Youth sentencing in Victoria is different from adult sentencing. When a child or young person is found guilty of an offence, the Children’s Court considers rehabilitation, accountability, education, family support and reducing the risk of further offending.
The court can impose a range of outcomes depending on the seriousness of the offence, the child’s age and circumstances, their prior history and their prospects of rehabilitation. Detention is generally reserved for serious matters where a custodial outcome is considered appropriate.
This article explains how youth sentencing works in Victoria and the types of outcomes that may be available.
Key Points
Youth sentencing in Victoria places significant emphasis on rehabilitation while also addressing accountability for offending.
The Children’s Court can impose a range of outcomes, including diversion, dismissal, community-based orders, Youth Justice supervision and detention.
The court considers factors such as the child’s age, maturity, circumstances, offending history, rehabilitation, family support and education.
Diversion may be available in suitable cases, potentially allowing a charge to be dismissed without a finding of guilt.
Detention may be imposed for serious offending where a custodial outcome is considered appropriate.
Parents and carers can play an important role in supporting a child through the youth justice process.
Who Is Dealt With as a Child or Young Person?
The youth justice system generally applies to children and young people who were under 18 when the alleged offending occurred.
Children under 12 cannot be held criminally responsible. For children aged 12 or 13, there is a presumption that they are not criminally responsible unless the prosecution proves that they knew their conduct was seriously wrong in a moral sense.
The child’s age at the time of the offending and at later stages of the proceeding can be relevant.
The Children's Court Approach
Most criminal matters involving children are dealt with in the Children’s Court of Victoria.
The Children’s Court takes a different approach from adult courts. Rehabilitation and preventing further offending are important considerations, alongside accountability, victim impact and community safety.
The court may consider diversion, counselling, education, Youth Justice supervision and other community-based options. Very serious offending may be dealt with in a higher court.
Rehabilitation and Accountability
Rehabilitation is an important consideration in youth sentencing because children and young people are still developing emotionally, socially and cognitively.
A child’s offending may be connected with factors such as:
Peer influence;
Family difficulties;
Trauma;
Disengagement from school;
Substance use;
Unstable accommodation;
Disability or developmental issues; or
Mental health difficulties.
The court may consider whether the child has taken steps to address these issues. Rehabilitation may involve counselling, education, treatment, family support, mentoring, cultural support or structured Youth Justice supervision.
Youth sentencing is not consequence-free. A child may still be required to accept responsibility, comply with conditions, repair harm or participate in programs.
Diversion for Children
Diversion is an important part of Victoria’s youth justice system.
In suitable cases, a child may be able to complete a diversion plan rather than receive a formal finding of guilt. The plan may involve an apology, counselling, education, compensation, restorative activities or other appropriate conditions.
Successful completion can result in the charge being dismissed without a finding of guilt.
Whether diversion is available will depend on the circumstances of the matter and the requirements of the relevant diversion program.
Youth Justice Involvement
Youth Justice can become involved at different stages of a child’s matter.
This may include:
Preparing assessments or reports;
Assisting with bail planning;
Supervising community-based orders;
Participating in group conferencing;
Providing programs and rehabilitation support;
Managing young people in custody; and
Assisting with reintegration after release.
Youth Justice may provide the court with information about the child’s circumstances, risks, needs and prospects of rehabilitation.
Group Conferencing and Restorative Justice
Youth Justice Group Conferencing can provide an opportunity for a young person to take responsibility for their conduct and understand its impact on victims and others.
A conference may involve the young person, their lawyer, police and other people affected by or supporting the young person. A victim may participate voluntarily or provide information in another way.
The process can help develop a plan addressing the harm caused and reducing the risk of further offending.
Sentencing Outcomes in the Children's Court
The Children’s Court has a range of sentencing options. The appropriate outcome depends on the circumstances of the individual matter.
Possible outcomes include:
Dismissal or discharge;
An undertaking or accountable undertaking;
A good behaviour bond;
A fine;
Supervised community-based orders;
Compensation or restitution; and
Detention in a youth justice facility for serious matters.
The availability and suitability of a particular outcome will depend on the circumstances of the child and the offence.
What Does the Court Consider When Sentencing a Child?
The court may consider matters including:
The child’s age and maturity;
The seriousness of the offence;
The harm caused;
The child’s role in the offending;
Whether the child pleaded guilty;
Prior findings of guilt or offending history;
Remorse and insight;
Compliance with bail or previous orders;
Family and community support;
Education or employment;
Mental health, trauma or disability;
Substance use;
Cultural and community connections;
Steps taken towards rehabilitation; and
The risk of further offending.
No single factor determines the outcome. The court considers the circumstances of the individual matter as a whole.
The Importance of Family, Education and Stability
A child’s circumstances can be particularly relevant when the court is considering a community-based outcome.
Evidence of stable accommodation, school attendance, supportive family relationships, counselling, treatment or other positive changes may help demonstrate that the child has a pathway away from further offending.
Parents and carers can play an important role by supporting school attendance, stable accommodation, counselling, compliance with court conditions and engagement with Youth Justice.
Detention and Youth Justice Custody
Detention is the most serious youth sentencing outcome.
The court may consider detention where the offending is particularly serious or where a less restrictive outcome is not considered appropriate in the circumstances.
Youth detention is different from adult imprisonment, with youth justice facilities and programs designed around the needs of young people.
For eligible young people sentenced in an adult court, Victoria also has a dual-track system that can, in some circumstances, allow a young person to serve a custodial sentence in youth detention rather than an adult prison.
Aboriginal Children and the Children's Koori Court
Eligible Aboriginal and Torres Strait Islander children may be able to have their matter dealt with in the Children’s Koori Court.
The Children’s Koori Court provides a less formal process and allows Aboriginal Elders or Respected Persons to have a greater role in the proceeding.
Cultural connection, community involvement and culturally appropriate accountability can be important parts of the process.
What Happens If a Child Breaches an Order?
If a child does not comply with a court order, the matter may return to court.
A breach may involve failing to report to Youth Justice, not attending a required program, breaching a curfew or committing further offending.
The court will consider the circumstances of the breach and the child’s overall compliance. Depending on the circumstances, the existing order may be continued or varied, or a different outcome may be imposed.
What Can Parents Do to Help?
Parents and carers can support a child through the youth justice process by:
Supporting school attendance;
Arranging appropriate counselling or other support;
Providing stable accommodation;
Helping the child comply with court conditions;
Encouraging positive activities and routines; and
Supporting engagement with Youth Justice.
It is also important that a child receives appropriate legal advice before making decisions about their criminal matter.
Legal Advice About Youth Sentencing in Victoria
If a child has been charged with a criminal offence in Victoria, early legal advice can help the child and their family understand the allegations, court process and available options.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.