Myths about sentencing children
The process of sentencing children is complex and can be confusing. This can lead to a lot of myths and misconceptions. Here we take a closer look at some of the common myths about sentencing children in Queensland.
Judges and magistrates must sentence children according to the law. Different laws apply to children, who are not as mature as adults.
The law says that children should be kept away from the criminal justice system as much as possible, and that detaining a child should be a last resort. However, the law also says that the community needs to be protected from offences and children should be held responsible for their offending behaviour.
One reason the law says children should not have to go to court unless this is necessary is that many children do not reoffend. Research shows making a child go to court can increase, rather than decrease, a child’s risk of reoffending.
If the child has committed a more serious offence or has a history of prior offending, it is likely they will have to go to court and be sentenced if they are found guilty.
While the most severe sentence a court can order is detention, there are also a number of sentences that allow a child to stay in the community and require the child to follow certain conditions. These are not ‘easy’ sentences. They might have to do community service, meet with their victims, report to a youth justice officer and/or do rehabilitation programs and counselling.
A court must, by law, take into account how much time the child has spent in custody before being sentenced. A child can be in custody for days, months, or sometimes years before being sentenced for an offence. Delays in the system may mean that the child has served more time in detention for an offence than is appropriate. The rate of children held in detention (both on remand and following sentence) per day has increased in Queensland between 2011–12 to 2020-21. So it’s important to learn all the facts of a case, because the reported sentence does not always tell the full story.
Read our report Kids in court: the sentencing of children in Queensland to find out more.
A small number of people start offending as children and continue to commit a large number of offences as an adult. Some people start offending as teenagers and then stop offending not long after, and some people only start offending as adults. For example, one Queensland study found that almost half of the people who committed offences in Queensland only started offending as an adult.
Engaging in behaviour that also may be against the law can be a normal part of being a teenager but as people get older they usually offend less. Most children 'grow out' of offending. In 2019-20 almost half of the children who went to court as a child never came back into the youth justice system.
Most offences children commit are going down or remaining stable. While data suggests that some offences are increasing, such as theft and unlawful entry offences, this does not factor in the sharp drop in these offences at the start of the COVID-19 pandemic. In general, there are no more of these offences being committed than there were prior to the start of the pandemic, and in some cases, there has been a decrease.
The number of children committing offences also has gone down (taking into account the population of children in Queensland). This means fewer children are committing offences in Queensland.
Most offences are committed by adults, not children. It’s worth bearing in mind that children are more likely to come to police attention than adults because they are often less experienced at committing offences; are more likely to commit offences in groups and in public places, such as on public transport or in shopping centres, or close to where they live; and tend to commit more public, attention-seeking offences.
Even so, only 16% of all people charged by police in Queensland are children and children who offend are a very small percentage of the population of children in Queensland (just over 2%). And of those children who do offend, 10% commit almost half of all proven offences.
Our report Kids in court: the sentencing of children in Queensland goes into more detail about the sentencing of children.
Sentencing a child to detention may protect the community while the child is being detained. However, it may not keep the community safe in the long run.
In Queensland the law says that a sentence of detention can only be given to a child as a last resort and for the shortest time necessary. This is consistent with the United Nations Convention on the Rights of the Child which says the same thing (see Article 37).
Labelling children as 'criminals' and taking them away from the support of family, school, work and other structured sport or leisure activities can make their situation worse. The negative effects that detaining a child can have on their mental health and ability to gain employment in the future may mean that the child becomes a greater burden to society. Once detained, a child will also meet other children who have offended, which can increase their risk of offending again.
For example, one study in Victoria showed that 80% of children who had been sentenced to a particular supervised order or to detention went on to reoffend. Most went on to commit violent offences, and over half were sentenced to prison as adults within 6 years of being sentenced by the Childrens Court.
A small number of children commit very serious offences that may mean they need to be detained for some time. Children who commit certain offences (such as those that an adult could get a sentence of up to life imprisonment for) can be detained for up to 10 years, and if it is also an offence that involved violence against a person and a special legal test is met they can face up to a life sentence.
A purpose of sentencing is to deter people from committing a crime. The threat of going to prison has been found to have a small deterrent effect on the general community. However, it has also been found that longer sentences do not deter people from offending, and harsher conditions in custody may actually lead to more violent offending.
We are even less certain if deterrence works for children as they are much less likely to think about the long-term effects of their behaviour. Even if they do know the risks of what they are doing, they may ignore those risks because they are more influenced by feelings and friends than by logic. This is because children’s brains are not fully developed.
Some people think that disciplining or shocking children who offend will put them on the right path. This might include having them do hard physical work, rigorous exercise, and punishing them even for minor wrongdoing.
This type of approach doesn’t work for children who commit offences because they are usually already disadvantaged. Many children who offend have limited education and mental health issues, have experienced child abuse and neglect as well as other forms of domestic violence, and have grown up in poverty. These disciplinary-type programs often don’t develop the work or behavioural skills the child needs. Instead, they can encourage aggression and lead to more offending.
Other people think that showing children what life is like in adult prison will deter them. This approach has been found to be harmful and led to more offending, not less.
We now know children’s brains are not fully developed and do not complete their growth until young people are in their early to mid 20’s. Some research also suggests that the development of boys’ brains can be slower than girls. So while children may know something is wrong and that they shouldn’t do it, they have less control over their actions than adults. Children are more influenced by their emotions and their friends than by thinking about the possible consequences of their behaviour.
Many children who offend have also been abused (physically, emotionally, and/or sexually) and/or neglected, come from a troubled household and are bullied. These experiences can further delay a child’s brain development.
It is because children’s brain development is ongoing, that they are seen as less blameworthy for wrongdoing in childhood. It is because they are different that they are treated differently and different laws apply to them.
Children’s sentences are also designed to match a child’s stage of development, which gives them the best chance to rehabilitate. Giving them an adult sentence may increase their risk of re offending.
Between 2005-06 and 2018-19, children were most commonly sentenced for theft, public order and unlawful entry offences.
This includes offences such as shoplifting (goods under $150) and public nuisance, as well as serious offences like stealing cars and breaking in to houses.
Like adults, children can be sentenced even when they are not the main offender but are considered a party to the offence. For example, if a child is a passenger in a car that has been taken without permission, they can potentially be charged with the same offence as the person who took the car and is driving it.
Restorative justice conferences are not a soft option. In a recent evaluation, 80% of victims who took part in a conference agreed that ‘a restorative justice conference is a confronting experience for a young person.’
In a conference, victims and their families can meet the child in a safe environment to talk about what happened and how the offence affected their life. The child must listen to the victim and is then encouraged to explain their circumstances and why they did what they did. This can be very challenging.
A convenor will also help the people in the conference to agree on ways the child can make things better and prevent the offending behaviour from happening again. This will usually mean the child says sorry and could include the child doing volunteer work or attending educational or therapeutic programs.
In contrast, a child going to court is less likely to have to meet the victim. Sometimes going to meetings with youth justice (and sometimes with counsellors) before the conference, then going to the conference and following up by doing what has been agreed on will be the end of the matter, but sometimes the child may be sentenced to an additional order following the conference.
Read some restorative justice conference case studies.