Throughout Australia, the sentencing process for children and young offenders differs from that of an adult offender in a range of ways. Aged between 10 and 17 years, young offenders generally receive more rehabilitative-focused sentences, as opposed to often more focused on punishment, denunciation and deterrence for adults.
General Principles of Sentencing Children
A focus on rehabilitation as opposed retribution is a cornerstone principle guiding the sentencing of children. Children are thought to have a greater capacity for development and change than adults. As such, early intervention by courts can reform young offenders’ future behaviours. In support of this, publication of their name in the media or elsewhere is not permitted.
The principle is that young offenders should be diverted away from imprisonment and into programs focusing on integrating the child into the community as a responsible and offending-free citizen. Programs such as counselling, community service and other educational initiatives serve as ways of achieving this aim.
Cases in which the accused is 17 years old or younger are dealt with in unique courts tailored to the needs of children. Children’s Courts are designed to be less formal than normal courts for adults. Children’s Courts have a focus on providing pastoral care and other additional support to the accused whilst accounting for any personal needs they may have.
Although the specific legislation that governs juvenile sentencing differs from state-to-state, all of states’ legislation place emphasise on certain points. Be it the Youth Justice Act 1997 (NSW), Young Offenders Act 1994 (WA), the Children and Young People Act 2008 (ACT) or other equivalent legislation, the importance of considering the child’s age, maturity and the impact of their upbringing on their behaviour is significant.
Available Penalties/Sentences for Children
A Children’s Court may impose certain conditions on a young offender and/or their responsible adult. These could include paying fines and costs, making restitution – returning or repairing something – or paying compensation for the damage that they have done.
A young offender may also be referred for a meeting with a Juvenile Justice Team (or equivalent state body) if they plead guilty or accept responsibility. This meeting will take place between the young person, their family, their representative, a police officer, someone from the Team and perhaps even the victim. Everyone at the meeting is to decide on what actions the young offender is to take. These may include apologising, attending counselling, volunteering or taking courses. If these commitments are followed through by the young person, the charge will be dismissed.
Every State and Territory Children’s Court has the option of making a Good Behaviour Bond or Conditional Release Order (or equivalent order) for the young person. These orders generally mean that if the young person commits a further offence during the period of the Good Behaviour Bond they can be resentenced for the original offence.
A young offender may also be subjected to a Youth Community-Based Order. This involves following a Youth Justice Officer’s instructions, which may be to attend drug or alcohol counselling or to complete unpaid community work.
This may also involve strict reporting requirements. It is possible that the young person will have to report to a Youth Justice Officer up to three times a week and may have other, more strict conditions set as part of an Intensive Youth Supervision Order with or without Detention.
Young offenders can also be sentenced to a period of time in a Juvenile Detention Centre. Once they turn 18 years of age, they can be transferred to an adult prison.
Key Differences between Child and Adult Sentencing
In summary, there are three key factors distinguishing child sentencing from adult sentencing:
- Child sentencing has more of a focus on their future potential and rehabilitation. Unlike adult sentencing, which often focuses on imposing a punitive measure proportional to the severity of the offence, a juvenile is sentenced with consideration given to their potential to change as a person into a law-abiding member of society.
- The juvenile justice system operates with a much higher level of confidentiality. Safeguarding of Children’s Court hearing details protects the young offender’s identity and ensures that they are not excluded from future opportunities.
- With the exception of mandatory sentences for certain offences in Western Australia and the Northern Territory, there is more procedural flexibility when it comes to sentencing children. The vast range of rehabilitative and restorative sentences detailed above can be tailored to satisfy the personal needs of the child.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
Nicholas Wright
Hugo Law Group
Perth
