Orders and sentencing for criminal matters
The Children (Criminal Proceedings Act) 1987 and the Young Offenders Act 1997 permit the court to make any of the orders listed below in relation to a child or young person who has committed a criminal offence.
Dismissal or caution
It is possible for the court to give a “caution” to a child or young person who pleads guilty to an offence. This involves the charges being dismissed without conviction.
A formal caution record is kept by the Police. A child or young person cannot receive a caution by a court on more than three occasions even if the previous offences resulting in a caution have not been of the same kind as the current offence.
The court may also direct that the charge be dismissed, with or without caution as it sees fit.
Youth Justice Conferencing
The court may refer the child or young person to the Youth Justice Conference Program. This program aims to bring young offenders, their families and support people face to face with victims and the victim’s support people. The child or young person discusses the offence with the victim in the presence of family and support persons. Together, they negotiate and agree on a suitable outcome.
A suitable outcome can include an apology, reasonable reparation to victims or steps to reconnect the child or young person with their community to help them refrain from further offending.
Juvenile Justice will monitor whether the child or young person completes the required outcomes and report back to the court. The child or young person will be given a specific timeframe in which to complete or comply with the outcomes.
Non-completion or non-compliance with the agreed outcomes will result in the matter being returned to court at which time it may be decided that a court imposed sentence may be more appropriate. If the outcome is successfully completed, the charge will be dismissed.
The court can impose a monetary penalty on a child or young person. The court will consider the means of the child or young person when determining the monetary amount to be paid. The court may order a bond in addition to a fine.
The court can order the child or young person to pay compensation for specific damage or an injury that they were responsible for. In making an order for compensation, the court will have regard to the child or young person’s means and income. An order for compensation cannot be made as a condition of a bond.
The court may determine that a child or young person needs to be supervised by Juvenile Justice for the period of any order that has been imposed. Supervision requirements may be imposed as a condition of probation or a good behaviour bond, control order or a suspended sentence. The level of supervision will depend on the order imposed and will stipulate a minimum level of contact with Juvenile Justice.
If the child or young person fails to comply with supervision requirements, Juvenile Justice is permitted to give warnings to the child or young person for breach of the order. If the child or young person receives three warnings, a breach notice will be lodged with the court. The court will then determine whether a further sentence or additional orders should be imposed.
The nature of supervision by Juvenile Justice involves contact between the young offender and their Juvenile Justice officer. The frequency of contact is established on the basis of needs and assessment. Often a good behaviour bond will be imposed in conjunction with a supervision order.
Good behaviour bond
The court can order a child or young person to enter into a good behaviour bond:
- with or without conviction
- with or without conditions of supervision by Juvenile Justice.
The conditions of supervision overseen by Juvenile Justice can be similar to those listed under bail conditions. There can also be a condition to engage in offence focused counselling.
The Juvenile Justice officer has a practice of giving three warnings to the child or young person for failure to comply with the conditions of the bond. Further failure to comply after such warnings will usually result in a breach notice being lodged at the court. This may require the young offender attending court again at which time he or she may receive an additional supervision conditions or an alternative penalty.
The court can issue a child or young person with a probation order, usually where an offence is more serious. This can be with or without the supervision of Juvenile Justice and other additional conditions that the child or young person must comply with.
A probation order is similar to a good behaviour bond. It is issued for offences that are considered to be more serious. Under a probation order, the child or young person will be required to have more extensive contact with Juvenile Justice.
Community service order
The court can order the child or young person to complete a community service order. This may be imposed as an alternative to a custodial sentence.
In order for a community service order to be imposed, Juvenile Justice must provide a report stating that the child or young person is a suitable candidate. Under such an order, the young person may be placed and work within a community organisation, actively attend an employment program or engage in work groups organised by Juvenile Justice, such as graffiti removal.
Suspended Control Order sentence
A custodial sentence can be suspended and the child or young person released into the community as an alternative to remaining in custody. A custodial sentence can be suspended subject to the child or young person entering into a good behaviour bond. The court must first impose the sentence and then suspend it.
A suspended control order sentence must be supervised by Juvenile Justice and the child or young person must comply with any conditions imposed, similar to those conditions set out above which can be imposed when granting bail.
If the child or young person breaches the conditions imposed by the bond or re-offends the matter will be referred back to the court and the court may order that the child or young person comply with the original custodial sentence.
A control order imposes a period of full time custody in a detention centre. This can only be imposed where the court considers no other order to be appropriate. When a court is contemplating a sentence of six months or less, the court must give reasons as to why an alternative sentence was not considered appropriate.
Before imposing a control order, the court must have a background report which is an assessment of the background of the child or young person completed by Juvenile Justice to assist the court.
A child or young person may become eligible for parole during their control order.
Release on parole is subject to approval by the magistrate who will hear the matter at a parole hearing at which time Juvenile Justice will submit a parole report. The report summarises the child or young person’s behaviour in custody, level of compliance, engagement in programs and their plan for post release.
If a child or young person receives parole, they are required to comply with very strict reporting and behaviour conditions which is supervised by Juvenile Justice. If a parole order is breached, the child or young person will be required to attend court and further orders may be imposed.
Youth conduct order
Youth conduct orders are being piloted as a scheme aimed at reducing levels of antisocial behaviour by targeting children and young people charged with, pleading guilty or found guilty of certain criminal offences.
The court may grant unconditional bail, or conditional bail, and place the child or young person under the supervision of Juvenile Justice until the matter is finalised by the court.
Some common bail conditions may include:
- residing as directed, by either Juvenile Justice or FACS
- regularly attending school or place of employment
- not associating with certain people, co-offenders
- not consuming non-prescription drugs or alcohol
- reporting to Juvenile Justice as directed and complying with reasonable directions given by Juvenile Justice and/or parents/carers
- complying with curfews
- not attending certain places or premises e.g. a particular train station
- not contacting the victim.
If bail conditions are breached the child or young person will be arrested by the police and be required to re-appear at the Children's Court at which time the magistrate will re-assess the order granting bail.
When a court is sentencing a child or young person the court is required to consider the matters set out in section 6 of the Children (Criminal Proceedings) Act 1987. The court will also:
- give more weight to individual treatment and rehabilitation of the offender than punishment and general deterrence
- consider how close in age the offender is to 18
- give consideration to the age of each offender and how the offender’s youth has contributed to their offending behaviour and should be given weight in determining the correct penalty
- look at the particular circumstances of each matter when considering the deterrence element of a sentence
- take into account a guilty plea, and accordingly reduce any order it might otherwise have made.