Sentencing Bench Book — Children (Criminal Proceedings) Act 1987

Section 14 restricts the circumstances in which a conviction can be recorded so as to, as far as possible, avoid stigmatising the child. Section 14(1) provides that a court shall not record a conviction against a child under the age of 16 years and has a discretion to record a conviction against a child who is of or above 16 years of age.

Section 14(1) does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily: s 14(2). In R v JP [2014] NSWSC 698 at [163], the court recorded a conviction for manslaughter notwithstanding that the offender was 15 years old at the time of the offence and 18 at sentence.

A finding of guilt by the Children’s Court is taken to be a conviction for the purposes of any provision of the “road transport legislation” (defined in s 6 Road Transport Act 2013): s 33(6).

Offences for which a conviction is recorded are not admissible as prior convictions in subsequent proceedings, including proceedings as an adult, unless the requirements of s 15 are met. This does not apply to criminal proceedings in the Children’s Court: s 15(2).

Section 15(1) limits the admission of evidence of prior offences, as to guilt or penalty imposed, in subsequent criminal proceedings if:

In R v Tapueluelu [2006] NSWCCA 113, Simpson J (Grove and Howie JJ agreeing) considered the purpose of s 15 observing, at [30], that the only logical way to read it was as:

In Siddiqi v R [2015] NSWCCA 169, a 19-year-old offender was sentenced for a drug offence. He had been before the Children’s Court seven years prior, where three offences were found proven but no convictions were recorded. The sentencing judge contravened s 15(1) by considering those prior offences and concluding they did not entitle the offender to much leniency: at [60], [63].

However, evidence of prior offences may be admissible when tendered for a purpose other than establishing guilt or the penalty imposed. For example, in Dungay v R [2020] NSWCCA 209, evidence of the offender’s criminal history as a child, which would have otherwise been excluded by s 15(1), was tendered to demonstrate his disadvantaged childhood but the court concluded the sentencing judge erred by failing to limit the circumstances in which his Children’s Court matters were taken into account, by treating them as a “record” of offences: at [88].

Section 15(3) prohibits the admission into evidence in any subsequent criminal proceedings the fact a person has been dealt with by a warning, caution or youth justice conference under the Young Offenders Act 1997 in respect of an alleged offence committed when the person was a child. Any record of a warning given under s 17 Young Offenders Act 1997 is to be destroyed as soon as reasonably practicable after the person reaches 21 years: s 17(3).

Where a child has been committed by the Children’s Court in relation to “other indictable offences”, the Act gives a court a discretion to deal with them either:

While s 18 does not expressly impose an obligation to consider and determine which course to adopt, it may be inferred that a court is obliged to make a determination as to which way to proceed: BT v R [2012] NSWCCA 276 at [18]. In BT v R, the applicant argued the proceedings had miscarried because the judge had failed to explicitly consider the alternatives under s 18: at [19]. The court acknowledged that a failure to exercise the discretion under s 18 could constitute an error but, in the circumstances of that case, held that the provision was clearly in the judge’s mind although, given the nature of the offence, there was no choice other than to proceed according to law: at [21].

In exercising this discretion a court must have regard to the following matters set out in s 18(1A):

Section 18(2) provides that a court, in dealing with a person in accordance with Pt 3 Div 4, has and may exercise the functions of the Children’s Court as if:

When such a court makes an order of a good behaviour bond or probation it may vary the order in the same way as the Children’s Court under s 40.

In the Crown appeal of R v Bendt [2003] NSWCCA 78 the respondent was aged 17 years and nine months. While technically a child under the Act, the Court of Criminal Appeal held that the objective criminality of the respondent’s offence and his subjective circumstances did not justify the departure from the obvious course of dealing with him according to law: per Meagher JA at [16]–[18].

Care needs to be taken in the exercise of the discretion to ensure irrelevant considerations are not taken into account. In R v MSS [2005] NSWCCA 227 the sentencing judge’s sentencing discretion miscarried when he took into account the issue of parity of sentencing regimes between the applicant and a co-offender when deciding to deal with the applicant at law. Howie J, (Spigelman CJ and Hunt AJA agreeing), said at [18]:

In PD v R [2012] NSWCCA 242, the Court of Criminal Appeal held that when addressing the exercise of the discretion conferred by s 18(1) in relation to a particular offence or offences, it was open to a judge to consider the entirety of the juvenile offender’s criminal conduct. This is particularly so when one of the offences is a “serious children’s indictable offence” which must be dealt with according to law, since determining to deal with the other offences under Pt 3, Div 4 would involve the simultaneous application of two different sentencing regimes: at [62].

A court may remit a person dealt with under this Division to the Children’s Court, in respect of any indictable offence other than a serious children’s indictable offence, so as to enable the Children’s Court to impose a penalty on the person with respect to the offence, but only in respect of a person who is under 21 years old: s 20. While there is no right of appeal against an order for remittal under s 20, any right of appeal a person may have against any finding of guilt or conviction pursuant to which an order of remittal under that section has been made is not affected: s 21.

Where a District Court has erroneously failed to deal with a person under the Children (Criminal Proceedings) Act 1987, the person should be remitted to that court for re-sentencing. It would be inappropriate for a court of appeal to act as a primary sentencing court under such circumstances: DPN v R [2006] NSWCCA 301.

Subject to some qualifications, the Supreme Court and District Courts may direct that any sentence of imprisonment, or part thereof, be served in a detention centre: s 19.

Matters that are not in existence at the time of the offence must not be taken into account in the preparation of a background report. While cl 6 Children (Criminal Proceedings) Regulation 2016 stipulates that a background report must deal with matters that may change over time, such as the person’s family background, employment, education, and friends and associates, if the regulation required the report to deal with matters that were not in existence at the time of the commission of the offence it would be beyond power. Section 32 Interpretation Act 1987 requires it to be read down so as not to exceed the regulation-making power: Roos v DPP (1994) 34 NSWLR 254 at 260.

In R v CVH [2003] NSWCCA 237 the court, in dealing with an appeal where a pre-sentence report only was prepared in relation to a juvenile offender convicted of manslaughter, noted that an examination of the report showed that there had not been strict compliance with what are now cl 6(d)–(f) in the 2016 regulation. The report was not prepared by a juvenile justice officer but by the then Probation and Parole Service.

Although many of the aspects required by the regulation were complied with, there was not adequate coverage of the matters required by the mandatory provisions of the Act and therefore there was error in failing to comply with s 25: at [17].

In R v MD [2005] NSWCCA 342, the Crown submitted that the sentencing exercise miscarried because the reports prepared by the Department of Juvenile Justice pursuant to s 25 and tendered in the proceedings contained errors. The court said at [77]:

The court drew a parallel with R v Elfar [2003] NSWCCA 358 and said at [79]:

In R v SDM (2001) 51 NSWLR 530, it was held that the guideline judgment in R v Henry (1999) 46 NSWLR 346 applied to juvenile offenders dealt with according to the law. It was a “sounding board” and could be taken into account (making allowances for the age of the child) along with the principles of s 6 Children (Criminal Proceedings) Act 1987 and general sentencing principles: at [19]–[20]. R v SDM has been applied in JT v R [2011] NSWCCA 128 at [38] and R v Mawson [2004] NSWSC 561 at [52].

See Parity at [10-800]ff and “Juvenile and adult co-offenders” at [10-820].

Section 28(1) provides that the Children’s Court has jurisdiction to hear and determine:

Section 28(2) provides that the Children’s Court does not have jurisdiction to hear or determine proceedings in respect of a traffic offence that is alleged to have been committed by a person unless:

Section 29 sets out the circumstances under which the jurisdiction of the Children’s Court is exercised in respect of two or more co-defendants who are not all children.

There is a rebuttable presumption arising from s 31(1) that charges against children in respect of all but serious children’s offences will be dealt with in the Children’s Court under Pt 3 Div 4. However, nothing in the Act either expressly or impliedly limits the jurisdiction of the District Court “in respect of all indictable offences”: PM v The Queen (2007) 232 CLR 370 at [20], [95]. The provisions of s 31 apply only to the Children’s Court, and therefore do not affect the jurisdiction of any other court: PM v The Queen at [25]. When considering whether proceedings should be dealt with in the Children’s Court or at law the court should have regard to the seriousness of the offence and to the age and maturity of the offender: JIW v DPP (NSW) [2005] NSWSC 760 at [55]–[57].

The High Court in PM v The Queen held that the Act does not displace the broad powers of the Director of Public Prosecutions to file an ex officio indictment — preserved by s 8(2) Criminal Procedure Act 1986 — against a child in the absence of committal proceedings in the Children’s Court: PM v The Queen at [42], [92]–[93]. Whilst the issue of a Court Attendance Notice is the recommended mode of commencing proceedings under the Act, it is neither mandatory nor exclusive: PM v The Queen per Kirby J at [88].

In JIW v DPP (NSW) [2005] NSWSC 760, Kirby J considered whether the list of issues in s 18 of the Act should inform the exercise of the magistrate’s discretion under s 31(3). While he concluded at [53] that the catalogue of issues identified in s 18(1A) provide some guidance in respect to the construction of s 31(3)(b)(ii) the extent to which subjects identified in s 18(1A) may be regarded as material will depend upon the circumstances of the particular case.

While a failure of the court to consider a person’s prior criminal record under s 18(1A) would amount to an error of law, a failure to consider that issue in the context of s 31 may or may not amount to an error of law depending upon the nature of the offence. Previous good character will not protect an offender from a custodial sentence if other factors are present: at [54].

A court may make an order dismissing a charge, with or without administering a caution. Compensation may be ordered under s 24.

The court may also administer a caution under s 31(1) Young Offenders Act 1997 if the offence is one for which a caution may be given and the child admits the offence. When administering a caution under s 31(1), the court must dismiss the proceedings for the offence in respect of which the caution is given: s 31(1A). A court that gives a caution under s 31(1) must notify, in writing, the Area Commander of the local police area in which the offence occurred of its decision to give the caution and must include the reasons why the caution was given: s 31(4). Section 31(5) provides that a court may not give a caution to a child in relation to an offence if the child has been dealt with by caution on three or more occasions:

When administering a caution, the court may allow any victim to prepare a written statement describing the harm occasioned to the victim by the offence, and where appropriate, may permit all or part of the statement to be read to the child: s 31(1B).

Section 33(1A) provides that a good behaviour bond imposed under s 33:

In Minister for Community Services v Children’s Court of NSW (2005) 62 NSWLR 419, Hoeben J considered a challenge to the power of the Children’s Court to impose a bond condition. The magistrate included in a good behaviour bond a condition that the child in the proceedings “reside as directed by the Department of Community Services — not with the mother unless child and mother consent.” It was held that s 33 of the Act and cl 7 (of the then Children (Criminal Proceedings) Regulation 2005) empowered the magistrate to include such a condition. There was no requirement when imposing a good behaviour bond under s 33 for the consent of any person to be obtained before stipulating a condition of the kind envisaged by cl 7. The obligation on the child to comply with the condition would only crystallise if the Department gave a direction.

Clause 7 Children (Criminal Proceedings) Regulation 2016 sets out the following conditions that may be imposed in relation to an order made in respect of a child under s 33(1) of the Act:

Section 40(1) provides that a good behaviour bond or a probation order may be varied by the Children’s Court on application made by or on behalf of the person to whom the order relates or by an authorised officer as follows:

Section 40(1A) provides that, if the order was made by a court exercising the functions of the Children’s Court under s 18(2), the Children’s Court may (but is not obliged to) refer the application to the court concerned to be dealt with by that court. Section 40(2) provides that the Children’s Court may not extend the period of an order referred to in s 33(1)(b) or (e).

Section 41 provides that any person brought before a court who has failed to comply with the condition of a good behaviour bond or a probation order may be dealt with in any manner the person could have been dealt with in relation to the offence for which the good behaviour bond or probation order was imposed.

A court may, under s 33(1)(c), make an order imposing a fine not exceeding:

Before making such an order, the Children’s Court is to consider the age of the child, and, where information is available, the child’s ability to pay and the potential impact of the fine on the rehabilitation of the child: s 33(1AA).

A fine may be imposed with a good behaviour bond or with a probationary order: ss 33(1)(d), (e1).

A court may make an order adjourning proceedings against the person to a specified date (not later than 12 months from the date of the finding of guilt) for the following purposes (but only if bail for the offence is or has been granted or dispensed with under the Bail Act 2013):

A court may make an order releasing the person on probation, on such conditions as it may determine, for a period of time, not exceeding two years. Clause 7 Children (Criminal Proceedings) Regulation 2016 sets out the conditions that may be imposed in relation to such an order.

A community service order was conceived as an alternative to imprisonment that was by its nature rehabilitative, giving a young person the opportunity to make amends to the community for the offending conduct. The relevant sections of the Children (Community Service Orders) Act governing the making of community service orders are:

Before imposing a control order under s 33(1), a background or juvenile justice report must be obtained: s 25. A failure to do so renders the sentence invalid: CTM v R [2007] NSWCCA 131 at [153]–[154].

The principle of parsimony is embodied in s 33(2), which provides that the Children’s Court shall not impose a control order unless satisfied it would be wholly inappropriate to deal with the person by imposing any other available penalty under s 33(1)(a)–(f).

A control order made under s 33(1)(g) cannot be imposed unless the penalty provided by law in respect of the offence is imprisonment: s 34(1). Such an order cannot be imposed for a specified period unless the maximum penalty provided by law in respect of the offence is imprisonment for a period no less than that so specified: s 34(3).

In deciding whether to impose a control order the Children’s Court shall not have regard to the question of whether the child is a child in need of care and protection under the Children and Young Persons (Care and Protection) Act 1998.

Where the Children’s Court makes an order under s 33(1)(g) committing a person to the control of the Minister administering the Crimes (Administration of Sentences) Act 1999, the period of control is taken to be a sentence of imprisonment for the purposes of that Act: s 33(1C).

Section 33A limits the imposition of control orders. Section 33A(4) precludes the Children’s Court from imposing a new control order or from giving a direction if the order or direction would have the effect of requiring a person to be detained for a continuous period of more than three years, taking into account any other control order relating to the person.

Sections 33AA(2) and (3) provide the following limitations on the imposition of concurrent control orders:

There must be special circumstances justifying such a direction: s 33AA(4).

The Children’s Court must not make a new control order, or give such a direction, if the order or direction would have the effect of requiring a person to be detained for a continuous period of more than 3 years (taking into account any other control orders relating to them): s 33AA(5).

The Children’s Court has power under s 33(5) to:

For the purposes of any provision of the road transport legislation (see definition in s 6 Road Transport Act 2013) that confers on the court a power in respect of a person who has been convicted of an offence, a finding of guilt by the Children’s Court is taken to be a conviction for that offence: s 33(6).

When imposing a penalty under s 33 for which the person has pleaded guilty, the Children’s Court must take into account the plea of guilty and may, accordingly, reduce any order that it would otherwise have made: s 33B(1).

Subject to the Act and to s 27(4A) Crimes (Sentencing Procedure) Act 1999, Pts 3 and 4 Crimes (Sentencing Procedure) Act 1999 apply to the Children’s Court in the same way as they apply to a Local Court: s 33C. They apply as if a reference in those provisions to the sentencing of an offender to imprisonment were a reference to the making of a control order: s 33C(1)(a). A reference in those provisions to:

Part 3 Div 2 Crimes (Sentencing Procedure) Act 1999 (which relates to victim impact statements) applies to the Children’s Court when the offence being dealt with is one of those identified in s 27(4A) of that Act. See The statutory scheme for victim impact statements at [12-820]ff.

Section 33D empowers a court to make either or both a non-association or a place restriction order not exceeding 12 months when it has made an order under s 33 (except s 33(1)(a)(i), (c1) and (c2)) and it is sentencing a person for an offence punishable by imprisonment for six months or more, whether or not the offence is also punishable by fine.

Section 34 provides:

Section 35 provides that when the Children’s Court deals with a person under s 33(1)(g), it shall record:

If the Children’s Court imposes a penalty under s 33(1) it may direct the payment of compensation by the person upon whom the penalty was imposed: s 36(1). In making this determination the Children’s Court shall have regard to the person’s means and income: s 36(2). The maximum amount of compensation that may be awarded is the amount equivalent to 10 penalty units (in the case of a person who is under the age of 16 years at the time of the order), or 20 penalty units (in any other case): s 36(3).

Section 7(1) CRA provides that some convictions are not capable of becoming spent. They include convictions for sexual offences (see definition under s 7(4)) and certain convictions prescribed by the regulations (see cl 4 Criminal Records Regulation 2019). Offences for which a prison sentence of more than 6 months is imposed are not capable of becoming spent: s 7(1)(a). However, “prison sentence” does not include “the detaining of a person under a control order”: s 7(4).

It is important to note the relationship between ss 8 and 10 CRA. Section 8 has primacy over s 10 on the basis of s 8(1), which provides: “A conviction is spent on completion of the relevant crime-free period, except as provided by this section” [emphasis added].

The pertinent subsections of s 8 provide:

Section 10(1) provides:

Given the interaction between ss 8 and 10, the following question emerges: apart from a s 33(1) dismissal without caution (referred to in s 5(c)) which orders imposed under s 33 fall within the terms of s 8 and are not subject to a crime-free period of 3 years in s 10(1)?

The following table sets out the orders available to the Children’s Court under s 33 and attempts to ascertain when that order is spent under the applicable provision of the Criminal Records Act (CRA). It is obvious the text of the CRA could be clearer.

It is to be noted that s 8(2) CRA uses the expression “without proceeding to conviction”. When s 8(2) was enacted no consideration was given to s 14 CCPA, which limits the circumstances in which the Children’s Court can record a conviction (Second Reading Speech, Criminal Records Bill, NSW, Legislative Assembly, Debates, 27 February 1991, p 392). The Second Reading Speech refers only to the difference in the crime-free periods — 3 years for children, 10 years for adults. It does not inform the current issue or remove ambiguity. The history of the amendments to s 8(2) appear to indicate that it was intended to only cover s 10 dismissals under the Crimes (Sentencing) Procedure Act 1999 (Explanatory note to Sch 2.13 of the Statute Law (Miscellaneous Provisions) Bill (No 2) 2000):

Apart from the terms of s 8(2), there is no other textual indication that cases where the Children’s Court proceeds to conviction under s 14 are to be distinguished from cases where it does not.

Section 8(4) also applies to orders under s 33(1)(a)(ii), discharging the offender on condition of entering into a good behaviour bond. It would be incongruous that Parliament intended adult offenders to receive the benefit of s 8(4) but not children. This is so notwithstanding the absence of a reference to s 8(4) in the parenthesis in s 10(1) CRA. It must be an oversight because s 8(4)(b) provides a conviction is spent upon satisfactory completion of a probation period — an order only available in the Children’s Court.