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Children’s Court

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

The Children’s Court is a specialist Court that deals with with Criminal cases, applications for apprehended violence orders, and the care and protection of children, including compulsory schooling orders.

Generally, anyone who was under the age of 18 at the time they allegedly committed an offence, and, is under the age of 21 when they first appear in Court, will have their matter dealt with in the Children’s Court. However, not all criminal cases involving children are dealt with by the Children’s Court:

  • If a child under the age of 18 but old enough to have a licence and is charged with only Traffic Offences under the Road Transport Legislation, their matter is dealt with in the Local Court,
  • If a child is charged with a serious children’s indictable offence, the case will eventually be dealt with in the District Court but will start in the Children’s Court. Serious Children’s Indictable Offences are defined as:
    • Homicide (murder),
    • An offence punishable by imprisonment for life or for 25 years,
    • An offence arising under section 61J of the Crimes Act 1900 – Aggravated Sexual Assault (otherwise than in circumstances referred to in subsection (2) (d) of that section) or, 61K of the Crimes Act 1900 - Assault with intent to have sexual intercourse, or, an attempt to commit either of these offences.
    • An offence under the Firearms Act 1996 relating to the manufacture or sale of firearms that is punishable by imprisonment for 20 years,
    • An indictable offence prescribed by the regulations as a serious children's indictable offence for the purposes of this Act.

The penalties that the Children’s Court can impose include cautions, good behaviour bonds, fines, probation, community service and control orders. The maximum sentence length that the Court can impose on any one charge is two years, and no more than 3 years across multiple charges.

There are fulltime Children’s Court at Parramatta, Surry Hills, Broadmeadow, and Campbelltown and other specialist Children’s Courts at Port Kembla, Woy Woy, and Wyong. In all other locations, the Children’s Court is heard in the same Court room as the Local Court.


Will I get a conviction in the Children’s Court?

The way convictions are treated in the Children’s Court is rather complex.

Section 14(1) of the Children (Criminal Proceedings) Act 1987 sets out that the Children’s Court:

  • (a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and
  • (b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.

These rules do not apply if you are a child who’s matter is being dealt with in the District Court of NSW.

If the Children’s Court does convict you, that conviction will become ‘spent’ in 3 years, if you do not commit any other offences during this period.

This is not the case if the offence was a sexual offence – some sexual offences will stay on your record for life.

If the Court does not record a conviction against you, the Criminal Records Act 1991 means that your sentence might still be treated as a conviction for the purposes of a Criminal Record Check, regardless of what the Children’s Court said. The way this works depends on what your penalty was:

  • Dismissal without Caution (s33(1)(a)(i)): There is no conviction.
  • Dismissal with Caution (s33(1)(a)(i)): The conviction is spent immediately after the order is made.
  • Discharge on condition of entering into a good behaviour bond (S33(1)(a)(ii)): The conviction is spent when you successfully complete the bond.
  • Good behaviour bond (s33(1)(b)): The conviction is spent when you successfully complete the bond.
  • Fine (s33(1)(c)): The legal position is uncertain as to whether the conviction is immediately spent, or, spent after a three year crime free period.
  • Probation (s33(1)(e)): the conviction is spent upon satisfactory completion of the probation period.
  • Community Service Order (s33(1)(f)): The conviction is spent after a three year crime free period.
  • Suspended Control Order (s33(1B)): The conviction is spent after a three year crime free period.
  • Control Order (S33(1)(g)): The conviction is spent after a three year crime free period.

Given the complexity surrounding the impact and application of convictions and non-convictions in the Children’s Court it is very important that you obtain specific advice about your particular circumstances to understand how this will affect you.

Serious Children’s Indictable Offences

Serious Children’s Indictable Offences are ones where, even if you are a child, the matter must be dealt with on Indictment in the District Court of NSW and your matter will be determined (whether by trial or sentence) as if you were actually an adult.

Serious Children’s Indictable Offences are defined as:

  • Homicide (murder),
  • an offence punishable by imprisonment for life or for 25 years,
  • an offence arising under section 61J of the Crimes Act 1900 – Aggravated Sexual Assault (otherwise than in circumstances referred to in subsection (2) (d) of that section) or, 61K of the Crimes Act 1900 - Assault with intent to have sexual intercourse, or, an attempt to commit either of these offences.
  • an offence under the Firearms Act 1996 relating to the manufacture or sale of firearms that is punishable by imprisonment for 20 years,
  • an indictable offence prescribed by the regulations as a serious children's indictable offence for the purposes of this Act.

The court also has the discretion to order that any other indictable offence be dealt with according to law (as an adult), rather than in the Children’s Court. In making such an assessment, the Court must consider:

  • (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.
  • There are many types of Indictable offences, and you should get legal advice about whether there is a risk that your matter will be dealt with according to law.

Traffic Matters and the Children’s Court

If you are old enough to obtain a licence to drive, (even if you don’t actually have one) and you are charged with a traffic offence, you will be dealt with in the Local Court as an adult, not, in the Children’s Court.

The only exception to this is if you are charged with other, non traffic related matters arising from the same incident that are being dealt with in the Children’s Court.

More information about traffic offences.



Alternatives to Court imposed sentences

Warnings by police

What is a warning?

The police have the ability to issue children with a warning, rather than charge them with a criminal offence. A warning is often given by the police in very minor matters.

Can I get a warning?

You will not be entitled to be dealt with by way of a warning if:

  • the circumstances of the offence involve violence, or
  • in the opinion of the investigating official, it is more appropriate to deal with it by another means because it is not in the interests of justice for the matter to be dealt with by warning.

In addition a warning is not available for all types of offences. You are not eligible for a warning if the offence is:

  • a serious children’s indictable offence (link to page);
  • a traffic offence and the child was old enough to have a learner licence;
  • one that results in the death of any person;
  • a kind of sexual offence, including sections 61L, 61, 61N, 66C, 66D & 80 of the Crimes Act 1900;
  • an offence under the Crimes (Domestic and Personal Violence) Act, like stalking/intimidation;
  • A drug offence, unless it is an offence:
    • which involves not more than the small quantity of the prohibited drug; or
    • if the drug is cannabis, not more than half the small quantity, unless there are exceptional circumstances; or,
    • if the offence is regarding cultivating prohibited plans, if the offence is not more than half the small quantity, unless there are exceptional circumstances, or
  • a graffiti offence.

What is the process of getting a warning?

If it is determined that it is appropriate to use a warning, it is often done quite informally.

For example warnings can be given on the spot, at the place that a child is found. There cannot be any conditions attached to a warning. The police officer must insure that the child understands the purpose, nature and effect of the warning, and the officer may, notify the parents of the child in writing that a warning has been given.

Police keep a record of warnings. This is not a conviction. Any records of warnings held by police must be destroyed as soon as possible after the child reaches the age of 21 years.

Cautions by police

What is a Caution?

The police have a discretion in some kinds of matters involving children, to issue them with a caution, rather than charging the child with a criminal offence.

A caution is similar to a warning, but, is more serious.

It is important to understand that even if the police could give you a caution, they do not have to. It is a discretionary decision. The police base their decision on whether to give a caution by assessing:

  • the seriousness of the offence,
  • the degree of violence involved in the offence,
  • the harm caused to any victim,
  • the number and nature of any offences committed by the child and the number of times the child has been dealt with under the Young Offenders Act,
  • any other matter the official thinks appropriate in the circumstances.

After a caution has been given, the child cannot be charged in relation to the same offence.

Can I get a Caution?

In order to get a caution, the following must all apply:

  • the offence is one for which a caution may be given, and
  • the child admits the offence, and
  • the child consents to the giving of the caution, and
  • the child is entitled to be given a caution.

A caution is not available for all types of offences. You are not eligible for a caution if the offence is:

  • a serious children’s indictable offence (link to page);
  • a traffic offence and the child was old enough to have a learner licence;
  • one that results in the death of any person;
  • a kind of sexual offence, including sections 61L, 61, 61N, 66C, 66D & 80 of the Crimes Act 1900;
  • an offence under the Crimes (Domestic and Personal Violence) Act, like stalking/intimidation;
  • A drug offence, unless it is an offence:
    • which involves not more than the small quantity of the prohibited drug; or
    • if the drug is cannabis, not more than half the small quantity, unless there are exceptional circumstances; or,
    • if the offence is regarding cultivating prohibited plans, if the offence is not more than half the small quantity, unless there are exceptional circumstances; or
  • a graffiti offence.

You cannot get more than three cautions.

What is the process for getting a caution?

Cautions are usually given at Police Stations. If police have determined to give you a caution, they will give you a notice which outlines:

  • the offence in respect of which the caution is to be given,
  • the persons who may be present when the caution is given,
  • the purpose, nature and effect of the caution,
  • the date, time and place at which the caution is to be given,
  • the name of a police officer who is a contact officer concerning the caution,
  • the consequences of failure to attend the giving of the caution,
  • the right of the child to obtain legal advice and where that advice may be obtained,
  • the right of the child to elect that the matter be dealt with by a court if the child does not wish to proceed with the caution.

After the notice is given, a time is usually set up for the actual caution to be given.

Before getting a caution, the police officer will explain the following to the child:

  • the nature of the offence and the circumstances out of which it is alleged to arise,
  • that the child is entitled to obtain legal advice and where that advice may be obtained,
  • that the child is entitled to elect that the matter be dealt with by a court,
  • the purpose, nature and effect of the caution.

The police officer must, if practical, ensure that the above explanation takes place in front of:

  • a person responsible for the child, or
  • an adult (other than an investigating official) who is present with the consent of a person responsible for the child, or
  • if the child is 14 years or over, an adult chosen by the child, or
  • an Australian legal practitioner chosen by the child.

You will get a 'Caution Notice' after the Caution process is complete, and you will be asked to sign it.

The Police keep a record of any Cautions that are given. This is not a ‘conviction’.

Youth Justice Conferences

What is a Youth Justice Conference?

Youth Justice Conferencing provides young offenders with the opportunity to participate in a face to face meeting with their family, the victim, the victim’s supporters, and police, to discuss the crime and how people have been affected by it. Other experts and respected members of the community can also be invited to participate in the Conference.

During the conference, the participants work together to reach an outcome that could include an apology, reasonable reparation to victims, and steps to reconnect the young person with their community to help them into the future.

Can I participate in a Youth Justice Conference?

A referral to a Youth Justice Conference can happen before you are charged with an offence, or, it can be ordered by a Court after you have been charged with an offence.

A conference may be arranged and held in respect of a child who is alleged to have committed an offence, if:

  • the offence is one for which a conference may be held, and
  • the child admits the offence, and
  • the child consents to the holding of the conference, and
  • the child is entitled to be dealt with by holding a conference.

In deciding whether a conference should be held, the Police and Courts look to:

  • the seriousness of the offence,
  • the degree of violence involved in the offence,
  • the harm caused to any victim,
  • the number and nature of any offences committed by the child and the number of times the child has been dealt with under the Young Offenders Act, and
  • any other matter the official thinks appropriate in the circumstances.

You cannot participate in a Youth Justice Conference if the offence is:

  • a serious children’s indictable offence (link to page);
  • a traffic offence and the child was old enough to have a learner licence;
  • one that results in the death of any person;
  • a kind of sexual offence, including sections 61L, 61, 61N, 66C, 66D & 80 of the Crimes Act 1900;
  • an offence under the Crimes (Domestic and Personal Violence) Act, like stalking/intimidation;
  • A drug offence, unless it is an offence:
    • which involves not more than the small quantity of the prohibited drug; or
    • if the drug is cannabis, not more than half the small quantity, unless there are exceptional circumstances; or,
    • if the offence is regarding cultivating prohibited plans, if the offence is not more than half the small quantity, unless there are exceptional circumstances; or
  • a graffiti offence.

What is the process for a Youth Justice Conference?

If you are to participate in a Youth Justice Conference, a referral will be made on your behalf. A time will be set up for the Conference to take place, which will usually sometime in the next 28 days.

The Conference Convener will determine the time and date of the conference, and those who should be invited to attend. In deciding who should attend, the Conference Convener will usually consult with the person responsible for any child (like their lawyer, or parents) and the victim.

You can have a lawyer come to the conference with you.

During the Conference, the child and those present will work on an ‘Outcome Plan’. The Plan could include that the child make an apology, participate in programs (like counselling, drug and alcohol rehabilitation, or educational programs).

If you have been referred to a Youth Justice Conference by a Court, this Outcome Plan will be provided to the Court, and the Court might approve the plan, and then dismiss your criminal charges.

The completion of the Outcome Plan will then be monitored by a supervisor. If the child satisfactorily completes an outcome plan, no further criminal proceedings can be taken against the child in respect of that matter.

If you do not complete the Outcome Plan, the police might consider charging you with a criminal offence, or if your matter is already at Court, the Court can sentence you to a different type of penalty.



Sentencing options for Children at Court

Dismissal (with or without caution)

The Court can order that your charge is dismissed, with or without also giving you a caution.

Section 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987 is where this type of penalty is found. It states:

(1) 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:
  • (b) directing that the charge be dismissed (in which case the Court may also, if it thinks fit, administer a caution to the person)

Discharge and good behaviour bond

The court can order that your charge is discharged, on the condition that you enter a good behaviour bond, for up to two years.

Section 33(1)(a)(ii) of the Children (Criminal Proceedings) Act 1987 is where this type of penalty is found. It states:

(1) 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:
  • (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

Good Behaviour Bond

The Court can order that you be placed on a good behaviour bond, for a period of up to two years.

Section 33(1)(b) of the Children (Criminal Proceedings) Act 1987 is where this type of penalty is found. It states:

(1) 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:

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

Fine

The Court can give children fines. Before they do so, they have to consider the age of the child, and their capacity to pay, and the impact it might have on their rehabilitation.

A fine can be imposed in addition to a section 33(1)(b) good behaviour bond, or a probation order.

Section 33(1)(c) of the Children (Criminal Proceedings) Act 1987 is where this type of penalty is found. It states:

(1) 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:

  • (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.

Comply with Outcome Plan from a Youth Justice Conference

If you have participated in a Youth Justice Conference, the Court can order that you comply with any Outcome Plan made during that conference.

Section 33(1)(c1) of the Children (Criminal Proceedings) Act 1987 is where this type of penalty is found. It states:

(1) 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:

  • (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,

Release on Probation

A Court can order that you be released on probation, for a period not exceeding two years. Probation is similar to a good behaviour bond, but, is a more serious penalty. You will usually be closely supervised by Juvenile Justice if you are on Probation.

Section 33(1)(e) of the Children (Criminal Proceedings) Act 1987 is where this type of penalty is found. It states:

(1) 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:

  • (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.

Community Service

Community service orders are a direct alternative to a sentence of imprisonment. The number of Community service hours you might get depends on your age and the type of offence committed.

If you are under the age of 16 at the time of the offence, you cannot get more than 100 hours of community service for one offence.

If you are over the age of 16 the maximum community service you can get for one offence is:

  • 100 hours, if the offence concerned is an offence for which the maximum term of imprisonment provided by law does not exceed 6 months, and
  • 200 hours, if the offence concerned is an offence for which the maximum term of imprisonment provided by law exceeds 6 months but does not exceed one year, and
  • 250 hours, if the offence concerned is an offence for which the maximum term of imprisonment provided by law exceeds one year.

Section 33(1)(f) of the Children (Criminal Proceedings) Act 1987 is where this type of penalty is found. It states:

(1) 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:

  • (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.

Control Orders and Suspended Control Orders (Imprisonment)

The court can sentence you to a Control Order (imprisonment) for a period not exceeding two years, for one offence.

You can also get a Suspended Control Order, pursuant to section 33(1B) which released you on the condition you enter into a good behaviour bond.

In order to sentence you to a Control Order, the Court must be satisfied that all off the other sentencing options are ‘wholly inappropriate’.

Section 33(1)(g) and 33(1B) of the Children (Criminal Proceedings) Act 1987 is where these type of penalty is found. It states:

(1)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:

  • (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 .

(1B) If the Children's Court deals with a person under subsection (1) (g), it may make an order:

  • (a) suspending the execution of its order under subsection (1) (g) for a specified period (not exceeding the term of that order), and
  • (b) releasing the person on condition that the person enters into a good behaviour bond under subsection (1) (b) for such a specified period,

but only if the person is not subject to any other order under subsection (1) (g) or to any sentence of imprisonment. Part 4 of the Crimes (Sentencing Procedure) Act 1999 does not apply to an order under subsection (1) (g) whose execution is suspended under this subsection.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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