Last updated 8 January 2018
The sentencing regime for child offenders is not significantly different to that for adult offenders. However, the sentences that can be imposed are shorter in recognition of their youth (see pt 7 div 4 Youth Justice Act 1992 (Qld) (Youth Justice Act)). Cautions or restorative justice referrals generally do not form part of a child’s criminal history and are not provided to a court when a child is sentenced by a court for matters which are prosecuted (s 15 Youth Justice Act).
Where a caution should have been administered
The Childrens Court can dismiss a charge brought before it, on application of a child defendant, if the court considers the child should have been cautioned or no action should have been taken (s 21 Youth Justice Act). The court may administer a caution or refer back to police for cautioning.
If the child is cautioned, that ends the matter. A caution does not form part of the child’s criminal history and is not generally admissible in subsequent court proceedings against that person either as a child or an adult (s 15 Youth Justice Act). The prosecution can seek to rely on prior cautions in the Childrens Court:
- for a child under 14 to rebut the presumption that the child did not know what they did was wrong (s 147 Youth Justice Act)
- in relation to decisions about bail
- where there is a submission by a child defendant that they should have been cautioned for the matter for which they are in court.
Where a restorative justice process should have been ordered
Similarly, under s 24A of the Youth Justice Act, the Childrens Court can dismiss a charge, on an application by the child defendant, if it considers that the offence should have been referred by police to a restorative justice process. It may refer the matter to a restorative justice process, in which case, if the child participates and completes the agreement, that is the end of the matter. If the child does not participate in the process or do what is required under the terms of the agreement, police can restart proceedings or the court can sentence the child.
The legislation does not provide any guidance on the delivery of a reprimand or what it should cover. In general, the magistrate will address the child in relation to their behaviour and provide some form of warning and/or advice about their future behaviour.
Good Behaviour Order
The court can order the child to be of good behaviour and not break the law for a period up to one year (ss 175, 188 Youth Justice Act). If the child re-offends during that time, the fact that they were on a good behaviour order will be taken into account on sentencing for the subsequent offence (s 189 Youth Justice Act).
There is provision for a court to fine a child (s 175 Youth Justice Act), but it can only order this if it is satisfied that the child has the capacity to pay the amount (s 190 Youth Justice Act). Realistically, this is not an option for most children, particularly those under 16 years. A fine is the only order a court can impose in the child’s absence for a simple offence, but the child must have provided information in writing of their ability to pay.
If, in sentencing a child, the court considers it is appropriate that the child pay a fine and an amount by way of compensation or restitution, but the child does not have capacity to pay both, preference must be given to paying compensation or restitution (s 156 Youth Justice Act).
If a fine is ordered and the child does not pay it within the time allowed, an application can be made to cancel the fine and make a community service order instead (s 192 Youth Justice Act).
Community-based orders cover restorative justice, graffiti removal, probation, community service and intensive supervision orders (pt 7 div 6A–9 Youth Justice Act). The length of the order depends on whether the matter is dealt with by a magistrate or a judge and the age of the child.
Children have to agree before the court can place them on a community-based order except for a graffiti removal order (s 194A Youth Justice Act). The orders are supervised by youth justice services (YJ Services), and the child must comply with reasonable directions given by YJ Services, report as required, advise of any change in address, employment or school and not leave the state without permission. For a restorative justice order, the child must also participate in the restorative justice process and perform their obligations under the agreement (s 192B Youth Justice Act).
Conditional release orders are detention orders that are immediately suspended for the child to go on a prearranged program. These are also supervised through YJ Services, and the child must agree to the order (pt 7 div 10 sub-div 2 Youth Justice Act).
If a child does not comply with the conditions of any of these orders, they can be breached (i.e. YJ Services bring the matter back to the court). The court generally can extend the order, vary any of the conditions or discharge it and resentence the child.
For conditional release orders (detention orders which are immediately suspended for the child to go on a prearranged program), the court can revoke the order and the child has to serve the time in detention. The court can vary or extend the order if the child can satisfy the court that they should have another opportunity.
Restorative justice processes
If a child pleads ‘guilty’ at court, the court must consider referring the offence for a restorative justice process instead of sentencing the child (s 162(1) Youth Justice Act).
If the court finds a child guilty of an offence after the child has pleaded ‘not guilty’, the court must consider referring the offence for a restorative justice process to help the court decide the appropriate sentence (s 162(2) Youth Justice Act).
The court can also order that a child attend a restorative justice process as the sentence it imposes for the offence (s 175(1)(db) Youth Justice Act). This is considered to be a supervised community-based order in the same way as a probation order or community service order.
In all of these scenarios, the court must be satisfied that the child:
- has been told about, and understands, the process and agrees to participate
- is a suitable person to participate in a restorative justice process.
The court must take into account:
- the nature of the offence
- the harm suffered by anyone because of the offence
- whether the interests of the community and the child would be served by having the offence considered or dealt with at a restorative justice process (ss 163, 192A Youth Justice Act).
It must also consider that:
- the offence can be appropriately dealt with without making a sentence order (a court diversion referral)
- the referral will help the court make an appropriate community-based order or detention order (a presentence referral) (s 163 Youth Justice Act).
The elements of a court-referred or ordered restorative justice process are the same as that described earlier in relation to police referral to a restorative justice process. Generally it will take the form of a conference but can be an agreement for certain activities if holding a conference is problematic.
Court diversion referral
- If the child participates and completes any agreement which results from the process, that is the end of the matter and the offence does not form part of the child’s criminal history for other Childrens Court matters.
- If the child does not complete the agreement, the matter must be brought back to the court which may take no further action, allow more time for the child to comply or sentence the child.
- If the child does not participate, or during the process denies committing the offence, or an agreement cannot be reached, the matter must be brought back to the court for sentence (s 164 Youth Justice Act).
- If the child does not participate, or during the process denies committing the offence, or an agreement cannot be reached, the matter must be brought back to the court for sentence.
- If an agreement is made, a copy of the agreement is given to the court and also information about what the child has done to comply with it, and the court will sentence the child taking into account their participation and compliance with the agreement (s 165 Youth Justice Act). The court can make an order that the child comply with the remainder of the agreement as part of the sentence (s 175(1)(da) Youth Justice Act).
Failure to participate or comply with the restorative justice process or agreement is treated the same as a breach of any other supervised community-based order (pt 7 div 12 Youth Justice Act).
The principle of detention being a response of last resort (a fundamental principle in the common law system) was reinstated into the Youth Justice Act in June 2016.
Magistrates can only sentence to a maximum of one year (s 175 Youth Justice Act) in detention and, in general, a judge up to two years. However, the length of a detention order can be significant, certainly in the context of a child’s life. The maximum sentence of detention for a child for a serious offence (an offence if committed by an adult would have a maximum term of 14 years or more) is seven years (s 176(2) Youth Justice Act). A sentence of years at age 15 or 16 will have a significant impact on the child’s life as this is at a critical developmental stage physically, mentally and socially, and in terms of preparing for life in general (e.g. employment prospects).
If the offence is one for which an adult could be sentenced to life imprisonment, the child offender’s sentence is up to 10 years. However, if the offence involved violence against a person and the court considers it particularly heinous, imprisonment can be for a period up to and including life (s 176(3)(b) Youth Justice Act). Life in Queensland means for the term of the person’s natural life, although the person may be released from custody to parole at some point.
Disqualification from holding or obtaining a driver licence
The Traffic Act 1949 (Qld) and the Transport Operations (Road Use Management) Act 1995 (Qld) apply to children. A child who commits an offence for which an adult could be disqualified by a court from holding or obtaining a driver licence can be similarly disqualified by a court (s 254 Youth Justice Act).
A court can disqualify a child from driving at a time when they would not be able to obtain a licence because of their age. In this situation, the court will usually calculate the length of the disqualification by adding the period of time remaining until the child may obtain a provisional driver licence to the period of time which the court decides should represent the disqualification proper.
A child who is at least ten years of age can be issued with an infringement notice and choose to pay the monetary penalty where it relates to a simple offence, including under an instalment arrangement. However, the provisions of the State Penalties Enforcement Act 1999 (Qld) (Penalties Enforcement Act) relating to enforcement of payment, including an instalment arrangement, do not apply to young people under the age of 18 (s 6 Penalties Enforcement Act).
Young people are less likely to pay an infringement notice or to make arrangements to pay the fine by instalments (generally because they do not have capacity to pay). As a result, such matters will be referred to the police who can issue a complaint and summons or a notice to appear (noting that the police should consider the requirements of s 11 of the Youth Justice Act as mentioned above).
As such, young people are at greater risk than adults of being prosecuted in court for minor offences. Also those offences, once dealt with in court, may appear on a child’s criminal history (at least for court purposes until they turn 18).
Compensation or restitution by the child offender
Where a child is found guilty of a criminal offence and sentenced by a court, the court may also order the child to make restitution or pay compensation for loss relating to a victim’s property or injury to the victim or someone else (s 235 Youth Justice Act).
A court may make an order for compensation or restitution only if satisfied the child has the capacity to pay the amount (s 235(5) Youth Justice Act), and the amount of compensation ordered must not be more than $2374 (s 235(2)(b) Youth Justice Act).
Chapter 65A of the Queensland Criminal Code Act 1899 (Qld) (Criminal Code) relating to civil compensation orders and the Criminal Offence Victims Act 1995 (Qld) also apply to offences committed by children (s 256 Youth Justice Act).
Orders against a child’s parents
Where a child is found guilty of an offence relating to the injury of a person or the property of another person, the parent of that child may be called on by a court to explain why (‘show cause’) the parent should not pay compensation to the victim (s 258 Youth Justice Act), but only if:
- the parent of the child may have contributed to the fact the offence happened by not adequately supervising the child and
- it is reasonable that the parent should be ordered to pay compensation for the offence.
If a parent is in court when the child is found guilty, the court may call on the parent there and then to explain (s 258(4) Youth Justice Act). Alternatively, the court may give the parent a written notice to attend a show cause hearing at a later date (s 258(6) Youth Justice Act).
The parent may be represented at the show cause hearing, provide evidence and make submissions to the court (s 259 Youth Justice Act). If the parent does not attend after a notice has been served on them, the court may deal with the matter in their absence (s 259(10) Youth Justice Act).
The amount of any compensation ordered depends on the parent’s capacity to pay including an assessment of the affect any order would have on the parents’ capacity to provide for dependants (s 259(9) Youth Justice Act).
An order for compensation against a parent is a civil debt and can be enforced by execution of judgment in the Magistrates Court (s 260 Youth Justice Act).
Convictions of child offenders
A court cannot record a conviction where the child is found guilty and sentenced to a reprimand or a good behaviour bond (s 183(2) Youth Justice Act).
It may consider whether or not to record a conviction in relation to all other sentences (s 183(3) Youth Justice Act).
In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including:
- the nature of the offence
- the child’s age and any previous conviction
- the impact the recording of a conviction will have on the child’s chances of rehabilitation and finding or retaining employment (s 184 Youth Justice Act).
Recording of a conviction is not mandatory with a period of driver licence disqualification (ss 183, 254 Youth Justice Act).
If a child later goes to court as an adult for offences committed as an adult, the court cannot be told about childhood offences where a conviction was not recorded. That is, the child has the opportunity to leave their Childrens Court criminal history behind them.
Recorded and unrecorded convictions can be referred to by:
- the police or a Childrens Court when considering bail for a child where the child is alleged to have committed further offences
- a Childrens Court sentencing the child for any further offences committed as a child.
Decisions of the Childrens Court magistrates are subject to the appeal provisions set out in pt 9 div 1 of the Justices Act 1886 (Qld) and can be appealed only to a Childrens Court judge (s 117 Youth Justice Act).
Decisions of a Childrens Court judge can be appealed to the Court of Appeal in accordance with ch 67 of the Criminal Code (s 116 Youth Justice Act).
An application for review may be made by (s 119 Youth Justice Act):
- a child against whom the sentence order was made
- the chief executive acting in the child’s interest
- the complainant or arresting officer for the charge for which the sentence order was made.
An application must be made within 28 days after the sentence order is made or within a later period that may at any time be allowed by the Childrens Court judge.