Children and Juvenile Defendants in NSW Criminal Courts

7 February 2026 in Criminal Law | 10 min read | skip to FAQs

When a child or teenager comes into contact with police, the courts in New South Wales operate differently to the adult system. The law recognises that young people are still developing psychologically and emotionally and therefore are more vulnerable to poor decision making, and have a greater capacity for rehabilitation. This article describes children in the criminal justice system and why it has become an increasingly controversial and scrutinised area of law. In recent years, there has been growing public debate about youth crime, tougher bail laws and rising detention rates, while at the same time, Australia has been criticised internationally for criminalisation children at too young of an age.

Who is Considered a Child under NSW Criminal Law?

Section 3 of the Children (Criminal Proceeding) Act 1987 (NSW), known as the CPPA states that a child is any person under the age of 18. Children’s matters are generally dealt with separately from adults with most matters heard in the specialist Children’s Court of New South Wales, rather than at the Local Court.

Proceedings in the Children’s Court are less formal than proceedings for adults and the Court is directed to place significant weight on the child’s welfare, education, family prospects and their prospects of rehabilitation. The overarching principal is that detention or a custodial sentence should only be used as a last resort and for the shortest appropriate time that is required.

Age of Criminal Responsibility and Dolli Incapax

In all states and territories, a child can be charged with a criminal offence from the age of 10. If a child is under the age of 10, they cannot be found guilty of a crime, (pursuant to section 5 of the CCPA).

For children that are between the age of 10 and 14, the law provides an additional safeguard known as doli incapax. The concept of doli incapax in law presumes that children aged between 10 and 14 years, inclusive, do not have the ability to form necessary intent, otherwise known as mens rea, and therefore should not be found guilty of criminal offences. This rebuttable presumption was discussed in the High Court case of RP v The Queen [2016] HCA 53.

If the prosecution is unable to prove that level of understanding beyond a reasonable doubt, the child cannot be found guilty. This aims to protect younger children, particularly those with intellectual disabilities, trauma background or cognitive delays.

The NSW Government has begun discussion around strengthening aspects of this protection by requiring courts to consider the child’s background, maturity and personal circumstances when assessing an individuals responsibility.

What happens if a Child is Charged

If a child is charged by police, their case will usually be heard in the Children’s Court. This Court has a range of sentencing options and must choose the least restrictive outcome appropriate in the circumstances. The Court has the option of dismissing the charge, imposing a good behaviour bond or fine, or ordering participation in community programs or service. A custodial sentence is available but is intended to be a last resort.

If a child under the age of 16 is found guilty of an offence, they generally do not receive a recorded conviction as part of the penalty, which assists in reducing the long term impact on employment, education and travel opportunities. There is a focus on rehabilitation, in contrast to the adult system which emphasises deterrence and punishment. As all matters must be in the best interests of the child, the court must take this into consideration in all proceedings and in sentencing. Guiding principles for sentencing are outlined in s6 of the CCPA.

In most situations, criminal proceedings against a child must not be commenced by way of arrest, but instead through summons or court attendance notices. An arrest may be authorised if the police believe the child needs to be restrained due to violent behaviour, if the child is unlikely to comply with a summons or commit further offences, or if the matter is a serious indictable offence.

The Children’s Court

The majority of youth offences are handled by the Children’s Court. In this court, the best interests of children and young people are paramount in all proceedings. To be heard at the Children’s Court, the offender must have been under the age of 18 at the time the offence was committed, and under 21 at the time of being charged. All matters are held in a closed court. Serious indictable charges, as found in s17 of the CCPA and traffic offences committed after the age of 16, are dealt with in the Local or District Court. Family law issues, such as custody matters are also not dealt with in the Children’s Court.

The Children’s Court hears and determines matters including:

1. Criminal Offences
2. AVOs
3. Compulsory schooling orders
4. The care and protection of children involving the Department of Communities and Justice

Sentences available to the Children’s Court

Pursuant to s33 of the CCPA, there is a range of sentences available to the Children’s Court, including:

1. Dismissal of the charge
2. A good behaviour bond
3. A fine
4. Youth Justice Conference
5. An order adjourning proceedings for max. 12 months
6. A probation order
7. A community service order
8. Participation in an outcome plan such as Violent Offenders Program or Drug and Alcohol Counselling
9. A control order (AKA full-time custody) for max. 2 years
10. Suspended sentence and an order for compensation
11. Detention

International Criticism of Australia’s Youth Justice System

In recent years, Australia’s youth justice system has come under scrutiny internationally as the United Nations Human Rights Council has expressed serious concerns about the country’s low age of criminal responsibility and rising rates of youth detention.

As many as 40 member states have recommended that Australia increase the age at which children can be prosecuted, noting that children as young as 10 can currently be arrested, charged and sent to jail in most states and territories, including New South Wales. There was particular concerns raised about the disproportionate impact of the criminal justice system on First Nations children and the significant harm associated with a child’s early exposure to detention and criminal court proceedings.

In commenting on the review, the President of the Australian Human Rights Commission, Hugh de Kretser stated:

“In most Australian jurisdictions, children as young as 10 can be arrested, prosecuted and jailed. This is inhumane and remains out of step with international human rights standards. First Peoples are hit hardest by these unjust laws. The international community is calling us out on this.”

The Law Council of Australia has previously stated that

“the current low minimum age of criminal responsibility is out of step with international human rights standards and the most recent medical evidence on child cognitive development” and that “raising the minimum age of criminal responsibility is an issue of acute national importance.” (Council of Attorneys-General – Age of Criminal Responsibility Working Group Review, 2 March 2020, page 5).

International research has formed the position that children who are formally processed through the court system at a young age are more likely to reoffend, disengage from their education and experience ongoing contact with the criminal justice system as adults. For this reason, a major feature of the youth justice structure in NSW is diversion, with its primary aim being that minor offending behaviour does not require a child to appear before a court system.

Diversion Under the Young Offenders Act

A major feature in recent years of the system of youth justice in NSW is diversion, aiming to resolve minor offending conduct without the child entering the court system. The Young Offenders Act 1997 (NSW) allows police to deal with suitable matters by way of cautions or warnings rather than being charged. These options are usually available for less serious offences. In comparison to the Children’s Court, this act offers a more efficient and community based response to crimes committed by young offenders. This approach is recognised as playing a role in reducing reoffending and avoiding the negative long term consequences that can arise from a child being involved in the criminal justice system early in their lives.

Offences dealt with under the Young Offenders Act 1997 (NSW)

1. Damaging property (not graffiti)
2. Theft
3. Break and enter (if what was stolen is worth $60,000 or less)
4. Common assault
5. Possession of very small quantities of a prohibited drug

Crimes not dealt with under the Young Offenders Act 1997 (NSW)

1. Traffic
2. Sexual offences
3. Stalking or intimidation
4. Domestic violence
5. Most drug offences except for possession of very small quantities

Sentencing Options under the the Young Offenders Act 1997 (NSW).

Warnings

If there is no violence involved in the offence and the investing official deems it suitable, warnings may be given for a summary offence on-the-spot. A warning cannot be conditional or impose any punishment upon the child.

Cautions

A caution may be given if the investigating official deems a warning inappropriate and a caution is not contrary to the interests of justice. The young offender must admit to the offence and consent to a caution being given. They must also sign a caution notice which outlines the purpose, nature and effect of the caution. If the young person has received a caution three or more times, they are not eligible for another one.

Youth justice conferencing

Youth justice conferencing fosters communication between young offenders and those who were impacted by their behaviour. The programme, which is based on restorative justice ideas, enables young people to make amends for wrongs committed and to rebuild connections with their community. Youth justice conferencing generally applies where a warning or caution is deemed inappropriate by police or the court.

The Protected Admissions Scheme

One difficulty with diverting criminal offences committed by children is that the legislation requires an admission by the young person before a caution or conference can be offered. Many young people are understandably reluctant to admit anything to police without knowing the consequences.

To deal with this, NSW police operate what is known as the Protected Admissions Scheme, which was introduced in 2014 following an agreement between NSW Police, Legal Aid NSW and the Aboriginal Legal Service. This scheme allows a child to make an admission for the purpose of accessing diversion, with protections designed to prevent that admission from later being used as evidence in court.

While the scheme is seen as beneficial, it is not a risk free approach, as the interviewing police are ultimately the ones who decide whether they will proceed with a caution or proceed to charge the child. It is always our advice that if a child is being interviewed, particularly where multiple allegations are being involved, it is extremely important that legal advice is obtained before any admissions are made to an offence. For further information, please see our dedicated article on the Young Offenders Act and the Protected Admissions Scheme.

Recent Bail Laws

Although the youth criminal system is designed to be focused on rehabilitation, it is not always lenient. In response to community concerns about rampant youth offending, the NSW government has introduced stricter bail tests for certain categories of young offenders. On 12 March 2024, the government introduced the Bail and Crimes Amendment Bill 2024. This legislation was created to amend bail laws, so that teenagers between 14 and 18 yrs who commit certain crimes whilst on bail can be refused bail. (Section 22C in the Bail Act 2013 (NSW)). These changes have made it more difficult for some children to be released on bail while their matter is pending. The consequence of this is that young people may spend additional time on remand before their case is determined. For further information, please see our dedicated article on Youth Bail Laws, Changes in NSW.

Recent Laws for Youth Crime & Social Media

The legislative changes introduced by the NSW government in 2024 also introduced a new section in the Crimes Act 1900 (NSW) that targets youth crime and social media. The new offences are called ‘Performance Crimes’. Section 154K states that if a person commits a motor vehicle offence, or a breaking and entering offence, and subsequently disseminates information advertising the offence or their involvement in the offence, they will be liable for the maximum penalty for the relevant offence, plus an additional two (2) years imprisonment for disseminating information to advertise the crime, including through social media.

How can BSM Sydney Lawyer assist you?

Criminal matters involving children require careful and early legal advice, particularly where police interviews are involved. The criminal lawyers at Brander Smith McKnight have experience with offences committed by minors and can help young offenders understand their rights, represent them in a police interview, caution, conference or court and protect them from onerous charges. The criminal defence team at BSM Sydney Lawyers are experienced in representing children in the Children’s Court and advising on diversion options under youth justice legislation. The lawyers at Brander Smith McKnight  Sydney Lawyers will help take the stress and confusion out of what can be a frightening situation. Our senior criminal lawyers offer a free 20 minute consultation.

BSM Lawyer Sydney have offices conveniently located at Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.