Guide to court processes involving children and young people
Includes changes to court processes as a result of Keep Them Safe, Criminal matters in the Children's Court, and Victims Services
Criminal matters in the Children's Court
Children and young people can be charged with criminal offences from the age of 10. Most proceedings for criminal offences are commenced in, and determined by, the Children’s Court. However, some proceedings may need to be determined by the District or Supreme Court depending on the gravity of the offence. Proceedings for traffic offences will ordinarily be dealt with in the Local Court provided the person alleged to have committed the offence was old enough to obtain a license or permit.
When hearing charges against children and young people, the Children’s Court operates as a criminal jurisdiction.
The Court can request that Juvenile Justice become involved with the child or young person under the terms of the:
- Children (Detention Centres) Act 1987
- Children (Community Service Orders) Act 1987
- Young Offenders Act 1997
- Children (Interstate Transfer of Offenders) Act 1988.
This section provides more information about:
- Right to legal representation
- Attending Court
- If a child or young person pleads not guilty
- If the child or young person admits the offence or the offence is proven
- Attending Court by audio visual link
Right to legal representation
By law, children and young people have the right to get legal advice before making a formal statement to Police.
When a child or young person is going to Court they should have their own legal representation or ask to see the duty solicitor before going into the Court room.
The Children’s Legal Service is a specialist unit of Legal Aid NSW. Legal Aid solicitors provide advice and represent children and young people under the age of 18 who are involved in criminal matters in the Children’s Court. Their aim is to ensure that children and young people have access to professional, face-to-face or telephone-based legal advice at any stage of their legal proceedings.
Children and young people who need advice about a criminal law problem are encouraged to contact the:
- Youth Hotline on 1800 101 810 (toll free from a landline)
- Bidura Children’s Court on 02 9219 5120
- Parramatta Children’s Court on 02 8688 3800.
If a child or young person is given a Court Attendance Notice or charged, they will have to attend the Children’s Court on a set date. They must be present at Court by the time specified in the Notice, but ideally earlier to meet with their lawyer or the Court’s duty solicitor.
The child or young person is entitled to be represented by a duty solicitor who will interview them at Court on the day they appear, if they (or their parents) have not appointed their own lawyer. Where possible, the child or young person’s parents or carers should also make themselves available for interview by the duty solicitor. If the child or young person is already in contact with a Juvenile Justice Officer, that Officer can also be contacted to discuss a child or young person’s appearance at Court.
On their first appearance at Court for a specific offence(s), the child or young person will be asked to enter a plea - guilty or not guilty. The decision on how to plead should be made by the child or young person following advice from a duty solicitor.
If a child or young person pleads not guilty
The child will have to come back to Court for a hearing where witnesses, including the Police, will give evidence. Once all the evidence has been heard, the Magistrate will decide whether the charges have been proven.
If the child or young person is found not guilty, the charges will be dismissed and no record of charge will be kept. Any related fingerprints or photographs will be destroyed.
If the child or young person admits the offence or the offence is proven
The Magistrate may ask the child or young person’s parent(s) or carers, if appropriate, to address the Court, although usually representations to the Magistrate are made by the young person’s solicitor. The Magistrate will then decide the child or young person's sentence on that day, or adjourn the matter until Juvenile Justice can provide a background report on the child.
If the Magistrate asks for a background report, the child or young person will have to return to Court another day for sentencing after the report has been submitted and lodged with the Court. The Magistrate may decide to refer the child or young person to a Youth Justice Conference (detailed below under “Orders”) instead of issuing a sentence.
Attending Court by audio visual link
If the child or young person is being detained in a Juvenile Justice Centre pending hearing of the matter before the Court, they can appear by audio visual link instead of physically attending the Court. This entails the child or young person being taken to a booth at the Juvenile Justice Centre. In the booth is a screen displaying the:
- Court officials
- child or young person’s solicitor
- Police prosecutor.
Images of the child or young person appear on a screen in the Court and the Court hearing proceeds as if the child or young person was physically present.
The Children (Criminal Proceedings Act) 1987 and the Young Offenders Act 1997 permit the Court to make any of the orders listed below in relation to a child or young person who has committed a criminal offence.
Dismissal and/or caution
It is possible for the Court to give a “Caution” to a child or young person who pleads guilty to an offence. This involves the charges being dismissed without conviction. However a formal caution record is kept by the Police. A child or young person cannot receive a caution by a Court on more than three occasions even if the previous offences resulting in a caution have not been of the same kind as the current offence. The Court may also direct that the charge be dismissed, with or without caution as it sees fit.
Youth Justice Conferencing
The Court may refer the child or young person to the Youth Justice Conference Program. This Program aims to bring young offenders, their families and support people face to face with victims and the victim’s support people. The child or young person discusses the offence with the victim in the presence of family and support persons. Together, they negotiate and agree on a suitable outcome.
A suitable outcome can include an apology, reasonable reparation to victims, or steps to reconnect the child or young person with their community to help them refrain from further offending. Juvenile Justice will monitor whether the child or young person completes the required outcomes and report back to the Court. The child or young person will be given a specific timeframe in which to complete or comply with the outcomes.
Non-completion or non-compliance with the agreed outcomes will result in the matter being returned to Court at which time it may be decided that a Court imposed sentence may be more appropriate. If the outcome is successfully completed, the charge will be dismissed.
The Court can impose a monetary penalty on a child or young person. The Court will consider the means of the child or young person when determining the monetary amount to be paid. The Court may order a bond in addition to a fine.
The Court can order the child or young person to pay compensation for specific damage or an injury that they were responsible for. In making an order for compensation, the Court will have regard to the child or young person’s means and income. An order for Compensation cannot be made as a condition of a bond.
The Court may determine that a child or young person needs to be supervised by Juvenile Justice for the period of any Order that has been imposed. Supervision requirements may be imposed as a condition of probation or a good behaviour bond, control order or a suspended sentence. The level of supervision will depend on the Order imposed and will stipulate a minimum level of contact with Juvenile Justice.
If the child or young person fails to comply with supervision requirements, Juvenile Justice is permitted to give warnings to the child or young person for breach of the Order. If the child or young person receives three warnings, a breach notice will be lodged with the Court. The Court will then determine whether a further sentence or additional Orders should be imposed.
The nature of supervision by Juvenile Justice involves contact between the young offender and their Juvenile Justice Officer. The frequency of contact is established on the basis of needs and assessment. Often a Good Behaviour Bond will be imposed in conjunction with a Supervision Order.
Good behaviour bond
The Court can order a child or young person to enter into a good behaviour bond:
- with or without conviction
- with or without conditions of supervision by Juvenile Justice.
The conditions of supervision overseen by Juvenile Justice can be similar to those listed under bail conditions. There can also be a condition to engage in offence focused counselling. The Juvenile Justice Officer has a practice of giving three warnings to the child or young person for failure to comply with the conditions of the bond. Further failure to comply after such warnings will usually result in a breach notice being lodged at the Court. This may require the young offender attending Court again at which time he or she may receive an additional supervision conditions or an alternative penalty.
The Court can issue a child or young person with a Probation Order, usually where an offence is more serious. This can be with or without the supervision of Juvenile Justice and other additional conditions that the child or young person must comply with.
A Probation Order is similar to a Good Behaviour Bond. It is issued for offences that are considered to be more serious. Under a Probation Order, the child or young person will be required to have more extensive contact with Juvenile Justice.
Community Service Order
The Court can order the child or young person to complete a Community Service Order. This may be imposed as an alternative to a custodial sentence. In order for a Community Service Order to be imposed, Juvenile Justice must provide a report stating that the child or young person is a suitable candidate. Under such an order, the young person may be placed and work within a community organisation, actively attend an employment program or engage in work groups organised by Juvenile Justice, such as graffiti removal.
Suspended Control Order sentence
A custodial sentence can be suspended and the child or young person released into the community as an alternative to remaining in custody. A custodial sentence can be suspended subject to the child or young person entering into a Good Behaviour Bond. The Court must first impose the sentence and then suspend it.
A Suspended Control Order Sentence must be supervised by Juvenile Justice and the child or young person must comply with any conditions imposed, similar to those conditions set out above which can be imposed when granting bail.
If the child or young person breaches the conditions imposed by the bond or re-offends the matter will be referred back to the Court and the Court may Order that the child or young person comply with the original custodial sentence.
A Control Order imposes a period of full time custody in a detention centre. This can only be imposed where the Court considers no other order to be appropriate. When a Court is contemplating a sentence of six months or less, the Court must give reasons as to why an alternative sentence was not considered appropriate.
Before imposing a Control Order, the Court must have a background report which is an assessment of the background of the child or young person completed by Juvenile Justice to assist the Court.
A child or young person may become eligible for parole during their Control Order. Release on Parole is subject to approval by the Magistrate who will hear the matter at a Parole Hearing at which time Juvenile Justice will submit a parole report. The report summarises the child or young person’s behaviour in custody, level of compliance, engagement in programs and their plan for post release. If a child or young person receives parole, they are required to comply with very strict reporting and behaviour conditions which is supervised by Juvenile Justice. If a Parole Order is breached, the child or young person will be required to attend Court and further orders may be imposed.
Youth Conduct Order
Youth Conduct Orders are being piloted as a scheme aimed at reducing levels of antisocial behaviour by targeting children and young people charged with, pleading guilty or found guilty of certain criminal offences.
The Court may grant unconditional bail, or conditional bail, and place the child or young person under the supervision of Juvenile Justice until the matter is finalised by the Court. Some common bail conditions may include:
- residing as directed, by either Juvenile Justice or Community Services
- regularly attending school or place of employment
- not associating with certain people, co-offenders
- not consuming non-prescription drugs or alcohol
- reporting to Juvenile Justice as directed and complying with reasonable directions given by Juvenile Justice and/or parents/carers
- complying with curfews
- not attending certain places or premises e.g. a particular train station
- not contacting the victim.
If bail conditions are breached the child or young person will be arrested by the Police and be required to re-appear at the Children’s Court at which time the Magistrate will re-assess the order granting bail.
When a Court is sentencing a child or young person the Court is required to consider the matters set out in section 6 of the Children (Criminal Proceedings) Act 1987. The Court will also:
- give more weight to individual treatment and rehabilitation of the offender than punishment and general deterrence
- consider how close in age the offender is to 18
- give consideration to the age of each offender and how the offender’s youth has contributed to their offending behaviour and should be given weight in determining the correct penalty
- look at the particular circumstances of each matter when considering the deterrence element of a sentence
- take into account a guilty plea, and accordingly reduce any order it might otherwise have made.