Sentencing Young People

When a young person commits an offence in New South Wales, they are dealt with under the Young Offenders Act 1997 and the Children (Criminal Proceedings) Act 1987 (“the Act”). Most offenders aged under 18 in New South Wales are dealt with by the Children’s Court. It is a fundamental principle that young offenders are treated differently and separately from adult offenders. When the Children’s Court sentences a young person, there is a range of sentencing orders it can make including fines, community release orders and terms of detention. This page deals with the sentencing of young people in New South Wales.

Children’s Court:

The Children’s Court has jurisdiction to deal with alleged offences (subject to some exceptions) which 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 pursuant to Section 28(1) of the Children’s (Criminal Procedure) Act 1987. A child is defined as a person under the age of 18 years. 

Jurisdiction of the Children’s Court:

There is a rebuttable presumption that charges against young people for all except “serious children’s offences” will be dealt with under the Children’s Court as per Section 31(1) of the Act. The Children’s Court jurisdiction involves the hearing and determining of:

• All summary offences, except certain traffic offences as covered by Section 28(2) of the Act. 
• Indictable offences other than:
  • “Serious Children Indictable Offences” as defined by Section 3 of the Act. Some excluded offences include homicide, an offence punishable by up to life or for 25 years, firearms offences relating to manufacture or sale of firearms that is punishable by imprisonment for 20 years. 
  • Indictable offences dealt with “according to law” following exercise of the residual discretion under Section 31(3) of the Act. 

If a young person is charged with an excluded offence or an offence prescribed to be dealt with “at law”, their matter will not be heard in the Children’s Court and they will be required to appear before either the Local or District Court depending on the charge. 

Guiding Principles of Children’s Court:

Section 6 of the Act establishes the following principles which must be regarded by the Children’s Court in the exercise of its jurisdiction including when dealing with a young person’s matter procedurally or when determining the appropriate sentence:

1. That 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,
2. That children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
3. That it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
4. That it is desirable, wherever possible, to allow a child to reside in his or her own home,
5. That 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,
6. That it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,
7. That it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,
8. That, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

Procedure of the Children’s Court:

Section 10 of the Act requires that the Children’s Court is to be a closed Court and that persons other than the following should be excluded from the proceedings:

• A person directly interested in the proceedings (unless the Court otherwise directs),
• A person preparing a report for the media (unless the Court otherwise directs), or 
• A family member of a deceased victim of the offence.

For traffic offences dealt with in the Children’s Court the Court is not required to be closed pursuant to Section 10(3) of the Act.

The Children’s Court is required to take such measures that are reasonably practicable to ensure the young person understands the proceedings. If requested the Court must explain any aspect of the procedure or any decision or ruling made as per Section 12 of the Act. 

Sentencing Principles When Dealing with Child Offenders at Law:

The fact that a young person is being dealt with at law instead of by the Children’s Court for an offence does not change the requirement for the Court to consider and apply the General Principles pursuant to Section 6 of the Act. 

It is well recognised in Australia that criminal law treats children differently to adults who commit criminal offences. The principles that apply to sentences are set out in [20] – [32] of Campbell v R [2018] NSWCCA 8. 

Section 14 of the Act prescribes that the Court is not to record a conviction for a child offender who has plead or been found guilty of an offence where the child is under the age of 16 and may refuse to proceed to or record a conviction for a child who is of or above 16 years old. 

Sentencing Options:

The available sentencing options for young offenders are contained in Section 33 of the Act. There are further diversionary and other orders available for young offenders pursuant to the Young Offenders Act 1997 and the Children (Protection and Parental Responsibility) Act 1997. 

Proven but dismissed without conviction and with or without caution – Section 33(1)(a)(i)

Upon finding an offence proven but the Court does not proceed to conviction and directs that the charges be dismissed. This sentencing option also includes the ability for the Court to give a Caution to the young person. 

Good Behaviour Bonds – Section 33(1)(a)(ii) and Section 33(1)(b)

Upon finding the child guilty of the offence the Court may:

• Discharge the person on condition they enter a good behaviour bond (Section 33(1)(a)(ii)), or 
• Make an order directing the person to enter into a good behaviour bond (Section 33(1)(b)).

A good behaviour bond must not exceed a period of 2 years. 

The mandatory conditions of the good behaviour bond include that the young person is to appear before the Court when called on to do so and must be of good behaviour in accordance with Section 33(1A)(a) and (b) of the Act. 

The Court can also impose additional conditions on the young person as a part of the good behaviour bond provided the conditions do not impose community service work or a requirement to make a payment of a fine or compensation as per Section 33(1A) of the Act. Clause 8 of the Children (Criminal Proceedings) Regulation 2021 contains the conditions that may be imposed as part of a good behaviour bond being:

1. Conditions requiring the child to attend school regularly,
2. Conditions relating to the child’s employment,
3. Conditions aimed at preventing the child from committing further offences,
4. Conditions relating to the child’s place of residence,
5. Conditions requiring the child to undergo counselling or medical treatment,
6. Conditions limiting or prohibiting the child from associating with specified persons,
7. Conditions limiting or prohibiting the child from frequenting specified premises,
8. Conditions requiring the child to comply with the directions of a specified person in relation to a matter referred to in paragraphs (a)–(g),
9. Conditions relating to other matters the court considers appropriate in relation to the child.

Fines – Section 33(1)(c)

Upon finding the child guilty of an offence the Court can impose a fine that does not exceed and is the lesser or:

• The maximum penalty for the offence, or
• 10 penalty units ($1,100.00).

When considering the fine amount, the Court is required to consider the child’s age, their ability to pay the fine and the potential impact of the fine on their rehabilitation. Fines can be imposed as the only penalty for the offence or fines can be ordered together with a good behaviour bond. 

Probation – Section 33(1)(e)

Upon finding the child guilty of an offence the Court may make an order releasing the person on probation for such period of time not exceeding 2 years in accordance with Section 33(1)(e) of the Act. 

Where the Court orders a young person to probation, they are released on the mandatory conditions that they must appear before the Court when called on to do so and must be of good behaviour. The Court can impose additional conditions on probation in accordance with Clause 8 of the Children (Criminal Proceedings) Regulation 2021:

1. Conditions requiring the child to attend school regularly,
2. Conditions relating to the child’s employment,
3. Conditions aimed at preventing the child from committing further offences,
4. Conditions relating to the child’s place of residence,
5. Conditions requiring the child to undergo counselling or medical treatment,
6. Conditions limiting or prohibiting the child from associating with specified persons,
7. Conditions limiting or prohibiting the child from frequenting specified premises,
8. Conditions requiring the child to comply with the directions of a specified person in relation to a matter referred to in paragraphs (a)–(g),
9. Conditions relating to other matters the court considers appropriate in relation to the child.

Community Service Order – Section 33(1)(f) of the Act and Children (Community Service Orders) Act 1987

An order requiring a young person to perform community service can be imposed where:

• A custodial sentence applies to the offence, and
• A custodial sentence would otherwise be applied. 

A Youth Justice Report must state that the young person is suitable for community service, the type of community service work available and the workable hours before a community service order can be made. Community Service Orders can be made in addition to a Probation Order. 

The period of hours for community service orders is dependent on the age of the young person being sentenced. For young persons aged 10-15 the limit of community service is 100 hours for all offences. For young persons between 16-17 the limit of community service hours depends on the maximum penalty for the offence where:

• Maximum penalty does not exceed 6 months – 100 hours, 
• Maximum penalty is over 6 months but less than 12 months – 200 hours,
• Maximum penalty is more than 12 months – 250 hours. 

Control Order – Section 33(1)(g) of the Act

A ‘Control Order’ involves the young person being sentenced to full time custody in a detention centre in accordance with Section 33(1)(g) of the Act. Control Orders are only available for offences where imprisonment is an available penalty. Section 34 of the Act requires that the Court must be satisfied that no alternative order is appropriate and give reasons why no alternative sentence but a control order is appropriate. 

Section 25(2) of the Act requires that a control order must not be made unless a background report has been prepared and tendered in evidence in respect to the circumstances of the offence, copies of the report have been given to the child and the Court has taken into account the matters in the report and any submissions made on those matters. 

A control order can be for a maximum of two years, or a maximum of three years for cumulating orders or where the Court is imposing an aggregate control order. A cumulative control order must be imposed for the offences of escape and assault on juvenile justice officers by an offender subject to a control order. 

Suspended Control Order – Section 33(1B) of the Act

A ‘suspended control order’ is a custodial sentence that is suspended subject to the young person entering a bond to be of good behaviour in accordance with Section 33(1B) of the Act. A suspended control order can not be made for a young person that is already serving a sentence of imprisonment or a parole period. 

Other Diversionary or Available Orders:

Release on Condition to Comply with an Outcome Plan – Section 33(1)(c1) of the Act and Sections 40(1A) and 40(3) of the Young Offenders Act 1997.

The Court may at any stage in the proceedings including after a finding of guilt refer the young person for a Youth Justice Conference. For this to be available the young person must admit to the offence and consent to the conference occurring. 

A Youth Justice Conference is a meeting between the young offender, the victim and other people who know about the offence. The purpose of the conference is to focus on repairing the harm caused by the offence and restoring relationships within the family and/or community. 

The Youth Justice Conference will produce a conference outcome plan. If the matter was referred for a Youth Justice Conference without the making of a finding of guilt, upon the Court being notified of the successful completion of the plan, the charge is to be dismissed or otherwise make an order releasing the child on condition that the child complies with an outcome plan. 

Cautions – Section 31(1)(a) Young Offenders Act

A Court can give a caution to a young person for particular offences or a graffiti offence. For a caution to be given the young person must admit to the offence. When a caution is given the charge will be dismissed however the Court must record the caution. A caution is not available to be given to a young offender on more than 3 occasions.