Children’s Court

Criminal jurisdiction

Note:

All references to sections in this chapter are, unless otherwise stated, references to sections of the Children (Criminal Proceedings) Act 1987 (CCPA).

[38-000] Guiding principles

The following principles bind the court: s 6 CCPA:

  • Children have rights and freedoms before the law equal to those enjoyed by adults, and in particular a right to be heard and a right to participate in the processes that lead to decisions that affect them.

  • Children who commit offences bear responsibility for their actions but because of their state of dependency and immaturity, require guidance and assistance.

  • It is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption.

  • It is desirable, wherever possible, to allow a child to reside in his or her own home.

  • The penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.

  • It is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties.

  • It is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions.

  • Subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

See also s 7 Young Offenders Act 1997 which states further principles regarding young people facing criminal proceedings intended to guide persons exercising functions under the Act.

The rationale behind s 6, and leading cases on the relevance of youth in sentencing, were summarised by McClellan CJ at CL in KT v R (2008) 182 A Crim R 571 at [22]ff.

Reference should also be had to:

  • Children’s Court Act 1987 (CCA)

  • Children’s Court Rule 2000 (CCRule)

  • Children (Community Service Orders) Act 1987 (CCSOA)

  • Children (Detention Centres) Act 1987 (CDCA)

  • Children (Protection and Parental Responsibility) Act 1997 (CPPRA)

  • Young Offenders Act 1997 (YOA)

  • Crimes (Sentencing Procedure) Act 1999 (CSPA)

  • any relevant regulations.

[38-020] Criminal procedure generally

Jurisdiction and criminal responsibility

Section 28 states that the Children’s Court has jurisdiction to hear and determine proceedings if the offence is alleged to have been committed by a person:

  • who was a child when the offence was committed, and

  • who was under the age of 21 years when charged before the Children’s Court with the offence.

A “child” is defined in s 3(1) as a person who is under the age of 18 years.

Doli incapax

Children under 10 years are conclusively presumed to be incapable of committing a criminal offence: s 5.

Where a child is over 10 years old but under 14, there is a common law presumption of doli incapax. In such cases, the prosecution must prove beyond reasonable doubt that the child did the act charged and, when doing the act, knew it was wrong, as distinct from merely naughty or mischievous: RP v The Queen (2016) 259 CLR 641 at [9]. The child must know the act is seriously wrong as a matter of morality, or according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law: Stapleton v The Queen (1952) 86 CLR 358; M v The Queen (1994) 181 CLR 487. Evidence to prove the child’s guilty knowledge must not be the mere proof of doing the act charged, however horrifying or obviously wrong the act may be: C v DPP [1996] AC 1 at 38.

What suffices to rebut the presumption will vary according to the nature of the allegation and the child. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew it was morally wrong to engage in the conduct. Attention should be directed to the particular child’s intellectual and moral development. The strength of evidence required is not necessarily correlated to the child’s age. Children do not mature at a uniform rate. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not: RP v The Queen, above, at [8], [12].

Jurisdiction — driving matters

The Children’s Court only has jurisdiction for driving matters where:

  • at least one other charge for an offence committed at the same time comes within the Children’s Court criminal jurisdiction (for example, stealing a motor vehicle): s 28(2)(a),

  • the young person is under licensable age (Road Transport (Driver Licensing) Regulation 2017 cl 12(2), (3)) — 16 yrs for cars; 16 yrs, 9 mths for motorbikes: s 28(2)(b).

Even though a person under 16 years cannot be convicted, a court may disqualify them from holding a licence for a specified period: s 33(6).

Criminal Procedure Act 1986 (CPA) s 210 enables a Local Court to impose penalties provided for by the CCPA when dealing with a child found guilty of a traffic offence.

Jurisdiction — Commonwealth offences

A child or young person charged with or convicted of a Commonwealth offence may be tried, punished or otherwise dealt with as if the offence were against a law of the State or Territory: Crimes Act 1914 (Cth) s 20C.

Explaining the proceedings

The court must ensure it takes such measures as are reasonably practicable to ensure the young person understands the proceedings: s 12(1). If requested by the child or a person on their behalf, the court must explain any aspect of the procedure, or any decision or ruling made: s 12(3). See further the Equality before the Law Bench Book 2006 “Explain court proceedings and processes adequately” at [6.3.4.1].

The court must also ensure the young person is given the fullest opportunity practicable to be heard, and to participate, in proceedings: s 12(4).

Closed court — s 10

Section 10 provides that the court is closed and that persons other than the following should be excluded:

  • a person directly interested in the proceedings (unless the court otherwise directs)

  • a person preparing a report for the media (unless the court otherwise directs), or

  • a family member of a deceased victim of the offence.

The court may also direct that any person (other than the child, any other person directly interested in the proceedings or a family victim) be excluded from the proceedings during the examination of any witness if of the opinion such a direction is in the interests of the child: s 10(2).

A Local Court hearing a traffic offence committed by a child defendant is not a closed court: see s 10(3). As to the publication or broadcasting of names: see Div 3A, ss 15A–15G. In particular, s 15A prohibits the publication or broadcasting of the names of children involved as offenders, witnesses, or brothers and sisters of victims in criminal proceedings, subject to exceptions set out in ss 15B–15F. See also Criminal Trial Courts Bench Book at [1-358].

Admissions

Special provisions apply restricting the admissibility of statements and admissions to a police officer by a child to a police officer: s 13. The provision applies to admissions or statement which pre-date the enactment of s 13, or any legislative equivalent: R v Mercury [2019] NSWSC 81 at [70]. Admissions are not to be admitted unless a parent, chosen support person or lawyer was present, unless the court is satisfied there was a proper and sufficient reason for the absence of such an adult, and considers that, in the particular circumstances of the case, the statement or admissions should be admitted: s 13(1)(b).

See R v Phung and Huynh [2001] NSWSC 115; R v T (2001) 122 A Crim R 206; R v G [2005] NSWCCA 291 (regarding photographs); R v Mercury, above.

Detention for questioning

The detention for questioning provisions of Pt 9 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) apply to persons under the age of 18 years but have been modified by the Law Enforcement (Powers and Responsibilities) Regulation 2016, in particular Pt 3 Div 3 which contains provisions concerning the rights of children to support persons and access to legal advice. In R v FE [2013] NSWSC 1692, evidence of police interviews was excluded because the custody manager failed to comply with their obligation to assist the juvenile in exercising their rights under Pt 9 of LEPRA.

Regarding access to a lawyer: see R v Cortez (unrep, 3/10/02, NSWSC) per Dowd J.

Forensic procedures and identification particulars

The law permitting orders to be made to undertake forensic procedures on suspects applies to a child (defined as a person at least 10 years old but under 18 years): Crimes (Forensic Procedures) Act 2000 (CFPA) s 3(1). A child cannot consent to a procedure and a court order must be obtained: ss 7, 23 CFPA. A child may have representation at a hearing and an independent person must be present: s 30 CFPA.

Where a child over 14 years old is in lawful custody for any offence, a police officer may take or cause identity particulars to be taken, including the child’s photograph, fingerprints or palmprints: ss 133(1)–(2) LEPRA.

However, where the child in lawful custody is under 14 years, a police officer must apply to the Children’s Court for an order authorising the taking of a photograph, fingerprints or palmprints: s 136 LEPRA.

The power under s 63 of the CFPA for police officers, correctional officers or any other person specified by court order to take identifying particulars as soon as practicable after an offender is sentenced to imprisonment, applies equally when a juvenile is sentenced to a control order: s 33C(1)(a).

Further, the court may order a juvenile offender to present himself or herself for the taking of identification particulars upon finding certain offences proven: s 134 LEPRA. See also “Court orders for identification” at [16-440].

If the Children’s Court finds a child not guilty, or finds the offence proven but dismisses the charge under s 33(1)(a)(i), it is to make an order requiring destruction of any photographs, finger-prints and palm-prints relating to the offence: s 38(1). Where a child is dealt with by any other order under s 33, the court may order destruction if of the opinion that the circumstances of the case justify doing so: s 38(2).

See also s 137 LEPRA, which deals with circumstances in which another court finds an offence alleged against a child not proved.

Taking other offences into account

As in the case of adult offenders other offences may be taken into account: ss 31–35A CSPA.

Offences committed whilst on parole

Where a magistrate finds a young person has committed an offence whilst on parole, the parole clerk at Parramatta Children’s Court should be notified by the Registrar so that action can be taken to revoke that parole.

Special defences and exceptions for children charged with certain offences

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 introduced defences and exceptions to certain Crimes Act offences for persons under 18 years of age.

It is a defence to prosecutions for offences against ss 66C(3), 66DB, 66DD, 73 or 73A Crimes Act 1900 if the alleged victim is of or above 14 years old and the age difference between the alleged victim and accused is no more than two years: s 80AG(1) Crimes Act. Where raised, the prosecution bears the onus of disproving the defence beyond reasonable doubt: s 80AG(2) Crimes Act.

An exception to the offence of possessing child abuse material under s 91H Crimes Act applies where the accused possessed the material when they were under 18 years and a reasonable person would consider the possession acceptable having regard to certain matters: s 91HAA Crimes Act.

Further, it is a defence to a possession charge under s 91H Crimes Act if the person depicted in the material is the accused: s 91HA(9) Crimes Act. In offences of production or dissemination of child abuse material under s 91H Crimes Act, it is a defence if the only person depicted in the material is the accused and the production or dissemination occurred when they were under 18: s 91HA(10) Crimes Act.

[38-040] Bail

Note:

References in this section are, unless otherwise stated, references to the Bail Act 2013.

The Bail Act 2013 applies to any person accused of an offence (s 7(2)), including children. However, the show cause requirement does not apply if the accused was under 18 years old at the time of the offence: s 16A(3).

As with bail decisions concerning adults, the court must consider whether any of the unacceptable risks listed in s 19(2) are present before making a bail decision. If satisfied there are no unacceptable risks, bail is to be granted unconditionally: s 20. If satisfied one or more unacceptable risks exist, bail may nonetheless be granted if conditions can be imposed that sufficiently mitigate that risk.

When determining bail for a child, one of the factors to be considered in deciding whether there is an unacceptable risk is “any special vulnerability or needs the accused person has including because of youth”: s 18(1)(k).

See further at [20-360] for conditions that may be imposed for the purpose of mitigating an unacceptable risk. Section 28 permits making an accommodation requirement as a bail condition where the accused is a child: ss 28(1), 28(3). Such a requirement involves suitable accommodation arrangements being made for the child before their release on bail. If an accommodation requirement is imposed in respect of a child, the court must ensure the matter is re-listed for further hearing at least every 2 days until that requirement is complied with: s 28(4). A court may require a report from an officer of a government agency about efforts to obtain accommodation, but does not permit a direction that the agency secures accommodation: s 28(5). A conduct requirement that the child reside at the relevant accommodation while on bail may also be imposed as a condition of bail.

A court that has refused, or affirmed a decision to refuse bail for an offence after hearing a detention application may hear a further release application by a child accused where the previous application was made on a first appearance for the offence: s 74(3).

For further information on bail generally, see Bail at [20-000]ff.

[38-060] Committals

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) CCPA. 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 CPA, as in force immediately before the commencement of the amendments, apply. See [26-040]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)

A child charged with an indictable offence (other than one punishable summarily without the accused’s consent) may inform the court at any time during, or at the close of, the prosecution case, that they wish to take their matter to trial trial: 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 child has committed an indictable offence, the child must be discharged: s 31(2B).

Once such a request has been made, Pt 3, Div 3A (Committal proceedings) of the CCPA applies.

Committal for trial at court’s determination — s 31(3)

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, 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), 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). The court must commit the child to the District or Supreme Court for sentence: s 31H(2).

For a sentence matter, the 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] “Pt 3 — Criminal proceedings in the Children’s Court”.

Committal procedures — Pt 3, Div 3A

Pursuant to s 31A, 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.

Note:

where the child is charged before the Children’s Court with a child sexual assault offence, Div 3AA applies. Section 31AA(3) defines a “child sexual assault offence”.

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): s 31B(4)

  • must consider all the prosecution evidence given under s 31, Div 3AA or s 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).

Before giving the accused an opportunity to answer the charge, a warning must be given both orally and in writing: s 31B(2), cl 6A Children (Criminal Proceedings) Regulation 2016. The form of the oral and written explanations are set out in cll 6A(2) and (3) respectively.

If of the opinion:

  • that there is a reasonable prospect 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 a reasonable jury, properly instructed, would convict the child — the court must immediately discharge the child in relation to the offence: s 31F(2).

Sections 31C–31E deal with the admissibility of statements in Div 3A proceedings. The provisions under Ch 6 Pt 3A CPA 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 plea: ss 31G(1)–(2). Committal proceedings continue if the plea is rejected: s 31G(4).

If the plea 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:

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

  • 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 relating to an indictable offence made jointly against 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 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.

[38-080] Sentencing orders and principles

Conviction

A conviction cannot be recorded if the young person is under 16 years at the time of the offence: s 14(1). A court can choose not to record a conviction for young people above 16 years. Whether or not a conviction is recorded, all sentencing options under s 33 apply.

Criminal records of children

See Subjective matters taken into account (cf s 21A(1)) [10-400] “Prior record” and Children (Criminal Proceedings) Act 1987 [15-020] “Hearings” in the Sentencing Bench Book where the way in which a child’s prior record may be taken into account. Some criminal records of conviction and sentence of young people are “expunged” after prescribed periods (subject to certain employment exceptions): ss 8 and 12 Criminal Records Act 1991.

Hierarchy of penalties

The following table sets out a practical hierarchy of court-ordered penalties available in the Children’s Court. The table does not include the separate powers of police or investigating officers to give a caution for certain offences.

Sentencing alternatives in the Children’s Court jurisdiction

Requirements for particular order

Legislation

Maximum penalty

Breach proceedings

Young Offenders Act 1997

Only summary or Table 1 or 2 offences can be dealt with under this Act: s 8(1). Some offences in this category are excluded: s 8(2). See also [38-320].

Caution without charge

Available for particular offences in Pt 4, Div 1 or graffiti offence.

Child must admit the offence.

Charges dismissed, however court must record caution.

 

 

Note: court power to give caution under s 33 CCPA unaffected.

s 31(1)(a) YOA

 

s 31(1)(b) YOA

ss 31(1A), 31(4), 33(1) YOA; cl 15(3) Young Offenders Regulation 2016

s 31(3) YOA

May not be given on more than 3 “occasions”: s 31(5) YOA

Nil

Charges cannot be laid again in relation to the same offence: s 32 YOA

Youth justice conference

Court may refer at any stage in proceedings including after finding of guilt.

 

Child must:

  • admit offence

  • consent to conference.

Conference outcome plan must be referred to court for approval.

On being informed of successful completion of outcome plan, court must dismiss the charge if matter was referred without a finding of guilt.

Completion is equivalent to autrefois convict.

See also [38-320].

ss 40(1A), 40(3) YOA

s 33(1)(c1) CCPA

ss 36(b), 40(1A)(b)

s 36(c) YOA

 

s 54(2) YOA

 

s 57(2) YOA

 

s 58

Maximum time to implement outcome plan is 6 mths: cl 6 Young Offenders Regulation 2016

Brought back to court for sentence on notification by conference organisers or on court’s own motion, if:

  • conference not attended: see ss 51, 54 YOA

  • outcome plan not approved by court, or

  • outcome plan not completed by young person.

Children (Protection and Parental Responsibility) Act 1997 (CPPRA)

Instead of proceeding to sentence, child and/or a parent may be required to undertake to be of good behaviour or undertake counselling and other programs.

Note:

This is rarely used.

ss 8, 9 CPPRA

Not specified

Child may be sentenced: s 8(4) CPPRA.

Parent may forfeit monetary security: s 9(4) CPPRA

Children (Criminal Proceedings) Act 1987

Proven but dismissed without conviction and with or without caution

Offence proven but court does not proceed to convict, and directs that the charge be dismissed (and may issue a caution).

s 33(1)(a)(i)

Not applicable

Not applicable.

Good behaviour bond

On finding the child guilty, the court may:

  • discharge the person on condition they enter a good behaviour bond: s 33(1)(a)(ii), or

  • make an order directing the person to enter into a good behaviour bond: s 33(1)(b).

Must contain conditions that person will:

  • appear before the court when called on to do so, and

  • be of good behaviour.

May contain other conditions as specified.

A fine may be imposed in addition to s 33(1)(b) bond (but not as a condition of bond).

 

 

 

s 33(1)(a)(ii)

 

s 33(1)(b)

 

s 33(1A), cl 7 Children (Criminal Proceedings) Regulation 2016

ss 33(1)(d), 33(1A)(c)

2 yrs

On breach, may be called up for re-sentence: s 41 CCPA.

Fine

In fixing a fine, the child’s age, their ability to pay and the potential impact of a fine on their rehabilitation must be considered.

A s 33(1)(b) bond may be imposed in addition to fine.

ss 33(1)(c); 33(1AA)

 

 

s 33(1)(d)

Whichever is the lesser:

  • 10 pu, or

  • the max fine at law

Fine default procedures under s 58 Fines Act 1996

Adjournment for rehabilitation or other purposes

Adjournment for any of the following purposes (if bail for the offence is/has been granted or dispensed with under the Bail Act 2013):
  • assessing the child’s capacity and prospects for rehabilitation,

  • allowing the child to demonstrate that rehabilitation has taken place,

  • any other purpose the court considers appropriate in the circumstances.

s 33(1)(c2) Proceedings may be adjourned for no more than 12 mths.  

Probation

For conditions see: cl 7 Children (Criminal Proceedings) Regulation 2016.

A fine may also be imposed.

Note:

A more serious penalty than a bond.

s 33(1)(e)

 

s 33(1)(e1)

2 yrs

On breach, may be called up for re-sentence: s 41 CCPA.

Community service order — see Children (Community Service Orders) Act 1987 (CCSOA)

May be imposed where:

 

  • custodial sentence applies to offence, and

  • a custodial sentence would otherwise be applied.

 

Must have juvenile justice report stating young person is suitable and that work is available.

Probation order may be imposed in addition to CSO.

 

May run concurrently with another CSO order. Caps apply to total number of hours.

s 33(1)(f) CCPA

s 5 CCSOA

s 5(1)(a) CCSOA, s 34(1) CCPA

s 5(1)(b) CCSOA

 

s 9(b) CCSOA

 

s 33(1)(f1) CCPA

 

s 10 CCSOA

ss 13(3)–13(3A) CCSOA

(a) 

aged 10–15 yrs: 100 hrs for all offences

(b) 

aged 16–17 yrs, if max penalty:

  • does not exceed 6 mths: 100 hrs

  • is over 6 mths but less than 12 mths: 200 hrs

  • is more than 12 mths: 250 hrs

See s 13(1) CCSOA.

Administrative increase by up to 10 hrs, where failure to comply is trivial, or there are good reasons for dealing with failure by increasing hours s 20(1) CCSOA.

Court revocation and re-sentence: ss 21, 21A CCSOA.

Suspended control order sentence

Custodial sentence under s 33(1)(g), but suspended subject to young person entering bond to be of good behaviour.

Must not be serving a sentence of imprisonment or parole period.

s 33(1B) CCPA

2 yrs

ss 41, 41A CCPA

Sentence following breach may be made concurrent with fresh sentences.

Control order

Full-time custody in a detention centre.

 

 

 

 

Can only be imposed where no other order is appropriate.

Only available for offences that provide for sentence of imprisonment.

Background report must be tendered and considered before order can be imposed.

Reasons must be given why no alternative sentence under s 33(1)–(f1) is appropriate.

A control order takes effect when made unless otherwise ordered.

s 33(1)(g) CCPA

General principles of sentencing: s 33C provides that Pts 3 and 4 CSPA apply

s 33(2) CCPA

 

s 34 CCPA

 

s 25(2) CCPA

 

 

s 35 CCPA

 

s 37 CCPA

2 yrs max (3 yrs if cumulating): s 33A(5); s 33AA(5) CCPA

5 yrs cumulation does not apply in Children’s Court: s 58 CSPA

Cumulative sentences must be imposed, subject to s 58 CSPA, for the following offences:

  • escape: s 33C CCPA;

  • assault detention officer: s 33AA CCPA;

  • assault generally/assault by convicted inmate: ss 55(5)(a1), 56(1)(b), 56(3A) CSPA

Children’s Court acts as Parole Authority for Children’s Court sentences: Pt 4C CDCA. See ss 65, 66 CDCA.

See also cll 90–107C, Sch 2 Forms, Children (Detention Centres) Regulation 2015

[38-100] Background reports

A background report must be prepared, tendered in evidence, and considered by the court before an order under s 33(1)(g), or a term of imprisonment can be imposed on a person who was a child when the offence was committed and under the age of 21 years when charged before the court with the offence: ss 25(1)–(2). A report is also required to be prepared and considered by the court before a community service order can be imposed: s 9(b) CCSOA.

Clause 6 Children (Criminal Proceedings) Regulation 2016 requires a background report under s 25 to be in the approved form and to deal with matters relevant to the circumstances surrounding the commission of the offence concerned including:

  • the child’s family background, employment, education, friends and associates,

  • the nature and extent of their participation in the life of the community,

  • disabilities (if any),

  • antecedents, and

  • any other matters that the Children’s Court may require, or that the prosecutor considers appropriate.

See also the Sentencing Bench Book “Background reports” at [15-080].

Offenders under 17 years and 6 months of age (and for community service of any age) are assessed and supervised by officers of the Department of Juvenile Justice and, if relevant, the Department of Family and Community Services. In some instances the Department of Juvenile Justice may advise that it is more appropriate for older offenders (at least older than 17 years and 6 months of age) be assessed and/or supervised by Community Corrections.

[38-120] Sentence — further details and draft orders

Dismissal (with or without caution) — s 33(1)(a)(i)

This is the equivalent of a s 10(1)(a) dismissal under the CSPA.

Release on good behaviour bond — ss 33(1)(a)(ii), 33(1)(b)

The court may dismiss a charge but place an offender on a good behaviour bond under s 33(1)(a)(ii). Alternatively, s 33(1)(b) allows the court to make an order directing the person to enter into a bond.

In either case, the period of the good behaviour bond must not exceed 2 years.

Bonds imposed under s 33 must contain the following two conditions, namely that the person will:

  • appear before the court if called to do so at any time, and

  • be of good behaviour.

A bond may also contain other conditions, except for those requiring the person to perform community service work, or make any payment (whether in the nature of a fine, compensation or otherwise). The kinds of conditions that may be imposed are listed in cl 7 Children (Criminal Proceedings) Regulation 2016.

Impose a fine — s 33(1)(c)

The fine imposed must not exceed whichever is the lesser of either 10 penalty units or the maximum fine provided for the offence: s 33(1)(c). A fine may be imposed even though the offence does not provide a maximum fine.

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

Release on condition to comply with an outcome plan — s 33(1)(c1)

The court may make an order releasing the person on condition that the person complies with an outcome plan determined at a youth justice conference. See further “Young Offenders Act 1997” at [38-320].

Note:

Bail is usually dispensed with if the young person is directed to attend a youth justice conference.

Release on bail to demonstrate rehabilitation — s 33(1)(c2)

The court may make an order adjourning proceedings against the person to a specified date (being an adjournment for a maximum period of 12 months from the date of the finding of guilt), and granting bail to the person in accordance with the Bail Act 2013:

  • for the purpose of assessing the person’s capacity and prospects for rehabilitation, or

  • for the purpose of allowing the person to demonstrate that rehabilitation has taken place, or

  • for any other purpose the Children’s Court considers appropriate in the circumstances: s 33(1)(c2).

Release on good behaviour bond and fine — s 33(1)(d) (see (b) and (c) above)

[38-140] Release the offender on probation — s 33(1)(e)

The court may make an order releasing the offender on probation. The period of probation must not exceed two years. Pursuant to cl 7 Children (Criminal Proceedings) Regulation 2016, conditions can include:

(a) 

conditions requiring the child to attend school regularly,

(b) 

conditions relating to the child’s employment,

(c) 

conditions aimed at preventing the child from committing further offences,

(d) 

conditions relating to the child’s place of residence,

(e) 

conditions requiring the child to undergo counselling or medical treatment,

(f) 

conditions limiting or prohibiting the child from associating with specified persons,

(g) 

conditions limiting or prohibiting the child from frequenting specified premises,

(h) 

conditions requiring the child to comply with directions of a specified person in [relation to any matters referred to in (a)–(g) above],

(i) 

conditions relating to such other matters as the court considers appropriate in relation to the child.

Release on probation and fine — s 33(1)(e1) (see (e) and (c) above)

Where the court orders probation under s 33(1)(e) and community service work under s 33(1)(f), the order may include a condition requiring the child to comply with the community service work order: cl 7(2) Children (Criminal Proceedings) Regulation 2016.

Order the child to perform community service — s 33(1)(f)

 

Jurisdiction

A community service order may only be imposed where:

  • the court would otherwise impose a custodial order: s 5 CCSOA

  • the court has been notified by an officer that arrangements are available in the child’s residential area: s 9(a) CCSOA,

  • the court is satisfied, after considering a report, that the young person is suitable and sufficiently mature: s 9(b) CCSOA.

Conditions

The court may also impose conditions “not inconsistent with the Act or regulations”: s 11 CCSOA.

An order may recommend that the community service work to be performed by the person should include participation in a personal development, educational or other program: s 5(1B) CCSOA.

The court may recommend, in relation to an order for offence other than a graffiti offence, that the community service work include the removal of graffiti and consequential restoration of the building, vessel, etc: s 5(1A) CCSOA.

In relation to an order for a graffiti offence, the court must impose a graffiti clean up condition, unless it considers that it would not be reasonably practicable in the circumstances, in which case it must make a record of its reasons: ss 11(3)–(5).

Cumulation

Community service orders may be concurrent (s 10 CCSOA) or the court may make an order that they be cumulative: s 13(3) CCSOA subject to keeping within the maximum hours permitted to be imposed.

Maximum hours for children’s community service order — CCSOA

Age of young offender at time of offence

Maximum penalty for the offence (full time custody)

Maximum CSO hours: s 13

Under 16 yrs

Any offence, and cumulative sentences

100 hrs

16 or 17 yrs

6 mths or less

100 hrs

16 or 17 yrs

More than 6 mths and not more than 12 mths

200 hrs

16 or 17 yrs

More than 12 mths

250 hrs

16 or 17 yrs

Cumulative sentences

250 hrs (s 13(3A))

The maximum duration for a community service order is 12 months: s 3(1) CCSOA. Applications may be made to the Secretary to extend the relevant maximum period by either the person in respect of whom the order was made or the assigned officer, on the grounds that an extension would (having regard to circumstances that have arisen since the order was made) be in the interests of justice: s 20A CCSOA.

Explanations required

When making an order the court must:

  • explain to the child the purpose and effect of the order; that the order may be amended or varied; and the consequences that may follow if the order is not complied with: s 6 CCSOA, and

  • specify a place at which, or a person to whom, the child shall present himself or herself and the period within which he or she shall so present himself or herself: s 14 CCSOA.

Release the offender on probation and order community service – s 33(1)(f1) (see (e) and (f) above)

[38-160] Suspended sentence — s 33(1B)

A court dealing with a person under s 33(1)(g) may make an order suspending the execution of its order a specified period (not exceeding the term of that order), and releasing the person on condition that the person enters into a good behaviour bond under s 33(1)(b) for such a specified period: s 33(1B).

Eligibility

The court may not impose the initial custodial sentence unless no other sentence is appropriate. A sentence cannot be suspended when the child is serving another sentence by way of full-time custody or serving the balance of a sentence on parole: s 33(1B); R v Edigarov (2001) 125 A Crim R 551.

Length of suspension

The suspension may not be longer than the sentence: s 33(1B)(a). It is usually the same length as the sentence.

[38-180] Make a control order — s 33(1)(g)

A control order may be made only for an offence that provides for a sentence of imprisonment: s 34(1).

A control order should not be made unless the court is satisfied it would be wholly inappropriate to deal with the child under any other type of sentence: s 33(2). Reasons must be recorded why it would have been wholly inappropriate to so deal with the matter and the reasons why the child has been so dealt with: s 35.

A control order is a sentence subject to the provisions of Pts 3 and 4 Crimes (Sentencing Procedure) Act 1999. A control order must not exceed the maximum period of imprisonment provided for the offence, or 2 years, whichever is the shorter.

The court has power to make a control order cumulative to a maximum of 3 years provided such order would not have the effect of the detainee being detained for more than two periods specified in different control orders, being periods that are not to any extent concurrent: s 33A.

A court, when imposing a control order that exceeds six months in duration, may set a non-parole period. The court may decline to set a non-parole period s 45(1) CSPA and state reasons for so doing: s 45(2) CSPA. Where a non-parole period has been set for a detention order for a period of 3 years or less, being an order for which a non-parole period has been set, is taken to be subject to a parole order (a “statutory parole order”) directing the release of the offender on parole at the end of the non-parole period. See further “Juvenile offender parole legislative framework” at [42-000]ff.

[38-200] Orders of licence disqualification, forfeiture

Pursuant to s 33(5), nothing in s 33 limits or affects any powers that the Children’s Court may have apart from this section to:

  • impose any disqualification under the road transport legislation within the meaning of s 6 Road Transport Act 2013 on a person whom it has found guilty of an offence,

  • to order the forfeiture of any property that relates to the commission of an offence of which it has found a person guilty, or

  • to make an order for restitution under s 43 CPA, or

  • to make a community clean up order in respect of a fine imposed for an offence under the Graffiti Control Act 2008.

Section 33(6) provides that for the purposes of any provision of the road transport legislation that confers power on a court with respect to a person who has been convicted of an offence, a finding of guilt by the Children’s Court for an offence is taken to be a conviction for the offence, unless the court makes an order under s 33(1)(a).

[38-220] Non-association or place restriction order

Pursuant to s 33D, the court may make a non-association or place restriction order if the court has sentenced the offender under s 33 (except ss 33(1)(a)(i), 33(1)(c1) and 33(1)(c2)) in relation to an offence that attracts a penalty of 6 months imprisonment or more.

The duration of the non-association or place restriction order must not exceed 12 months: s 33D(4).

Section 33D does not limit the kinds of prohibition or restriction that may be imposed on a person such as conditions of a good behaviour bond or probation order under s 33 (as provided in cll 7(1)(f)–(g) Children (Criminal Proceedings) Regulation 2016).

Part 8A CSPA applies equally to and in respect of a non-association or place restriction order made by the Children’s Court: s 33D(6).

[38-240] Placement on sex offender’s register

Section 3A Child Protection (Offenders Registration) Act 2000 requires that a child’s name be placed on the sex offender’s register upon a finding that a registrable offence is proven, unless the offence is for a Class 1 or Class 2 offence (defined in s 3(1)) and the court deals with the child under s 33(1)(a) or for a single offence of the kind listed in s 3A(1)(c).

However, s 3C provides that a court sentencing a person for a sexual offence committed when that person was a child has a discretion to declare that person not be treated as a registrable person in respect of that offence. The discretion applies only in certain circumstances listed in s 3C(3):

  • the victim of the offence was under 18 years of age at the time of the offence, and

  • the person has no prior convictions for any Class 1 or Class 2 offence, and

  • the court does not impose full-time detention or a control order (unless suspended) 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 one or more children, or of children generally (see s 3AA for the matters to be taken into account in such an assessment).

“Sexual offence” for the purposes of s 3C is defined in s 3C(6).

Section 3C applies to any sentence imposed on or after 1 December 2018, regardless of when the offence was committed.

Failure to comply with reporting conditions constitutes an offence carrying 5 years imprisonment and/or 500 pu: ss 17 and 18 Child Protection (Offenders Registration) Act 2000.

[38-260] Mental health — Forensic provisions

Part 3 of the Mental Health (Forensic Provisions) Act 1990 applies to children in the Children’s Court. See Inquiries under the Mental Health (Forensic Provisions) Act 1990 at [30-000].

[38-280] Costs and compensation

Compensation

The court may order compensation for loss against a child under ss 94 or 97 Victims Rights and Support Act 2013, but the maximum amount that may be ordered is 10 penalty units if under 16 years or 20 penalty units if older: s 36(3) CCPA.

The court must have regard to the child’s means and income, if any, in deciding whether or not to make such an order: s 36(2). Compensation may not be ordered as a condition of a bond: see s 33(1A)(c)(ii) CCPA.

Victims support levy

Where an offender is 18 years or older when sentenced, a victims support levy (currently $81 for financial year 2018/19 cf cl 2 Victims Rights and Support (Victims Support Levy) Notice 2013) is payable, as is the case for an offender dealt with in a Local Court.

Where a child is so dealt with, such levy is not payable if the court directs at the time or later that the child is exempt from such payment: s 106(3) Victims Rights and Support Act 2013.

Costs

The court costs levy under s 211A of the CPA does not apply to Children’s Court proceedings or to proceedings in which a person who was under 18 years at the time an offence is dealt with under Pt 3 Div 4 CCPA: ss 211A(3), 211A(7)(b).

However, the Children’s Court may, at the end of summary proceedings in which a person is found guilty of an offence, order that the person pay court costs: s 42A(1) CCPA. Court costs ordered to be paid under s 42A are in addition to, and do not form part of, any pecuniary penalty imposed in respect of the offence: s 42A(2).

The amount of court costs ordered to be paid under s 42A cannot exceed the amount that would be payable under s 211A CPA if that section applied to the offence: s 42A(4) (for the 2018/19 financial year, $85).

[38-300] Breaches of orders

Breach of good behaviour bond, probation and release for compliance with outcome plan

Section 41 CCPA deals with breaches of good behaviour bonds, probation, and release on condition of compliance with a youth justice conference outcome plan.

An offender may be issued with a court attendance notice by an authorised officer or member of the police force who believes with reasonable cause that the offender has failed to comply: s 41(1).

Alternatively, a court may call on a person to appear before it if it suspects that the child has failed to comply: s 41(1A).

Offenders under the age of 21 years will be brought before the Children’s Court and, if it is proved that they have failed to comply, they may be dealt with in any manner in which they could have been dealt with by the Children’s Court in relation to the offence: ss 41(3)(a), 41(4).

Offenders of or above the age of 21 years will be brought before the Local Court and, if it is proved that they have failed to comply, they may be dealt with in any manner in which they could have been dealt with by the Local Court, had the person been of or above the age of 21 years when the person was originally dealt with in relation to that offence: ss 41(3)(b), 41(5).

Breach of suspended sentence

Where the Children’s Court has, under s 33(1B), suspended the execution of an order under s 33(1)(g) and the person concerned has entered into a good behaviour bond, action with respect to a failure to comply with any such bond may be taken under s 41.

The bond is to be terminated unless the court is satisfied that:

  • the person’s failure to comply with the conditions of the bond was trivial in nature, or

  • there are good reasons for excusing the person’s failure to comply with the conditions of the bond: s 41A(2).

Once the bond is terminated, suspension of the execution of the order under s 33(1)(g) ceases to have effect, and Pt 4 CSPA applies as if the order were a sentence of imprisonment: s 41A(3).

[38-320] Young Offenders Act 1997

The Act establishes a scheme to enable juvenile offenders (ie under 18 years of age) to be dealt with as an alternative to the CCPA.

Note:

References in this paragraph are, unless otherwise stated, references to the YOA.

The Act applies to summary offences or offences that may be dealt with summarily under Ch 5 CPA: s 8(1). Certain exceptions are listed in ss 8(2), (2A) and (3) including, but not limited to:

  • traffic offences where the child is old enough to hold a licence

  • certain sexual offences

  • drug offences involving more than a small quantity of a prohibited drug,

  • an offence under the Crimes (Domestic and Personal Violence) Act 2007, eg stalking and intimidation, contravening an AVO.

The Children’s Court may utilise the Act in three ways:

  • by giving of a caution (s 31(1)),

  • by referral to a conference and:

    (i) 

    if the matter (though admitted) was referred without the making of a finding of guilt, upon receiving notice that an outcome plan has been satisfactorily completed, dismiss the charge, or

    (ii) 

    otherwise make an order releasing the child on condition that the child complies with an outcome plan: s 33(1)(c1) CCPA.

Each of the above requires that the child admits to the offence: ss 31(1)(b), 36(b), 40(1A)(b). See s 10 as to what constitutes an “admission”.

Caution

Where a court chooses to caution an offender under s 31 in relation to an offence, an order must be made dismissing the proceedings: s 31(1A).

The court may allow any victim of the offence to prepare a written statement describing the harm occasioned to them by the offence and, if it considers it appropriate, may permit all or part of the statement to be read to the child when giving the caution: s 31(1B).

A court that gives a caution must notify in writing the Area Commander of the local police area in which the offence occurred of the decision and reasons (s 31(4)) and must make a record of any caution in accordance with cl 15 Young Offenders Regulation 2016: s 33.

A child may not be cautioned if they have been dealt with by caution on 3 or more occasions (regardless of whether the caution was by or at the request of a police officer, specialist youth officer, or court, and for offences of the same or different kind): s 31(5).

Where the child is cautioned, no further proceedings may be taken for the offence in respect of which the caution is given or for any other offence in respect of which proceedings could not be commenced if the child had been convicted of the offence for which the caution was given: s 32.

Referral for youth justice conference

Section 40(1A) deals with referrals for conferences by courts. A matter may be referred at any stage in proceedings, including after a finding that a child is guilty of an offence: s 40(3). In determining whether or not to refer a matter for conferencing the court must take into account the following (s 40(5)):

  • the seriousness of the offence

  • the degree of violence involved in the offence

  • the harm caused to the victim

  • the number and nature of any offences and times the child has been dealt with under the Act, and

  • any other matters the court thinks appropriate.

The child must consent to the holding of the conference: s 36(c). After a referral is made, the Commissioner of Police must be notified in writing of any particulars of the referral: s 40(4).

A court may, at any time after referral and before a conference is held, determine that the matter should not be dealt with by way of a conference: s 44(3).

A child may also decide not to proceed with a conference before it is held: s 44(1).

The aim of the conference is to reach agreement on an outcome plan that the young person can complete, which may include an apology and/or reparation to the victim(s), participation in a counselling, alcohol/drug or educational program, or actions which are directed towards the child’s reintegration into the community: ss 52(5)–(5A).

An outcome plan must be referred to the court for approval: s 54(1).

Note:

The court can only approve or not approve the plan, it cannot alter the plan.

If an outcome plan is not approved by the court or if the child fails to satisfactorily complete an outcome plan the proceedings may be continued.

If a court is notified that the child satisfactorily completed the outcome plan, no further criminal proceedings may be taken: s 58. If the matter was referred for a conference before a finding of guilt was made, the offence must be dismissed: s 57(2).

A criminal history referring to warnings, cautions and conferencing is admissible in proceedings before a Children’s Court (s 68(2)) but will only be located on the Computerised Operational Policing (COPS) computer system.

Non-compliance

If a child doesn’t proceed with a caution or conference, fails to attend a conference, fails to reach an agreement at conference to an outcome plan, or fails to satisfactorily complete an outcome plan, the proceedings may be continued or re-commenced against the child (even if an applicable limitation period has expired): s 64(1).

The proceedings must be commenced not later than the expiry date of the applicable limitation period, or 3 months after the matter is referred back to the person or body under s 64, whichever is the later: s 64(2).

If the Children’s Court has released a child on condition of compliance with an outcome plan under s 33(1)(c1) CCPA, and the child fails to comply with the outcome plan, an authorised justice may issue a summons or warrant for the arrest of the child, and proceedings may be continued or commenced under s 64: s 57.

[38-340] Apprehended violence orders

Applications commenced against a young person

The Children’s Court is authorised to deal with such cases where the defendant is less than 18 years of age at the time the complaint is made: s 91(1) Crimes (Domestic and Personal Violence) Act 2007.

Application proceedings involving defendants under the age of 18 are to be heard in closed court, although the court may permit the presence of some persons if it is considered appropriate: s 86(1)–(2) Crimes (Domestic and Personal Violence) Act.

Children’s Court Practice Note 8 sets out Children’s Court procedures in cases where apprehended domestic or personal violence order proceedings have been commenced against a young person.

The Practice Note requires consideration to be given to the availability of suitable counselling or other intervention services for the young person, and where appropriate, the young person’s family. In matters involving the police, if the police prosecutor and young person consent, the court may make an interim domestic or personal violence order and adjourn the proceedings:

  • for 3 months, to allow the young person to engage with the relevant counselling or intervention service, or

  • for 5 months, if no suitable counselling is available, or the young person does not wish to participate in counselling.

The Practice Note does not apply to applications against a young person involving allegations of sexual assault or indecent assault, applications which are related to criminal charges of a serious nature and cases where such applications have been repeatedly sought in the past. However, in such a case the procedures set out in the Practice Note may be applied with the consent of the prosecutor and the young person.

The Children’s Court may vary or revoke an order made by the Children’s Court irrespective of the age of the defendant at the time the application for variation or revocation is made: s 91(3) Crimes (Domestic and Personal Violence) Act.

See also AVO proceedings involving children at [24-000]ff.

Applications made for protection of a young person

An application made by or on behalf of a child against an adult is heard in the Local Court.

Note:

ss 41(2)–(5) and 41AA Crimes (Domestic and Personal Violence) Act respectively deal with the exclusion of the public in cases where an order (or variation or revocation of the order) is sought for the protection of a child under the age of 16 years, or between the ages of 16 and 18 years.

Any final order made for the protection of a child results in that order being notified to the Office of the Children’s Guardian. If the person against whom the order is made at any subsequent time seeks to work in child-related employment, the fact that an order has been made must be taken into account as part of a Working with Children check.