Attorny General Robert Clark.
Attorny General Robert Clark. Photo: Justin McManus
The proposal to remove judicial discretion comes despite warnings from the president of the Children's Court, Judge Paul Grant, who has publicly stated there is ''no simple connection between 'locking them up' and stopping offending behaviour'' and that detaining young offenders had no apparent impact on the crime rate.
The Age believes that several members of the judiciary are concerned about the effect of the proposals, particularly of the prospect that jailed youths face limited rehabilitation opportunities.
Legal figures who work with young people say the proposals are at odds with existing legislation on sentencing juvenile offenders and the Child Safety Commissioner, Bernie Geary, has warned that a ''one size fits all'' approach is not appropriate with teenagers who commit crime.
Under the government's plans, judges would have to jail adult offenders for at least four years. There is also concern about the effects this would have on offenders aged between 18 and 21.
In a speech six months ago, Judge Grant said Victoria had the lowest rate of youth detention in Australia, particularly because Children's Court sentencing focused on ''supporting the young person within the community'' and emphasised rehabilitation as the primary sentencing consideration.
''The importance of the principle of rehabilitation often results in Children's Courts making orders that would be … entirely inappropriate in the case of older and presumably more mature individuals,'' Judge Grant said.
''There does not seem to be any connection between higher rates of custodial orders and lower rates of offending,'' he said, adding that New South Wales detained more children than Victoria, yet that state's crime rate was higher.
Mr Clark says that the government's proposal will apply only in the most extreme instances and that mandatory jail terms would deter further offending and punish the offender.
''When a violent thug inflicts premeditated gross violence on innocent victims, the community needs to be protected,'' Mr Clark said.
''Rehabilitation is not the sole consideration when sentencing juvenile offenders.''
Jordana Cohen, a lawyer at young people's legal centre Youth Law, said that while the proposed changes might be a ''short-term fix to make people happy that there are harsher sentences being doled out, is it going to make the streets safer at the end of the day? Unlikely.''
Ms Cohen said the proposal was at odds with the current Children, Youth and Families Act's provisions of sentencing juveniles, which stated that punishment and general deterrence were not relevant sentencing factors.
''It's really hard to conceive how mandatory minimum sentences, which don't take account of any individual circumstances of a particular
offender, could possibly be seen to fit within those sentencing principles,'' she said.
''What we see happening with these mandatory minimum sentences is none of those rehabilitative factors are going to be taken into account.''
Mr Geary said young offenders were often victims of adult neglect or abuse and the system should avoid further traumatising them.
''We need to consider the individual circumstances around each child, remembering that they are children, remembering that they are often children who are the innocent victims of adult betrayal and that we need to be considering them and their individual journeys,'' he said.
The government says the mandatory jail terms will apply except in circumstances ''so unusual … that Parliament could not have intended those circumstances to be covered''.
Three years ago, in preparing separate research, the Sentencing Advisory Council concluded that ''mandatory sentencing and other prescriptive schemes are unlikely to achieve stated aims''.
Victorian Greens justice and corrections spokeswoman Sue Pennicuik said she was concerned at any move to remove the discretion of the judiciary, particularly when sentencing vulnerable young offenders.
Shadow attorney-general Martin Pakula said Labor had never supported mandatory sentencing, and courts, not politicians, were better placed to determine sentences.
In Western Australia, 16 and 17-year-old offenders who assault police are subject to mandatory sentencing provisions, but according to the Australian Institute of Criminology, all states view detention of juvenile offenders as an ''option of last resort''.
The council's report for Mr Clark is due in September. The government is yet to draft its legislation.