Leave Child Without Supervision or Care

– section 494 of the Children, Youth and Families Act 2005

Leave Child UnattendedIt is an offence for a person responsible for a child to leave the child unattended for any longer than is reasonable, without making appropriate arrangements for the child’s supervision and care.

The age of the child is not specified in the act and the expectation is to consider what is reasonable for a parent or guardian to have done in the circumstances.

Examples
  • A person moves their car from the petrol bowser to a nearby parking spot before going into the store to pay. They have left their child in the backseat of their car. While they’re in the petrol station they bump into a friend and decide to go a nearby bar for a catch-up. The child is left in the car alone for over an extended period.
  • Person leaves their 3, 5 and 8-year-old children at home while they go to the local shopping centre. They take at least thirty minutes. During that the 3 year old child has exited the house and is found wondering in the street.
  • A 12-year-old is required to complete a 35 minute walk home after sporting practice without supervision at 7:30pm in the evening.
Questions in cases like this
  • Was the lack of supervision necessary or reasonable given the context?
  • Was there in fact adequate supervision and how?
  • What age is reasonable for a child to be given certain levels of independence?
What are some of the possible defences to Leave Child Without Supervision or Care?

Defences that can be run in response to this charge include honest and reasonable mistake of belief, necessity, lack of intent, sudden or extraordinary emergency, incorrect factual matrix and the concept of beyond reasonable doubt.

It is often the case that people want to plead guilty to charges but explain to the Magistrate why it happened. If you intend to plead guilty then you should discuss this with your lawyer. Organising your material and presenting your case well in Court will have a substantial impact on the outcome in your case.

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Maximum penalty and court that deals with this charge

This offence carries a fine of 25 penalty units (at the time of publication that amount is equal to $4019.75) or six months imprisonment as the highest possible sentence. As a summary offence, any summons for this charge will primarily be handled by the Magistrates’ Court.

This is a serious charge that can carry significant penalties if an accused is proven guilty. Speak with a lawyer immediately after receiving a summons for this offence. It is crucial that you have a lawyer evaluate your case before deciding whether to contest or enter a plea of guilty to any criminal allegation of this nature.

What is the legal definition of Leave Child Without Supervision or Care?
  1. A person who has the control or charge of a child must not leave the child without making reasonable provision for the child’s supervision and care for a time which is unreasonable having regard to all the circumstances of the case.

    Penalty: 25 penalty units or imprisonment for 6 months or both.

  2. Proceedings for an offence under subsection (1)
    1. must not be brought against a person who is under 16 years of age and is not the parent of the child; and
    2. may only be brought by a person after consultation with the Secretary.1
Legislation

This offence is governed by section 494(1) of the Children, Youth and Families Act 2005.

Elements of the offence

This Prosecution must prove:

  • The accused had the control or was in charge of the child;
  • The child was left unattended without reasonable provision made for the child’s supervision or care; and
  • The child was left unattended for a time which is unreasonable having regard to all the circumstances of the matter.
Sentencing in the Magistrates’ Courts

There were 80 cases (90 charges) of Leave Child Without Supervision or Care that were heard in the Magistrates’ Courts of Victoria from 1 July 2013 to 30 June 2016. Majority of these cases resulted in adjourned undertaking/discharge/dismissal (57.5%). Other forms of sentencing imposed were fine (22.5%), Community Correction Order (15.0%), wholly suspended sentence (2.5%), partially suspended sentence (1.3%), and imprisonment (1.3%).

The highest amount of fine imposed was between $1,000 and $2,000. This was also the category of aggregate financial penalties that was most frequently imposed (31.6%). For non-aggregate fines, the majority were sentenced within the “$500 < $1,000” category (21.1%).

ImprisonmentThere was only 1 case of imprisonment recorded and this was for a period that was more than 3 but less than 6 months.2

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.3

Other important resources
Media information

 



[1] Children, Youth and Families Act 2005 (VIC) s 494
[2] SAC Statistics – Children, Youth And Families Act 2005 (Vic) : s 494(1) – leave child without supervision or care < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/05_96_494_1.html >
[3] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >