Sentencing Young People

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.

Dual Track

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 Health and Human Services 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 Pilot Program

A youth diversion program will be piloted for one year in the Children’s Court, commencing May 2015. Jesuit Social Services, together with the Youth Support and Advocacy Service, will deliver the program. The program will be available in the Children’s Court in the following locations: Dandenong, Broadmeadows, Sunshine, Werribee, Ballarat, Ararat, and Stawell.

The youth diversion program is targeted at young people who have little or no history of offending and are willing to acknowledge the offences they have been charged with. The program aims to:

  • reduce offending
  • promote rehabilitation
  • change offending behaviours and attitudes
  • promote pro-social behaviour.

As part of the program, young people will be assessed for suitability and placed on broad-ranging diversion programs tailored to individual circumstances and encompassing family, community, and schooling links.

While a range of diversionary measures are employed in the Children’s Court jurisdiction, the pilot is the first time that formalised youth diversion has been available in a Children’s Court in Victoria.

The Council identified the need for a formalised state-wide diversion program for young people in its Sentencing Children and Young People in Victoria Report.

The program will be independently evaluated.

Available Options

Options for sentencing young people in Victoria include:

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