When a child or young person is found guilty of a criminal offence in Victoria, the court must determine what outcome is appropriate. Sentencing in the Children's Court is different from adult sentencing.
The Children's Court considers the child's age, development, circumstances, the seriousness of the offending and their prospects of rehabilitation when determining the appropriate sentence.
This article explains what a finding of guilt means, the sentencing options available to children in Victoria, how rehabilitation may be considered and what happens after sentence.
Key Points
A finding of guilt means the Children's Court has determined that an offence has been proven.
A finding of guilt is not necessarily the same as a recorded conviction.
Rehabilitation is an important consideration when children are sentenced in Victoria.
The Children's Court has a range of sentencing options, depending on the circumstances of the child and the offending.
The child's age, maturity, circumstances, prior history, the seriousness of the offending and prospects of rehabilitation may all be relevant.
Positive steps such as education, counselling, treatment, employment and family support may be relevant to sentencing.
If a child has been found guilty and is awaiting sentence, early legal advice can help the child and their family understand the sentencing process and prepare for the hearing.
What Is a Finding of Guilt?
A finding of guilt means the court has determined that the child committed the offence.
This may happen after:
a plea of guilty, where the child admits the offence and the court accepts the plea; or
a contested hearing, where the child pleads not guilty and the court determines that the charge has been proven beyond reasonable doubt.
A finding of guilt is not necessarily the same as a recorded conviction. However, it can still have consequences for future court matters and, depending on the circumstances, issues such as employment, licensing, travel or professional registration.
The effect will depend on factors including the child's age, the offence, the sentencing order imposed and any previous findings of guilt.
How Does the Children's Court Approach Sentencing?
The Children's Court recognises that children are still developing and may have significant capacity for change.
When determining an appropriate sentence, the court may consider factors including:
the child's age and maturity;
the seriousness of the offending;
the harm caused;
whether the child pleaded guilty;
the child's prior history;
their level of insight and responsibility;
family and community support;
education, training or employment;
relevant health, disability, substance use or trauma issues;
compliance with bail or previous orders;
risk of further offending; and
prospects of rehabilitation.
The court must determine an outcome that is appropriate to the offending and the child's circumstances.
Rehabilitation in Youth Sentencing
Rehabilitation is an important consideration when sentencing children in Victoria.
The court may consider whether the child has addressed factors that may have contributed to the offending. These can include:
disengagement from school;
family conflict;
peer influences;
alcohol or drug use;
disability or cognitive impairment;
trauma;
unstable accommodation; or
lack of appropriate support or supervision.
The court may also consider positive steps already taken, such as counselling, treatment, school attendance, employment, participation in programs, making amends and compliance with bail or other requirements.
Evidence that the child is already making positive changes may be relevant to the sentencing submissions.
Sentencing Options for Children in Victoria
The Children's Court has a range of sentencing options. The appropriate outcome depends on the offence, the child's circumstances, their history and rehabilitation prospects.
Dismissal or Discharge
For less serious offending, the court may dismiss or discharge the charge after a finding of guilt.
This is different from diversion, which may allow a child to avoid a finding of guilt where the relevant requirements are met.
Undertaking or Accountable Undertaking
Depending on the circumstances, the court may require a child to give an undertaking to comply with conditions for a specified period.
Conditions may include requirements relating to behaviour, education, counselling, treatment, non-association or other matters.
Good Behaviour Bond
A good behaviour bond requires the child to remain of good behaviour for a specified period and comply with any conditions imposed by the court.
A breach may result in the matter returning to court.
Fine
The court may impose a fine in appropriate circumstances. The child's age and financial circumstances may be relevant when a fine is considered.
Youth Justice Supervision
A child may be required to participate in a community-based order involving Youth Justice supervision.
This can involve reporting to Youth Justice, attending appointments, participating in counselling or treatment and complying with other conditions.
Detention
Youth detention is the most serious sentencing option available to a child.
It may be imposed in serious circumstances where a less restrictive outcome is not considered adequate.
Deferred Sentencing
In some circumstances, the court may defer sentence and postpone the final sentencing decision.
During this period, a child may have an opportunity to demonstrate progress through measures such as:
re-engaging with school;
attending counselling or treatment;
obtaining stable accommodation;
participating in restorative processes;
complying with bail;
avoiding further offending; or
engaging with Youth Justice.
The child's progress may then be relevant when the court determines the final sentence.
Group Conferencing and Restorative Outcomes
Youth Justice group conferencing may be available in suitable matters.
A group conference can involve the child, their supporters, professionals and, where appropriate, the victim or their representative.
The process may help the child understand the harm caused, promote accountability and develop a plan to address or repair the harm.
The outcome of a group conference may be considered by the court when determining sentence.
Compensation, Restitution and Apologies
Depending on the circumstances, the court may consider steps taken to address harm caused by the offending.
These may include:
compensation for damage or loss;
returning property;
an apology;
participation in restorative processes; or
participation in appropriate programs or activities.
Any proposed outcome should be realistic and achievable for the child.
What Is Youth Justice's Role?
Youth Justice may become involved before or after sentence.
Depending on the circumstances, Youth Justice may assist with assessment, reports, supervision of community-based orders and connecting children with appropriate programs and services.
Youth Justice involvement may also address issues such as education, employment, family engagement, substance use, accommodation and other support needs.
Preparing for a Sentencing Hearing
A practical rehabilitation plan can help demonstrate the steps a child is taking to address the circumstances surrounding the offending.
Depending on the child's circumstances, this may include:
school, TAFE or training;
employment or work experience;
counselling or treatment;
disability support;
family or cultural support;
mentoring;
stable accommodation;
sport or community involvement; and
compliance with bail or existing orders.
Supporting material may include letters or records from schools, employers, counsellors, youth workers, family members or community organisations.
The material should accurately reflect the child's circumstances and the steps they have actually taken.
What Happens if a Child Breaches a Sentencing Order?
A child who does not comply with a court order may have to return to court.
A breach may involve failing to attend appointments, missing programs, breaching a curfew, contacting prohibited people or places, or committing further offences.
The consequences of a breach will depend on the particular order, the nature of the breach and the circumstances of the child.
Legal advice should be obtained if a child is having difficulty complying with a sentencing order.
Can a Finding of Guilt Affect a Child's Future?
A finding of guilt can have consequences even where a child is not sentenced to detention.
Depending on the circumstances, it may be relevant to:
future court proceedings;
future bail applications;
future sentencing;
employment or volunteering;
Working with Children Check considerations;
travel or visa applications;
professional registration; or
licensing matters.
The long-term effect depends on the offence, the child's circumstances and the outcome imposed.
Where available, successfully completing diversion may avoid a finding of guilt.
What Happens After a Finding of Guilt?
After a finding of guilt, the court may proceed to sentence immediately or adjourn the matter.
The next steps may include:
preparing plea material;
obtaining supporting documents;
considering whether a Youth Justice report is required;
considering group conferencing;
preparing a rehabilitation plan;
arranging family or cultural support;
addressing compensation or restitution; and
making submissions on sentence.
Once sentence has been imposed, the child and their family should make sure they understand the order, its conditions and the consequences of non-compliance.
If a condition cannot be complied with, it should be addressed promptly rather than simply ignored.
Can a Child Appeal a Finding of Guilt or Sentence?
If there is concern about a finding of guilt or the sentence imposed, appeal or review options may be available.
Potential issues may include whether the finding was open on the evidence, whether a plea was properly entered or whether the sentence was imposed according to law.
Appeal pathways and time limits depend on the court, the charge and the order made. Legal advice should be obtained promptly if an appeal or review is being considered.
Conclusion
A finding of guilt is an important stage in a child's involvement with the criminal justice system, but it does not necessarily result in detention or a recorded conviction.
The Children's Court has a range of sentencing options, and rehabilitation can be an important consideration when determining the appropriate outcome.
A child's age, circumstances, the seriousness of the offending, prior history and prospects of rehabilitation may all be relevant. Evidence of positive change and practical steps towards rehabilitation may also assist the court when considering sentence.
If a child has been found guilty of an offence or is awaiting sentence in the Children's Court, obtaining legal advice early can help the child and their family understand the sentencing process and prepare for the hearing.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.