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JUVENILE OFFENCES (NSW)

31 December 2019

LEGISLATION PARTICULAR TO CHILDREN

There are a number of New South Wales Acts of Parliament which provide specifically for children. The most important are the Children (Care and Protection) Act 1987, which allows a court to make orders with respect to the care and welfare of children and the Children (Criminal Proceedings) Act 1987,which contains the powers and procedures of the Children's Court and other courts where necessary to deal with children for criminal offences.

You cannot be charged with a criminal offence until you are 10 years old.  Children under 10 are not seen as mature enough to commit criminal offences.

If you are between 10 and 14 years you may be responsible for offences you commit.  If you are charged with a crime at this age it must be proved in court that you knew what you did was ‘seriously wrong’ at the time you did it, and not just ‘naughty’.  Any young person aged 10 to 14 who gets in trouble with the police should get legal advice, as they may have a defence if they did not fully understand the consequences of what they did.

Once you turn 14 you will be responsible for any offence that you commit.

Generally, persons under the age of 18 are brought before the Children's Court in respect of the same offences with which people are brought before the Local Court.

With some exceptions, the Local Court or District Court cannot hear and determine criminal proceedings that the Children's Court has jurisdiction to hear.

The Children's Court has jurisdiction to hear and determine:

  • Proceedings in respect of any offence, other than a serious indictable offence;
  • Committal proceedings in respect of any indictable offence (including a serious indictable offence), if the offence is alleged to have been committed by a person;
  • Who was a child when the offence was committed; and
  • Who was under the age of 21 years when charged before the Children's Court with the offence.

The Children's Court, however, does not have jurisdiction to hear proceedings in respect of a traffic offence unless the offence arose out of the same circumstances as another offence which brings the person before a Children's Court or the person was not old enough to obtain a driver's licence.

"A serious indictable offence" means:

  • Homicide (i.e. murder or manslaughter);
  • An offence punishable by a custodial sentence for life or 25 years;
  • Certain sexual offences under the Crimes Act;
  • An attempt to commit certain sexual offences under the Crimes Act;
  • Any indictable offences prescribed by the regulations as serious indictable offences.

The Act gives the Children's Court the power to hear and determine all but the most serious of criminal offences. The Children's Court is empowered to conduct committal proceedings in respect of the most serious offences such as murder, where after the person would be committed to the Supreme Court, which is the only court with jurisdiction to hear such matters, for either trial or sentence. 

Being Charged.

A ‘charge’ means the police believe you have broken the law, and they outline what they think you did and where and when you did it.

If a police officer reasonably suspects you are committing or have committed a crime, then you may be charged on the spot and given a ‘Court Attendance Notice’ which tells you when your case will be heard in Court.  In very rare cases you might be arrested and then give you a court attendance notice, but this is very unlikely unless you have done something very bad for example you have caused some serious violence or injuries to someone.

“Reasonably suspects” means a suspicion that is based on sensible facts that would cause fear or uneasiness in the mind of the police officer.

 COMMENCEMENT OF PROCEEDINGS BY SUMMONS

Except in the case of serious indictable offences or some drug offences, or except in circumstances where it is believed a person is unlikely to comply with the Summons or Attendance Notice, or is likely to commit further offences, criminal proceedings should be commenced against the child by Summons or Attendance Notice. That is, the young person should ordinarily not be subjected to arrest and charge at a police station. 

 OTHER SPECIFIC PROCEDURAL ISSUES

 Closed Court

Children's Court proceedings are generally closed which means that the general public is not entitled to be in court when proceedings are in progress. A young person may have a member of immediate family with them in court during the proceedings. 

 Publication and Broadcasting of Names

The name of a child:

  • Who is appears as a witness in criminal proceedings;
  • To whom any criminal proceedings relate;
  • Is mentioned or otherwise involved in criminal proceedings;

is not allowed to be published or broadcast whether before or after the proceedings are disposed of. 

 PENALTIES FOR OFFENCES DEALT WITH IN CHILDREN'S COURT

The court has open to it similar penalties as those which are available for adult offenders dealt with in Local Courts. The court, upon finding a person guilty of an offence may do any of the following:

  • Dismiss the charge, or dismiss the charge and administer a caution;
  • Make an order to release the person on condition to enter a bond for not more than 2 years;
  • Order the person to pay a fine, but limited to the maximum fine for the offence or $1,100.00 which is ever is lesser;
  • Release the person on condition they comply with an outcome plan determine at a conference under the Young Offenders Act 1997;
  • Release the person on probation for not more than 2 years;
  • Impose a community service order;
  • Commit the person to a detention centre for a period of not more than 2 years.

LEGAL REPRESENTATION

In New South Wales there is Duty Solicitor Scheme in operation where Legal Aid solicitors represent young persons, without cost to the young persons in Children's Courts. Private lawyers also represent children at Children's Courts pursuant to the Legal Aid Duty Solicitor Scheme. 

 CHECKLIST OF RIGHTS UNDER INVESTIGATION OR ARREST

 Rights & Police Powers of Search and Seizure

While the Police do not have a general power to stop and search a person prior to arrest, the Police do have statutory authority to stop persons and search motor vehicles.

A Police officer may stop, search and detain a person or a car which the Police officer reasonably suspects of having or conveying anything stolen or otherwise unlawfully obtained or anything used or intended to be used in the commission of an indictable offence.

The Police may also stop and search a person or car, whom or which the Police reasonably suspect of having any prohibited plant or prohibited drug.

The Police also have the power under the Summary Offences Act to search a person whom the Police suspect on reasonable grounds has a dangerous implement in his or her custody.

A dangerous implement includes things such as, knives, firearms or an implement adapted for use for causing injury to a person or anything intended to be used to injure or menace a person or damage property.

The search is limited to the following:

  • Scanning by a metal detection device.
  • Quickly running hands over the person's outer garments.
  • An examination of any bag or any other personal effects.
  • Search of a school student's locker.

Young Persons and Custody of Knives, Offensive Implements

Custody of an Offensive Implement is possession of a weapon. It is serious offence that carries a maximum fine of 50 penalty units or imprisonment for 2 years.

There is a separate offence of Custody of a Knife in a Public Place or School. The charge of Custody of an Offensive Implement is usually used by police when dealing with other dangerous weapons.

An offence implement means anything made or adapted for use for causing injury to a person, or to anything intended, by the person having custody of the item to be used to injure or menace a person or damage property.

It is also an offence to have custody of a knife in a Public Place or School (without reasonable excuse). A reasonable excuse may be made out where it is reasonably necessary in all the circumstances for the person to have the item for any of the following (some examples):

  • Lawful pursuit of the person's occupation.
  • Exhibition of knives for retail or other trade purposes.
  • Preparation or consumption of food or drink.
  • The wearing of an official uniform.

It is also an offence for parents to knowingly authorise or permit children to commit an offence of having custody of a knife without reasonable excuse in a Public Place or School. 

 Rights under Arrest

It is only in exceptional circumstances that the police will arrest you and take you to the police station to investigate the commission of a criminal offence and/or charge you.

Ordinarily, proceedings are issued against young persons by way of Summons or Attendance Notice.

When you are taken to the police station you may be detained after arrest for investigation for an initial period of 4 hours and for a period of 8 hours, but only after the police have applied and been granted a detention warrant.

The 4-hour investigation period does not include a number of periods or "time outs". These include the time taken for legal representative or friend, relative or guardian to arrive at the police station at your request, or while waiting for interview facilities to become available.

If you are a juvenile you are also entitled to have a support person with you while you are in police custody and the police are required to help you try and get a support person to attend the police station.

The police cannot ask you to do or say anything while you are waiting for a legal practitioner, friend, relative or guardian to attend the police station, but you may be required by law to answer specific questions, such as provide particulars in relation to certain motor vehicle accidents. 

 Records of Interview and the Right to Silence

The police may wish to interview you in respect of a criminal offence. They will usually wish to conduct the interview by recording it on audio CD and DVD.

If you agree to be interviewed, the Police must allow you to have a support person or parent or guardian or legal representative with you during the interview.

You do not have to answer any questions during the interview, and you should seek legal advice before participating in an interview or making any statements to the police, if you are the suspect in relation to an offence. 

 Statements, Confessions and Admissions

The Children (Criminal Proceedings) Act, provides that any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings cannot be admitted in evidence unless there was present at the place where and throughout the period of time during which the statement, confession, admission or information was made or given:

  • A person responsible for the child.
  • An adult (other than a police officer) who was present with the consent of the person responsible for the child.
  • In the case of a child who is of or above 16 years of age, an adult (other than a police officer) who was present with the consent of the child.
  • A barrister or solicitor of the child's choice.

The statement, confession, admission or information, however, could still be admitted as evidence in proceedings where any of the persons stated above are not present when the statement etc., was made but only where there is proper and sufficient reason for the absence of an adult. 

 RIGHTS UNDER THE YOUNG OFFENDERS ACT

If the police believe you have committed an offence you can be issued with a warning or a caution by the police without being required to attend court. In these circumstances, you are required, however, to make an admission to the offence.

You should seek legal advice before making any admission to the police as you may not be guilty of the offence.

The police have the power to issue cautions and warnings in respect of offences. To receive a warning, you do not need to make an admission to an offence, and you will not receive a criminal record for the offence.

A caution can only be administered if you make an admission to the offence and agree to be dealt with by way of caution. A parent or guardian can be present when the caution is given by the police, or by another member of the community.

You do not receive a criminal conviction for a having a caution administered, however, there is a record of the caution being given which can be brought up in court if you are required to attend court for other matters at a later time. 

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