Youth Detention (NSW)
In New South Wales youth detention centres are known as youth justice centres. There are six of these centres in NSW and they house young people who have been refused bail or sentenced to youth detention. In the second quarter of 2019, there were 8,837 juveniles serving sentences in detention in New Sotuh Wales. There were also 4,566 young people being remanded in youth detention. The Children (Detention Centres) Act 1987, sets out the procedures for young people being held in detention centres in NSW and how children are to be treated in detention.
Age of criminal liability
In New South Wales the minimum age of criminal liability is 10. This means that children under ten cannot be charged with an offence. If a child below ten does something that would be a criminal offence if an older person did it, it must be dealt with ooutside of the criminal justice system, such as through counselling and parental discipline.
There has long been controversy around whether the age of criminal liability in Australia is too low. Human rights advocates say the low age of criminal liability leads to disadvantaged children being unnecessarily criminalised, with serious implications for their adult lives. Others argue that children commit serious crimes and need to be adewautely punished
Children aged between 10 and 18 can be charged with offences and when this occurs, the matter is generally heard by the Children’s Court. If the matters is a serious indictable offence, it will need to proceed to a committal hearing and subsequently finalised in the District COurt or Supreme Court.
Alternatives to youth detention
The courts must only sentence a juvenile offender to detention only if no other sentence is appropriate in the circumstances. This is because rehabilitation is the paramount consideration when sentencing a juvenile offender. Non-custodial sentences for juveniles include good behaviour bonds, fines and community-based orders.
Offenders under 21 and youth detention
Section 19 of the Children (Criminal Proceedings) Act 1987 allows NSW courts that are sentencing a defendant who is under 21 to order that all or part of the sentence is to be served as a juvenile. If the person is aged over 18 but under 21, this may be done because there are special circumstances that justify the young person’s detention as a juvenile offender. This may be because they are vulnerable because of illness or disability, because the only programs that are suited to their needs are those available in youth detention or because there would be an unacceptable risk to them if they were put in adult prison.
Bail or remand?
When a young person is charged with an offence, they can be granted bail by the police. If the police refuse a young person bail, the person must be brought before a court as soon as possible – this may be the same day or the following day. If the court grants the young person bail, they are released conditionally, until the matter comes back before the court and is finalised or adjourned (with bail continuing). If the young person is refused bail, they are held in a youth detention centre until their matter is finalised (or until the court grants them bail).
Bail will generally be granted if the young person is not considered to pose a risk to the community and where the court is confident that the person will attend court when required to do so. Bail can be granted with extra conditions such as a curfew, or a requirement that the young person attend school, not have contact with co-offenders or abstain from alcohol.
Section 28 of the Bail Act 2013 allows the court to impose an accommodation requirement where the person being granted bail is a child. This means suitable arrangements have to be made for the person’s accommodation before they can be released on bail. In practice, this often means that homeless young people are denied bail because they do not have k suitable accommodation. This provision and its discriminatory effect have attracted criticism recently.
Release from youth detention on parole
When a young person is sentenced to a period of youth detention, the court may set a non-parole period. When a young person who has had a non-parole period set becomes eligible for parole, they can apply for parole to the Parole Authority. The Parole Authority will decide whether the young person can safely be released into the community. If parole is granted to a young person, supervision and conditions appropriate to their circumstances will be imposed.
Convention on the Rights of the Child
Australia is a signatory to the internation Convention on the Rights of the Child (CROC). Article 37 of the CROC states that a child deprived of their liberty must be treated with respect and in a way consistent with the needs of persons of their age. It also states that children who are detained must be held separately from adult prisoners. The CROC also provides that children who are detained must have access to prompt legal assistance and other assistance.
If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal.