In Victoria, various options are available for sentencing children and young people aged between 10 and 21, including:
- youth justice centre order or youth residential centre order
- youth control order
- youth attendance order
- youth supervision order
- probation order
- good behaviour bond
- dismissal and undertaking.
Children and Young Offenders
The law distinguishes between a child and a young offender:
- the Children, Youth and Families Act 2005 (Vic) defines a child as someone aged 10 to 17 at the time of the alleged offence and aged under 19 when proceedings begin
- the Sentencing Act 1991 (Vic) defines a young offender as someone aged under 21 at the time of sentencing.
Children 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. This is unless the prosecution proves that the child is capable of forming a criminal intention.
Where Are Children Sentenced?
The Children’s Court hears most matters relating to children. If a young person was a child when their 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 their 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 higher courts (County and Supreme Courts).
A child may appear before the Children’s Court after being charged with a Category A serious youth offence committed when the child was aged 16 years or over. When this happens, there is a presumption that the case will be heard in the higher courts.
A child may appear before the Children’s Court charged with a Category B serious youth offence committed when the child was aged 16 years or over. When this occurs, the court must consider whether the case should be heard in the higher courts.
Sentencing Trends in the Children’s Court
We regularly publish data on sentencing trends in the Children’s Court. We have also looked at issues such as reoffending by children and young people, ‘crossover kids’ in the child protection and youth justice systems, and children held on remand.
Victoria has a unique dual track system under the Sentencing Act 1991 (Vic). Dual track allows adult courts to sentence young offenders (aged under 21 years) to serve custodial sentences in youth detention instead of in 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 they have reasonable prospects of rehabilitation, or that they are 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. Children and young people 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 for the harm caused by the offence. The conditions 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. They may receive a non-disclosable criminal record for any offences subject to the diversion order.
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