Children as young as 10 can be held criminally responsible for breaking the law in NSW.
The criminal justice system is different for children than for adults, and is set up in a way that is intended to help them learn from their mistakes and improve their outlook for the future.
A young person who has been charged with a criminal offence won’t necessarily be sent to court.
There are a number of alternatives in place that may be considered more appropriate, especially in minor cases or where it is a child’s first offence.
Under the Young Offenders Act 1997, if a young person has been suspected of or charged with a criminal offence, there are four possible outcomes.
An on-the-spot warning can be given to children by police at any time. This can include when they are out in the community or at the police station.
To be issued with a warning, a child doesn’t have to admit to a criminal offence, and the warning will be kept on record, but won’t form part of their criminal history.
Warnings can be given to children for certain minor offences irrespective of their criminal history.
When a warning is given, the police officer will explain the warning to the child and the possible consequences of not heeding that warning.
A formal caution
A formal caution is one level higher in severity from a warning and can be given in circumstances where a child admits to a criminal offence in the presence of an adult.
This adult can be a police officer, youth worker or any other appropriate adult over the age of 18.
When deciding whether a caution is appropriate, police will take into consideration the seriousness of the offence, the level of violence involved, and whether the child has any criminal history.
If the police officer dealing with the situation doesn’t believe that a caution is appropriate, they must seek the advice of a youth worker to determine whether a youth justice conference would be more appropriate.
The allegations must be clearly explained to the child when they are given a caution. They must also be made aware of their entitlement to legal advice and the right to elect to go to court if they wish to challenge the allegations made against them.
This should take place in the presence of an appropriate adult and the child should also receive a copy of the notice of caution in writing.
A notice of caution doesn’t constitute a formal caution.
The formal caution will be given between 10 and 21 days after the notice of caution.
This is intended to give the child time to seek legal advice and/or elect to have the matter dealt with at court.
Once a written caution is given it must be signed by the child in the presence of a responsible adult.
It will be kept on record for police information, but won’t form part of any ongoing criminal record.
Youth justice conferencing
If a caution is not deemed appropriate, a youth justice conference may be arranged.
A youth justice conference is a prearranged meeting between the offender, any co-offenders, their family and the victim or victims.
The aim of youth justice conferences is to show offenders the consequences of their actions and the effect on victims.
It also gives them the opportunity to take direct steps to repair the damage caused to victims.
During the conference, the parties present decide on how the offender will make reparations to the victim for their actions and sign an agreed outcome stating the next steps that will be taken.
These can include a written apology, participation in a rehabilitation program or another way of making reparations.
Youth justice conferences are also intended to link young offenders with support systems and services which can help strengthen their family ties and reduce the risk of them reoffending in the future.
The child will have six months to complete the steps on the outcome plan and as long as they are all completed satisfactorily the charges against them will be dismissed, and no further action will be taken.
A young offender can elect to have a matter dealt with at court as an alternative to a formal cautioning or youth justice conference.
Court is generally considered appropriate for more serious offences, and if a child doesn’t believe the charges against them are fair and wishes to challenge them.
Young offenders are dealt with at the Children’s Court, which is a specialist court set up to deal with children and young people.
The outcome from a court case will depend on the charges involved and whether the child is found guilty or not guilty.
Penalties can include fines, good behaviour bonds and time in a juvenile detention centre.
A child will need legal representation if they are going to appear at children’s court, and it’s a good idea to find a criminal defence lawyer who has experience representing children and young people.
Appearing at court can be overwhelming for children and it’s important that they are guided and supported during their court appearances.
The children’s court is set up to be more child-friendly, but it is still a court and can be intimidating.
Any criminal conviction a child receives as a result of a court trial will either remain on their criminal record permanently, or lapse after a certain period of time.
The Young Offenders Act deals with more minor offences including summary offences and indictable offences that can be dealt with summarily.
There are a number of offences which aren’t covered by the Young Offenders Act, including sexual offences, traffic offences committed by children aged 16 or older and offences resulting in the death of a person.
These offences will generally be dealt with at the children’s court rather than through alternative means.