Sentencing child offenders

The Criminal Code (Qld) sets out the circumstances where a child can be held legally responsible for committing an offence:

  • A child under 10 is not criminally responsible for any act or omission.
  • A child under 14 can only be criminally responsible if the prosecution shows the child had the capacity to know they should not do the act or make the omission at the time of doing it.

The Youth Justice Act 1992 (Qld) (YJA) is the key legislation that guides the sentencing of children under 17 years of age. From 12 February 2018, 17-year-olds will be treated as children for the purposes of the Act. The YJA also outlines when a young offender transitioning into adulthood should be treated as an adult.

Special considerations and principles apply to the sentencing of children, including:

  • A child’s age is a mitigating factor in deciding whether or not to impose a penalty and the nature of the penalty.
  • A non-custodial order (a sentence served in the community) is better than detention in promoting a child’s ability to reintegrate into the community.
  • The rehabilitation of a child is greatly assisted by the child’s family and opportunities to engage in educational programs and employment.
  • A detention order should be imposed only as a last resort and for the shortest appropriate period.

Subject to the operation of the Act, the general sentencing principles that apply to the sentencing of adult offenders also apply to children.

Diversion

The YJA includes the principle that if a child commits an offence, they should be diverted from the court process unless the nature of offence and the child’s criminal history indicate a court proceeding should be started.

Examples of diversionary options that can be used by police include administering a caution, referring the child to participate in a restorative justice process, offering the child an opportunity to attend a drug diversion assessment program or a graffiti removal program.  Police also have the power to take no action.

Caution — when a child admits to the offence and is willing, a police officer (or, where applicable, a respected Aboriginal or Torres Strait Islander community member) can explain to them what they have done wrong instead of bringing them before a court. This can involve an apology to a victim if the child is willing to apologise and the victim is willing to participate.

Graffiti removal program — police can offer this two-hour program to a child aged at least 12 who admits to a graffiti offence.

Police drug diversion assessment program — police can refer a child found in possession of a small amount of cannabis (not more than 50 grams) or a thing used for smoking cannabis, to an assessment, education and counselling session. At this session, participants are provided with information about the health impacts of illicit drug use and consequences of continued use, and assistance to stop using drugs.

Releasing at a place of safety — police must take a child arrested for being intoxicated in public to a place of safety, and release them there, if this is more appropriate than holding them at a police station or watch-house. In this case, any charge against the child is not proceeded with.

Restorative justice process — if a child admits to the offence and is willing, police can refer them to a voluntary meeting (a conference) or an alternative diversion program.

A conference is run by an independent convenor. Both the child and convenor must attend personally. Other participants can include the victim (or their representative) or a representative of a victim advocacy organisation, support people and other people affected by the crime. The aim is for the child and victim to agree on how the child can make up for the harm caused, in a way that benefits everyone.

When a conference is not possible, even though the child would participate, an alternative diversion program can be used to help the child understand the harm caused and take responsibility for the offence. This involves remedial actions, activities to strengthen relationships with family and community, and educational programs.

The restorative justice process is still relevant for children who go to court. The court:

  • may dismiss a charge (and may also make a referral to the restorative justice process) when a child pleads guilty but applies for dismissal because police should have referred them
  • must consider referral instead of sentencing if the child pleads guilty
  • must consider referral if it finds the child guilty.

Infringement notice — where an adult could choose to pay a fine through an infringement notice instead of going to court, a child can do this too. Relevant infringement notice offences include obstructing police, unauthorised dealing with shop goods, public nuisance, trespass, and traffic offences for learner drivers, speeding and failure to comply with road rules.

Courts also have the power to make certain decisions and referrals instead of sentencing the child for the offence when charges are proceeded with.

Dismissal — a court can dismiss a charge (and may also issue a caution or direct a police officer to do so) when a child pleads guilty but applies for dismissal because the child should have been cautioned, or no action should have been taken.

Court referred drug assessment and education session before sentencing—a court can refer a child who pleads guilty, consents and meets screening criteria, to a one-on-one session involving assessment of their drug use, drug education and identification of treatment options. Eligible charges are possessing small amounts of certain dangerous drugs for personal use (including amphetamines, cannabis and ecstasy) and possessing things like a bong or needle. Successful completion means the court proceedings come to an end and the child is not liable to be further prosecuted for the offence.

Sentencing order options

Lower level orders

Reprimand — a formal warning given by the court.

Restitution and compensation — an order requiring a child (who can afford it) to pay for property taken or damaged or compensate for loss or damage to property or any personal injury. These are not sentencing orders. They are to be given priority over any fine and can be made in addition to any sentence order.

Good behaviour order — an order that the child not commit another offence during the period of the order (up to 1 year).

Fine — an order that a child (who can afford it) pay an amount of money within a set period of time.

Community-based orders

These orders all involve supervisory conditions. The child must be willing to participate, except for graffiti removal orders which are mandatory. A probation order imposed by a magistrate (rather than a judge) and any community service order or intensive supervision order, can only be given for offences that, if committed by an adult, would make the adult liable to imprisonment.

Restorative justice order — similar to the police referral process, a court can order a child to undertake a restorative justice process. The court must consider the nature of the offence, harm suffered by anyone and the interests of the community and the child. The child is required to perform the obligations under any agreement reached.

Probation order — an order of a maximum duration of either 1, 2 or 3 years (depending on the seriousness of the offence) where the child is allowed to remain in the community with supervision. This includes taking part in offence-focused programs and reintegration activities.

Graffiti removal order — where a child was at least 12-years-old when committing a graffiti offence, the court must make a graffiti removal order that requires the child to perform graffiti removal service for a period of up to 5 hours (if the child is under 13 years), up to 10 hours (if the child is 13 or 14 years) or up to 20 hours (if the child is 15 years or older) that must be completed within 12 months, except where a child’s physical or mental capacity makes it impossible to comply.

Community service order — an order to do unpaid community service within 12 months (or within less time for orders of under 50 hours). The child must be at least 13-years-old. At least 20 hours must be ordered. The maximum hours are:

  • 100 hours for children aged 13 or 14
  • 200 hours for children aged 15 or 16.

Intensive supervision order — an order of up to 6 months, for children aged 10 to 12 years at the time of sentence. The court must have considered a pre-sentence report and believe the child is likely to commit further offences. The young person must comply with conditions, such as participating in specific programs or a curfew.

Detention orders

Detention — a court cannot make a detention order unless it:

  • has considered a pre-sentence report from the Department of Justice and Attorney-General (DJAG)
  • has considered all other available sentences and the desirability of not holding a child in detention
  • is satisfied no other sentence is appropriate in the circumstances.

The YJA sets different maximum detention periods depending on the level of the sentencing court and seriousness of the offence. For instance, a Childrens Court magistrate can usually impose detention of no more than 1 year, and the maximum sentence available to higher courts is generally lower than for adults. A higher court can sentence a child to life imprisonment for a life offence if it involved violence and was particularly serious.

Mandatory minimum penalties applying to adults do not apply to children. Where a mandatory fixed penalty is set for adults, this is treated as the maximum penalty for children. Mandatory minimum non-parole periods still apply where the court decides to sentence a child to detention for life.

Conditional release order — an option used instead of actual detention where the court suspends the detention order and immediately releases the child on conditions, including engagement in a structured program of up to 3 months. The program aims to address a child’s offending behaviour through participation in counselling and programs, while enabling them to maintain their existing study and work commitments.

Release after fixed period — the YJA sets out the proportion of the sentence a child must serve in detention, before release on a supervised release order. The child must be released after serving 70% of the total detention period, unless the court orders release between 50 and 70% because of special circumstances.

Recording a conviction

A sentencing court must decide whether or not to record a conviction. Recording a conviction gives the offender a criminal record for the offence. This is a separate decision to deciding what sentence to impose. The court looks at all the circumstances of the case, including the child’s age and any previous convictions, the nature of the offence and the impact that recording a conviction will have on chances of rehabilitation or finding and retaining employment.

The starting point is that a conviction is not to be recorded against a child. A conviction cannot be recorded on a reprimand or good behaviour order (or any diversion option), but a court can choose to record a conviction for all other orders. A child-offence conviction can only be used against that person as an adult if the conviction was recorded.

Publication orders and public access

A Magistrates Court dealing with child matters is closed to the general public. The Childrens Court has the ability to enable members of the media to be present in the court in certain circumstances where their presence would not be prejudicial to the child’s interests. This allows media reports provided they do not identify the child.

Matters heard in the Childrens Court of Queensland (the intermediate court that deals with children’s matters, presided over by a District Court judge appointed to the Childrens Court) are usually heard in open court, although the judge may order the court be closed (only people directly involved in the case may be present). The District Court and the Supreme Court are open and the public and media can attend (but not identify the child).

Information identifying children cannot be published unless:

  • A court allows it. This must be in the interests of justice, only regarding sentences of detention (up to and including life), not until the appeal period expires and only for heinous offences involving violence.
  • DJAG may give permission to a person to publish identifying information about a child if the chief executive is satisfied the publication is necessary to ensure the person’s safety.

Powers of review and appeal, and access to court data and records

Transparency and the appropriate sentencing of children in the criminal justice system is supported in a range of ways, including:

  • enabling the child, complainant or arresting officer for the charge to seek a court review of the sentence imposed
  • the ordinary powers of appeal.

Queensland courts retain records of all court matters and data is regularly released on court outcomes and processes such as in annual reports. Childrens Court annual reports can be accessed on the Queensland Courts website.

Court records can be accessed by researchers for approved research purposes where permission is given by the chief executive of DJAG, and approved researchers may also be permitted in the court. This allows researchers to publish their findings about the sentencing practices of the courts when sentencing young offenders.

When determining a sentence, judges and magistrates must set out reasons for their decision in the form of sentencing remarks.

Victims

A special sentencing principle of the YJA is that a court must consider any impact of the offence on a victim. The Victims of Crime Assistance Act 2009 (Qld) enables financial assistance for certain victims of acts of violence, which applies to an offence committed by a child. A victim, or their representative, is entitled to attend proceedings, although the court must exclude them from the room if the person’s presence would be prejudicial to the child’s interests.

Role of the parent

A parent is generally required to be at court with their child, and the court can:

  • adjourn to another date to allow a parent to attend
  • recommend the government give financial help so a parent can attend
  • order the parent to attend
  • set aside a finding or order if it is in the interests of justice to do so, where the parent was not aware in time of the court hearing and could not attend for sufficient reason.

A court can order a parent of a child who is found guilty of a personal or property offence to pay compensation for loss or injury if the parent contributed to the fact the offence happened by not adequately supervising the child.