The way in which the legal system has handled children’s matters has changed substantially over the past century in Australia. This has reflected the increased recognition by the Australian authorities of the inadequacy of the traditional criminal justice system’s treatment of young offenders. The purpose of this paper to provide a simple overview of how children are treated in criminal proceedings. Its intent is to help child offenders and their legal guardians to obtain a greater understanding about the options available to them within the juvenile justice system.
A child is defined as any person who is under the age of 18 years, under section 3 of the Children (Criminal Proceedings) Act 1987 (NSW) (hereafter CCPA). This means that any child charged with summary (minor) offences may then be eligible to have legal proceedings take place outside the traditional court system. However, children aged below 10 cannot be charged with a criminal offence, because the legal system assumes that they are not capable of forming the necessary intent to be held criminally responsible. Furthermore, the ‘doli incapax’ principle creates a rebuttable presumption for the prosecution, that children aged between 10 and 13 years of age do not have the requisite knowledge to form criminal intent. If the prosecution are not able to refute this presumption, than a case cannot be made against the child.
If the matter does go to criminal proceedings, the multiple avenues in the legal system available to child offenders must all be considered. The New South Wales Children’s Court has jurisdiction over all children’s offences, except for serious indictable charges and traffic offences committed after the age of 16. Because these offences are beyond the Children’s Court jurisdiction, child offenders must face hearings in either the Local or District Court. While the Children’s Court handles the majority of children’s offences, many are then referred out of the court system to the alternate regime available under the Young Offender’s Act 1997 (NSW). This provides a system of diversionary measures as an alternative to proceedings for child offenders, provided certain requirements are met. For offences involving drugs or alcohol, there is also the option of the Youth Drug and Alcohol Court, which was established specifically to reduce the amount of criminal activity resulting from drugs and alcohol abuse.
Research recently conducted by the Australian Institute of Criminology indicates that the vast majority of child offenders are issued cautions under the Young Offender scheme. The study found that 87% of young people who came into contact with the criminal justice system received one caution or more, while 9% attended police-referred conferences. In contrast, of the study group only 29% of the offenders had their matters dealt with and finalised within the court system. It is therefore evident that the recent shift away from the traditional criminal justice system in Australia has been reflected in increased usage of the Young Offender’s Act and other alternative legal mechanisms.
Dealing with the matters according to law
As previously mentioned, the Children’s Court’s jurisdiction does not extend to two offences- serious indictable charges and traffic offences committed after the age of 16. Because children who commit such traffic offences are considered to be of licensable age, their offences must be dealt with in the regular court system. When determining the seriousness of the indictable offence concerned, the Children’s Court takes into account the nature of the indictable offence, the age and maturity of the child, and any prior offences committed by the child.
- Jurisdiction of the Children’s court
In practice most youth offences are dealt with by the Children’s Court. The Children’s Court has a wide jurisdiction if at the time the offence was committed the person was a child under 18 years old, and if at the time of being charged, the said person was under 21 years old. The Children’s Court only cannot hear serious indictable offences under section 17 of the CCPA, and some traffic offences. However, the court does have jurisdiction over (1) traffic offences that occurred concurrently with another offence that is within Children’s Court jurisdiction and (2) traffic offences where the child was not of a licensable age when they were committed
- Commencement of proceedings
In most circumstances, criminal proceedings against a child must be commenced by way of summons or court attendance notices, and when a summons will suffice, arrest is inappropriate. Arrest is also not appropriate for minor offences where the defendant’s name and address are known, or there is no risk of the child departing and it is reasonably assumed the summons will not be effective.
However, under any of the following circumstances, proceedings against a child offender may be commenced by way of arrest:
(1) if the offence consists of a serious children’s indictable offence or certain offences under the Drug Misuse and Trafficking Act 1985 (NSW), or any other offence prescribed by the Regulations.
(2) if the person commencing the proceedings reasonably believes that the child is (a) unlikely to comply with a summons or court attendances notice or (b) likely to commit further offences.
(3) if the person commencing the proceedings believe the child should be restrained due to (a) violent behaviour, or (b) the violent nature of the offence.
- Doli incapax
According to the doctrine of ‘doli incapax’, a child is not guilty by reason of falling short of the necessary criminal intent when the child is aged between 10 and 13 unless the prosecutor proves otherwise.
A burden is then placed on the prosecution to rebut the presumption of doli incapax and prove that the child knew that the act was seriously wrong, as opposed to naughty or childish mischief. The evidence must be strong and clear beyond all reasonable doubt and contradiction, and it may be obtained by the prosecution from a parent or a person or who knows the child well.
The presumption cannot be rebutted simply by the offence itself no matter how appalling the act is, by an admission in a police interview or flight alone. On the other hand, the older the child, the easier it will be to prove guilty knowledge, and prior criminal history and court alternatives history may be tendered to rebut. In addition, flight in combination with an admission may rebut the presumption in certain circumstances and surrounding circumstances may be used by the prosecution to rebut as well.
- Admissibility of statements to the police
Section 13 of the CCPA provides specific rules for the admissibility of statements, admissions or confessions of a child. Generally, they cannot be admitted into evidence unless the person responsible for the child, or an adult or legal representative selected by the child was present throughout the period of time the admission, statement or confession was made. However, if the court is satisfied with the reason for the absence of such a person, the statements may be admissible in evidence in the proceedings.
Where the support person presents him or herself, this person must be informed of their responsibilities and be sufficiently able to perform the task. Moreover, the custody manager has a positive obligation to assist vulnerable children, including making sure they are fully aware of the services offered by the Legal Aid Commission’s Youth Hotline.
- Recording convictions and admissibility of prior offences
With respect to children under the age of 16, the Children’s Court shall not record the conviction, and for children above the age of 16, the Court has discretion to refuse the conviction.
- Sentencing principles
There are a broad range of sentences available to the Children’s Court under section 33 of the CCPA, including the dismissal of the charge, a good behaviour bond, a fine not exceeding 10 penalty units, an order adjourning proceedings for a maximum period of 12 months, a probation order and a community service order, a control order for a maximum period of 2 years, suspended sentence, and an order for compensation. Furthermore, the Children’s Court may make an order conditional upon compliance with an outcome plan such as Drug and Alcohol Counselling, the Violent Offenders Program, the Sex Offenders Program, the Forensic Program, the Mentor Scheme and the Graffiti Clean-up Community Service Order Scheme.
Given the different purpose of the Children’s Court, the sentencing principles applied at hearings are generally different from those used in the adult jurisdiction. When applying the above sentences, the Children’s Court follows several principles, by considering the desirability of the child’s education or employment proceeding uninterrupted and allowing the child to reside at home, and that the penalty imposed on a child should not be heavier than that on an adult with the same offence. If the child pleads guilty or indicates to plead, the Children’s Court must give consideration to that and reduce any order it would otherwise have made accordingly, and if the Children’s Court does not reduce an order, it must give reasons for doing so.
Unlike adult offenders, children serve control orders or terms of imprisonment in juvenile detention centres until they reach the age of 18 years. With exceptions, a person sentenced for serious children’s indictable offences is not eligible to serve a sentence of imprisonment in a Detention Centre. The Children’s Court may sentence a person under 21 years old with an indictable offence to serve the whole or part of the term in a detention centre.
Young Offenders Act
- Purpose of this Act
The introduction of the Young Offenders Act in 1997 provided an alternative regime for youth crime by diverting young people who commit certain offences away from the Children’s Court. Compared with the Children’s Court, the Young Offenders Act provides an efficient and direct response to the commission of certain offences by children, enabling a community-based, negotiated response to offences. It was designed to involve all affected parties and meet the needs of victims and offenders by emphasizing restitution and acceptance of responsibility by the offender.
- Jurisdiction: offences excluded and the eligibility to apply
According to section 8 of the Young Offenders Act 1997 (NSW), summary offences and indictable offences that may be dealt with summarily are covered by the Act. However, it is important to note that some specific offences are excluded from the jurisdiction of the Act such as certain traffic offences, sexual offences, AVOs, and some offences under the Drug Misuse and Trafficking Act.
Even when the offence committed by a child falls within the scope of the Young Offenders Act, the offence cannot be dealt under the Act unless the child a) admits the offence, b) consents to the caution or Youth Justice Conferences and c) is entitled to be given the caution or Youth Justice Conference.
With respect to criterion a) in the above paragraph, a person responsible for or chosen by the young person must present while the young person admits the offence. With respect to criterion b) above, the young person may decide not to proceed and to have the matter dealt with by a court. With respect to criterion c) above, an investing official should make a decision by giving consideration to the seriousness of the offence, the degree of violence involved in the offence, the harm caused to the 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.
- Sentence options under the Young Offenders Act
Under the Young Offenders Act, there are three sentence options available to child offenders.
Warnings may be given for a summary offence “on-the-spot” by investigating officials if no violence is involved in the offence and if the investing official considers it appropriate. A warning cannot have any conditions attached or impose any sanction upon the child.
Cautions may be given under the Young Offenders Act if the investigating official determines that a warning is not appropriate and it is not contrary to the “interests of justice” to deal with the matter by way of caution. The young person is not entitled to be given a caution if he or she has been dealt with by caution on three or more occasions. In practice, some young people choose to exercise a “right to silence” at the police station so that they do not make the required admission to the offence, which disqualifies them from being treated under the Young Offenders Act. However, when the case goes to the Children’s Court, the Court could give a caution where appropriate, even where the child has remained silent.
Youth justice conferencing may be applied in three circumstances. First, if the investigating official determines a caution is not appropriate to deal with the matter, and that youth justice conferencing is more suitable. Second, where the investigating official is of the opinion that it is not in the interests of justice for a matter to be dealt with by way of a warning or a caution, the investigating official must refer the matter to a specialist youth officer to consider whether the child should be dealt with the youth justice conferencing. In making a decision the specialist youth officer shall consider 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 this Act, and any other matter the official thinks appropriate in the circumstances. Third, the Director of Public Prosecutions or court may refer a matter to youth justice conferencing.
It is important to note that unless the conference convenor permits the child to be represented either generally or subject to conditions, a child is only entitled to be advised but not represented by a legal practitioner regarding the youth justice conference.
The aim of the conference is to work out an outcome plan which the young person will be able to complete. In practice, the following principles are observed in reaching an agreement for the outcome plan. The outcome plan must have outcomes that are realistic and appropriate and sanctions that are not more severe than those that a court would impose; the outcome plan must set a timeframe for implementation and may provide for an oral or written apology, reparation to the victim, or participation in a program or action aimed towards reintegrating the child into the community. The outcome plan must contain an obligation to do community service work that does not exceed the maximum amount that may be imposed under the Children (Community Service Orders) Act 1987(NSW), and some provisions from the Act must be included in an outcome plan for a particular type of offence.
Youth Drug and Alcohol Court
The Youth Drug and Alcohol Court (hereafter YDAC) sits and operates within the Children’s Court system, and there are geographical limitations on its jurisdiction. Currently, only young offenders in the Western Sydney, Central Sydney and Eastern Sydney regions can be referred to the YDAC.
As indicated by the name of the court, only drug and/or alcohol problems are dealt with by the YDAC. In addition, the offences should be dealt with to finality in the Children’s Court, the child must be ineligible for a caution or youth justice conferencing under the Young Offenders Act, and the child must plead guilty or admit to the offences. Usually the child is aged between 14 and 18 years, although a child under 14 may also be referred to the YDAC. Sometimes, even if a child pleads not guilty to some offences, the Magistrate may exercise their discretion by referring the child to the YDAC. It is important to note that the court of its own motion may refer a young person for assessment of their suitability for the YDAC program without the child’s consent.
For the first appearance of the young person before the Court, the Joint Assessment and Review Team (JART) will conduct an Initial Assessment of the young person before the formal court appearance and will recommend to the YDAC whether or not the young person is eligible for the YDAC program. At the young person’s second appearance at the YDAC, the JART will provide the YDAC with a Comprehensive Assessment with respect to the suitability of the young person for the YDAC program. During the YDAC program, the young person will be required to attend Report Back sessions that provide a process of continuing monitoring and supervision. However, a young person may at any time withdraw consent to continue to participate in the YDAC program.
Where the young person breaches the YDAC program, the Manager of JART will determine whether the breach is serious or minor in nature. If it is a serious breach, the young person may be arrested and brought before YDAC. If YDAC finds the young person in a serious breach, then the young person might be discharged from the program and sentenced or he or she might be allowed to continue with the program. If the young person is allowed to continue with the YDAC program, the program will usually be altered or extended. If JART reports a minor breach by the young person then the YDAC, after hearing any submissions, may determine that the young person remain on the current YDAC program, on an amended program, or discharge the hearing. When the YDAC Magistrate determines a sentence against the young person, the Magistrate will take the young person’s participation and successful completion of the program into account.
Barclay Churchill Solicitors and Barristers
111 Elizabeth Street
Sydney NSW 2000