The age of criminal responsibility in New South Wales is currently 10 years, which means children who are 10 years and older can be charged with a criminal offence and sent to court.
Those under the age of 18 are normally dealt with by the children’s court rather than the local, district or supreme courts in our state.
What are the guiding principles of the children’s court?
Section 6 of the Children (Criminal Proceedings) Act 1987 outlines the following principles that courts are required to follow when sentencing children:
- Children have rights and freedoms before the law equal to those enjoyed by adults, and in particular a right to be heard and a right to participate in the processes that lead to decisions that affect them.
- Children who commit offences bear responsibility for their actions but because of their state of dependency and immaturity, require guidance and assistance.
- It is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption.
- It is desirable, wherever possible, to allow a child to reside in his or her own home.
- The penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
- That it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties.
- That it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions.
- That, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
What are the penalties the children’s court can impose?
The sentencing options in the children’s court are:
- Dismissal with or without a caution.
- Good behaviour bond.
- Youth Justice Conference.
- ‘Griffiths remand’ or deferral of sentencing.
- Community Service Order (CSO).
- Control Order (full-time custody).
Dismissal with or without a caution
A dismissal means there is no criminal conviction. This is seen to be the most lenient penalty for a person who pleads guilty or is found guilty in the children’s court.
It can come with or without a formal caution, and is most likely to apply where the offence is less serious, the child has no prior convictions and there are good prospects of rehabilitation.
Good behaviour bond
A good behaviour bond is where a person promises not to reoffend for a specific period of time, and to abide by any other conditions imposed by the court.
The court can impose a bond for up to two years.
A breach of the bond can lead to the person being called to return to court and resentenced.
The children’s court is empowered to impose fines up to $1,100 for each offence.
Those fines will normally need to be paid within 28 days, unless a time extension is granted or payment plan is implemented
Youth Justice Conference
A Youth Justice Conference is where a convenor from Juvenile Justice NSW arranges for relevant people to attend a meeting to discuss the offence and its impact, and make amends.
It may involve the victim, a police officer, the child’s family and any others affected by the crime.
The victim may speak of the impact of the offending conduct, and the child will be given the opportunity to apologise.
An agreement may be formulated whereby the child engages in counselling or a rehabilitation program, undertakes community services or otherwise takes steps to ensure there is no reoccurrence and that any loss is compensated.
The matter will then be brought back before the court, which can dismiss the charges with a caution but no conviction provided there is a successful outcome.
Deferral of sentencing or ‘Griffiths Remand’
A deferral of sentence is where the court adjourns the case for a lengthy period of time to enable the child to take steps to prove there will be no reoccurrence in the future.
The child may be expected to participate in a rehabilitation program or take other steps in the meantime, and such participation will normally lead to a more favourable outcome than would otherwise be expected.
Probation is similar to a good behaviour bond but may come with more onerous conditions.
Breaching a probation order can have very serious consequences, such as a control order (full time custody).
A community service order is the most serious sanction other than a control order.
The court can order a person under the age of 16 years to complete up to 100 hours of work for the community, or 250 hours for young persons over 16.
A control order is where a person is ordered to serve full time custody.
It is considered to be the very last resort in the children’s court, to be entertained only after all other options are deemed to be inappropriate.
The maximum term of a control order is two years for a single offence, or up to three years where there are multiple offences.
A control order can be suspended, but any breach of the terms of that suspension will normally lead to full time custody.
Emphasis on rehabilitation
As is evident in the outlined guiding principles, the children’s court places a strong emphasis on diversion and rehabilitation, with a view to getting kids back on track to becoming gainful members of society.
The court recognises that children make mistakes and do not always fully comprehend the seriousness of their actions, in a way that adults are expected.
This is different to adults courts which place a heavier emphasis on deterrence and punishment.