is no equivalent legislation for young offenders that would ensure that all young people have access to the option of diversion when they appear before court.
The two programs that are available at all courts in Victoria – ROPES and group conferencing – are tailored to young people at either end of the offending spectrum. They do not fulfil the needs of those young people who are beyond the early stages of offending but are not yet engaging in more serious offending behaviour.
Trying to address this gap is Right Step, an innovative three year pilot program that targets repeat offenders aged between 13 and 18 years. All young people referred to Right Step are at high risk of re-offending and are in need of individualised, early intervention support. Through counselling, education, coaching and career pathway planning, Right Step aims to halt young people’s progression through the justice system. Participants set goals and tasks to overcome the identified barriers that are causing them to re-offend. Right Step estimates that it costs between $2,500 and $3,000 for a young person to participate in the program.
Given that many young people offend due to underlying issues (including substance abuse, homelessness and a history of neglect or abuse), diversion can be an effective intervention in their lives.
Right Step Case Study
A 17-year-old male was charged with robbery, theft, assault and graffiti related offences. Prior to court, he met with a Right Step case manager and indicated he was keen to get his life back on track.
He and his case manager worked on a number of issues affecting him, including anger management, a breakdown in his family relationships and a lack of engagement in education. The young person attended counselling for his anger and relationship issues, was given help to link in with community education, and started volunteering at the local op-shop as part of his community service hours.
After eight weeks in the Right Step program, this young man had significantly improved his interpersonal communication, created links with the local community through his work at the op-shop and felt that he could cope much better with life’s challenges. The court dismissed his charges based on the positive progress he had made.
One month later, he had not re-offended and was doing well in terms of his relationships with others and keeping his anger under control. He felt well-supported knowing he could link in with other services via Right Step if he needed to in future.
However, Right Step is only available to young people in the Moorabbin area and its funding is due to run out at the end of 2012. Currently, it receives no government support financially. It is one of many effective programs that has been unable to survive beyond the pilot phase due to a lack of ongoing funding.
The next step
The limited reach of effective programs such as Right Step, coupled with the lack of dedicated funding and legislation for youth diversion, means that too many young people in Victoria continue to miss out on the benefits of diversion. The cost of this is borne by us as taxpayers, through costly prison sentences, and as a community, as we sentence yet another young person to a cycle of offending and incarceration.
Knowing that most youth offending is caused by a series of underlying factors, providing intensive support in the form of a therapeutic diversionary program makes sense. The success rates and cost effectiveness of such programs are further reason to expand them.
New South Wales has a legislated diversionary system for young offenders with built-in safety nets to ensure that every young person is given the opportunity of diversion at some point in the sentencing process. Without legislation, we are only giving this opportunity to a handful of young offenders in Victoria while the rest are left to continue progressing through the criminal justice system with consequences for both themselves and their community.
Victoria’s Sentencing Advisory Council has commented on the situation, describing it as “a missed opportunity in terms of keeping potentially large numbers of low-level young offenders out of the Children’s Court.”
Victoria must continue to lead the way in youth justice by implementing a court-based diversionary program that is protected by legislation and is available to all young people, regardless of location or background. Harsher sentencing and building prisons has been shown to fail in other states. Let’s not repeat these mistakes.
Emma Breheny is a Policy Officer at Youthlaw, a specialist Victoria-wide community legal centre for young people. One of Youthlaw’s key campaigns is ensuring all young people have access to court-based diversionary programs in Victoria.
