When your child is charged with a criminal offence, it can feel overwhelming, frightening and uncertain.
Many parents ask the same question:
What is the best day to protect my child?
The answer starts with understanding how the Children’s Court of NSW works and what makes it different from the adult court, as well as early legal advice.
How your child’s case is handled from the beginning can determine whether this becomes a short-term mistake or a long-term record.
What is the Children’s court?
The children’s court is a specialist jurisdiction that deals with criminal matters involving young people under 18 at the time of the offence. The law recognises that children are still developing, and the court’s approach reflects that. It operates differently from adult courts, the focus is: rehabilitation, accountability, limiting reoffending and protecting the future of the children.
Is it still a real court?
The children’s court is governed by the Children (Criminal Proceedings) Act 1987. It is designed to prioritise rehabilitation in contrast to punishment. The principles relating to the exercise of functions are outlined under section 6. These principles include:
- Children have an equal right to be heard and participate in the proceedings the same way that it is enjoyed by adults.
- Children require guidance and assistance as their in a state of dependency and immaturity. However, they do bear responsibility for their actions.
- It is desirable to try and ensure a child’s education and/or employment is not disturbed.
- It is desirable to try and ensure a child remains to reside in their home.
- Any penalty imposed on a child should not exceed the penalty imposed on and adult that commits a similar offence.
- It is desirable to assist a child reintegrate into their community, helping sustain family and community connections.
- It is desirable that children who accept responsibility for their actions, attempt to make reparation.
- Additionally, considerations should be given to the impact of the crime on the victim.
It is necessary we deal with children in the criminal system separately and differently. The common law and the parliament have considered the dual purpose of separate treatment. Firstly, it is inappropriate to invoke the full criminal procedures and punishment on a child, except in the gravest of cases. Secondly, it operates as a prevention tool for young offenders, focusing on rehabilitation.
How is it different from adult court?
The children’s court is designed to be less intimidating and focus on the child’s welfare. Proceedings are generally closed to the public, the language that is used is simpler and detention is a last resort.
Jurisdiction/serious children’s indictable offences
Section 7 and 28 of the Children (Criminal Proceedings) Act 1987 note which courts have jurisdiction over certain matters. The children’s court has jurisdictions for all non-serious indictable offences. The child must be over the age of 10 at the time of offence.
Serious children’s indictable offences are defined as:
- Homicide,
- An offence punishable for live or for 25 years,
- An offence that relates to the sale of manufacture of firearms that is punishable by imprisonment for 20 years, aggravated sexual assault, or assault with the intent to have sexual intercourse,
- Or the offence of attempting to commit the above.
For non-serious indictable offences, the prosecution can make a referral to have the offence dealt with by the district court. Following this, the court does have discretion to decide whether the matter should be dealt with in the children’s court or the district court.
Doli Incapax
For children under the age of 14, the common law presumption of doli incapax applies. This means the law presumes that the child does not fully understand that it is seriously wrong to engage in the physical or mental elements of the offence, unless the prosecution proves otherwise.
Children under the age of 10 cannot be charged with a criminal offence at all. The law considers them incapable of forming the criminal intent required to commit a crime.
Sentencing
The general principles of sentencing in the children’s court include:
- The younger the offender, the more emphasis the court places on rehabilitation, and the less weight it gives to punishment and retribution.
- Age is not the determining factor, the level of maturity is important.
- The more a young person’s immaturity is linked to the offence, the less blameworthy they are.
- Drug addiction from a young age may be a mitigating factor.
- A person’s childhood is relevant to their culpability.
What happens if your child is charged?
If your child is charged:
- The matter will be listed in the children’s court.
- The court will determine whether the charge has been proven beyond reasonable doubt. If it is proven, the accused will be found guilty.
- If found guilty, the court moves to sentencing.
In some cases, the matter will be diverted which allows for warnings and cautions. This can prevent a criminal record and is often the ideal rehabilitative outcome.
If your child is found guilty, the court has a range of options including:
- Dismissal with or without condition
- Fines
- Good behaviour bonds
- Community based orders
- Detention, in serious cases
The court must consider whether there is a less restrictive alternative before imposing detention on a child.
A child under the age of 16 at the time of sentencing cannot be convicted by The Children’s Court. Additionally, there is provided discretion to record a conviction for a child between 16-18. However, it is important to note that the local court has power through section 210 of the Criminal Procedure Act to provide penalties for traffic offences under the children’s provisions.
Regardless of the jurisdiction a child is being charged in, no sentence of custody can be imposed until a background report is provided to the court. This can take up to six weeks.
Does my child need a lawyer?
Yes, all children in NSW are entitled to legal representation no matter the circumstances. This is provided by legal aid, the Australian Legal Service, and private practices such as the Australian Criminal Law Group. Our criminal lawyers are experienced at representing children and helping families in their time of need.
At Australian Criminal Law Group, we offer a free first consultation. This is an excellent opportunity to meet one of our experienced and proven criminal lawyers face to face, share the details about your child’s case, and ask any questions you or they might have. All first consultations are obligation-free and conducted in the strictest confidence. You can read more about our first free consultation here.
Our team of criminal lawyers has 500+ 5-star reviews on Google and 60 years of combined experience, with each lawyer having 5 to 20 years of criminal law experience.
You can read our reviews here.