Children’s Court update 2019 (criminal jurisdiction)
Judge Peter Johnstone, President of the Children’s Court of NSW, Local Court Regional Conference, 27–29 March 2019, Port Macquarie
I would like to begin by acknowledging the traditional custodians of the land on which we meet, the Biripi people, and pay my respects to their Elders past, present and emerging. I acknowledge and respect their continuing culture and the contribution they make to the life of this region.
The purpose of this paper is to alert Local Court Magistrates to recent developments affecting the exercise of Children’s Court jurisdiction, and is designed to be a reference resource which may assist you in relation to children’s matters in either care or crime.
I will firstly canvass some more general developments affecting the Children’s Court over the past year or so, and then discuss some updates in the criminal and care jurisdictions, followed by a brief discussion of some recent case law.
Youth Koori Court evaluation
The Youth Koori Court pilot in Parramatta began in February 2015. Western Sydney University were engaged to evaluate the program and delivered the findings in May 2018.
The study determined the model to be an effective and culturally appropriate means of addressing the underlying issues that lead many Aboriginal and Torres Strait Islander young people to engage with the criminal justice system.
In conducting the review, researchers observed hearings; interviewed young people and Elders; analysed Action and Support plans; and compared the time in custody for those involved in the program.
The evaluation found that prior to the Youth Koori Court, the 33 young people involved in the study each spent on average 57 days in detention. During their involvement with the court, they only spent on average 25 days in custody.
Furthermore, over the research period, over half of the items listed on young peoples’ action plans were completed by the time of sentence — with most success reported in getting identity documents and managing harmful drug and alcohol habits.
The Youth Koori Court works to defer sentencing for young people until the factors which place them at risk of re-offending are addressed. For many of the young people who participate in the program, their issues with the law are either as a direct result of, or compounded by, the issues they face in their daily lives, such as jobs, safe housing and access to essential services.
Opening of Surry Hills Youth Koori Court
Following the success of the Youth Koori Court pilot in Parramatta, in May 2018 the NSW Attorney General Mark Speakman and Treasurer Dominic Perrottet announced that the Koori Court would be expanded from Parramatta to the Surry Hills Children’s Court, with a $2.7 million funding boost over three years.
The Youth Koori Court in Surry Hills opened on 6 February 2019 with a ceremonial sitting to mark its commencement. The Attorney General, Mark Speakman and other distinguished guests were welcomed to the Surry Hills Children’s Court for the occasion. The ceremonial sitting commenced with a welcome to country and a smoking ceremony, followed by the formal sitting which included speeches from the President, the Attorney General, Brendan Thomas, CEO of Legal Aid and Nadine Miles, Chief Legal Officer of the Aboriginal Legal Service, Indigenous elder Joanne Selfe and Children’s Court Magistrate Sue Duncombe.
Children’s Court Magistrate, Sue Duncombe, who presides over the Youth Koori Court, said the court was working to confront the effects of intergenerational trauma, noting that the judiciary has a “moral, ethical and legal responsibility to change that record”.
The expansion of the Youth Koori Court to Surry Hills will enable the Children’s Court to work with more Aboriginal and Torres Strait Islander young people to address the behaviour that has brought them before the court and to access tools with which they can improve their lives.
The Youth Koori Court will continue one day per week at Parramatta Children’s Court, and initially on a fortnightly basis at Surry Hills Children’s Court.
Memorandum of Understanding to facilitate the expedition of Working with Children Checks in care proceedings
In July 2018, the Children’s Court of NSW, the Office of the Children’s Guardian and the Department of Family and Community Services entered into a Memorandum of Understanding to facilitate the expedition of Working with Children’s Checks in care proceedings.
The Office of the Children’s Guardian is an independent statutory authority in NSW Government and administers the Working with Children Check under the Child Protection (Working with Children) Act 2012. Authorised carers and their adult household members are required to have a Working with Children Check clearance.
Where an application is made to the Children’s Court for an order allocating parental responsibility for a child to the Minister, a relative or kin or another person, whether or not the child’s proposed carer or the person proposed to hold parental responsibility for the child has a valid Working with Children clearance is a relevant consideration.
The Office of the Children’s Guardian is not usually aware whether a matter is currently before the Children’s Court when a person lodges an application for a Working with Children’s Check. However, being notified of such information can help to expedite the Office of the Children’s Guardian of an application.
The Department of Family and Community Services case workers and legal officers would be aware when a matter is before the Children’s Court. Where a care application is soon to be filed and that a proposed carer and any other adult member of the proposed carer’s household, has or will be applying to the Office of the Children’s Guardian for a Working with Children’s Check. By notifying the Office of the Children’s Guardian of this information, the Office can expedite the Working with Children’s Check application. This process will assist in avoiding delays in the Children’s Court proceedings.
The continuing relevance of brain science
Ongoing research into brain science and knowledge around adolescent brain development continues to be of importance to the Children’s Court in understanding children and young people, and responding appropriately to their needs.
A great deal of research has been undertaken in recent years to show that the pre-frontal cortex of the brain (the frontal lobe) is the last part of the human brain to develop. The frontal lobe is that part of the brain associated with identifying and assessing risk, managing emotion, controlling impulses and understanding consequences.
We know that rational choice theory argues that young people are able to undertake a logical risk assessment in their decision-making process. Neurobiological research, on the other hand, argues that adolescent decision-making is not linear, sophisticated and predictable.
A further complication is that brain development differs depending upon a number of variables and that “neuro-scientific data are continuous and highly variable from person to person: the bounds of ‘normal’ development have not been well delineated”.
Despite this, the neurobiological research to date shows that whilst adolescents may appear to function in much the same way as adults, they are not capable of the executive function that mature adults possess.
In simple terms, according to neurobiology, a young person is unable to make any rational choice, let alone a rational choice to commit a criminal act.
This is not to say that the findings from neurobiology research exculpate all young offenders from criminal responsibility. Rather, these findings indicate that there is a grey area between right and wrong when considering the culpability of a young offender.
In light of these advances in brain science and the implications these findings have for young offenders and their treatment in the criminal justice system, it is important to also consider a final reason why children must be treated differently to adults.
There is a growing body of evidence that supports the proposition that incarceration of children and young persons is both less effective and more expensive.
Most young persons in the juvenile justice system can be adequately supervised in community-based programs or with individualised services without compromising public safety. Studies have shown that incarceration is no more effective than probation or community-based sanctions in reducing criminality.
Enlightened with these advances in the science of adolescent brain development, we are able to better understand, empower, protect, divert and rehabilitate children and young people falling into the youth justice system. In my view, it is our job to do our best to help juveniles through these problems years until they mature and outgrow these behaviours.
Updates in the criminal jurisdiction
Declining number of children in detention
The NSW Bureau of Crime Statistics and Research (BOCSAR) reported on 30 January 2019 that the juvenile detention population has decreased by roughly 40% since the peak of 405 detainees in June 2011. The number of children and young people in detention has decreased significantly over the past six years, which is in stark contrast to the adult prison population which continues to rise.
Furthermore, three juvenile detention centres have closed over the past six years due to the falling number of young people in detention. Now only six juvenile detention centres remain in NSW.
I believe it is no coincidence that this number has fallen so significantly, and that this development has not occurred in isolation. Rather, the insights we have gained from brain science have allowed us to gain a better understanding of the adolescent brain, and paved the way for better policies, practices and procedures which highlight and emphasise the fact that children are fundamentally different to adults and must be treated as such.
I am a strong advocate for the approach of Justice Reinvestment, which is an idea for rethinking the criminal justice system. Under this philosophy, the savings from the closure of three juvenile detention centres should be reinvested back into the community to provide services and supports to children, young people and their families.
Youth Koori Court
As discussed in my general updates, the Youth Koori Court (YKC) continues to operate in Parramatta Children’s Court and has recently commenced at Surry Hills Children’s Court.
The YKC was established as a pilot in 2015 at Parramatta Children’s Court and has now been operating for almost three years.
The YKC was established in response to the devastating over-representation of Aboriginal young people in the justice system.
The YKC seeks to contribute to a solution to the over-representation of Aboriginal young people through the inclusion of Elders and professionals who are Aboriginal, providing low volume case management mechanisms that will facilitate greater understanding of and participation in the court process by the young person, identifying relevant risk factors that may impact on the young person’s continued involvement with the criminal justice system, and monitoring appropriate therapeutic interventions to address these risk factors.
The process that has been developed for the YKC involves an application of the deferred sentencing model (s 33(1)(c2) Children (Criminal Proceedings) Act 1987) as well as an understanding of and respect for Aboriginal culture.
I will continue to advocate for the expansion of the YKC, particularly to communities in Dubbo.
New website for children and young people
The Advocate for Children and Young People launched a new website called “Our Local”. The website was built in response to feedback from children and young people who asked for an easy way to find local and State-wide opportunities, activities, services and events
The “Our Local” website may be a valuable tool for judicial officers engaging with young people. Notably, 40% of opportunities on the website are in regional and remote areas of NSW.
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018
The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 was assented to by the NSW Parliament in June 2018 and partially proclaimed in August and December 2018. The Bill was introduced in response to the criminal justice recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
The Criminal Legislation Amendment (Child Sexual Abuse) Act made a suite of reforms to a number of Acts. I would like to discuss three important amendments that were made under these reforms that are relevant to cases involving children and young people.
Section 80AG Crimes Act 1900
The Criminal Legislation Amendment (Child Sexual Abuse) Act introduced s 80AG Crimes Act 1990. Section 80AG creates a defence of similar age in relation to certain child sex offences.
Section 80AG(1) provides that:
It is a defence to a prosecution for an offence … if the alleged victim is of or above the age of 14 years and the age difference between the alleged victim and the accused person is no more than 2 years.
In any criminal proceedings involving the defence of similar age, the prosecution has the onus of proving, beyond reasonable doubt, that the alleged victim was less than 14 years of age or that the difference in age between the alleged victim and the accused person is more than two years: s 80AG(2).
Section 91H Crimes Act 1900
The Criminal Legislation Amendment (Child Sexual Abuse) Act amended s 91H Crimes Act. Section 91H(3) was inserted to provide that proceedings for an offence related to the production, dissemination or possession of child abuse material against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions.
The amendments to s 91H also allows for an exception for the possession of child abuse material under s 91HAA if the possession occurred when the accused person was under the age of 18 years, and a reasonable person would consider the possession as acceptable having regard to the following circumstances:
the nature and content of the material
the circumstances in which the material was produced and came into the possession of the accused person
the age, intellectual capacity, vulnerability or other relevant circumstances of the child depicted in the material
the age, intellectual capacity, vulnerability or other relevant circumstances of the accused person at the time the accused person first came into possession of the material and at the time that the accused person’s possession of the material first came to the attention of the police officer, and
the relationship between the accused person and the child depicted in the material.
Finally, the amendment also created a defence to s 91H. Subsections 91HA(9) and (10) now provide that it is a defence in proceedings for an offence against s 91H of possessing child abuse material if the only person depicted in the material is the accused person, if the production or dissemination of the material occurred when the accused person was under the age of 18 years. The onus of proving either defence lies with the accused person on the balance of probabilities.
Section 3C Child Protection (Offenders Registration) Act 2000
The Criminal Legislation Amendment (Child Sexual Abuse) Act also made an amendment to the Child Protection (Offenders Registration) Act 2000. The amending Act inserted s 3C into the Act, which provides courts with the discretion to treat child offenders as non-registrable.
The amendment permits a court that sentences a person for a sexual offence committed by the person when the person was a child to make an order declaring that the person is not to be treated as a registrable person in respect of that offence. The Child Protection (Offenders Registration) Act 2000 provides for certain obligations to be placed on registrable persons, including reporting obligations.
The court may make an order only if the victim of the offence was under 18 years of age, the offender has not been convicted of certain other offences, the court does not impose a sentence of full-time detention or a control order in respect of the offence and the court is satisfied that the person does not pose a risk to the lives or sexual safety of children.
Amendments to the Children (Criminal Proceedings) Act 1987: Early appropriate guilty pleas and committals
The Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 was passed by the NSW Government in October 2017 and commenced on 30 April 2018. The amendments aim to address indictable offences at the early stage of the justice process by the early appropriate guilty plea reforms.
That Act made significant amendments to committal proceedings generally, including the addition of Pt 3, Div 3A to the Children (Criminal Proceedings) Act 1987 which creates separate committal procedures for children charged with certain indictable offences.
I will outline some of the key changes made to the Children (Criminal Proceedings) Act 1987 in relation to committal proceedings and early guilty pleas.
Pursuant to s 31(1) of the Children (Criminal Proceedings) Act 1987, an offence before the Children’s Court will be dealt as a summary proceeding under Ch 4 Criminal Procedure Act 1986 unless it is a serious children’s indictable offence or unless, and until, it is to be dealt with as a committal proceeding under ss 31(2), (3) or (5) Children (Criminal Proceedings) Act 1987.
If the young person pleads not guilty in a summary proceeding, the court will direct the prosecutor to serve the brief of evidence within four weeks and the court will adjourn the case for seven weeks to allow the young person to reply to the brief.
This will not be required for an offence for which a brief is not required under cl 24 Criminal Procedure Regulation 2017 or the offence is a domestic violence offence as defined in s 11 Crimes (Domestic and Personal Violence) Act 2007 but is not a prescribed sexual offence as defined by s 3 Criminal Procedure Act 1986.
On the next court date if the young person maintains his or her plea of not guilty, the case will be listed for hearing at the earliest opportunity.
If the young person pleads guilty, or the court finds the young person guilty, the court may sentence the young person on the same day or the case may be adjourned for sentence with a background report being provided by Juvenile Justice.
If the court directs that a background report be prepared by Juvenile Justice, the court will adjourn the case for six weeks in the case of a young person who is not in custody and two weeks in the case of a young person who is in custody.
If a prosecutor intends to make a submission to the Children’s Court that the court should consider exercising its discretion under ss 31(3) or (5) Children (Criminal Proceedings) Act 1987, the prosecutor is to advise the young person and the court at the earliest opportunity and no later than:
in respect of a s 31(5) application: the time that a guilty plea is entered for the offence for which the application relates and the matter is adjourned for a background report;
in respect of a s 31(3) application: the time that the court adjourns the matter for a summary hearing.
If the young person intends to inform the Children’s Court that he or she wishes to have the case dealt with according to law under s 31(2), the young person is to notify the prosecutor and the Children’s Court at the earliest opportunity.
Useful case law
This section will canvass some recent case law which is relevant to, or impacts on the exercise of the Children’s Court care and protection and criminal jurisdiction.
These cases have been published on the Children’s Law News website in 2018.
R v AH  NSWSC 973
The offender was convicted of the offence of doing an act in preparation for, or planning a terrorist act. The offender is sentenced to 12 years imprisonment, to date from 24 April 2016, expiring 23 April 2028. A non-parole period is fixed at 9 years, expiring 23 April 2025. The offender is to be detained as a juvenile until [the date of his 21st birthday].
The NSW Supreme Court held that pursuant to s 105A.23 Criminal Code Act 1995, the offender is warned that an application may be made under Div 105A Criminal Code for a continuing detention order requiring that the offender be detained in a prison after the end of his sentence for the offence.
See further at [8-0665].
DM v R  NSWCCA 305
The NSW Criminal Court of Appeal held that the sentencing judge made a factual error in finding that the applicant knew that the victim had nowhere to go on the night of the offence, made a material factual error in finding that the applicant was in a position of leadership in relation to the offending conduct and erred in failing to make a finding of objective seriousness.
The court allowed the appeal, quashing the sentence imposed at first instance. The offender was sentenced to imprisonment for four years and six months with a non-parole period of two years and five months.
Johnson v R (2018) 92 ALJR 1018
The High Court of Australia unanimously dismissed an appeal that concerned convictions for historical sexual offences, and whether the evidence of alleged sexual misconduct was admissible on the trial of certain counts. The High Court unanimously found that the impugned evidence had relevance in its connection to the family background in which the complainant and appellant were raised.
I hope this paper has been useful in outlining the changes in the Children’s Court jurisdiction which have occurred over the past few years, and which will continue to unfold over the course of the year.
 This is the second part of the presentation relating to the Criminal jurisdiction in the Children’s Court. The first part of the presentation on proceedings relating to care and protection of children and young persons can be found at [1-0220].
 M Williams, D Tait, L Crabtree, M Meher, “Youth Koori Court: Review of Parramatta Pilot Project”, Evaluation Report, Western Sydney University, 2018.
 M Whitbourn, “‘Rehabilitation, not punishment’: Youth Koori Court opens in Surry Hills”, The Sydney Morning Herald, 6 February 2019, www.smh.com.au/national/nsw/rehabilitation-not-punishment-youth-koori-court-opens-in-surry-hills-20190206-p50w0g.html, accessed 6 June 2019.
 E McCuish, R Corrado, P Lussier and S Hart, “Psychopathic traits and offending trajectories from early adolescence” (2014) 42 Journal of Criminal Justice 66.
 S Johnson, R Blum, J Giedd, “Adolescent maturity and the brain: the promise and pitfalls of neuroscience research in adolescent health policy” (2009) 45(3) Journal of Adolescent Health 216 at 220.
 NSW Bureau of Crime Statistics and Research, New South Wales Custody Statistics Quarterly Update December 2018, 30 January 2019 at www.bocsar.nsw.gov.au/Documents/custody/NSW_Custody_Statistics_Dec2018.pdf, accessed 4 April 2019.
For comparison purposes, the custody statistics in 2011 can be obtained at NSW Bureau of Crime Statistics and Research, New South Wales Custody Statistics Quarterly Update March 2013, 11 July 2013 at www.bocsar.nsw.gov.au/Documents/nswcustodystatisticsmar2013.pdf, accessed 6 June 2019.
 Children’s Court of NSW, Children’s Law News, at www.childrenscourt.justice.nsw.gov.au/Pages/publications/lawnews/cln-2018.aspx, accessed 4 April 2019. See also Criminal matters — important cases at [8-0000]ff.