When young people are sentenced for committing criminal offences, the court is required to give greater weight to rehabilitating them than it does when dealing with an adult offender.
Notably, a main principle when sentencing young people is that: “children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance.”
There is a different scheme of options available to Magistrates in the Children's Court which vary to those applicable to adults.
In the Children's Courts, 9% of defendants with a guilty outcome received a custodial sentence in 2020-21, with a downward trend occurring since 2010-11.
The options available when sentencing child defendants in the Children's Courts are contained in the Young Offenders Act 1997 (NSW) and Children (Criminal Proceedings) Act 1987 (NSW).
These options include:
- Youth Justice Conference,
- Dismissal with or without a caution,
- Fine,
- Good behaviour bond,
- Probation order,
- Community service order,
- Suspended control order,
- Control order.
Notably, section 14 of the Children (Criminal Proceedings) Act 1987 (NSW) prescribes that if a child's matter is dealt with in the Children's Court and the child is under 16 years of age, the Court cannot record a conviction. If the child is 16 years or older, the Court may choose to do so.
However, where a child is under 16 years old and their matter is dealt with in a higher court (i.e., the District or Supreme Court if it involves a ‘Serious Children's Indictable Offences' (‘SCIOs') or those which the Court will treat as if they are SCIOs), then a court can choose to convict the child.
What is ambiguous however is that there is no clarification by the law as of yet as to whether the age threshold applies at the date of the alleged offence or date of sentence.
This article will outline the different sentencing options available in the Children's Court and what they involve.
Youth Justice Conference
A young person may be referred to a ‘Youth Justice Conference' by police or the Children's Court.
The operation of this option is prescribed in Part 5 of the Young Offenders Act 1997 (NSW).
Where a young person completes the conference, as well as the outcome plan, which is agreed upon at the conference, the matter will ultimately be dismissed with no conviction or further penalty.
The police, Office of the Director of Public Prosecutions or the Children's Court can refer matters for Youth Justice Conferences. The Court is able to refer a matter to a conference at any stage in the proceedings, including after finding of guilt, once a young person has been charged.
In considering whether it is appropriate to deal with a matter by conference, a specialist youth officer will consider the seriousness of the offence, the degree of violence involved, the harm caused to any victim, the number and nature of any offences committed, and any other relevant circumstance.
To be eligible, the young person must admit the offence and consent to the conference.
However, matters which cannot be referred to conference include:
- Intimidation,
- Breaching an Apprehended Violence Order,
- An offence which results in the death of any person,
- Sexual offences (such as sexual touching, committing a sexual act, sexual intercourse (with a child between 10 and 16), assault with intent to have sexual intercourse (with a child between 10 and 16), and attempting to commit bestiality),
- Drug supply (except those involving cannabis in some circumstances),
- Traffic offences (where the child was old enough to obtain a learner licence).
If a conference is held, the participants will agree on an ‘outcome plan' which seeks to repair the harm the child has caused and to help stop them from re-offending.
The participants entitled to attend a conference includes the child, the victim, caseworkers, the child's legal representative, the investigating official (i.e., police) and the conference convenor.
An outcome plan may involve the child apologising and making amends with the victim and participating in community programs.
The maximum time allowable to implement an outcome plan is 6 months.
On being informed of successful completion of outcome plan, the Court must dismiss the charge if the matter was referred without a finding of guilt.
However, the matter may be brought back to court for sentence on court's own motion or if it is notified by conference organisers that the young person did not attend the conference, complete the decided outcome plan or where the outcome plan is not approved by court.
Dismissal
The Children's Court may direct that a charge be dismissed and may do so with or without administering a caution to the young person, if it thinks fit.
This is outlined under section 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987 (NSW).
The available orders under this section are that ‘The offence is proved. Without conviction, the charge is dismissed' or ‘The charge is dismissed with a caution' – however, both involve non-convictions.
This order has been compared to a section 10(1)(a) dismissal under the Crimes (Sentencing Procedure) Act 1999 (NSW) in the adult jurisdiction which is an order directing that the relevant charge be dismissed with no conviction recorded.
It is viewed as the most lenient penalty for a young person who pleads guilty or is found guilty in the Children's Court and will be most likely applicable where the offence isn't serious, and the child has little to no prior offences.
Where a formal caution is ordered, the Court must notify the Area Commander of the local police area in which the offence occurred of the decision and its reasons, who must make a record of any caution.
A formal caution record is kept by the police, as a young person is unable to receive a caution on more than three occasions, even if their prior offences have not been of the same kind as the current offence.
Fine
A fine is a monetary penalty imposed by the court. The Children's Court can impose fines, as outlined under section 33(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW).
In determining whether a fine should be issued, the Court will consider the child's age, their ability to pay the fine and the potential impact of a fine on their rehabilitation.
Therefore, a fine is not usually imposed unless the young person has some source of income and can pay the fine.
The maximum fine that will be applicable is $1,100 (10 penalty units x current value of $110) or the maximum fine that will be applicable at law – whichever is the lesser amount. This means that the Children's Court cannot impose a fine larger than $1,100.
A ‘good behaviour bond' may be imposed in addition to a fine. The fine may be imposed with or without recording a conviction.
They will generally need to be paid within 28 days of when the Court imposes the fine unless a payment plan is arranged.
The young person is also able to sign up for a ‘Work and Development Order' which enables them to work off the fine in several ways, including going to counselling or attending a training course.
Good Behaviour Bond
The Children's Court may order for a young person to enter into a ‘good behaviour bond'.
The good behaviour bond may be imposed with or without conviction.
If a bond is without conviction, it will be made under section 33(1)(a)(ii) of the Children (Criminal Proceedings) Act 1987(NSW), namely where the Court discharges the young person on condition that they enter a good behaviour bond.
Where it is made with conviction, the order will be made under section 33(1)(b), namely where the Court makes an order directing the person to enter into a good behaviour bond.
They can be imposed for a period of not more than 2 years and must all contain conditions that the young person will: ‘appear before the court when called on to do so' and must ‘be of good behaviour.'
It may contain other conditions as specified, such as conditions requiring the child to attend school regularly, undergo counselling or medical treatment, limiting or prohibiting the child from associating with specified persons or frequenting specified premises.
In some circumstances, supervision by Youth Justice may be ordered.
A breach of the bond can lead to the young person being called to return to court and resentenced.
Probation Order
A probation order is similar to a good behaviour bond; however, it is considered more serious and may come with more onerous conditions.
This order is contained in section 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW).
They may be imposed with or without conviction, and the period of probation must not exceed two years.
Under a probation order, the young person is required to have more extensive contact with Youth Justice NSW, with supervision regularly ordered for the period of probation.
If the length of an order surpasses the child turning 18, then supervision is normally passed on to Community Corrections, although in some circumstances, where the order continues for less than 6 months after the child turns 18, Youth Justice may retain supervision.
The order must have the same standard conditions as a good behaviour bond, being: that the young person will: ‘appear before the court when called on to do so' and must ‘be of good behaviour.'
It may also contain additional conditions, as previously outlined, such as attending school, counselling, medical treatment, or prohibiting association with certain persons or specified premises.
In terms of the adult jurisdiction, it has been compared to a Community Corrections Order.
Breaching a probation order is dealt with seriously by the Children's Court, and it can result in being called to return to court and resentenced, which may involve a control order being imposed (i.e., full time imprisonment).
Community Service Order
A community service order is a type of sentence which enables the court to order a young person to complete community service work.
This order is contained in section 33(1)(f) of the Children (Criminal Proceedings) Act 1987 (NSW) and is subject to the provisions of the Children (Community Service Orders) Act 1987 (NSW).
It may be imposed where a custodial sentence applies to the offence, and this would otherwise be applied.
Therefore, this means that in the Children's Court a community service order is a direct alternative to a control order (i.e., full time imprisonment). It is the most serious sanction other than a control order.
For a community service order to be imposed, there must be a juvenile justice report stating that the young person is suitable, and that work is available.
After considering the report, the court will also need to be satisfied that the young person is suitable and sufficiently mature.
A probation order may be imposed in addition to a community service order. A community service order may also run concurrently with another community service order; however, it is important to note that caps apply to the total number of hours of community service work.
The ‘cap' is dependant on the age of the child, and the offence, with the limits being:
- Child aged 10 – 15 years: 100 hours (for all offences),
- Child aged 16 – 17 years: 100 hours (where maximum penalty of the offence does not exceed 6 months imprisonment),
- Child aged 16 – 17 years: 200 hours (where maximum penalty of the offence exceeds 6 months imprisonment, but is less than 12 months),
- Child aged 16 – 17 years: 250 hours (where maximum penalty of the offence is more than 12 months imprisonment).
The young person may be placed to work within a community organisation, employment program or engage in work groups organised by Juvenile Justice, such as graffiti removal.
The maximum duration for a community service order is 12 months, however applications may be made to extend the period by the young person or the assigned officer, on the grounds that an extension would be in the interests of justice.
A young person's required number of hours under a children's community service order may be increased if they fail, without reasonable excuse, to comply with the order and the failure is considered ‘trivial in nature'. However, this increase must not be by more than 10 hours.
If the failure is not considered trivial, this may lead to the order being revoked, and the Court may then re-sentence the young person, leading to a harsher sentence.
Control Order
A ‘control order' refers to full time custody (i.e., ‘imprisonment') in a Youth Justice Centre.
This order is contained in section 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW).
It can only be made for an offence that provides for a sentence of imprisonment within its maximum penalties, and where a background report has been tendered and considered.
A control order should not be made unless the court is satisfied it would be wholly inappropriate to deal with the child under any other type of sentence.
This reflects the status of ‘control orders' as a last resort in the Children's Court.
The Court is required to record reasons as to why the child has been sentenced to a control order, including why it would have been wholly inappropriate to deal with the matter in different manner.
The Children's Court is limited to imposing a maximum period of 2-years on a control order.
However, where a young person is sentenced for multiple offences, the effect of cumulative orders (i.e., related to the different offences) must not require them to be detained for a continuous period of more than 3 years.
If a young person is over 18 when they are sentenced, they may be able to stay in custody at a Youth Justice Centre rather than going to an adult correctional centre.
This requires the young person's lawyer to illustrate that there are special circumstances justifying detention of the person as a juvenile offender.
Special circumstances may include factors such as the child's illness or disability or the unavailability of suitable educational, vocational training or therapeutic programs in an adult correctional centre.
It may also include a submission that if the person were committed to a correctional centre, there would be an unacceptable risk of them suffering physical or psychological harm including due to the nature of their offence or any assistance given by the person in the prosecution of other persons.
A person will not be eligible to serve a sentence of imprisonment as a juvenile offender after they are 21 years old, unless the non-parole period will end within 6 months after the person has attained that age, or the term of the sentence of imprisonment will end within 6 months after the person has attained that age (if no non-parole has been set).
Suspended Control Order
A suspended control order is considered a custodial sentence; however, it involves the term of imprisonment being ‘suspended'subject to the young person entering a bond to be of good behaviour. This order can be made by the court under section 33(1B) of the Children (Criminal Proceedings) Act 1987 (NSW).
The maximum period of a suspended control order is 2 years. The period of suspension may not be longer than the sentence and, in practice, it is usually the same length as the sentence.
The order will ordinarily specify that: “The offence is proved, and you are convicted and committed to the control of the Minister administering the Children (Detention Centres) Act 1987 for a term of [specify period] commencing [specify date] and expiring [specify date].”
It will note that: “The execution of the committal is suspended for the period [specify period], and you are released on the condition that you enter into a good behaviour bond for the specified period.”
A young person will be unable to receive a suspended sentence if they are serving another sentence by way of full-time custody or serving the balance of a sentence on parole.
The young person will be supervised whilst on this order, to ensure they are complying with any conditions imposed.
If the order is breached, the matter will be referred back to the Children's Court, which may order that the young person comply with the original custodial sentence.
