Guideline 5.1 – proceedings in the Criminal Division of the Children’s Court

Victoria Legal Aid (VLA) will generally make a grant of legal assistance to a child appearing in the Criminal Division of the Children’s Court if one of the following applies:

• a finding of guilt is reasonably likely to result in youth detention or an order involving youth justice supervision
• the child has a reasonable prospect of obtaining diversion.

The State's special circumstances guideline does not apply to matters in the Criminal Division of the Children's Court.

Serious indictable crimes by children

Guideline 5.1 includes matters where a child has been charged with a serious indictable crime – that is, a crime which, if an adult had been charged, would not be heard in the Magistrates’ Court (for example, rape).

Breach of previous court order

VLA will generally make a grant of legal assistance under this guideline to a child charged with breaching a previous court order if that breach is likely to result in an order involving youth detention or youth justice supervision.

Meanings

Likely to result in

‘Likely to result in’ means the actual penalty the child could expect to receive. The actual penalty will depend on all of the following:

• the nature and circumstances of the charge or charge
• the child’s prior convictions (if any)
• the seriousness of the offence (or the extent to which the law was broken) compared to other examples of the same offence (for example, the amount stolen, the nature of injuries, the amount of drugs) and
• any mitigating or aggravating circumstances.

The expression ‘likely to result in’ means the same as ‘likely penalty’.

Examples of 'likely penalty'

• A child is charged with theft of a packet of chips from a supermarket. He has been charged because police believe he assisted the co-offender in stealing the chips by acting as a look out. His defence is that he did not see, know or anyway help the co-accused take the chips. He has no prior convictions. He may have a good defence to the charges but if he is found guilty of theft, then he is likely to receive a penalty of a Good Behaviour Bond or less. Therefore, he would not qualify for a grant of legal assistance under the first limb of guideline 5.1 but may qualify under the second limb if he has a reasonable prospect of obtaining diversion.
• A child is charged with burglary and criminal damage. Police allege that after school hours he was on the roof of a school building. He broke in to the building through the skylight and stole two laptop computers worth $2500. When arrested and interviewed he told the police that he sold the computers to buy ICE. He admitted to using ICE regularly.
  He has a prior finding of guilt for theft and possess cannabis where he received Good Behaviour Bond. If he is found guilty it is likely that he would receive a penalty that would result in the court making an order involving youth justice supervision. In these circumstances VLA would fund a grant of legal assistance.

Diversion

Diversion is any program that may be available to the child that upon successful completion results in the charge(s) being discharged without any formal finding of guilt.

Reasonable prospect of diversion

A ‘reasonable prospect of diversion’ means that a careful and experienced lawyer would consider it likely that the child would be found suitable for diversion. The lawyer must take all the circumstances of the case into account and the chance of diversion must be real and not fanciful.

The circumstances include:

• the person’s instructions and general acknowledgment of the offending
• the nature and gravity of the offences
• any prior findings of guilt that may preclude them from participating in diversion

Documentary requirements

Applications under this guideline are within the simplified grants assessment process.

Simplified grants assessment process

Lawyers seeking a grant of legal assistance via the simplified grants assessment process should submit an application via ATLAS, only after ensuring that the following documents are retained on file unless they are requested by VLA for assessment:

• a reference to guideline 5.1
• copies of the charge or charges
• full details of the person’s prior convictions (if any)
• the lawyer’s assessment of the likely penalty.