Children (Criminal Proceedings) Act 1987

The Children (Criminal Proceedings) Act 1987 governs the jurisdiction of the Children’s Court and sets out the main provisions relating to criminal proceedings against children. Unless otherwise specified, references to sections below are references to sections of the Children (Criminal Proceedings) Act.

[15-000] Jurisdiction of the Children’s Court

Subject to some exceptions, the Children’s Court has jurisdiction to deal with offences alleged to have been committed by a person who was a child when the offence was committed and was under the age of 21 years when charged before the Children’s Court: s 28(1). The Act defines a child as a person under the age of 18 years: s 3(1). There is a conclusive presumption that no child under the age of 10 years can be guilty of an offence (s 5) and there is a rebuttable presumption that a child between the ages of 10 and 14 years does not bear criminal responsibility: C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1; R v CRH (unrep, 18/12/96, NSWCCA); BP v R [2006] NSWCCA 172 at [27].

The court may, if it is satisfied that no other evidence of the person’s age is readily available, rely on the apparent age of the person: s 7A.

The Children’s Court has jurisdiction to hear and determine:

  • all summary offences, except certain traffic offences, as described in s 28(2),

  • indictable offences other than:

    • “serious children’s indictable offences” as defined in s 3, and

    • indictable offences dealt with “according to law” following exercise of the residual discretion under s 31(3) of the Act.

For “serious children’s indictable offences” there is no such discretion and the matter must be dealt with according to law in the higher courts: s 17. See Serious children’s indictable offences at [15-050] below. Note, however, that the Children’s Court has jurisdiction to hear and determine committal proceedings in respect of any indictable offence relating to children, including serious children’s indictable offences: s 28(1)(b).

For indictable offences other than “serious children’s indictable offences”, the discretion under s 31(3) enables the Children’s Court to choose between committing a child charged with an indictable offence to a higher court to be dealt with according to law, or to deal with the matter itself under the less harsh regime of Div 4 of Pt 3 of the Act. See Div 4, Pt 2, Penalties, below at [15-040].

Jurisdiction of Children’s Court not to be exercised by certain other courts

Generally, neither a Local Court nor the Drug Court may hear and determine criminal proceedings that the Children’s Court has jurisdiction to hear and determine: s 7(1) and (2). Nothing in the Act affects the jurisdiction of the District Court: PM v The Queen (2007) 232 CLR 370 at [19].

[15-010] Principles relating to the exercise of criminal jurisdiction

Section 6 sets out the following principles to which a person or body that has functions under the Act is to have regard in the exercise of criminal jurisdiction with respect to children:

(a) 

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.

(b) 

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

(c) 

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

(d) 

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

(e) 

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.

(f) 

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

(g) 

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

(h) 

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

Subsections (f)–(h) were inserted into s 6 by the Children (Criminal Proceedings) Amendment Act 2008, which commenced on 3 November 2008.

Before the enactment of the Children (Criminal Proceedings) Act, the principles relating to the sentencing of young offenders were found in case law: R v SDM (2001) 51 NSWLR 530.

Where these principles conflict with the general purposes of sentencing (expressed in s 3A Crimes (Sentencing Procedure) Act 1999), any tension should be resolved through an “intuitive synthesis” based on “a judgment of experience and discernment”: R v AS (2006) 165 A Crim R 100 at [25]–[26].

The vagueness of the terms of s 6 was criticised in R v GDP (1991) 53 A Crim R 112, where Matthews J said at 116 that “… some of these guidelines consist of sentiments and admonitions which are so general as to be of little assistance in the sentencing of young offenders”.

A failure to refer to the section or its terms in the sentencing remarks does not of itself constitute error: R v MHH [2001] NSWCCA 161; R v AD [2005] NSWCCA 208; SS v R [2009] NSWCCA 114 at [64]. It should not be readily assumed that well-known sentencing principles have been overlooked simply because no specific reference has been made to them: R v AN [2005] NSWCCA 239; R v Sanoussi [2005] NSWCCA 323. But a failure to refer to s 6 might also indicate that a proper consideration has not been given to the principles which apply: DB v The Queen (2007) 167 A Crim R 393. It is preferable that the statement of principles is referred to in sentencing remarks: SS v R at [64]; SBF v R (2009) 198 A Crim R 219 at [141]; SJ v R [2011] NSWCCA 160 at [31].

Due regard must be paid to ss 6(c) and (d) which are aimed at allowing the education of a child to continue without interruption and the desirability of a child residing in his or her own home: R v JDB (2005) 153 A Crim R 164.

Generally, the relevance of the principles in s 6 to each individual case depends upon the seriousness of the offence and the age and circumstances of the offender: SBF v R at [142].

[15-015] Relevance of youth at sentence

In KT v R (2008) 182 A Crim R 571 at [22]ff, McClellan CJ at CL summarised the rationale behind s 6 and collected the leading sentencing cases on the relevance of youth at sentence:

The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511 at [30].

The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age (R v Hearne (2001) 124 A Crim R 451 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93 at [61]).

The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus (unreported, Court of Criminal Appeal, NSW, No 60074 of 1995, 3 November 1995); R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in “adult behaviour” (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A “child-offender” of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus; R v Voss at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).

However, the youth of an offender does not automatically lead to a reduced sentence. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation: IE v R (2008) 183 A Crim R 150 at [16]; MJ v R [2010] NSWCCA 52 at [37]–[39]; and JT v R [2011] NSWCCA 128 at [34]–[35] where the offender and another had bashed a 14 year old into insensibility during a prolonged attack. When the circumstances of a particular juvenile offender and of a particular offence indicate that general deterrence and retribution should play a lesser role the principles in s 6 should be given their full expression: IE v R at [16]; SBF v R (2009) 198 A Crim R 219 at [142]-[143].

See also YS v R [2010] NSWCCA 98 at [22] where Rothman J reiterated that the violence of an offence does not, of itself, establish that a juvenile was acting as an adult; MW v R [2010] NSWCCA 324 at [51].

[15-020] Hearings

The protective purposes of the Act are reflected in those provisions applying to the conduct of hearings. Section 10(1) excludes the general public from criminal proceedings to which children are a party, subject to specified exceptions. See also “Children in criminal proceedings” in Closed courts at [1-358] in the Criminal Trial Courts Bench Book.

Section 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 the exceptions set out in ss 15B–15F.

Section 12(1) provides that a court hearing proceedings against a child must take such measures as are reasonably practicable to ensure that the child understands the proceedings. The court is required to give the child the fullest opportunity practicable to be heard and to participate in the proceedings: s 12(3).

Bail applications

Sections 10 and Div 3A apply to a child who appears or is brought before a court in relation to a bail application in the same way as the sections apply to a child appearing or brought before a court in any criminal proceeding: s 12A.

Recording a conviction

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

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

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

Admissibility of evidence of prior offences

Section 15(1) limits the admission of evidence of prior offences in any criminal proceedings subsequently taken against the person in respect of any other offence if:

(a) 

a conviction was not recorded against the person in respect of the prior offence, and

(b) 

the person has not, within the period of two years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence.

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

Section 15(3) prohibits the admission into evidence in any subsequent criminal proceedings the fact that a person has been dealt with by a warning, caution or youth justice conference under the Young Offenders Act 1997 in respect of an alleged offence committed when the person was a child. Subsections 15(1) and 15(3) do not apply to any criminal proceedings before the Children’s Court. Any record of a warning given under s 17 Young Offenders Act 1997 is to be destroyed as soon as reasonably practicable after the person reaches 21 years: s 17(3).

In R v Tapueluelu [2006] NSWCCA 113 Simpson J (Grove and Howie JJ agreeing) said at [30]:

s 15 is intended to protect a person who has remained crime free for a period of two years from suffering the admission of evidence of offences committed outside of that period, but once it is established that the crime-free period has not existed, then evidence of any other offences, whenever committed, does become admissible, or at least they are not subject to the prohibition otherwise contained in s 15. That is the only logical way of reading s 15.

[15-040] Pt 2 Div 4 Penalties

This Division deals with the disposition of criminal proceedings against children in the higher courts. While serious children’s indictable offences must be dealt with at law, there is a discretion to deal with other indictable offences either at law or according to the more lenient provisions of Pt 3 Div 4 of the Act.

Part 2 Div 4 of the Act encompasses ss 16–21, inclusive. It applies to a person described under s 16 as one:

(a) 

who has pleaded guilty to an indictable offence in, or has been found guilty or convicted of an indictable offence by, a court other than the Children’s Court,

(b) 

who was a child when the offence was committed, and

(c) 

who was under the age of 21 years when charged before the court with the offence.

[15-050] Serious children’s indictable offences

A “serious children’s indictable offence” is defined in s 3 and includes indictable offences prescribed by the regulations as such an offence for the purposes of the Act.

In addition, cl 4 Children (Criminal Proceedings) Regulation 2016 prescribes as a serious children’s indictable offence, an offence arising under s 80A of the Crimes Act 1900 (sexual assault by forced manipulation), if the victim of the offence was under the age of 10 years when the offence occurred.

A principal in the second degree to a serious children’s indictable offence is dealt with the same way as the principal in the first degree: R v PJP (unrep, 8/6/94, NSWCCA).

[15-060] Other indictable offences

While serious children’s indictable offences must be dealt with according to law, the Act gives a court to which a child has been committed by the Children’s Court in relation to other indictable offences a discretion to deal with the child either:

  • according to law: s 18(1)(a), or

  • in accordance with Pt 3 Div 4: s 18(1)(b).

While the provision does not expressly impose an obligation to consider and determine which course to adopt, it may be inferred that a court is obliged to make a determination as to which way to proceed: BT v R (2012) 227 A Crim R 354 at [18]. In BT v R, the applicant argued that the proceedings had miscarried because the judge had failed to explicitly consider the alternatives under s 18: BT v R at [19]. The court acknowledged that a failure to exercise the discretion under s 18 could constitute an error. However, in the circumstances of that case, the Court of Criminal Appeal held that the provision was clearly in the judge’s mind but, given the nature of the offence, there was no choice other than to proceed according to law: BT v R at [21].

Criteria for exercise of discretion

In exercising this discretion a court must have regard to the matters set out under s 18(1A). These are:

(a) 

the seriousness of the indictable offence concerned,

(b) 

the nature of the indictable offence concerned,

(c) 

the age and maturity of the person at the time of the offence and at the time of sentencing,

(d) 

the seriousness, nature and number of any prior offences committed by the person,

(e) 

such other matters as the court considers relevant.

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

(a) 

the court was the Children’s Court, and

(b) 

the offence was an offence to which that Div applies.

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

Prior to the insertion of s 18(1A) by the Crimes Legislation Amendment Act 2002 (which relevantly commenced on 24 February 2003), the exercise of the discretion under s 18 was considered in R v WKR (1993) 32 NSWLR 447. Hunt CJ at CL, with whom Campbell J agreed, said that while the Act does not identify any particular basis upon which the discretion was to be exercised, the scheme of the Act suggested matters to be taken into account included:

(a) 

the nature of the particular offence for which the offender is standing for sentence;

(b) 

the age and the maturity of that offender (both at the time of the offence and when standing for sentence)

(c) 

the nature of the penalty which would be appropriate to the circumstances of the case in the light of those matters.

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

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

Although s 18(1A)(e) requires the court to take into account “any other matters as the court considers relevant” it was, in my view, not a relevant matter that the applicant’s co-offender was to be sentenced at law because the offence committed by him was a “serious children’s indictable offence” and, therefore, the judge had no discretion as to the manner in which he was to be sentenced. The applicant was entitled to have the judge apply his mind to the question of whether the applicant should be dealt with at law or not without having regard to the situation of the co-offender in light particularly of the marked difference between the offences for which they were to be sentenced.

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

[15-070] A court may direct imprisonment to be served as a juvenile offender

If a court sentences a person under 21 years of age to imprisonment for an indictable offence the court may direct that the whole or any part of the term of sentence be served as a juvenile offender: s 19(1). However, the court may not make such a direction in relation to a person who is 18 years or over and who is currently serving, or who has previously served, the whole or any part of a term of imprisonment in a correctional centre, unless the court makes a finding of special circumstances: s 19(1A). A finding of special circumstances may only be made on one or more of the grounds set out in s 19(4). These are described below.

In certain circumstances such a person may subsequently be transferred to a juvenile correctional centre pursuant to an order under s 28 Children (Detention Centres) Act 1987.

A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years (s 19(2)) unless:

(a) 

where a non-parole period has been set, the non-parole period will end within six months after the person has attained that age; or

(b) 

where a non-parole period has not been set, the term of the sentence of imprisonment will end within six months after the person has attained that age: R v WM [2004] NSWCCA 53.

Section 19(3) provides that a person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years unless:

(a) 

the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or

(b) 

in the case of a sentence for which a non-parole period has been set, the non-parole period will end within six months after the person has attained that age, or

(c) 

in the case of a sentence for which a non-parole period has not been set, the term of the sentence of imprisonment will end within six months after the person has attained that age.

In determining whether there are special circumstances, the court may rely on one or more of the following grounds listed in s 19(4) and not otherwise:

(a) 

that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977),

(b) 

that the only available educational, vocational training or therapeutic programs that are suitable to the person’s needs are those available in detention centres, or

(c) 

that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person’s offence, any assistance given by the person in the prosecution of other persons or otherwise.

Special circumstances may not be found solely on the ground of an offender’s youth or because the non-parole period of the offender’s sentence will expire while the offender is still eligible to serve the sentence as a juvenile: s 19(4A). If a finding of special circumstances is made, reasons must be recorded: s 19(4B).

A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section: s 19(5).

The statutory scheme was discussed at length in JM v R (2012) 223 A Crim R 55. The court (Whealy JA, Hoeben J agreeing, Simpson J dissenting) held that it is contrary to principle to select a shorter non-parole period for the purpose of avoiding the operation of the statute to ensure that an offender remains in a juvenile detention centre: JM v R at [22], [156]. This is so whether the offender’s conditions of custody are taken into account as one factor or whether it is the sole reason for adjusting the non-parole period: JM v R at [22], citing R v Zamagias [2002] NSWCCA 17 and TG v R [2010] NSWCCA 28 at [24]–[25]. Simpson J (in dissent at [131]) held that some limited weight could be attributed to the factor, but acknowledged that a sentence cannot be framed solely for the purpose of avoiding a period in adult custody.

In R v YS [2014] NSWCCA 226, the Crown argued that specific error could be inferred from the fact the sentencing judge fixed a non-parole period to expire two months prior to the offender’s 21st birthday. The court held that there was no error in the structure of the sentence. The judge had taken the correct approach of determining the appropriate sentence before turning to consider the options as to how the sentence was to be served: R v YS at [86]; TG v R [2010] NSWCCA 28 at [24]–[25].

The judge’s findings relating to s 19(4)(a) were challenged in JM. It was not open to the judge to make a finding under s 19(4)(a) that the applicant was vulnerable on account of illness or disability to support the finding of special circumstances under s 19(3): JM v R at [18], [154]. The diagnosis of attention deficit disorder did not fit the definition of disability in the Anti-Discrimination Act 1977. Further, there was no evidence of vulnerability on account of the applicant’s attention deficit disorder: JM v R at [18].

There have been cases where the Crown has (in the court’s view) erroneously agreed to give an offender the advantage of an order under s 19(3): R v MD (2005) 156 A Crim R 372 at [55]–[56].

Nothing in s 19 prevents a person subject to a limiting term under the Mental Health (Forensic Provisions) Act 1990 from serving his or her term in a juvenile detention centre: AN (No 2) v R (2006) 66 NSWLR 523 at [73]. Section 19 only applies to sentences of imprisonment.

Remission of persons to the Children’s Court for punishment

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

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

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

[15-080] Background reports

An important mandatory requirement when a court is considering the imposition of a control order under s 33(1), or a term of imprisonment on a person who was a child when the offence was committed and who was under the age of 21 years when charged before the court with the offence, is the preparation of a background or juvenile justice report: s 25. A failure to comply with s 25 invalidates the sentence: CTM v R (2007) 171 A Crim R 371 at [153]. A background report is not a pre-sentence report by another name. It is a report that deals with such matters “as are relevant to the circumstances surrounding the commission of the offence” which do not alter with time. Section 25 confers an implied power on any court sentencing a juvenile to order the preparation of a further background report: MG v R [2007] NSWCCA 260 at [15].

Clause 6 Children (Criminal Proceedings) Regulation 2016 provides that, for the purposes of s 25(2)(a) of the Act, a background report must be in such form as the Attorney General approves and must deal with such of the following matters, as are relevant to the circumstances surrounding the commission of the offence concerned:

(a) 

the child’s family background,

(b) 

the child’s employment,

(c) 

the child’s education,

(d) 

the child’s friends and associates,

(e) 

the nature and extent of the child’s participation in the life of the community,

(f) 

the child’s disabilities (if any),

(g) 

the child’s antecedents,

(h) 

any other matters that the Children’s Court may require, and

(i) 

any other matters that the prosecutor considers appropriate to include in the report.

When addressing antecedents in accordance with former cl 34(g) (cl 6(g) in the 2016 regulation), a report must only deal with offences for which the person has pleaded guilty, been found guilty or has been convicted: MG v R at [14]. Any other offences will be outside of the scope of the Act and Regulation.

Dealing with matters that may change over time

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

In R v CVH [2003] NSWCCA 237 the court, in dealing with an appeal where a pre-sentence report only was prepared in relation to a juvenile offender convicted of manslaughter, noted that an examination of the report showed that there had not been strict compliance with cl 6(d), (e) and (f) of the repealed Children (Criminal Proceedings) Regulation 2000 (cl 6(d)–(f) in the 2016 regulation). The report was not prepared by a juvenile justice officer but by the then Probation and Parole Service.

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

Disputed reports

In R v MD (2005) 156 A Crim R 372, the Crown submitted that the sentencing exercise miscarried because the reports prepared by the Department of Juvenile Justice pursuant to s 25 and tendered in the proceedings contained errors. The court said at [77]:

It is important to appreciate that it was the Crown that tendered the reports and at the sentencing hearing the Crown did not indicate that there was to be any dispute with regard to their contents and made no submission that they should not be given full weight.

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

In our opinion, the same approach should be taken in the present case. It is important to appreciate that s 25 of the Children (Criminal Proceedings) Act 1987 (NSW) makes it mandatory that a background report covering the circumstances of the commission of the offence be tendered (s 25(2)(a)). It is also mandatory that the report address a number of subjective matters (reg 6). Accordingly, without the tender of the report in evidence sentencing error would occur. It could hardly be the case that a report which was mandatory could not be relied upon in the sentencing process. Of course, if errors are identified, this may suggest that the report should carry little weight.

[15-090] Sentencing principles applicable to children dealt with at law

The principle of giving special consideration to the youth of an offender has been long accepted. In R v C (unrep, 12/10/89, NSWCCA), Gleeson CJ accepted a submission that “in sentencing young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.”

When a child is dealt with at law, rather than under the more lenient provisions of Pt 3 Div 4 Children (Criminal Proceedings) Act, the special principles applicable to children under s 6 of the Act still have to be taken into account: R v SDM (2001) 51 NSWLR 530. However their application depends upon the nature of the offence charged as well as upon the age, circumstances and conduct of the offender: R v Voss [2003] NSWCCA 182; R v AEM [2002] NSWCCA 58.

While it is accepted that considerations of punishment and general deterrence should be regarded as subordinate to affording the opportunity and encouragement for rehabilitation, the significance of this factor diminishes as an offender approaches adulthood: R v Hearne (2001) 124 A Crim R 451. Notwithstanding the specific provisions of the Act, relative youth remains a factor to be taken into account in sentencing: MW v R [2010] NSWCCA 324.

In R v Pham (1991) 55 A Crim R 128, Lee CJ at CL, with whom Gleeson CJ and Hunt J agreed, said in the context of one offender who was 17 and another who was 19, at 135:

It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes.

The principle in R v Zamagias [2002] NSWCCA 17 applies when a juvenile offender is being sentenced at law. A judge must determine the sentence and then consider whether it is necessary and appropriate to make an order under s 19: TG v R [2010] NSWCCA 28 at [25].

Applicability of guideline judgments to children

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

Parity

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

[15-100] Pt 3 — Criminal proceedings in the Children’s Court

Part 3 Children (Criminal Proceedings) Act 1987 applies to the disposition of criminal proceedings against children in the Children’s Court. It also applies in the higher courts when the discretion under s 18 is exercised to deal with a child under this more lenient regime.

Section 27 stipulates the basis on which the Criminal Procedure Act 1986 and other Acts relating to the functions of the Local Courts or magistrates, or to criminal proceedings before them, apply to the Children’s Court.

Jurisdiction of the Children’s Court

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

(a)

proceedings in respect of any offence (whether indictable or otherwise) other than a serious children’s indictable offence, and

(b)

committal proceedings in respect of any indictable offence (including a serious children’s indictable offence),

if the offence is alleged to have been committed by a person:

(c)

who was a child when the offence was committed, and

(d)

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

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

(a) 

the offence arose out of the same circumstances as another offence that is alleged to have been committed by the person and in respect of which the person is charged before the Children’s Court, or

(b) 

the person was not, when the offence was allegedly committed, old enough to obtain a licence or permit under the Road Transport Act 2013 or any other applicable Act authorising the person to drive the motor vehicle to which the offence relates.

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

Hearings

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

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

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

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

[15-110] Penalties

Section 32 provides that the penalties in Pt 3 Div 4 of the Act apply to any proceedings that are being dealt with summarily or in respect of which a person has been remitted to the Children’s Court under s 20.

In addition, a higher court, when dealing with a child committed for a serious indictable offence, other than a serious children’s indictable offence, has a discretion to apply this more lenient sentencing regime rather than to deal with the child according to law: s 18(1A).

Section 33(1) provides:

If the Children’s Court finds a person guilty of an offence to which this Division applies, it shall do one of the following things:

(a)

it may make an order:

(i) 

directing that the charge be dismissed (in which case the Court may also, if it thinks fit, administer a caution to the person), or

(ii) 

discharging the person on condition that the person enters into a good behaviour bond for such period of time, not exceeding 2 years, as it thinks fit,

(b)

it may make an order directing the person to enter into a good behaviour bond for a specified period, not exceeding 2 years,

(c)

it may make an order imposing on the person a fine, not exceeding:

(i) 

the maximum fine prescribed by law in respect of the offence, or

(ii) 

10 penalty units,

whichever is the lesser,

(c1)

it may make an order releasing the person on condition that the person complies with an outcome plan determined at a conference held under the Young Offenders Act 1997,

(c2)

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

(i) 

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

(ii) 

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

(iii) 

for any other purpose the Children’s Court considers appropriate in the circumstances,

(d)

it may do both of the things referred to in paragraphs (b) and (c),

(e)

it may make an order releasing the person on probation, on such conditions as it may determine, for such period of time, not exceeding 2 years, as it thinks fit,

(e1)

it may do both the things referred to in paragraphs (c) and (e),

(f)

it may, subject to the provisions of the Children (Community Service Orders) Act 1987, make an order under section 5 of that Act requiring the person to perform community service work,

(f1)

it may do both of the things referred to in paragraphs (e) and (f),

(g)

it may, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999, make an order committing the person for such period of time (not exceeding 2 years) as it thinks fit:

(i) 

in the case of a person who is under the age of 21 years, to the control of the Minister administering the Children (Detention Centres) Act 1987, or

(ii) 

in the case of a person who is of or above the age of 21 years, to the control of the Minister administering the Crimes (Administration of Sentences) Act 1999.

The execution of an order under s 33(1)(g) may be suspended and the person released if they are not subject to any other order or to any sentence of imprisonment: s 33(1B).

Dismissal

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

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

(a) 

whether by or at the request of a police officer or specialist youth officer under s 29 or by a court under this section, and

(b) 

whether for offences of the same or of a different kind.

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

Good behaviour bonds

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

(a) 

must contain a condition to the effect that the person to whom the bond relates (the “person under bond”) will appear before the court if called on to do so at any time during the term of the bond, and

(b) 

must contain a condition to the effect that, during the term of the bond, the person under bond will be of good behaviour, and

(c) 

may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond:

(i) 

to perform community service work, or

(ii) 

to make any payment, whether in the nature of a fine, compensation or otherwise.

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

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

(a) 

requiring the child to attend school regularly,

(b) 

relating to the child’s employment,

(c) 

aimed at preventing the child from committing further offences,

(d) 

relating to the child’s place of residence,

(e) 

requiring the child to undergo counselling or medical treatment,

(f) 

limiting or prohibiting the child from associating with specified persons,

(g) 

limiting or prohibiting the child from frequenting specified premises,

(h) 

requiring the child to comply with the directions of a specified person in relation to any matter referred to in paragraphs (a)–(g), and

(i) 

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

Variation of good behaviour bonds or probation and enforcement of conditions

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

(a) 

it may terminate the order,

(b) 

it may reduce the period of the order,

(c) 

it may vary any condition of the order in any respect, including (where the person has entered into the good behaviour bond, or been released on probation, on condition that the person will remain in the care of some other person named in the order) the substitution of the name of another person for that of the person named in the order.

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

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

Fine

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

  • the maximum fine prescribed by law in respect of the offence, or

  • 10 penalty units,

    whichever is the lesser.

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

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

Adjournment

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

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

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

  • for any other purpose the Children’s Court considers appropriate in the circumstances.

Probation

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

Community service orders

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

  • s 5: Making of children’s community service orders

  • s 6: Explanation of nature and effect of proposed children’s community service orders

  • s 9: Children’s community service orders not to be made by court unless work is available

  • s 10: Children’s community service orders may run concurrently

  • s 11: Conditions that may be attached to children’s community service order

  • s 12: Preparation and service of copies of children’s community service order

  • s 13: Number of hours of community service work

  • s 14: Place etc and time for presentation for work.

Control orders

An important mandatory requirement when a court is considering the imposition of a control order under s 33(1) is the preparation of a background or juvenile justice report: s 25.

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

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

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

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

Limits on the imposition of control orders

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

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

  • if a control order is made in relation to an offence involving an assault or an offence against the person, on a juvenile justice officer, committed by a person while the person was a person subject to control, and the person is subject to an existing control order at the time the new control order is made,

  • the period for which the person is required to be detained under the new control order commences when the period for which the person is required to be detained under an existing control order, or if there is more than one, the last of them, expires, unless the Children’s Court directs that the period is to commence sooner.

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

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

Other orders

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

(a) 

impose any disqualification under the road transport legislation on a person whom it has found guilty of an offence,

(b) 

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

(c) 

make an order for restitution of property under s 43 Criminal Procedure Act 1986, or

(d) 

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

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

Guilty plea

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

Application of the Crimes (Sentencing Procedure) Act 1999

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

  • a conviction is a reference to a finding of guilt: s 33C(1)(b)

  • an escape from lawful custody committed by the offender while an inmate of a correctional centre includes a reference to an escape from lawful custody committed by the offender while a detainee of a detention centre: s 33C(1)(c)

  • a good behaviour bond, community correction order or conditional release order is a reference to a good behaviour bond imposed under s 33: s 33C(1)(d).

Part 3 Div 2 Crimes (Sentencing Procedure) Act 1999 (which relates to victim impact statements) applies to any offence dealt with by the Children’s Court that is an offence to which that Division would apply if it were being dealt with by a Local Court: s 33C(2). See The statutory scheme for victim impact statements at [12-820]ff.

Power to make non-association or place restriction order

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

Restrictions on the imposition of control orders

Section 34 provides:

(1) 

An order shall not be made under section 33(1)(f), (f1) or (g) in respect of an offence unless the penalty provided by law in respect of the offence is imprisonment.

(2) 

(repealed)

(3) 

An order shall not be made under section 33(1)(g) whereby a person is committed to the control of the Minister administering the Children (Detention Centres) Act 1987 for a specified period unless the maximum penalty provided by law in respect of the offence is imprisonment for a period no less than that so specified.

Reasons for decision to be given

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

(a) 

the reason for which it has dealt with the person under that paragraph, and

(b) 

the reason for which it considered that it would have been wholly inappropriate to deal with the person under s 33(1)(a)–(f1).

Compensation

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

[15-120] Intervention orders

There are some intervention orders available under the Act: see Diversionary Programs on JIRS. Note that some programs listed are only available for adults and not young offenders.

Referrals for conferences by DPP and courts

The Director of Public Prosecutions or a court may refer a child alleged to have committed an offence for a conference under s 40(1) Young Offenders Act 1997 if:

(a) 

the offence is one for which a conference may be held,

(b) 

the child admits the offence,

(c) 

in the case of a referral by the Director of Public Prosecutions, the child consents to the holding of the conference, and

(d) 

the Director or court is of the opinion that a conference should be held under this part.

Section 40(3) Young Offenders Act gives the court power to refer a matter at any stage in proceedings, including after a finding that a child is guilty of an offence.

Section 40(5) Young Offenders Act provides that, in determining whether to refer a matter for a conference, the Director of Public Prosecutions or the court is to take into account the following matters:

(a) 

the seriousness of the offence,

(b) 

the degree of violence involved in the offence,

(c) 

the harm caused to any victim,

(d) 

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

(e) 

any other matter the Director or court thinks appropriate in the circumstances.

Youth conduct orders

The youth conduct orders scheme operated between 1 July 2009 and 1 September 2014: s 48Y; Children’s (Criminal Procedure) Regulation 2011, cl 30A (rep). The scheme applied to any offence the Children’s Court could hear and determine with the exception of prescribed sexual offences, serious children’s indictable offences and traffic offences: s 48D. The scheme is set out in Pt 4A of the Act. A person is not eligible to participate if they were charged with an offence after 25 February 2013: cl 5(5) (rep). The scheme was intended to assist children who were charged with, pleaded guilty to, or found guilty of, certain offences. It was a diversionary scheme aimed at addressing the underlying causes of anti-social behaviour by children.

[15-130] The Criminal Records Act 1991 and the Children (Criminal Proceedings) Act 1987

The object of the Criminal Records Act 1991 (CRA), pursuant to s 3(1), is:

to implement a scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history.

The CRA uses the word “conviction” as a term of art. It is not easy to discern how the Act applies to some of the orders made under s 33 Children (Criminal Proceedings) Act 1987 (CCPA). In order to achieve the objectives of the CRA, Parliament has cast the net wide by characterising each order under s 33 as a “conviction” except for the express exception in s 5(c) CRA of a dismissal without caution under s 33(1)(a)(i) CCPA.

Section 4(1) CRA provides that conviction “means a conviction, whether summary or on indictment, for an offence and includes a finding or order which, under section 5, is treated as a conviction for the purposes of this Act”. Section 5 provides:

The following findings or orders of a court are treated as convictions for the purposes of this Act:

(c) … an order under section 33 of the Children (Criminal Proceedings) Act 1987, other than an order dismissing a charge. [Emphasis added.]

Convictions which are not capable of being spent

Section 7(1) CRA provides that some convictions are not capable of becoming spent. They include convictions for sexual offences (see definition under s 7(4)) and certain convictions prescribed by the regulations (see cl 4 Criminal Records Regulation 2014). It should be noted that offences for which a prison sentence of more than 6 months is imposed are not capable of becoming spent: s 7(1)(a). However, “prison sentence” does not include “the detaining of a person under a control order”: s 7(4).

Interaction between ss 8 and 10 Criminal Records Act and s 14

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

The pertinent subsections of s 8 provide:

(1)

A conviction is spent on completion of the relevant crime-free period, except as provided by this section.

(2)

A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made, except as provided by this section.

(3)

An order of the Children’s Court dismissing a charge and administering a caution is spent immediately after the caution is administered.

(4)

A finding that an offence has been proved, or that a person is guilty of an offence, and:

(a) 

the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period, on participating in an intervention program or on other conditions determined by the court, or

(b) 

the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit, or

(c) 

the making of a conditional release order, without conviction, under section 9 of the Crimes (Sentencing Procedure) Act 1999, for a specified term and with 1 or more additional or further conditions imposed under that Act,

is spent on satisfactory completion of the period or satisfactory compliance with the program (including any intervention plan arising out of the program) or conditions, as the case may require.

Section 10(1) provides:

The crime-free period in the case of an order of the Children’s Court under section 33 of the Children (Criminal Proceedings) Act 1987 (other than a finding or order referred to in section 8 (2) or (3) of this Act) in respect of a person is any period of not less than 3 consecutive years after the date of the order during which:

(a) 

the person has not been subject to a control order, and

(b) 

the person has not been convicted of an offence punishable by imprisonment, and

(c) 

the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.

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

Table: Children’s Court orders and application of Criminal Records Act

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

Order under s 33 Children (Criminal Proceedings) Act 1987 (CCPA) Section of CCPA When conviction is spent under Criminal Records Act 1991 (CRA)
Dismissal without caution 33(1)(a)(i) Section 5(c) CRA specifically excludes this order. It defines conviction as “an order under section 33 of the [CCPA], other than an order dismissing a charge”.
Dismissal with caution 33(1)(a)(i) An order of the Children’s Court dismissing a charge and administering a caution is spent immediately after the caution is administered: s 8(3) CRA.
Discharge on condition of entering into good behaviour bond 33(1)(a)(ii) Spent upon satisfactory completion of the bond period: s 8(4)(a) CRA. Although there is no reference to s 8(4) within the parenthesis in s 10(1) CRA, s 8(1) provides that a “conviction is spent on completion of the relevant crime-free period [as set out in s 10], except as provided by this section”.
Good behaviour bond 33(1)(b) This is ambiguous but arguably this order is caught by s 8(4) CRA on the basis that s 33(1)(b) CCPA previously stated “it may make an order releasing the person on condition that the person enters into a good behaviour bond … as it thinks fit”. This conforms with the text in s 8(4) which requires the words “or the making of an order releasing” to be read disjunctively. Therefore, the conviction is spent upon satisfactory completion of the bond period: s 8(4)(a).
Fine 33(1)(c) This is difficult to discern from the text of the CRA. It may be a long bow to argue that where the Children’s Court imposes a fine without proceeding to conviction, the finding of guilt is “spent immediately after the finding is made”: s 8(2) CRA. The argument rests on a proposition that s 8(2) can be utilised for orders in addition to s 10 Crimes (Sentencing Procedure) Act 1999. The parenthesis in s 10(1) CRA suggests s 8(2) applies to s 33 orders. Note, though s 8(2) may apply even if a fine is only part of the court’s order under s 33(1)(d), (e1) CCPA. If the Children’s Court proceeds to conviction, the order is not caught by s 8(2) or s 8(3) and the crime-free period of 3 years applies: ss 8(1), 10(1) CRA.
Release subject to compliance with outcome plan 33(1)(c1) It is arguable that a conviction under s 33(1)(c1) CCPA is spent upon satisfactory completion of outcome plan: s 8(4)(a) CRA. The terms within s 8(4)(a) “the making of an order releasing, the offender … on other conditions” appears to include orders under s 33(1)(c1).
Adjournment 33(1)(c2) Not a final sentencing order (akin to s 11 Crimes (Sentencing Procedure) Act 1999 with regard to the deferral of sentencing for rehabilitation, participation in an intervention program or other purposes).
Good behaviour bond and fine 33(1)(d) As to the fine, see above. Otherwise, this is ambiguous. Arguably this order is caught by s 8(4) CRA on the basis that s 33(1)(b) CCPA previously stated “it may make an order releasing the person on condition that the person enters into a good behaviour bond … as it thinks fit”. This conforms with the text in s 8(4). It requires the words “or the making of an order releasing” to be read disjunctively. Therefore, the conviction is spent upon satisfactory completion of the bond period: s 8(4)(a).
Probation 33(1)(e) Spent upon satisfactory completion of the probation period: s 8(4)(b) CRA. Although there is no reference to s 8(4) within s 10(1) CRA, s 8(1) provides that a “conviction is spent on completion of the relevant crime-free period, except as provided by this section”.
Probation and fine 33(1)(e1) Spent upon satisfactory completion of the probation period: s 8(4)(b) CRA. Although there is no reference to s 8(4) within s 10(1) CRA, s 8(1) provides that a “conviction is spent on completion of the relevant crime-free period, except as provided by this section”.
Community service order 33(1)(f) The order is not caught by s 8(2), 8(3) or 8(4) CRA. Therefore, crime-free period of 3 years applies: ss 8(1), 10(1) CRA.
Probation and community service order 33(1)(f1) Spent upon satisfactory completion of the probation period: s 8(4)(b) CRA. Although there is no reference to s 8(4) within s 10(1) CRA, s 8(1) provides that a “conviction is spent on completion of the relevant crime-free period, except as provided by this section”.
Control order 33(1)(g) The order is not caught by s 8(2), 8(3) or 8(4) CRA. Therefore, crime-free period of 3 years applies: ss 8(1), 10(1) CRA. Section 7(4) CRA provides that “prison sentence” for the purposes of the exceptions (where convictions cannot be spent) does not include “detaining of a person under a control order”.
Suspended control order 33(1B) The order is not caught by s 8(2), 8(3) CRA. Therefore, crime-free period of 3 years applies: ss 8(1), 10(1) CRA.

Applying ss 8(2) and 8(4) Criminal Records Act

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

The proposed amendment updates references to a charge being proved to reflect the language used in section 10 of the Crimes (Sentencing Procedure) Act 1999, which refers to a finding of guilt.

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

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