Sentencing Young Offenders and Children
Given their youth, younger offenders are seen to have the capacity to grow and evolve beyond their offending more than older offenders. As such, our courts and legal system aim to treat younger offenders differently to account for their limited experience and potential for change. This difference extends to courts with specialist jurisdiction to hear cases and sentence young offenders.
The Sentencing Act 1991 defines a young offender as someone under 21 at the time of sentencing. However, at common law, there is no specific age at which a person is defined as youthful. Accordingly, youth may be taken into account for offenders older than 21, though the mitigating effect of youth on sentence decreases with age. While, generally, young offenders will receive a more lenient sentence than older offenders, this is not always the case, depending on other considerations.
It is essential to understand that alleged offences by children and young people are heard in a specialist jurisdiction, and, as such, it is critical to engage experienced Children’s Court lawyers to achieve the best outcome.
This article explores key differences in how younger offenders are treated in Victoria compared to offenders in the adult jurisdiction and the sentencing considerations typically applied.
Where Are Children Sentenced?
Most matters relating to children are heard in the Children’s Court. If a person is a child when their case first goes to court but turns 19 before it is finalised, the Children’s Court must continue to hear the matter in most cases. However, the matter will be heard in the Magistrates’ Court if the young person turns 19 when their case goes to court.
Several death-related offences committed by young people, such as murder, manslaughter, culpable driving causing death, child homicide or arson causing death, are heard in the higher courts (the County Court and the Supreme Court of Victoria).
A child may appear before the Children’s Court after being charged with a Category A or Category B serious youth offence committed when they were aged 16 years or over.
For a Category A serious youth offence, there is a presumption that the offence will be heard in the higher courts. For a Category B serious youth offence, the court must consider whether the case should be heard in the higher courts.
Please see here for more on Category A and Category B offences.
Sentencing: An Overview
Sentencing is the process by which an offender, after being found or having pled guilty, is punished for the crime committed. Section 5(1) of the Sentencing Act 1991 (Vic) outlines the purposes for which a judge may impose a sentence, which include:
Just Punishment (ss (a)): This is the notion that having committed a given offence, an offender should be punished in a way that is just given the circumstances of offending. Judges may consider the harm caused by the offender and their culpability amongst a number of other factors.
Deterrence (ss (b)): One purpose of sentencing is to deter people from committing the offence or similar offences. Deterrence can be split into two types: specific deterrence (i.e. deterring the particular offender from reoffending) and general deterrence (i.e. deterring others from offending).
Rehabilitation (ss (c)): For an offender to be rehabilitated means that they are supported and helped to not offend in the future – they are rehabilitated from the wrongs of offending. This purpose aims to return the offender to society in a capacity where they will not re-offend, giving them a chance to grow and learn from the harm they caused.
Denunciation (ss (d)): Sentences adhering to this purpose use the sentence as a way to condemn the type of conduct in question, criticise its moral failings, and send a message to the broader community of the harm of such offending.
Community Protection (ss (e)): For particular types of offending, the sentence may be used to protect the community from the offender by restricting their liberty or means of community interaction.
Sentencing Young Offenders
Section 3 of the Sentencing Act 1991 (Vic) defines a young offender as someone who, at the time of sentencing, is under the age of 21. At common law, there is no strict age at which an individual is or is not considered a young offender. Instead, the offender’s youth is considered a mitigating factor in sentencing, but one which diminishes with time and the offender’s age.
Before continuing, it is worth noting that, in addition to anything mentioned in the section below, any factor, law, or consideration discussed with reference to young offenders also extends to child offenders.
This notion of age as a relevant consideration is derived from the case of R v Mills [1998] VSC 241. In that case, a 20-year-old offender (21 at the time of sentencing) was convicted of recklessly causing injury. On appeal, the court held that, given the age of the offender (and that it was their first instance of offending), the consideration of rehabilitation should be prioritised. The court additionally held that adult prisons should be avoided for young offenders where possible.
The consequences of this decision are that courts now tend to prioritise the rehabilitation of young offenders over other sentencing principles. Such rehabilitation often takes the form of counselling, drug, and behavioural programs. Given their age and continual development, young offenders are significantly more likely to rehabilitate but, equally, are more malleable to the influence of bad actors.
However, other sentencing factors are still actively considered during sentencing, and as the seriousness of the offending (or the offender’s age) increases, the courts are less likely to try to prioritise the offender’s rehabilitation above other principles, such as deterrence and community protection.
Sentencing children
Part 5.3 of the CYFA details how a court should consider a child’s offending during sentencing.
Section 360(1) of the CYFA gives the court broad powers to impose on a child found guilty of an offence, with or without conviction: fines, probation, detention, undertakings, and good behaviour bonds, amongst other sentences.
Section 362(1) of the CYFA requires the court, if practicable, to have regard to the below considerations – considerations similar to the general sentencing principles identified above. Though diverse, these point to, as with young offenders, a general policy of ensuring child offenders can be rehabilitated. The court should consider:
the need to strengthen and preserve the relationship between the child and the child’s family; and
the desirability of allowing the child to live at home; and
the desirability of allowing for the child’s continuing education, training or employment; and
the need to minimise the stigma of court determinations; and
the need to ensure that the child is aware that they must bear responsibility for their actions; and
the need to protect the community; and
the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.
Finally, Part 7 of the CYFA establishes the Children’s Court – a court with comparable power to the Magistrates Court in Victoria.
This court was created with the resources necessary to deal specifically and more successfully with issues pertaining to children.
Section 516(1) of the CYFA gives its Criminal Division the power to hear and determine the outcome of summary offences and indictable offences. Indictable offences can be heard summarily (with certain exceptions) where the offender is a child, as defined under the CYFA. The division can also hear committal proceedings for indictable offences against children.
It can be seen then that where an offender is a child below the age of 19 when proceedings are commenced, the proceedings in question will occur in the Children’s Court.
What Should I Do?
If you are a parent of a child or young offender who has been charged with a criminal offence, you should seek specialist advice from lawyers who practice in this jurisdiction routinely.
Please speak to one of our criminal defence lawyers for further details on possible sentences and the best way to proceed in the case at hand.
