Sentencing children

Children are treated differently to adults by the Queensland criminal justice system.

An important reason for this is the difference between adults’ and children’s maturity levels and their ability to control their behaviour and make good decisions.

The Youth Justice Act 1992 (Qld) guides how children under 18 are sentenced in Queensland.

How old must a child be to be sentenced?

In Queensland, under the Criminal Code (Qld):

  • a child under 10 cannot be tried and/or sentenced for an offence
  • a child under 14 can only tried and/or sentenced if the prosecution shows the child understood that their offending behaviour was seriously wrong.

What must courts think about when sentencing a child?

Usually, a child will be sentenced by the Childrens Court. However, if the offence is very serious, such as murder or manslaughter, a child would be sentenced in the Supreme Court.

A court must think about:

  • the child’s rights, age, maturity, and, where appropriate, culture and religion
  • the type of offence the child has committed and how serious it was, including any harm caused to a victim
  • whether the child has a history of offending, and the need to protect the community from offences
  • a sentence that allows the child to stay at home with their family and in work or education is better than detention to help the child not to offend again and to fit back into their community
  • detention should only be ordered as a last resort and should be for the shortest appropriate amount of time.

If a child pleads, or is found guilty, the court may ask for a pre-sentence report to help it decide what the sentence will be. Sometimes, before making certain orders, the court must first ask for and consider a pre-sentence report.

The court can also refer a child to a restorative justice process before it decides the child’s sentence.

Keeping a child out of the criminal justice system

In Queensland, if a child commits an offence, the law says that the child should generally be kept out of the criminal justice system, unless this is not appropriate because of the type of offence they’ve committed and their previous offending history.

This is called diversion, and means the child is not given a sentence.

Police can:

  • take no formal action
  • caution the child
  • issue the child with a ticket (called an infringement notice), which means the child can choose to pay a fine instead of going to court
  • take the child to a place of safety (such as their home or a hospital) if they are arrested for being drunk or otherwise intoxicated in public
  • refer the child to a:
    • 2-hour graffiti removal program, if they are at least 12 and admit to the offence
    • 2-hour drug diversion program (where the child is taught about the consequences of using drugs and given help to stop using them)
    • restorative justice process, if the child admits the offence and is willing.

Courts can also divert children away from the criminal justice system. This way no entry appears on the child’s criminal history.

If the child pleads guilty, a court can, where suitable:

  • dismiss the charge and caution the child (or direct a police officer to do so)
  • dismiss the charge and refer the child to a restorative justice process
  • refer the child to a drug assessment and education session (for when a child pleads guilty to possessing a small amount of a particular type of drug for personal use, or possessing certain drug utensils). If the child attends, they are found guilty of the offence, but no further action is taken
  • refer the child to a restorative justice process. If the child participates and complies with the agreement reached, this brings the court action to an end.

What sentence can a child be given?

When sentencing a child, a court can give different types of sentences, called orders.

  • Reprimand – the court formally warns the child
  • Good behaviour order – the court orders the child not to commit another offence during a set amount of time (usually up to a year)
  • Fine – the court orders that a child (who can afford it) pay an amount of money

A child serves these orders in the community, supervised by youth justice officers.

A court can only make the following three orders if the child is found guilty of an offence that an adult could go to prison for. The child must agree to the court making these orders.

How long can a child be sentenced to detention for?

A magistrate can sentence a child to detention for up to 1 year. For most offences a judge, from a higher court, can sentence a child to detention for up to 5 years or half of what the maximum adult sentence is for that offence (whichever is less).

Any time a child spends in custody – where they did not get bail – will usually be treated as part of the time they need to serve under the detention order.

A child will spend the last part of their detention in the community on a supervised release order.

Usually if a child is sentenced to more than one detention order, they serve them at the same time. A court can also add detention on to the end of another detention sentence.

Serious offences

For certain serious offences, a judge can make a longer detention order, but usually this must be for no more than 10 years. If the child is found guilty of an offence that an adult could get life imprisonment for, a judge can sentence the child to detention for more than 10 years and up to life, but this can only happen if a special legal test is met.

  • Restitution and compensation – the child (if they can afford to) must pay money to make up for property loss or for an injury suffered by a victim of their offence.
  • Disqualification – a court can, and sometimes must, stop a child from having or getting a driver’s licence for a certain amount of time.

When does a court record a conviction for a child?

When sentencing a child, a court sometimes has to decide whether to record a conviction with the sentence. A conviction will remain on a child’s criminal history into adulthood.

When deciding whether to record a conviction, the court will think about the child’s age, any previous convictions and the offence the child committed. The court will also think about how a conviction could affect a child’s chances of rehabilitation, and for finding and keeping a job when they get older.

Courts cannot record a conviction if the child receives a reprimand or is sentenced to a good behaviour order.

Publishing information about the child

No one can publish information identifying a child unless a special legal test is met. In such cases, no-one can publish the child’s identity until after the time when the child could appeal their sentence has passed.

Do parents have to go to court with their child?

Yes, a parent is generally required to be at court with their child. If a parent does not attend, the court can:

  • adjourn to another date to allow a parent to attend
  • order the parent to attend
  • recommend that Youth Justice give financial help so a parent can attend.

If a child is sentenced without a parent present, and the parent was either not aware of the court hearing or could not attend for sufficient reason, the parent or child can apply to have the case heard again.

If a child is found guilty of a personal or property offence, a court can order their parent to pay compensation for loss or injury if a lack of supervision contributed to the offence.

This information is not intended to provide legal advice and has been prepared for the purposes of providing information only. While all reasonable care has been taken in the preparation of this information, no liability is assumed for any errors or omissions.