Criminal matters — practice and procedure

[6-0100] Sentencing for common offences in the NSW Children’s Court: 2010

Sentencing for common offences in the NSW Children’s Court: 2010 was issued by the Judicial Commission of NSW as Monograph 36 in March 2012.

For further information about criminal proceedings in the Children’s Court, please see Sentencing Bench Book at [15-090], [15-100] and Local Court Bench Book at [45-100] for sentencing orders and principles.

[6-0150] Sentencing options — Murphy/Still sheet

Young Offenders Act 1997

s 31 Dismissal with caution (results in the police being notified that the young person was dealt with by way of a caution)
s 40 Direct a YOA conference
s 57 Dismissal after a YOA conference


Children (Criminal Proceedings) Act 1987

s 33(1)(a)(i) Dismissal with/out caution
s 33(1)(a)(ii) Discharge on condition that the person enter into a good behaviour bond (maximum 2 years)
s 33(1)(b) Good behaviour bond (maximum 2 years)
s 33(1)(c) Fine (maximum is lesser of maximum fine for offence or 10 penalty units)
s 33(1)(c1) Release on condition that the person complies with an outcome plan determined at a YOA conference [ONLY 3 REFERRALS ARE ALLOWED BY THE COURT]
s 33(1)(c2) Adjournment for maximum 12 months, and grant of bail under the Bail Act 1978
s 33(1)(d) Good behaviour bond and fine
s 33(1)(e) Probation (maximum 2 years)
s 33(1)(e1) Probation and fine
s 33(1)(f) Community service

s 13(2), (3) Children (Community Service Orders) Act 1987

(a) 

if under 16, maximum of 100 hours in total

(b) 

if 16 or over:

(i) maximum 100 hours in total if maximum control order on the most serious offence does not exceed 6 months

(ii) maximum 200 hours in total if maximum control order on the most serious offence is between 6 and 12 months

(iii) maximum 250 hours in total if maximum control order on the most serious offence exceeds 12 months

s 3 [Definition of “relevant maximum period”] Relevant maximum period for performance is 12 months

s 20A Application to extend period of community service orders

s 33(1)(f1) Probation and community service
s 33(1B) Suspended control order

Good behaviour bond under s 33(1B)(b) for the period of the sentence

s 33(1)(g) Control order (maximum 2 years)

s 33A(4) Continuous periods of detention must not exceed 3 years

s 33AA Cumulative or concurrent control orders — assault on juvenile justice officers

s 33B Reduction for guilty plea

s 33(2) Control order only if satisfied other options are wholly inappropriate
s 36 Compensation

Maximum 10 penalty units if the person is less than 16 years at time of offence, 20 penalty units otherwise.


Children (Detention Centres) Act 1987

s 24 Persons subject to control may be granted leave, discharged, etc


Although it may be expedient in a particular case for a court to make a recommendation or suggestion, as a general rule it is undesirable that the court should do so: R v Sherbon (unrep, 5/12/91, NSWCCA).

For further information on referrals for conferences by DPP and the courts under Young Offenders Act 1997, please see Sentencing Bench Book at [15-120] and Local Court Bench Book at [45-340].

For further information about dismissal, good behaviour bonds, variation of good behaviour bonds or probation and enforcement of conditions, fines, probation, community service orders, control orders, other orders and compensation, please see Sentencing Bench Book at [15-110]. See Local Court Bench Book for sentencing draft orders at [45-140]ff, and information on suspended sentences at [45-200] and control orders at [45-220].

[6-0155] Sentencing considerations for serious criminal matters

No matter what the serious offence is the sentencing exercise follows a regular pattern that we all may tamper with slightly, but generally it requires a consideration of the following, not necessarily in this order:

  • the charge

  • the maximum penalty

  • the facts

  • an assessment of the seriousness of the conduct

  • aggravating factors

  • when the plea was entered

  • criminal history, if any, of the offender

  • subjective features of the offender

  • application of general sentencing factors in light of or modified by the rehabilitative emphasis provided for by the common law in relation to children and as reflected in the legislation: KT v R (2008) 182 A Crim R 571

  • what is the appropriate penalty

  • Is any alternative to imprisonment “wholly inappropriate”

  • If not, consider CSO

  • If CSO not appropriate consider the appropriate term of imprisonment and then apply any discounts of which there are only two or possibly three …

1. 

the discount for the plea of guilty,

2. 

the discount for any assistance including a quantification of future assistance … if future assistance includes the intention to give evidence for the crown in future proceedings and

3. 

finally compliance with any court orders eg house arrest or court ordered attendance at a rehabilitation programme. Also see R v Perry [2000] NSWCCA 375 and R v Campbell [1999] NSWCCA 76

  • Only after determining the appropriate length of the term should you then consider if a suspended sentence is appropriate

  • Are there any special circumstances to cause an adjustment to the non-parole period

  • The commencement date, should it be backdated; should it be accumulated

  • When you pronounce your sentence, comply with s 44 Crimes (Sentencing Procedure) Act 1999 and express the sentence as a non-parole period with a balance of parole.

For further information on children’s indictable offences heard in higher courts, please see Sentencing Bench Book at [15-050], [15-060] and [15-070]. For maximum community service orders for juveniles under the Children (Community Service Orders) Act 1987, see Local Court Bench Book at [45-180].

[6-0170] Child sexual assault offences

A “child sexual assault offence” is defined under s 83 Criminal Procedure Act where the complainant is under the age of 16 years on the date of the alleged offence, or under 18 years of age where the offence is under ss 73, 73A Crimes Act. If a person is charged before the Children’s Court with a child sexual assault offence, the prosecution may request the proceedings be dealt with on indictment under Div 3AA: s 31(3A) Children (Criminal Proceedings) Act. If the Children’s Court is of the opinion the evidence is capable of satisfying a jury beyond reasonable doubt that the accused has committed a child sexual assault offence, then the proceedings are to be dealt with as committal proceedings in accordance with Div 3A: s 31(3B) Children (Criminal Proceedings) Act.

[6-0175] Committal proceedings

The following information is taken from the Local Court Bench Book at [45-280].

Committal for trial/sentence

The court has no jurisdiction to deal with a “serious children’s indictable offence” to finality: ss 3, 17, 28(1) Children (Criminal Proceedings) Act 1987. Other indictable offences may be dealt with according to law or under the CCPA: s 18.

The Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 commenced on 30 April 2018. That Act made significant amendments to committal proceedings generally, including the addition of Pt 3, Div 3A to the CCPA which creates separate committal procedures for children charged with certain indictable offences. For proceedings commencing from 30 April 2018, the committal procedures in Div 3A, discussed further below, apply.

For proceedings commenced before 30 April 2018 the committal procedures in Divs 2–4 (other than ss 60 and 61), and Div 5 (committal for sentence on a plea of guilty) of Pt 2 of Ch 3 Criminal Procedure Act 1986 (CPA), as in force immediately before the commencement of the amendments, apply. See [30-040]ff.

Committal for trial or sentence for other than a “serious children’s indictable offence”

Generally, if a child is charged with an offence (other than a serious children’s indictable offence) the proceedings are dealt with summarily: s 31(1).

Committal for trial at the election of the child — s 31(2)(b)

A child charged with an indictable offence (other than one punishable summarily without the consent of the accused) may inform the court at any time during, or at the close of, the prosecution case, that he or she wishes to take his or her trial according to law, the proceedings are to be dealt with as committal proceedings in accordance with Div 3A: s 31(2).

  • If the child makes a request under s 31(2) before the prosecution closes its case, the proceedings continue as summary proceedings until the prosecution evidence is complete: s 31(2A)

  • If the child makes a request under s 31(2) in relation to an offence and the court is of the opinion, after all the prosecution evidence has been taken, and having regard to all the evidence before the court, that the evidence is not capable of satisfying a reasonable jury beyond reasonable doubt that the person has committed an indictable offence, the child must be discharged: s 31(2B).

If the relevant proceedings commenced on or after 30 April 2018, then Pt 3, Div 3A (Committal proceedings) of the CCPA applies.

Committal for trial at court’s determination

Where a child is charged with an indictable offence and the court, after hearing all the prosecution evidence, is of the opinion that having regard to all the evidence before the court, the evidence is capable of satisfying a jury beyond reasonable doubt that the child has committed an indictable offence, and that it would not be proper for the matter to be dealt with summarily, the proceedings are to be dealt with as committal proceedings in accordance with Pt 3, Div 3A: s 31(3).

If a decision is made under s 31(3) to commit the child for trial, the court must provide a statement of reasons for its decision forthwith: s 31(4).

Committal for sentence

Where a child is charged with an indictable offence and pleads guilty to it, and the court is of the opinion that, having regard to all the evidence before it (including any background report of a kind referred to in s 25), that it would not be proper for the matter to be dealt with summarily, the proceedings must be dealt with as committal proceedings in accordance with s 31H: s 31(5).

For a sentence matter, facts, criminal record and a background report may all be considered in determining whether or not to commit a child for sentence.

Circumstances where it may be considered that a case may not properly be disposed of summarily include:

  • where it may be more appropriate for a child to be dealt with according to law (including the matters listed in s 18(1A))

  • the seriousness of the offence and where a sentence is likely to exceed the maximum available to the Children’s Court

  • an offence where the child is already the subject of a cumulative sentence such that no further effective sentence can be imposed

  • a case involving an issue of mental illness or fitness to plead, or

  • the seriousness and nature of the offence rendering a joint trial of a number of co-accused (being both juvenile and adults) desirable in the interests of justice.

See also the Sentencing Bench Book at [15-100].

Conducting committal proceedings commencing on or after 30 April 2018 — Div 3A

For proceedings commenced on or after 30 April 2018, the procedures for committal proceedings under Div 3A apply where:

  • a child made a request under s 31(2) and the court did not discharge the child under s 31(2B), or

  • the court forms the opinion required by s 31(3)(b) that the evidence is capable of satisfying a jury beyond reasonable doubt that the child committed an indictable offence and it is not appropriate that the matter be disposed of summarily.

In conducting the committal proceeding, the court:

  • must give the child an opportunity to give evidence or call any witness on their behalf: s 31B(1)

  • must give the child a warning before giving them an opportunity to answer the charge: s 31B(2)

  • may end further examination or cross-examination of a witness if satisfied further examination or cross-examination will not help the court make a determination under s 31B(6)

  • must consider all the prosecution evidence given under ss 31 or 31C and any defence evidence and determine whether or not there is a reasonable prospect a reasonable jury, properly instructed, would convict the child of an indictable offence: s 31B(6)

  • may not exclude evidence on any of the grounds set out in s 90 (Discretion to exclude admissions) or Pt 3.11 (Discretionary and mandatory exclusions) of the Evidence Act 1995.

If the court is of the opinion:

  • that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the child of an indictable offence — the court must commit the child for trial: s 31F(1)

  • that there is not a reasonable prospect that a reasonable jury, properly instructed, would convict the child — the court must immediately discharge the child in relation to the offence: s 31F(2)

  • despite any requirement of s 31B, the court may, at any time, on the application of the accused person, and with the consent of the prosecutor, commit the accused person for trial.

Sections 31C–31E deal with the admissibility of statements in Div 3A proceedings. The provisions under Ch 6 Pt 3A Criminal Procedure Act 1986 apply: s 31D(2).

Committal for sentence

At any time during committal proceedings under Div 3A, the child may plead guilty to the offence and the court may accept or reject the guilty plea: s 31G(1)–(2). Committal proceedings continue if the plea is rejected: s 31G(4).

If a plea during committal proceedings is accepted, or if the child pleaded guilty at an earlier stage and the court has made a determination under s 31(5), the court must commit the child to the District or Supreme Court for sentence: s 31H.

Transfer of back up and related offences — applies irrespective of when proceedings commenced

Under s 31(6), when a child charged with an indictable offence or a serious children’s indictable offence (the “principal indictable offence”) is committed to another court for trial or sentence:

(a) 

the prosecutor must, if the child has been charged with back up or related offences to the principal indictable offence, produce to the court a certificate specifying the back up or related offence/s, and

(b) 

the court may transfer the back up or related offence/s to the other court.

Where a back up or related offence is transferred under s 31(6), those proceedings must be dealt with in accordance with ss 167–169 of the CPA: s 31(7).

Hearing juvenile and adult cases together

The Children’s Court may hear and determine committal proceedings involving an adult and juvenile together if:

  • the indictable offence is one which cannot be dealt with summarily with the consent of the child, and

  • the court is of the opinion that it is in the interests of justice to do so: s 29(2).

Note:

There is no provision which otherwise enables adult and juvenile offences or offenders to be dealt with together either as a committal or a summary hearing.

[6-0178] Presidential Children’s Court appeals

An appeal under Pt 3 Crimes (Appeal and Review) Act 2001, s 84(2) Crimes (Domestic and Personal Violence) Act 2007 and cl 17 Sch 2 Bail Act 2013, if the appeal relates to a decision of the Presidential Children’s Court, is taken to be an appeal to the Supreme Court, and is subject to any relevant rules of court applying to appeals to the Supreme Court: cll 6, 7 and 8 Children’s Court Regulation 2019.

[6-0180] Parole in matters commencing on or after 26 February 2018

Part 4C of the Children (Detention Centres) Act 1987 applies to parole matters commencing on or after 26 February 2018. The Children’s Court has jurisdiction to determine matters relating to parole, and conditions of parole, for juvenile offenders: s 41. When the detention order is for a period of 3 years or less, a juvenile offender is taken to be subject to a statutory parole order: s 44. If the detention order is for a period of more than 3 years, the Children’s Court must consider whether the offender should be released on parole: s 45(1).

Age-based system

The juvenile parole system applies to offenders under 18 years when the offender first becomes eligible for parole (s 40(1)). Part 4C ceases to apply to juvenile offenders when they reach the age of 18 years (s 40(2)), whereupon the provisions of the Crimes (Administration of Sentences) Act 1999 relating to parole of adult offenders apply. The exceptions at s 40(3) are if:

(a) 

the offender reaches the age of 18 years while on parole and the birthday occurs during the last 12 weeks of the parole period, or

(b) 

the Secretary of the Department of Justice considers that it is appropriate that the offender, or a class of offenders of which the offender is a member, continue to be dealt with under Pt 4C.

Where offenders are over 18 but are particularly vulnerable, the Secretary can consider if it is appropriate for the offender to be dealt with under the Juvenile Justice system.

Principle of community safety

Section 38 introduces the principle that the purpose of parole for children is to promote community safety, recognising that the rehabilitation and reintegration of children into the community may be highly relevant to that purpose. The Children’s Court must not make a parole order directing the release of a juvenile offender unless it is satisfied that it is in the interests of the safety of the community: s 46(1). The Children’s Court must have regard to the following principal matters relating to the promotion of community safety, while recognising that the rehabilitation and re-integration of the offender into the community may be highly relevant to the promotion of community safety (s 46(2)):

(a) 

the risk to the safety of members of the community of releasing the offender on parole,

(b) 

whether the release of the offender on parole is likely to address the risk of the offender re-offending,

(c) 

the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole.

Under s 46(3), the Children’s Court must also have regard to the following matters:

(a) 

the nature and circumstances of the offence to which the offender’s sentence relates,

(b) 

any relevant comments made by the sentencing court,

(c) 

the offender’s criminal history,

(d) 

the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole,

(e) 

if applicable, whether the offender has failed to disclose the location of the remains of a victim,

(f) 

any report in relation to the granting of parole that has been prepared by or on behalf of the Department,

(g) 

any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of any authority of the State,

(h) 

any other matters that the Children’s Court considers to be relevant.

A parole order is subject to the standard conditions imposed by Pt 4C and cl 94 Children (Detention Centres) Regulation 2015. See s 54 for conditions of parole as to non-association and place restriction.

Supervision

It is a condition of a parole order that the juvenile offender is to be subject to supervision: s 55. This is consistent with the evidence that supervision reduces reoffending. Exemptions from supervision will be given in exceptional circumstances: s 56. See cl 95 Children (Detention Centres) Regulation 2015 for conditions of supervision.

Terrorism related offences

Part 4C, Division 5 re-enacts adult parole provisions that restrict release on parole for terrorism-related offenders. There is a presumption against parole for terrorism related offences.

The State may make submissions to the Children’s Court in parole proceedings concerning a juvenile offender who is a terrorism related offender: s 86 Children (Detention Centres) Act 1987.

Revocation

The Children’s Court may make an order revoking parole at any time before the offender to whom the order relates is released under the order, if the court is satisfied under s 63 that:

(a) 

the offender, if released, would pose a serious identifiable risk to the safety of the community and the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or

(b) 

the offender, if released, would pose a serious and immediate risk to the offender’s safety and the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or

(c) 

the offender has requested the revocation, or

(d) 

in the case of a parole order made by the court, there has been a substantial change to a matter considered by the court in making the order, or

(e) 

any other circumstances prescribed by the regulations.

Section 64 provides for actions that can be taken by the Secretary in the event of failure by the offender to comply with a parole order. The Children’s Court may take any of the following actions under s 65(2), if satisfied that a juvenile offender has failed to comply with the offender’s obligations under a parole order:

(a) 

record the non-compliance and take no further action

(b) 

give the juvenile offender a formal warning

(c) 

impose additional conditions on the parole order

(d) 

vary or revoke conditions of the parole order (other than conditions imposed by this Act or the regulations),

(e) 

make an order revoking the parole order.

The Children’s Court may make an order under s 66(1) revoking a parole order aside from non-compliance at any time after the release of a juvenile offender:

(a) 

if it is satisfied that the offender poses a serious and immediate risk to the safety of the community and that the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or

(b) 

if it is satisfied that there is a serious and immediate risk that the offender will leave NSW in contravention of the conditions of the parole order and that the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or

(c) 

in the case of an offender who has been granted parole under s 47 on the grounds that the offender is dying or because of exceptional extenuating circumstances, if it is satisfied that those grounds or circumstances no longer exist, or

(d) 

if the offender fails to appear before the Children’s Court when required to do so, or

(e) 

if the offender has applied for the order to be revoked.

A revocation order takes effect on the day on which it is made or on any earlier day specified in the order: s 68(1).

The Attorney General, Minister or Director of Public Prosecutions may request the Children’s Court to revoke a parole order where the offender was sentenced for a serious children’s indictable offence and the order was made on the basis of false, misleading or irrelevant information: s 69.

Victims Register

A Victims Register is to be kept by the relevant government agency to record the names of victims of juvenile offenders who have requested they be given notice of the possible release of the juvenile offender: s 100A Children (Detention Centres) Act 1987. The government agency that keeps the Victims Register must give notice to any victim if a serious offender is being considered for release on parole or has applied for parole: s 100B. The victim can make a submission to the Review Panel which must be considered: s 100C. Information which is to be provided to the victim concerning the juvenile offender is set out at s 100D.

[6-0200] Parole: transitional provisions

A parole order for a juvenile offender that was in force immediately before the commencement of Pt 4C of the Children (Detention Centres) Act 1987 on 26 February 2018 continues to be subject to the same conditions to which it was subject immediately before that commencement: cl 155 Children (Detention Centres) Regulation 2015.

The former parole regime applying to juvenile offenders in the Crimes (Administration of Sentences) Act 1999, as applied by s 29 (rep), continues to apply generally to any act, matter or thing done or omitted to be done under any of the former parole provisions in force immediately before 26 February 2018. Section 29, before its repeal by the Parole Legislation Amendment Act 2017, is set out below:

29 Application of Crimes (Administration of Sentences) Act 1999 to detainees [R]

(1) 

The provisions of Parts 6 and 7 of the Crimes (Administration of Sentences) Act 1999 apply to a detainee within the meaning of this Act in the same way as they apply to an offender referred to in those provisions, and so apply as if in those provisions:

(a) 

a reference to a correctional centre were a reference to a detention centre, and

(b) 

a reference to the Parole Authority or a member of the Parole Authority were a reference to the Children’s Court or a Children’s Magistrate, respectively, and

(c) 

a reference to the Secretary of the Parole Authority were a reference to a Registrar of the Children’s Court, and

(d) 

a reference to the Commissioner were a reference to the Director-General.

(2) 

If a detainee who is being detained as a result of the revocation or suspension of a parole order by the Children’s Court is transferred to a correctional centre, this section (subsection (1)(a) excluded) continues to apply in relation to the parole order as if the transferred detainee were still a detainee. Accordingly, the Children’s Court is to continue to exercise the functions of the Parole Authority under Pt 7 Div 4 Crimes (Administration of Sentences) Act 1999 with respect to the detainee’s parole order.