Victorian courts face one of their most delicate tasks when the person standing in the dock is an adult — but the conduct they are alleged to have engaged in occurred when they were a child. The law demands something more nuanced than a straightforward adult sentence, and understanding that framework matters for victims, families, and the broader community.
Why age at the time of the alleged offending matters #
The starting point is deceptively simple: the age that counts for sentencing purposes is the age of the alleged offender at the time the offence is alleged to have been committed — not the age at which they are charged, tried, or sentenced. This principle is embedded in section 17A of the Sentencing Act 1991 (Vic), which requires a court to treat the youthfulness of an alleged offender as a substantial mitigating factor when the conduct in question is alleged to have occurred while they were under 18.
The practical effect is significant. A 24-year-old sentenced today for conduct alleged to have taken place when they were 16 cannot simply be sentenced as any other adult. The court is obliged to explicitly acknowledge the alleged offender’s youth at the time of the alleged conduct and to give that youth real weight — not merely token recognition.
What section 17A actually requires #
Section 17A of the Sentencing Act 1991 (Vic) directs a sentencing court, when dealing with a person for an offence alleged to have been committed while they were a child, to take into account:
- the need to strengthen and preserve the family relationships of the alleged offender;
- the desirability of allowing the alleged offender to live at home;
- the need to minimise the stigma of a criminal record;
- the suitability of the sentence to act as a rehabilitation measure;
- the alleged offender’s comparative lack of maturity and capacity for moral judgment at the time the offence is alleged to have occurred.
These considerations do not operate as a checklist that, once ticked, justifies a lenient outcome automatically. They are mandatory inputs that must be weighed alongside the gravity of the alleged conduct, any victim impact, and the need to protect the community. Courts have consistently said that the more serious the alleged offending, the harder it is for youth-related mitigation to dominate — but it must still be genuinely engaged with, not dismissed.
The rehabilitative imperative and ‘reduced moral culpability’ #
Victorian appellate courts have returned repeatedly to a concept sometimes called reduced moral culpability. The Court of Appeal has emphasised that a young alleged offender’s brain — particularly the parts governing impulse control, risk assessment, and long-term thinking — is neurologically less developed than an adult’s. This is not a legal fiction: it reflects a body of scientific understanding that courts have accepted as a legitimate basis for treating alleged youthful offending differently.
The implication is that general deterrence — the idea that a harsh sentence will discourage others in the community from similar conduct — carries less weight when the alleged offender was a child. A child or adolescent is, by definition, less likely to have weighed up the penal consequences of their alleged actions in the way an adult might be expected to. Courts have therefore said that specific deterrence and rehabilitation should, in many cases, take precedence over general deterrence when sentencing for alleged offending that is said to have occurred in youth.
This does not mean serious alleged offending goes unpunished. It means the purpose of the sentence shifts — and that the court must explain why it has or has not allowed youth to alter what would otherwise be a standard adult outcome.
How courts handle the gap between alleged offending and sentencing #
One of the genuinely complex dynamics in these matters is what courts sometimes call the gap period — the time between when the alleged conduct is said to have occurred and when the person ultimately appears for sentencing. A person may have spent years living in the community, holding employment, forming relationships, or undertaking rehabilitation entirely independent of any court process.
Where an alleged offender can demonstrate genuine rehabilitation and positive change during that gap, Victorian courts have accepted that this is a powerful sentencing consideration. The Court of Appeal has found that if an alleged offender has, by the time of sentence, effectively become a different person from the youth who is alleged to have committed the offences, that transformation must be taken seriously. Imprisoning a rehabilitated adult for conduct alleged to have occurred as a child — without acknowledging that change — risks serving no protective or corrective purpose whatsoever.
Conversely, where the gap period has been marked by further alleged offending or an absence of any rehabilitative effort, a court is entitled to give that weight too.
Recent appellate guidance #
The Victorian Court of Appeal has issued a number of decisions in recent years sharpening how these principles operate in practice. While individual cases turn heavily on their own facts, several themes have emerged from the appellate record.
First, courts at first instance that fail to engage substantively with section 17A — or that merely pay lip service to the youth of the alleged offender — risk having sentences set aside on appeal. The obligation is to demonstrate, in reasons, that youth was genuinely considered and weighed.
Second, the Court of Appeal has made clear that the youth-justice considerations under section 17A are not extinguished simply because the conduct alleged was serious. A court cannot reason that because the alleged offending involved significant harm, youth-related mitigation becomes irrelevant. Both must be held in tension.
Third, where the alleged offender was very young at the time — say, 13 or 14 — the weight afforded to reduced moral culpability has been held to be correspondingly greater. The younger the alleged offender at the time of the alleged conduct, the more forcefully the mitigating considerations apply.
Children’s Court versus adult court jurisdiction #
It is worth noting that not all matters involving alleged youthful offending end up in the adult courts. The Children’s Court of Victoria has jurisdiction over alleged offenders who were under 18 at the time of the alleged offence and who are under 19 at the time of their appearance — subject to exceptions for the most serious categories of alleged offending, including alleged homicide, where the Supreme Court or County Court may have jurisdiction regardless.
Where an alleged offender has turned 19 by the time they appear, or where the nature of the alleged offending places the matter outside Children’s Court jurisdiction, the adult courts apply. In those settings, section 17A becomes the operative protection for the alleged youthful offender — an attempt by the legislature to preserve, within the adult sentencing framework, something of the protective philosophy that underlies the Children’s Court regime.
What this means in practice #
For those following a case in which an adult is sentenced for alleged conduct said to have occurred during their youth, the section 17A framework means that the sentence they receive may appear — and often will be — lower than what the same alleged conduct would attract from an adult. That is not a malfunction of the system. It reflects a deliberate legislative and judicial choice that alleged offending in youth, whatever its severity, must be approached with an awareness of the diminished capacity for moral judgment that characterises adolescent development.
It also reflects a practical recognition that, in many such cases, the community’s long-term safety interests are best served by prioritising the rehabilitation of the alleged offender — who, if successfully rehabilitated, is far less likely to go on to cause further harm — over the imposition of a punitive sentence calibrated purely to the gravity of the alleged offending.
The matter of how courts balance these competing considerations remains one of the most closely watched areas of Victorian sentencing law, and VCN will continue to report on significant appellate decisions as they are handed down.
If you have been affected by anything raised in this article, free and confidential support is available around the clock:
- Crime Stoppers: 1800 333 000
- Lifeline (crisis support): 13 11 14
- 1800RESPECT (sexual assault and family violence): 1800 737 732
- Safe Steps (family violence): 1800 015 188
- Sexual Assault Crisis Line (Vic): 1800 806 292
- Beyond Blue (mental health): 1300 22 4636
- 13YARN (First Nations crisis support): 13 92 76
