Restorative Justice Series – Part 2. Juvenile Sentencing Principles

The first instalment in this series contextualised the series, discussing the current youth justice framework and recent developments. Relevantly, the Charter of Youth Justice Principles (as contained in the Youth Justice Act 1992 (Qld)) highlights that rehabilitation and preventing the institutionalisation of children in the criminal justice system is central to youth justice.

This blog will delve deeper into juvenile sentencing principles and sentencing options. The breadth of available sentencing options for courts is an indication that at the centre of juvenile sentencing is the concept of ‘individualised justice’. Moreover, that rehabilitation and diversion from the criminal justice system is paramount.


Criminal responsibility

Under the Queensland Criminal Code, there are limitations for when children can be held legally responsible for committing an offence. Children under 10 years old are not criminally responsible for any act or omission.[1] Children under 14 years old can only be criminally responsible if the prosecution can demonstrate the child had the capacity to know that their conduct was wrong.[2] Recently, there have been calls to raise the age of criminal responsibility.[3]

Where a child is found guilty of committing an offence, the Youth Justice Act 1992 (Qld) (Youth Justice Act) provides guidance regarding the sentencing of a child. It operates in relation to all children under 18 years of age. Prior to 12 February 2018, 17 year olds were treated as adults. However, this was reformed to bring Queensland in line with the rest of Australia and indeed, Australia’s international obligations.

If a person has turned 18 or 19 at the time of being charged or sentenced for an offence committed when they were 18, they will be dealt with in either the Children’s Court (as a child) or the Magistrates Court (as an adult) in accordance with the Youth Justice Act.[4] Regardless, both courts must always have regard to the fact that the person was a child when the offence was committed, and hence the sentence cannot be greater than what the offender would have received if punished as a child. This is especially in relation to imprisonment, fines, and compensation and restitution.[5]

In addition to the important provisions of the Youth Justice Act, the general sentencing principles that apply to the sentencing of adult offenders also applies to children.[6] However, the Youth Justice Act requires that the Charter of Youth Justice Principles contained in the Act be considered when sentencing.[7] The Act further provides the following special considerations when sentencing:[8]

  • That a child’s age is a mitigating factor in determining whether to impose a penalty, and the nature of the penalty imposed
  • A non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community
  • The rehabilitation of a child found guilty of an offence is greatly assisted by the child’s family and opportunities to engage in educational programs and employment
  • A child should not receive a more severe sentence because of a lack of family support or 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


Sentencing principles – diversion

The court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing, regardless of whether the child pleads guilty or not guilty.[9] This mirrors Principle 5 of the Charter of Youth Justice Principles contained in the Youth Justice Act.

Note that prior to a court dealing with the matter, there are a variety of diversionary options available to the police that adhere to Principle 5 above, such as the following examples:

  • Administering a caution – where the police officer explains to them what they have done wrong, and may involve an apology to the victim
  • Graffiti removal program – for children aged 12 and above
  • Police drug diversion assessment program – for children found in possession of a small amount of cannabis or a thing used for smoking cannabis
  • Releasing the child at a place of safety
  • Restorative justice process – this will be discussed in Blog 3
  • Infringement notice – where an adult chooses to pay a fine instead of going to court

In all the above, save for certain examples of restorative justice processes, any charge against the child is not proceeded with.

Courts also have further options aside from sentencing a child offender should the matter proceed to the court:

  • Dismissal[10] – where the court dismisses a charge (or issues a caution or directs a police officer to do so) despite a plea of guilty, on the basis that the child should have been cautioned or no action should have been taken
  • Court referred drug assessment and education session – where a child pleads guilty and consents and meets the screening criteria, they are referred to a one-on-one session involving an assessment of their drug use, drug education and identification of treatment options. This is available for possession of small amounts of dangerous drugs for personal use, and/or things used in connection with consuming dangerous drugs.

In either proceeding, children are not liable to be further prosecuted for the offence.


Non-custodial sentencing orders

If a court determines that a sentencing order option is required, then there is a broad range of options available. The sheer number of non-custodial options available for children demonstrates the importance of early intervention to prevent incarceration and institutionalisation of children in the criminal justice system.

Similar to the adult sentencing regime, child offenders can be sentenced to a good behaviour order,[11] a fine (provided they can afford it),[12] a probation order,[13] a community service order,[14] or an intensive supervision order.[15] The latter three may only be made against a child found guilty of an offence of a type that, if committed by an adult, would make the adult liable to imprisonment.[16]

Additional non-custodial orders that can be made against a child are:

  • Reprimand[17] – where a child is given a formal warning by the court.
  • Restitution and compensation[18] – an order requiring a child (provided they can afford it) to pay for any property taken, pay compensation (capped amount) for loss of property, and/or pay compensation for any personal injury.
  • Restorative justice order[19] – similar to the police referral process above, to be discussed in Blog 3
  • Graffiti removal order[20] – where a child aged at least 12 years old has committed a graffiti offence, the court must make an order requiring the child to remove graffiti for specified periods of time.

The availability of these orders demonstrates that the legislative intention of ensuring appropriate re-integration of children into the community rather than detention. There are two key benefits of these non-custodial orders. First, the orders are aimed at ensuring children understand the consequences of their actions in a tangible and accessible manner, and learn to take responsibility for their actions. Second, the orders have the benefit of ensuring the child continues to receive the guidance and assistance necessary to rectify their behaviour, without the consequences that come with criminal conviction or imprisonment.

Appropriately seeking and ordering non-custodial community-based orders such as those discussed is the best way to ensure the child involved can rehabilitate, but also to protect the community from re-offending in the long term.

Custodial sentencing orders

As discussed above, a detention order is a response of last resort when sentencing not only children, but adults as well. A court cannot make a detention order unless it has considered a pre-sentence report from the Department of Justice and Attorney-General,[21] all other available sentences and the desirability of not holding a child in detention, and is satisfied that no other sentence is appropriate in the circumstances.[22]

The Youth Justice Act also contains various maximum detention periods depending on the level of the sentencing court and seriousness of the offence. Magistrates can only impose detention orders of 1 year or less. Where the offence committed is not punishable by imprisonment of 14 years or more (if committed by an adult), then a judge can only impose detention orders of 2 years or less. If such an offence has been committed, then the maximum imprisonment that can be ordered by a judge is 7 years imprisonment. If the maximum penalty for an adult would have been life imprisonment, then the maximum imprisonment that can be ordered by a judge is 10 years imprisonment.

While these periods of time may seem short in the context of longer maximum penalties in the adult system, it must be remembered that such a period will have significant consequences for children, who are at a critical developmental stage in terms of mental, social and physical wellbeing. It can have a serious impact on the trajectory of their adulthood. That this important period of a child’s life is spent in detention will have serious implications for their development and future, and hence it is an order taken very seriously by the court.

Similar to adults, conditional release and release after a fixed period are both available options to enhance community reintegration.


Recording Convictions

A court cannot record a conviction where the child is found guilty and sentenced to a reprimand or a good behaviour bond.[23] However, a court may consider whether to record a conviction in relation to all other sentences,[24] but must have regard to all the circumstances of the case. This includes the:[25]

  • Nature of the offence
  • Child’s age and any previous conviction
  • Impact of recording a conviction on the child’s chances of rehabilitation and finding or retaining employment

In any event, the starting point is that a conviction should not be recorded against a child.

If a child later goes to court as an adult for offences committed as an adult, the court cannot be told about childhood offending where a conviction was not recorded. This furthers the principle of rehabilitation by allowing children to leave behind any childhood offending dealt with in the Children’s Court where convictions were not recorded.



Criminal lawyers must be aware of the full range of available diversionary and sentencing options for the court, as well as the underlying principles of reintegration, diversion and rehabilitation within the youth justice framework. While this is important for all clients, it is especially critical where children are involved.


The final blog in the series will provide an overview of restorative justice conferences, how they operate and the role they play in youth justice.

[1] Criminal Code 1899 (Qld) s 29(1).

[2] Criminal Code 1899 (Qld) s 29(2).

[3] See

[4] See Youth Justice Act 1992 (Qld) pt 6 div 11 (‘YJ Act’).

[5] YJ Act ss 144(2)-(3).

[6] For a discussion of adult sentencing, visit the Queensland Sentencing Guide at

[7] YJ Act s 150(1)(b).

[8] YJ Act s 150(2).

[9] YJ Act s 162.

[10] YJ Act s 21. A similar process is undertaken where a restorative justice process should have been ordered under s 24A.

[11] YJ Act ss 175(1)(b), 188.

[12] YJ Act ss 175(1)(c), 190.

[13] YJ Act s 175(1)(d).

[14] YJ Act s 175(1)(e).

[15] YJ Act s 175(1)(f).

[16] YJ Act s 175(2).

[17] YJ Act s 175(1)(a).

[18] YJ Act s 181.

[19] YJ Act ss 175(1)(da)-(db).

[20] YJ Act s 176A.

[21] YJ Act s 207.

[22] YJ Act s 208.

[23] YJ Act s 183(2).

[24] YJ Act s 183(3).

[25] YJ Act s 184.