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Sentencing provisions in NSW Children’s Court

Act & Section

Children (Criminal Proceedings) Act (NSW)

Type

Penalty provisions in NSW Children’s Court

Process

Sentencing options for judicial officers in NSW Children’s Court

What

Sentences passed by magistrates, judges or justices in NSW Children’s Court

Observations

The penalty provisions in this section are described from the least severe to the most severe available.

Sentencing options for judicial officers in NSW in matters where the offender is under 18 years of age are, in the main, in the Children (Criminal Proceedings) Act.

There are other pieces of legislation that deal with sentencing in children’s matters, examples that are discussed here, for instance, in the Young Offenders Act. The Crimes Act (Cth) makes some reference to prison sentences for juvenile offenders and other Acts also touch on the area.

DISMISSAL

If a child pleads not guilty to a criminal allegation and the matter is not proven beyond reasonable doubt, the matter will be dismissed. However, if there is a finding of guilt, the court will have to select one of the sentencing options set out below.

SUMMARY OFFENCES: BEFORE A CHIDLREN’S COURT MAGISTRATE

One of the most important considerations of attending a court, whether a child or adult, is the consideration of whether a conviction will be recorded and the consequential affects this will have on the persons future. The Children (Criminal Proceedings) Act (NSW) makes specific provisions with respect to this issue:

s.14 Recording of conviction

(1)   A child who has pleaded guilty, or been found guilty, by a court

(a)   shall not, in respect of an offence, proceed to record a conviction on a child who is under 16 years of age, and

(b)   may, in respect of an offence finalised summarily, refuse to convict a child who is, or is above the age, of 16 years.

(2)   The court is not limited by ss. (1) in the child is not dealt with summarily for an indictable offence.

In plain English – s. 14 means a child dealt with in the Children’s Court, when they are younger than 16 years old, cannot be convicted. If 16 years or older, they can be. However, if a child under 16 years is being dealt with in a higher court than the Children’s Court, then a court can choose to convict the child.

s.33 Penalties

This is where the various sentences are set out:

(1)   If the Children’s Court finds a person guilty (or they plead guilty) it shall do one of the following:

(a)   It may make an order,

i.         Dismiss the charge (and choose, or not, to administer a caution),
ii.         Discharge the person to enter a good behaviour bond for up to 2 years.

[Note: the bond must be conditioned that the person will attend court if called upon and will be of good behaviour. It may contain conditions requiring community service work or payments of fine, compensation or otherwise.]

(b)   It may make an order directing the person to enter a good behaviour bond not exceeding 2 years,

[Note: the bond must be conditioned that the person will attend court if called upon and will be of good behaviour. It may contain conditions requiring community service work or payments of fine, compensation or otherwise.]

(c)    It may impose a fine, not exceeding –

  i.         The maximum fine prescribed by law, or
  ii.         10 penalty units,

Whichever is the lesser,

[Note: before imposing a fine the court must consider the child’s age, ability to pay and potential impact on rehabilitation.]

(c1) It may make release the person on condition the person complies with an outcome plan determined at a conference under the Young Offenders Act 1997,

(c2) It may adjourn the proceedings for not longer than 12 months for the date of finding guilt for any of the following purposes (but only if bail has been granted or dispensed with under the Bail; Act 2013) –

i.         Assessing the person’s capacity and prospects for rehabilitation,
ii.         Allow the person to demonstrate rehabilitation has taken place,
iii.         Any other purpose the Children’s Court thinks appropriate,

(d)   It may do both things in (b) and (c),

(e)   It may release the person on probation, on conditions, for a period not exceeding 2 years,

(e1) It may do both things in (c) and (e),

(f)    It may, subject to the Children (Community Service Orders) Act, make an order, requiring the person to perform community service work,

(f1) It may do both things in in (e) and (f),

(g)   It may, subject to the Crimes (Sentencing Procedure) Act, commit the person, for a period of no more than 2 years,

i.         If the person is under 21 years old, to the control of the minister administering the Childrens (Detention Centres) Act 1987, or
ii.         If the person is 21 years or older, to the control of the minister administering the Crimes (Administration od Sentences) Act 1999.

[Note: an order under this section may be suspended for a specified period, up to the length of the order, and releasing the person on a good behaviour bond under (1)(b) for such a specified period, nut only if the person is not subject to any other order under (1)(g) or imprisonment.  Part 4 of the Crimes (Sentencing Procedure) Act 1999 (sentencing procedures for imprisonment) does not apply to an order under subsection (1) (g) whose execution is suspended under this subsection.]

[Note: an order under (1)(g)(ii) is a is a sentence of imprisonment for the purposes of the Crimes (Administration od Sentences) Act 1999.]

(2)   A prison sentence under (1)(g)(ii) is not to be imposed unless the court is satisfied any other order (a) – (f1) is wholly inappropriate.

(3)   The question of the child being in need of care and protection under the Children and Young Persons (Care and Protection) Act 1998, is not a consideration for sentencing disposition.

(4)   Notwithstanding any other Act or law, the Children’s Court shall not sentence a person to imprisonment.

(4A) ss. (4) is subject to section 28B (the exception to rule of imprisonment) of the Children (Detention Centres) Act 1987 but is not subject to any other provision of that Act.

(5)   Nothing in this section limits the power of the Children’s Court, except:

(a)   The imposition of a driver licence disqualification under road transport legislation,
(b)   An order to forfeit property relating to the commission of an offence of which there is a finding of guilt,
(c)    An order for restitution under s.43 Criminal Procedure Act 1986,
(d)   A community clean up order in respect of a fine under the Graffiti Control Act 2008.

(6)   Unless an order is made under s.33(1)(a), a finding of guilt for a road transport legislation offence is treated a s conviction for the purposes of the Children’s Court exercising any power under that legislation.

[Note: Section 14 limits the circumstances in which a court can proceed to, or record, a conviction following a finding of guilt in relation to a child offender.]

(7)   A juvenile justice officer, for supervision purposes, may exercise powers under the Crimes (Administration of Sentences) Act 1999 in relation to a person who has entered a good behaviour bond or been released on probation and a community corrections officer may exercise the powers of a juvenile justice officer, in accordance with arrangements between Juvenile Justice (NSW) and Community Corrections (NSW).

s.33D Non-association and place restriction orders

(1)   This section applies to any offence that is punishable by imprisonment for 6 months or more, whether or not the offence is also punishable by fine.

(2)   A person sentenced under s.33 (other than (1)(a) dismissal, (c1) outcome plan or (c2) adjournment to assess rehabilitation), the court may make either, or both of the following orders:

(a)   A prohibition order preventing association with certain people for a specified term, or
(b)   A place restriction order preventing the person from going to a certain place or district for a specified term,

If satisfied it is reasonably necessary to prevent further offending.

(3)   An order under (2)(a) is to be in the following terms,

(a)   A limited non-association order – prohibiting the person from being in the company of certain others, otherwise than in exceptional circumstances as specified,
(b)   An unlimited non-association order prohibiting the person from being in the company of a specified person and from communicating with them by any means.

(3A) An order under (2)(b) is to be in the following terms,

(a)   A limited place restriction order – prohibiting the person from going to a specified place or district, otherwise than in exceptional circumstances as specified,
(b)   An unlimited non-association order prohibiting the person from going to a specified place or district at any time or circumstance.

(4)   The term of the order is not limited by any term of detention but must not be longer than 12 months.

(5)   This section does not limit the kinds of prohibition or restrictions under other parts of this Act.

(6)   Part 8A Crimes (Sentencing Procedure) Act applies to the non-association and place restriction orders under this Act.

[Note: associate with means to be in company with, or to communicate with by any means (including post facsimile, telephone and email).

INDICTABLE OFFENCES

Some indictable offences cannot be dealt with in the Children’s Court. These are called, “serious indictable offences.”

A serious indictable offence is:

(a)   Homicide,
(b)   An offence punishable by life or 25 years imprisonment,
(c)    Aggravated sexual assault (unless the complainant is under 16 years of age (s.61J Crimes Act) or assault with intent to have sexual intercourse (s.61K Crimes Act),
(c1) Manufacture or sale of firearms under the Firearms Act where the penalty is imprisonment for 20 years,
(d)   Attempting to commit the offence in (c) above,
(e)   An offence defined as a serious indictable offence by the regulations – the only offence is s.80A Crimes Act – sexual assault by forced self-manipulation.

 A serious indictable offence will be dealt with in the District or Supreme Court and the child will be dealt with according to law, meaning they are exposed to the same maximum penalties as an adult. However, the court will still have the sentencing options under this Act available to it.

TRAFFIC OFFENCES

Where a child is old enough to hold a licence under the road transport legislation, that person will be dealt with in the Local Court for those offences, not the Children’s Court. However, if there are offences charged at the same time as road transport legislation offences, then the road transport offences can be dealt with in the Children’s Court, where the Children’s Court will exercise the same powers as the Local Court had available to it.

   

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