In Victoria, various options are available for sentencing young people aged between 10 and 21. The law distinguishes between a child and a young offender:
- the Children, Youth and Families Act 2005 defines a child as someone aged 10 to 17 at the time of the alleged offence and aged under 19 when Children’s Court proceedings begin
- the Sentencing Act 1991 defines a young offender as someone aged under 21 at the time of sentencing.
Children (child) and young offenders are collectively referred to as young people.
A child aged under 10 years is considered unable to commit an offence.
A child aged between 10 and 14 is presumed to be unable to commit an offence unless the prosecution can prove that the child is capable of forming a criminal intention.
The Children’s Court hears most matters relating to child offenders. If a young person was a child when his or her case first came to court but turns 19 before the case is finalised, in most cases the Children’s Court must continue to hear the matter. However, if the young person has turned 19 by the time his or her case comes to court, the matter is heard in the Magistrates’ Court.
The Children's Court cannot hear certain fatal offences such as murder, manslaughter, arson causing death, or culpable driving causing death. These matters are heard in the County or Supreme Court.
Victoria’s unique dual track system under the Sentencing Act 1991 allows adult courts to sentence young offenders (aged under 21 years) to serve custodial sentences in youth detention instead of adult prison. Dual track is intended to prevent vulnerable young people from entering the adult prison system at an early age.
For a young offender to qualify for youth detention under the dual track system, the court must be convinced that he or she has reasonable prospects of rehabilitation, or that he or she is particularly impressionable, immature, or likely to be subjected to undesirable influences in an adult prison.
The Department of Justice and Community Safety administers Victoria’s youth justice centres and youth residential centres for children (aged under 18 years) and young offenders (aged under 21 years).
Youth Diversion Program
A youth diversion program operates in all Children’s Court locations across Victoria. The youth diversion program is offered to children and young people who have been charged with low-level offences and who have little or no prior history of offending. They must also be willing to acknowledge the offences they have been charged with.
As part of the program, children and young people are assessed for suitability for a diversion order. The order may contain a range of conditions aimed at promoting rehabilitation and reparation of the harm caused by the offence. The conditions also aim to strengthen the child’s or the young person’s family and community links. On successful completion of the diversion order, the child or the young person may have the charge (or charges) dismissed, and receive a non-disclosable criminal record for any offences subject to the diversion order.
Available Sentence Types
Options for sentencing young people in Victoria include:
- youth justice centre order
- youth residential centre order
- youth control order
- youth attendance order
- youth supervision order
- probation order
- good behaviour bond
- dismissal and undertaking.
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