Practice and procedure

[11-1000] Sentencing snapshot — Common offences in the Children’s Court

Last reviewed: June 2024

Sentencing Snapshot — Common Offences in the Children’s Court was issued by the Judicial Commission of NSW and covers the period October 2019 to September 2023.

For further information about criminal proceedings in the Children’s Court, please see Sentencing Bench Book at [15-090], [15-100] and Local Court Bench Book at [38-080] for sentencing orders and principles.

The Bail Act 2013 commenced operation on 20 May 2014. Section 28 provides for a form of pre-release requirement that suitable accommodation arrangements be made for the accused person before their release on bail. This requirement is only available where the person is a child and once imposed, a court must re-list the matter every two days, until the requirement is met. Section 74(3)(d) provides that an application for release may be made in relation to a child as an exception to the prohibition against multiple or detention applications to the same court.

[11-1020] Sentencing options — Murphy/Still sheet

Last reviewed: May 2023

Young Offenders Act 1997

s 31	Dismissal with caution (results in the police being notified that the young person was dealt with by way of a caution)
s 40	Direct a YOA conference
s 57	Dismissal after a YOA conference

Children (Criminal Proceedings) Act 1987

s 33(1)(a)(i)	Dismissal with/out caution
s 33(1)(a)(ii)	Discharge on condition that the person enter into a good behaviour bond (maximum 2 years)
s 33(1)(b)	Good behaviour bond (maximum 2 years)
s 33(1)(c)	Fine (maximum is lesser of maximum fine for offence or 10 penalty units)
s 33(1)(c1)	Release on condition that the person complies with an outcome plan determined at a YOA conference [ONLY 3 REFERRALS ARE ALLOWED BY THE COURT]
s 33(1)(c2)	Adjournment for maximum 12 months, and grant of bail under the Bail Act 2013
s 33(1)(d)	Good behaviour bond and fine
s 33(1)(e)	Probation (maximum 2 years)
s 33(1)(e1)	Probation and fine
s 33(1)(f)	Community service s 13(2), (3) Children (Community Service Orders) Act 1987 (a) if under 16, maximum of 100 hours in total (b) if 16 or over: (i) maximum 100 hours in total if maximum control order on the most serious offence does not exceed 6 months (ii) maximum 200 hours in total if maximum control order on the most serious offence is between 6 and 12 months (iii) maximum 250 hours in total if maximum control order on the most serious offence exceeds 12 months s 3 [Definition of “relevant maximum period”] Relevant maximum period for performance is 12 months s 20A Application to extend period of community service orders
s 33(1)(f1)	Probation and community service
s 33(1B)	Suspended control order Good behaviour bond under s 33(1B)(b) for the period of the sentence
s 33(1)(g)	Control order (maximum 2 years) s 33A(4) Continuous periods of detention must not exceed 3 years s 33AA Cumulative or concurrent control orders — assault on juvenile justice officers s 33B Reduction for guilty plea s 33(2) Control order only if satisfied other options are wholly inappropriate
s 36	Compensation Maximum 10 penalty units if the person is less than 16 years at time of offence, 20 penalty units otherwise.

Children (Detention Centres) Act 1987

s 24	Persons subject to control may be granted leave, discharged, etc

Although it may be expedient in a particular case for a court to make a recommendation or suggestion, as a general rule it is undesirable that the court should do so: R v Sherbon (unrep, 5/12/91, NSWCCA).

For further information on referrals for conferences by DPP and the courts under Young Offenders Act 1997, please see Sentencing Bench Book at [15-120] and Local Court Bench Book at [38-320].

For further information about dismissal, good behaviour bonds, variation of good behaviour bonds or probation and enforcement of conditions, fines, probation, community service orders, control orders, other orders and compensation, please see Sentencing Bench Book at [15-110]. See Local Court Bench Book for sentencing draft orders at [38-120]ff, and information on suspended sentences at [38-160] and control orders at [38-180].

[11-1040] Sentencing considerations for serious criminal matters

Last reviewed: May 2023

No matter what the serious offence is the sentencing exercise follows a regular pattern that we all may tamper with slightly, but generally it requires a consideration of the following, not necessarily in this order:

the charge
the maximum penalty
the facts
an assessment of the seriousness of the conduct
aggravating factors
when the plea was entered
criminal history, if any, of the offender
subjective features of the offender
application of general sentencing factors in light of or modified by the rehabilitative emphasis provided for by the common law in relation to children and as reflected in the legislation: KT v R [2008] NSWSC 51
what is the appropriate penalty
Is any alternative to imprisonment “wholly inappropriate”
If not, consider CSO
If CSO not appropriate consider the appropriate term of imprisonment and then apply any discounts of which there are only two or possibly three …

1.: the discount for the plea of guilty,
2.: the discount for any assistance including a quantification of future assistance … if future assistance includes the intention to give evidence for the crown in future proceedings and
3.: finally compliance with any court orders eg house arrest or court ordered attendance at a rehabilitation programme. Also see R v Perry [2000] NSWCCA 375 and R v Campbell [1999] NSWCCA 76

Only after determining the appropriate length of the term should you then consider if a suspended sentence is appropriate
Are there any special circumstances to cause an adjustment to the non-parole period

The commencement date, should it be backdated; should it be accumulated

When you pronounce your sentence, comply with s 44 Crimes (Sentencing Procedure) Act 1999 and express the sentence as a non-parole period with a balance of parole.

For further information on children’s indictable offences heard in higher courts, please see Sentencing Bench Book at [15-040] and [15-070]. For maximum community service orders for juveniles under the Children (Community Service Orders) Act 1987, see Local Court Bench Book at [38-120].

[11-1060] Child sexual assault offences

Last reviewed: May 2023

A “child sexual assault offence” is defined under s 83 Criminal Procedure Act 1986 where the complainant is under the age of 16 years on the date of the alleged offence, or under 18 years of age where the offence is under ss 73, 73A Crimes Act 1900. If a person is charged before the Children’s Court with a child sexual assault offence, the prosecution may request the proceedings be dealt with on indictment under Pt 3 Div 3AA: s 31(3A) Children (Criminal Proceedings) Act 1987. If the Children’s Court is of the opinion the evidence is capable of satisfying a jury beyond reasonable doubt that the accused has committed a child sexual assault offence, then the proceedings are to be dealt with as committal proceedings in accordance with Pt 3 Div 3A: s 31(3B) Children (Criminal Proceedings) Act.

[11-1080] Committal proceedings

Last reviewed: May 2023

See generally the Local Court Bench Book at [38-060].

[11-1100] Presidential Children’s Court appeals

Last reviewed: May 2023

An appeal under Pt 3 Crimes (Appeal and Review) Act 2001, s 84(2) Crimes (Domestic and Personal Violence) Act 2007 and cl 17 Sch 2 Bail Act 2013, if the appeal relates to a decision of the Presidential Children’s Court, is taken to be an appeal to the Supreme Court, and is subject to any relevant rules of court applying to appeals to the Supreme Court: cll 6, 7 and 8 Children’s Court Regulation 2019.

[11-1120] Parole in matters commencing on or after 26 February 2018

Last reviewed: May 2023

Part 4C of the Children (Detention Centres) Act 1987 applies to parole matters commencing on or after 26 February 2018. The Children’s Court has jurisdiction to determine matters relating to parole, and conditions of parole, for juvenile offenders: s 41. When the detention order is for a period of 3 years or less, a juvenile offender is taken to be subject to a statutory parole order: s 44. If the detention order is for a period of more than 3 years, the Children’s Court must consider whether the offender should be released on parole: s 45(1).

See also Local Court Bench Book at [42-000].

Age-based system

The juvenile parole system applies to offenders under 18 years when the offender first becomes eligible for parole (s 40(1)). Part 4C ceases to apply to juvenile offenders when they reach the age of 18 years (s 40(2)), whereupon the provisions of the Crimes (Administration of Sentences) Act 1999 relating to parole of adult offenders apply. The exceptions at s 40(3) are if:

(a): the offender reaches the age of 18 years while on parole and the birthday occurs during the last 12 weeks of the parole period, or
(b): the Secretary of the Department of Justice considers that it is appropriate that the offender, or a class of offenders of which the offender is a member, continue to be dealt with under Pt 4C.

Where offenders are over 18 but are particularly vulnerable, the Secretary can consider if it is appropriate for the offender to be dealt with under the Juvenile Justice system.

Principle of community safety

Section 38 introduces the principle that the purpose of parole for children is to promote community safety, recognising that the rehabilitation and reintegration of children into the community may be highly relevant to that purpose. The Children’s Court must not make a parole order directing the release of a juvenile offender unless it is satisfied that it is in the interests of the safety of the community: s 46(1). The Children’s Court must have regard to the following principal matters relating to the promotion of community safety, while recognising that the rehabilitation and re-integration of the offender into the community may be highly relevant to the promotion of community safety (s 46(2)):

(a): the risk to the safety of members of the community of releasing the offender on parole,
(b): whether the release of the offender on parole is likely to address the risk of the offender re-offending,
(c): the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole.

Under s 46(3), the Children’s Court must also have regard to the following matters:

(a): the nature and circumstances of the offence to which the offender’s sentence relates,
(b): any relevant comments made by the sentencing court,
(c): the offender’s criminal history,
(d): the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole,
(e): if applicable, whether the offender has failed to disclose the location of the remains of a victim,
(f): any report in relation to the granting of parole that has been prepared by or on behalf of the Department,
(g): any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of any authority of the State,
(h): any other matters that the Children’s Court considers to be relevant.

A parole order is subject to the standard conditions imposed by Pt 4C and cl 94 Children (Detention Centres) Regulation 2015. See s 54 for conditions of parole as to non-association and place restriction.

Supervision

It is a condition of a parole order that the juvenile offender is to be subject to supervision: s 55. This is consistent with the evidence that supervision reduces reoffending. Exemptions from supervision will be given in exceptional circumstances: s 56. See cl 95 Children (Detention Centres) Regulation 2015 for conditions of supervision.

Terrorism related offences

Part 4C, Division 5 re-enacts adult parole provisions that restrict release on parole for terrorism-related offenders. There is a presumption against parole for terrorism related offences.

The State may make submissions to the Children’s Court in parole proceedings concerning a juvenile offender who is a terrorism related offender: s 86 Children (Detention Centres) Act 1987.

Revocation

The Children’s Court may make an order revoking parole at any time before the offender to whom the order relates is released under the order, if the court is satisfied under s 63 that:

(a): the offender, if released, would pose a serious identifiable risk to the safety of the community and the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or
(b): the offender, if released, would pose a serious and immediate risk to the offender’s safety and the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or
(c): the offender has requested the revocation, or
(d): in the case of a parole order made by the court, there has been a substantial change to a matter considered by the court in making the order, or
(e): any other circumstances prescribed by the regulations.

Section 64 provides for actions that can be taken by the Secretary in the event of failure by the offender to comply with a parole order. The Children’s Court may take any of the following actions under s 65(2), if satisfied that a juvenile offender has failed to comply with the offender’s obligations under a parole order:

(a): record the non-compliance and take no further action
(b): give the juvenile offender a formal warning
(c): impose additional conditions on the parole order
(d): vary or revoke conditions of the parole order (other than conditions imposed by this Act or the regulations),
(e): make an order revoking the parole order.

The Children’s Court may make an order under s 66(1) revoking a parole order aside from non-compliance at any time after the release of a juvenile offender:

(a): if it is satisfied that the offender poses a serious and immediate risk to the safety of the community and that the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or
(b): if it is satisfied that there is a serious and immediate risk that the offender will leave NSW in contravention of the conditions of the parole order and that the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or
(c): in the case of an offender who has been granted parole under s 47 on the grounds that the offender is dying or because of exceptional extenuating circumstances, if it is satisfied that those grounds or circumstances no longer exist, or
(d): if the offender fails to appear before the Children’s Court when required to do so, or
(e): if the offender has applied for the order to be revoked.

A revocation order takes effect on the day on which it is made or on any earlier day specified in the order: s 68(1).

The Attorney General, Minister or Director of Public Prosecutions may request the Children’s Court to revoke a parole order where the offender was sentenced for a serious children’s indictable offence and the order was made on the basis of false, misleading or irrelevant information: s 69.

Victims Register

A Victims Register is to be kept by the relevant government agency to record the names of victims of juvenile offenders who have requested they be given notice of the possible release of the juvenile offender: s 100A Children (Detention Centres) Act 1987. The government agency that keeps the Victims Register must give notice to any victim if a serious offender is being considered for release on parole or has applied for parole: s 100B. The victim can make a submission to the Review Panel which must be considered: s 100C. Information which is to be provided to the victim concerning the juvenile offender is set out at s 100D.

[11-1140] Parole: transitional provisions

Last reviewed: May 2023

A parole order for a juvenile offender that was in force immediately before the commencement of Pt 4C of the Children (Detention Centres) Act 1987 on 26 February 2018 continues to be subject to the same conditions to which it was subject immediately before that commencement: cl 155 Children (Detention Centres) Regulation 2015.

The former parole regime applying to juvenile offenders in the Crimes (Administration of Sentences) Act 1999, as applied by s 29 (rep), continues to apply generally to any act, matter or thing done or omitted to be done under any of the former parole provisions in force immediately before 26 February 2018. Section 29, before its repeal by the Parole Legislation Amendment Act 2017, is set out below:

29 Application of Crimes (Administration of Sentences) Act 1999 to detainees [R]

(1)

The provisions of Parts 6 and 7 of the Crimes (Administration of Sentences) Act 1999 apply to a detainee within the meaning of this Act in the same way as they apply to an offender referred to in those provisions, and so apply as if in those provisions:

(a)

a reference to a correctional centre were a reference to a detention centre, and

(b)

a reference to the Parole Authority or a member of the Parole Authority were a reference to the Children’s Court or a Children’s Magistrate, respectively, and

(c)

a reference to the Secretary of the Parole Authority were a reference to a Registrar of the Children’s Court, and

(d)

a reference to the Commissioner were a reference to the Director-General.

(2)

If a detainee who is being detained as a result of the revocation or suspension of a parole order by the Children’s Court is transferred to a correctional centre, this section (subsection (1)(a) excluded) continues to apply in relation to the parole order as if the transferred detainee were still a detainee. Accordingly, the Children’s Court is to continue to exercise the functions of the Parole Authority under Pt 7 Div 4 Crimes (Administration of Sentences) Act 1999 with respect to the detainee’s parole order.