Children and the Criminal Justice System

23 July 2023 in Criminal Law

Over the years, significant changes have been made to the Australian legal system to deal with the complex and nuanced nature of criminal matters involving children. Today, in NSW there are a number of options available to young offenders and their legal guardians within the criminal justice system.

The Age of Criminal Responsibility

According to section 3 of the Children (Criminal Proceedings) Act 1987 (NSW) (hereafter the CCPA), a child is defined as any person under the age of 18. Any child charged with a summary (i.e. minor) offence is able to have their legal proceedings occur in a manner separate from the traditional court system for adults and have access to, for example, the Children’s Court.

In all states and territories, the age of criminal responsibility is 10 years, meaning a young person aged 10 years or older may be arrested and charged with a criminal offence. In NSW, no child under the age of 10 can be found guilty of a crime, pursuant to section 5 of the CCPA.

The concept of “doli incapax” in common law presumes that children aged between 10 and 14 years (inclusive) do not have the ability to form necessary intent (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.

The Law Council of Australia has 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).

Options to deal with young offenders

There are a few main avenues for young offenders in the Australian legal system. The majority of youth offences are dealt with by the Children’s Court (except for serious indictable charges and traffic offences committed after the age of 16, which are dealt with in the Local or District Court). Many offences are subsequently referred out of the court system to an alternate system under the Young Offenders Act 1997 (NSW). In certain parts of Sydney, the Youth Drug and Alcohol Court exists to deal with offences involving drugs or alcohol.

The Children’s Court

The majority of youth offences are handled by the Children’s Court. In the 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 a child 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.

The CCPA establishes the main provisions relating to criminal proceedings against children and governs the court’s jurisdiction.

The Children’s Court hears and determines matters including:

• Criminal Offences
• AVOs
• Compulsory schooling orders
• The care and protection of children involving the Department of Communities and Justice
  Parole

Matters that are not dealt with by the Children’s Court include serious indictable offences (under section 17 of the CCPA), traffic offences committed by offenders over 16 years and family law issues such as custody matters.

Criminal proceedings against a child, in most situations, must not be commenced by way of arrest, but instead through summons or court attendance notices. Some reasons why arrest may be authorised are 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.

Pursuant to section 33 of the CCPA, there is a range of sentences available to the Children’s Court. These include:

• Dismissal of the charge
• A good behaviour bond
• A fine
• Youth Justice Conference
• An order adjourning proceedings for max. 12 months
• A probation order
• A community service order
• A control order (AKA full-time custody) for max. 2 years
• Suspended sentence and an order for compensation
• Detention

The court may also make it necessary to comply with an outcome plan (for example Drug and Alcohol Counselling or the Violent Offenders Program).

There is a focus in children’s matters on diversion and 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 section 6 of the CCPA. For example, the court must consider things such as how the child’s education or employment might be impacted and how the child can continue to reside at home. Control orders and detention are also avoided where reasonable for summary offences.

The Young Offenders Act

The Young Offenders Act 1997 (NSW) (the Act) is a system in NSW for dealing with young offenders. It provides alternatives to going to court, including warnings, formal cautions and youth justice conferences.

In comparison to the Children’s Court, the Act offers a more efficient and community-based response to crimes committed by young offenders. Its emphasis on restitution and acknowledgement of responsibility by the offender is intended to involve all parties and to address the needs of both victims and offenders.

There are three sentencing options available to young offenders:

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 exists to close a loophole in the cautioning system. The scheme guarantees that first-time young offenders who make an admission of guilt for a minor matter will not face further conviction and will be released with a warning or formal caution by police or be referred to Youth Justice Conferencing.

Offences that can be dealt with under the Young Offenders Act through warning, caution or conference include:

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

Crimes that are not able to be dealt with include:

• Traffic
• Sexual offences
• Stalking or intimidation
• Domestic violence
• Most drug offences except for possession of very small quantities

How can BSM help?

The criminal lawyers at Brander Smith McKnight are highly experienced in relation to 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. We can help can take the stress and confusion out of what can be a frightening situation.