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).

[45-000] Guiding principles

The following principles bind the court: s 6 Children (Criminal Proceedings) Act 1987:

  • 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.

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

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

  • That, 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.

[45-020] Criminal procedure generally

Detailed analyses are contained in the Judicial Commission of NSW website on its Judicial Information Research System (JIRS).

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.

Explaining the proceedings

The court must ensure that the young person understands the proceedings and gives an explanation regarding procedure or any decision or ruling. The court must also ensure that the young person is heard and able to participate in proceedings: s 12.

Closed court — s 10

The court is closed and (subject to any direction to the contrary) persons other than the following should be excluded:

(a) 

a person directly interested in the proceedings

(b) 

a person preparing a report for the media, or

(c) 

a family member of a deceased victim of the offence.

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.

Criminal responsibility of children under 14 years

Children under 10 years are deemed to be incapable of committing a criminal offence. The common law rule of doli incapax requires that the prosecution prove beyond reasonable doubt that a child under the age of 14 years did the act charged and when doing the act he or she knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief: R v M (1977) 16 SASR 589; R v CRH (unrep, 18/12/96, NSWCCA); BP v R; SW v R [2006] NSWCCA 172. The child must know that 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. The circumstances of the offence, such as concern to avoid detection, may be some evidence of knowledge; although, if the concern is consistent with the child thinking that the act is merely naughty, this will carry little weight: BP v R; SW v R.

Age jurisdiction

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

(a) 

who was a child when the offence was committed, and

(b) 

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

Admissions

Special provisions apply restricting the admissibility of admissions to a police officer by a child: s 13. Admissions are not to be admitted unless a parent, chosen support person or lawyer was present, unless the court decides it is appropriate to do so (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).

Detention for questioning

The detention for questioning provisions of the 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 provisions regarding a support person and access to legal advice. Regarding access to a lawyer: see R v Cortez (unrep, 3/10/02, NSWSC) per Dowd J.

Forensic procedures, including photographs

The law permitting orders to be made to undertake forensic procedures on suspects applies to persons under 18 years: Crimes (Forensic Procedures) Act 2000 (CFPA). 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 must have the presence of an independent person: s 30 CFPA.

Where the child is under 14 years, the application for the taking of a photograph for identification purposes of a suspect must be made under s 136 LEPRA.

Fingerprint records

The Children’s Court may order a child to attend to have fingerprints taken:

  • before conviction where a child under 14 years is in custody: s 136 LEPRA

  • after conviction and sentence for certain offences: s 134 LEPRA; s 63(3) CSPA; s 33C.

The court has a discretion to order destruction of fingerprint records: s 38; s 137 LEPRA. An order is deemed to have been made on acquittal or when proved and dismissed (with or without caution) pursuant to s 33(1)(a).

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.

[45-040] Driving matters

The Children’s Court only has jurisdiction where:

(a) 

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),

(b) 

the young person is aged under licensable age — 16 years for cars; 16 years and 9 months 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).

Section 210 Criminal Procedure Act 1986 (CPA) enables a Local Court to impose penalties provided for by the Children (Criminal Proceedings) Act.

Licence age: cl 12(2), (3) Road Transport (Driver Licensing) Regulation 2017.

[45-060] Bail

The Bail Act 2013 applies to any person accused of an offence (s 7(2)), including children.

As with a bail decision in relation to an adult, the court must consider whether any of the unacceptable risks listed in s 19(2) is present before making a bail decision. If satisfied there are no unacceptable risks, bail is to be granted unconditionally. 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 [20-062] for conditions that may be imposed for the purpose of mitigating an unacceptable risk. In situations where a child is homeless and an unacceptable risk is identified (eg, that they will fail to appear in court), s 28 allows for the making of an accommodation requirement that suitable accommodation arrangements be made for the child before their release on bail. Section 28(5) allows a court to 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. A conduct requirement that the child reside at the relevant accommodation while on bail may also be imposed as a condition of bail.

[45-080] 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 an offence of sexual assault is proven, unless the offence is for a Class 1 or Class 2 offence and the court deals with the child under s 33(1)(a).

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.

[45-100] Sentencing orders and principles

Conviction

A conviction cannot be recorded where 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. This will commonly be done where the offence is a minor one or the young person’s criminal record is limited. Whether or not a conviction is recorded, all sentencing options under s 33 apply.

Hierarchy of penalties

The following chart sets out a practical hierarchy of court-ordered penalties available in the Children’s Court.

Sentencing alternatives in the Children’s Court jurisdiction

 

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).

Caution without charge

Caution which police could have given instead of going to court

Charges dismissed, however, caution record kept by police

ss 8, 10, 31 YOA

cl 15(3) Young Offenders Regulation 2016

May not be given on more than 3 “occasions”

Nil

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

Youth justice conference

Court may refer if police have not

Young person discusses offence with victim in presence of family and support persons. Outcome plan developed by consensus at conference

On being informed of successful completion, the court must dismiss the charge: s 57(2)

Completion is equivalent to autrefois convict: s 58

ss 8, 10, 40 YOA

Reasonable tasks, ss 34, 52

Brought back to court for sentence on notification by conference organizers or on court’s own motion, if conference not attended: see ss 51, 54:

  • outcome plan not approved by court, or

  • outcome plan not completed by young person

Children (Protection and Parental Responsibility) Act 1997

Instead of sentencing a child, a court may require the child and/or a parent to undertake to be of good behaviour or undertake counselling and other programs. This is rarely used

 

Not specified

The child proceeds to be sentenced. The parent may forfeit monetary security

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 may issue a caution to young person or impose a good behaviour bond

s 33(1)(a)

s 33(1)(a)(ii)

Not applicable

2 yrs

Not applicable.

Good behaviour bond

With or without conditions or supervision

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

Where the offence carries a penalty of 6 mths or more, non-association or place restriction provisions may be imposed: s 33D

The court may impose fine in addition to bond: s 33(1)(d)

s 33(1)(b)

May impose fine as well — but not as a condition of the bond: s 33(1)(d)

2 yrs

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

Separate penalty for breach of non-association and place restrictions: s 100E CSPA

Fine

In fixing the amount of a fine the means of the child must be taken into consideration: ability to pay and impact on rehabilitation: s 33(1AA)

The court may impose bond in addition to fine: s 3(1)(d)

s 33(1)(c)

Whichever is the lesser:

  • 10 pu, or

  • the max fine at law

Fine default procedures under s 58 Fines Act 1996

Probation

A more serious penalty than a bond

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

Where the offence carries a penalty of 6 mths or more, non-association or place restriction provisions may be imposed: s 33D

The court may impose fine in addition to probation: s 33(1)(e1)

s 33(1)(e)

2 yrs

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

Separate penalty for breach of non-association and place restrictions: s 100E CSPA

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: s 5(1)(b) CCSOA

Must have juvenile justice report stating young person is suitable and that work is available: s 9(b)

The court may impose a probation order in addition to a CSO: s 33(1)(f1) CCPA

s 33(1)(f) CCPA

s 5 CCSOA

(a) 

aged 10–15 yrs: 100 hrs for all offences

(b) 

aged 16–17 yrs, if max penalty is:

  • 6 mths: 100 hrs

  • 6–12 mths: 200 hrs

  • more than 12 mths: 250 hrs

See s 13 CCSOA.

Children (Community Service Orders) Act 1987:

  • administrative increase by up to 10 hrs: s 20

  • administrative extension of time: s 20A

  • court revocation and re-sentence: ss 21, 21A

Suspended control order sentence

Custodial sentence suspended subject to young person entering into a bond to be of good behaviour

Must not be serving a sentence of imprisonment or parole period

There is no equivalent to s 99 CSPA covering suspended sentences for children. To achieve the same effect the court should decline to set a non-parole period: s 45 CSPA

s 33(1)(1B) CCPA

Up to a max of 2 yrs

Where a suspended sentence of 6 mths or less is set, no non-parole period can be set

ss 41, 41A CCPA

Separate penalty for breach of non-association and place restrictions: s 100E CSPA

Sentence following breach may be made concurrent with fresh sentences

Breach proceedings may be commenced by a police officer or authorised officer, ie, juvenile justice officer: s 41(1). The Children’s Court or Local Court (where the person is over the age of 21) may also call-up a breach: s 41(1A).

Full-time custody in a detention centre

Can only be imposed where no other order is appropriate

Must have a background report: s 25

Where a court is contemplating a sentence of 6 mths or less, the court must give reasons why no alternative sentence is appropriate: s 5(2)(a) CSPA

The court can recommend consideration for supervised early release at discretion of detention centre authorities: s 24(1)(c) CDCA

s 33(1)(g)

General principles of sentencing: s 33C applies

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

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), (3A) CSPA

Children’s Court acts as Parole Authority for parole revocations relating to Children’s Court sentences: s 29 CDCA applying Pt 7 Div 4, ss 173–175A Crimes (Administration of Sentences) Act 1999

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

Associated orders in the Children’s Court

Victims support levy

Victims Support Levy

  • $79 (for financial year 2017/18) will be imposed for prescribed offences

ss 105, 106 Victims Rights and Support Act 2013

$79 (for financial year 2017/18) cf cl 2 Victims Rights and Support (Victims Support Levy) Notice 2013

Enforceable under the

Fines Act 1996

After sentence — taking fingerprints and photographs

The court may make orders relating to the taking of fingerprints and photographs after imposing a sentence of a control order.

s 63(3) CSPA applied to control orders by s 33C

The court has a residual discretion to order destruction of arrest records even if it imposes penalties: s 38(2)

[45-120] Pleading and procedure

Recording of conviction — s 14 A conviction shall not be recorded when an offence is found proved against a child under 16 years. For a child 16 years or above, a conviction may be recorded or not recorded. Any of the penalties provided for may still be imposed although no conviction is recorded.

Reports required prior to sentence A background report is required prior to the imposition of community service or detention: s 25(2). 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 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 the Probation and Parole Service.

Taking other offences into account As in the case of adult offenders other offences may be taken into account, however, the provision is not often used in practice: ss 31–35A Crimes (Sentencing Procedure) Act 1999.

[45-140] Sentence — further details and draft orders

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

This is the equivalent of a s 10 dismissal under the Crimes (Sentencing Procedure) Act 1999.

Release on good behaviour bond — s 33(1)(b)

The period of the good behaviour bond must not exceed 2 years. The usual term is 6–12 months unless a longer period is needed to fulfil conditions such as completing a rehabilitation program.

Impose a fine — s 33(1)(c)

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

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

Note:
  • As directed by the court after a youth justice conference.

  • 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:

(i) 

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

(ii) 

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

(iii) 

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)

[45-160] Release the offender on probation — s 33(1)(e)

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

The period of probation must not exceed two years. Conditions include cl 7 Children (Criminal Proceedings) Regulation 2016:

(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.

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

Order the child to perform community service and fine — s 33(1)(e1) (see (e) and (c) above)

Jurisdiction

A community service order may only be imposed where:

  • the court would otherwise impose a custodial order: s 5 CCSOA (compared with wider discretion for adults under s 86 Crimes (Sentencing Procedure) Act 1999)

  • the young person has been assessed as suitable: s 9 CCSOA

  • if the young person is under 14 years, the court is satisfied that he or she is sufficiently mature: s 9 CCSOA.

Conditions not relating to community work

The court may also impose bond-like conditions “not inconsistent with the Act or regulations”: s 11 CCSOA such as attending counselling as directed.

Cumulation

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

[45-180] Maximum community service order penalties for juveniles — CCSOA

Age of young offender at time of offence

Maximum penalty for the offence (full time custody)

Maximum CSO hours: s 13

Maximum period for completion of orders: ss 19, 20

Under 16 yrs

 

100 hrs

12 mths, unless extended by Director General

16 or 17 yrs

6 mths or less

100 hrs

12 mths, unless extended by Director General

16 or 17 yrs

More than 6 mths and not more than 12 mths

200 hrs

12 mths, unless extended by Director General

16 or 17 yrs

More than 12 mths

250 hrs

12 mths, unless extended by Director General

16 or 17 yrs

Cumulative sentences

250 hrs (s 13(3A))

12 mths, unless extended by Director General

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

  • 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.

Section 5 CCSOA allows for an order to include:

(a) 

the removal of graffiti: s 5(1A)

(b) 

allocating a certain number of hours of participation in personal development, educational or other program rather than work hours only: s 5(1B).

[45-200] Suspended sentence — 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: R v Edigarov (2001) 125 A Crim R 551.

Length of suspension

The suspension may not be longer than the sentence; is usually the same length as the sentence.

Breach

If the child breaches the good behaviour condition, the court must terminate the bond unless satisfied there are good reasons not to or the breach was trivial: s 41A(2).

The court may call on a person to appear before it if it suspects that the person has entered into and failed to comply with a condition of the person’s good behaviour bond or probation, or has failed to comply with the outcome plan: s 41(1A).

If the suspended sentence is for a period of more than 6 months, the decision whether to impose a non-parole period is made within the rules of the Crimes (Sentencing Procedure) Act 1999: s 41A.

[45-220] 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 two years, whichever is the shorter.

The court has power to make a control order cumulative to a maximum of three 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. Careful thought should be given to setting a non-parole period as the result of a breach that is above trivial, but not serious, may be harsh. There is no equivalent of s 99 CSPA so resentencing cannot occur. No account can be taken of positive action during the suspended sentence.

The court can impose parole conditions. These must not be inconsistent with any standard conditions imposed by the regulations. A parole condition of supervision by the Department of Juvenile Justice or the Probation and Parole Service (as appropriate) should be imposed.

The court may recommend that the young person be considered for early discharge prior to the expiration of the non-parole period by order of the Director General under s 24(1) CDCA.

For offences committed on or after 1 February 2003.

[45-240] Orders of licence disqualification, forfeiture

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

(a) 

impose any disqualification under the road transport legislation within the meaning of the Road Transport (General) Act 2005 on a person whom it has found guilty of an offence,

(b) 

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

(c) 

to make an order for restitution under s 34 CPA (s 126 old CPA).

(d) 

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

[45-250] 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 young person relating to a charge matter 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.

[45-260] Compensation

The court may order compensation for loss against a child 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). Compensation may not be ordered as a condition of a bond: see s 33(1A)(c)(ii).

Victims support levy

Where an offender is 18 years or older when sentenced, a victims support levy (currently $79 for financial year 2017/18 cf cl 2 Victims Rights and Support (Victims Support Levy) Notice 2013) is payable, as for the case of 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 Victims Rights and Support Act 2013.

[45-280] 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) 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 32(1)(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: 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] “Pt 3 — Criminal proceedings in the Children’s Court”.

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).

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 cl 6A(2) and 6A(3) respectively.

If 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).

Sections 31C–31E deal with the admissibility of statements in Div 3A proceedings. The provisions under Ch 6 Pt 3A of the 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.

[45-340] 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 Children (Criminal Proceedings) Act 1987.

Note:

References in para [45-340] are, unless otherwise stated, references to the Young Offenders Act 1997.

The Act has no application unless the offence:

(a) 

is a summary offence, or

(b) 

may be dealt with summarily under Ch 5 Criminal Procedure Act

(c) 

is not listed in s 8(2), (2A) or (3) (which includes traffic offences where the child is old enough to hold a licence, and drug offences involving more than a small quantity of a prohibited drug)

Also included is an “offence under the Crimes (Domestic and Personal Violence) Act 2007”. It is not clear whether this is limited to stalking and intimidation or to all offences regarded as personal violence offences under that Act. The narrow reading seems to be the better one, or

(d) 

the offence is not admitted to by the child (see s 10 as to what constitutes an admission).

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

(a) 

by giving of a caution (s 31(1)),

(b) 

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: Children (Criminal Proceedings) Act, s 33(1)(c1).

Caution

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.

Referral for conferencing

A child must consent to such referral.

In determining whether or not to refer a matter for conferencing the court must take into account the following (s 40(5)):

(a) 

the seriousness of the offence,

(b) 

the degree of violence involved in the offence,

(c) 

the harm caused to the victim,

(d) 

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

(e) 

any other matters the court thinks appropriate.

An outcome plan must be referred to the court for approval: s 54(2).

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.

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.

[45-360] Apprehended violence orders

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. 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. An application made by or on behalf of a child against an adult is heard in the Local Court. Note s 41(2)–(5) Crimes (Domestic and Personal Violence) Act dealing 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.

Any final order made for the protection of a child results in that order being notified to the Commission for Children and Young Persons. 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 background checking by the Commission.

[45-400] Youth conduct orders

Youth conduct orders: see Pt 4A Children (Criminal Proceedings) Act 1987.