Children’s Court

[42-020] Introduction

Part 4C was added to the Children (Detention Centres) Act 1987 (CDCA) as a result of amendments effected by the Parole Legislation Amendment Act 2017 which commenced on 26 February 2018. Part 4C contains a “separate legislative framework for juvenile parole” and was introduced to improve transparency and enable the system to be more appropriate for juveniles: Second Reading Speech, Parole Legislation Amendment Bill 2017, NSW, Legislative Assembly, Debates, 11 October 2017, p 14.

Previously, the Children’s Court exercised its powers with respect to parole by reference to the parole provisions in the Crimes (Administration of Sentences) Act 1999.

[42-040] Jurisdiction

Part 4C of the CDCA confers jurisdiction on the Children’s Court to determine parole for juvenile offenders: s 41(1). Parole determinations can be made by the President of the Children’s Court or a Children’s Magistrate (s 7, Children’s Court Act 1987): s 41(2).

In exercising its functions under Pt 4C, the court must have regard to:

the principles set out in s 6 CCPA (see [38-000] Guiding principles)
the purpose of parole for children, being to promote community safety while recognising that children’s rehabilitation and re-integration into the community may be highly relevant to that purpose: s 38.

[42-060] Application of Pt 4C

Part 4C applies to juvenile offenders who are under 18 years old when they first become eligible for parole or at any later time when they are considered for parole: s 40(1). A juvenile offender (“juvenile”) is defined as a person:

subject to a control order, or
serving a sentence of imprisonment and under 18 years old when they committed the offence: s 39.

This scheme does not apply to juveniles in custody for a Commonwealth offence: s 42(3). Part IB, Div 5 Crimes Act 1914 (Cth) applies to federal offenders.

Generally, the court cannot consider parole for a juvenile once they turn 18. However, Pt 4C continues to apply if:

the juvenile’s 18th birthday occurs while they are on parole and is during the last 12 weeks of the parole period: s 40(3)(a); or
the Secretary considers 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: s 40(3)(b). This is intended to be directed towards particularly vulnerable offenders: Second Reading Speech, Parole Legislation Amendment Bill 2017, NSW, Legislative Assembly, Debates, 11 October 2017, p 18.

A juvenile is only eligible for parole if s/he:

is subject to at least one detention order with a non-parole period, and
has served the non-parole period and is not subject to any other detention order: s 42(2).

[42-080] Parole orders

The court considers parole in those cases where the detention order is greater than 3 years: s 45. If the detention order is 3 years or less the juvenile is taken to be subject to a statutory parole order unless they are also subject to a detention order of more than 3 years: s 44.

Note:: special provision is made for terrorism related offenders: see [[42-160]] below.

Clause 91 of the Children (Detention Centres) Regulation 2015 identifies the material that must be contained in a parole report prepared by a juvenile justice officer.

The court must consider whether the juvenile should be released on parole at least 60 days before the parole eligibility date: s 45(1). Consideration of a case can be deferred until not less than 21 days before that date if the court thinks it cannot complete its consideration because a required report has not been provided or because other relevant matters require further consideration: s 45(2).

A parole order must not be made unless the court is satisfied it is in the interests of community safety: s 46(1). In considering that issue, the rehabilitation and re-integration of the juvenile may be relevant: s 46(2). Other matters the court must consider are listed in s 46(3) and include:

the nature and circumstances of the offence
any relevant comments by the sentencing court
the juvenile’s criminal history
the likely effect of release on the juvenile’s victim or the victim’s family
whether, where relevant, the juvenile has failed to disclose the location of the victim’s remains
any Departmental report concerning the grant of parole; and
any other report prepared on behalf of any State authority concerning the grant of parole.

If the juvenile has provided post-sentence assistance (defined in s 46(7)), the court may consider the nature and extent of the assistance and the degree to which the juvenile’s willingness to provide such assistance demonstrates their progress to rehabilitation: s 46(4).

If the State (in relation to a serious juvenile offender) or the Secretary (in relation to any juvenile) makes submissions concerning parole, the court must not make a decision without taking those submissions into account: ss 86, 87.

Release on parole

A juvenile can only be released on parole in accordance with a parole order directing their release and must be released on the date specified: ss 43, 50. The sentence continues to run while the juvenile is on parole: s 51.

If the release date falls on the anniversary of the commission of an offence involving violence, the court must consider the potential trauma to a victim and their family if the juvenile is released on that date: s 49(1). Offences involving violence are identified in s 49(2).

The court may make a parole order for an otherwise ineligible juvenile if the juvenile is dying or there are exceptional extenuating circumstances: s 47.

[42-100] Parole conditions

Parole orders are subject to standard conditions which the court cannot revoke or vary: s 53(1), (5). The court also has power to impose, vary or revoke additional conditions: s 53(2).

In determining whether to impose, vary or revoke a condition, the court must have regard to the criteria in s 53(4) to assess whether the new condition, variation or revocation:

assists in managing a risk to community safety
has a likely effect on any victim/s and their family
assists in managing the risk of parole breaches by the juvenile
assists in supporting the juvenile’s participation in rehabilitation programs and managing the juvenile’s re-integration into the community.

Standard conditions are in either Pt 4C or the Children (Detention Centres) Regulation 2015. The standard conditions in cl 94 of the Regulation require the juvenile to:

be of good behaviour,
not commit any offence, and
adapt to live a normal lawful community life.

A parole order must also include:

a supervision condition: s 55(1). The period of supervision and the juvenile’s obligations while under supervision are in cl 95 of the Regulation.
where the juvenile is subject to more than 3 years detention, conditions giving effect to a post-release report prepared by the Department, and adopted by the court (with or without changes), may also be included: s 53(3).

Note:: The period of supervision for a juvenile released to parole under s 47 is the whole period for which the order is in force: s 55(3).

An exemption from supervision can only be made in exceptional circumstances: s 56(1). The exemption may be unconditional, or subject to conditions, but the exemption order must specify why it was granted: s 56(2), (3).

Conditions that may be imposed in addition to the standard conditions include:

non-association: s 54(1)(a)
place prohibition or restriction: s 54(1)(b).

[42-120] Revocation, non-compliance and reconsideration

Under Pt 4C, Div 6, the court has the power to revoke a statutory parole order and any parole order made by the court on its own initiative or upon the making of a recommendation by a juvenile justice officer or, in particular situations, the Secretary.

Parole orders can be revoked by the court:

before a juvenile’s release: s 63
because of non-compliance with the order: s 65; or
after the juvenile’s release but for reasons not related to non-compliance: s 66.

If the court is satisfied a juvenile has failed to comply with their parole obligations, it may:

record the non-compliance and take no further action
formally warn the juvenile
impose additional conditions on the order
vary or revoke conditions of the order (other than those imposed by the Act or regulations); or
revoke the parole order: s 65(2).

The Secretary also has certain powers and may take certain action with respect to non-compliance of parole orders: s 64. However, the Secretary can refer serious instances of non-compliance to the court and, in such cases, may also make a recommendation about the action the court may take: s 64(3).

The Attorney General, Minister or Director of Public Prosecutions may request the revocation of a parole order of a juvenile sentenced for a “serious children’s indictable offence” (defined in s 3(1) Children (Criminal Proceedings) Act 1987) if the order was made on the basis of false, misleading or irrelevant information: s 69.

Revocation orders

Before release: s 63

An order revoking parole can be made at any time before the juvenile’s release if the court is satisfied that upon release the juvenile poses:

a serious identifiable risk to community safety (including any additional terrorism concerns), or
a serious and immediate risk to his/her own safety

which cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the parole conditions: s 63(1)(a) and (b).

The order can also be revoked on the juvenile’s request or, in the case of an order made by the court, if there has been a substantial change to a matter considered by the court since making the order: s 63(1)(c) and (d).

After release: s 66

An order revoking parole can be made any time after the juvenile’s release if the court is satisfied:

the juvenile poses a serious and immediate risk to community safety (including consideration of any additional circumstances relating to terrorism), or
there is a serious and immediate risk the juvenile will leave NSW

and, in either case, the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the parole conditions: s 66(1)(a) and (b).

Parole orders under s 47 can be revoked if the basis on which the order was made no longer exists, that is the juvenile is no longer dying or the exceptional extenuating circumstances no longer exist: s 66(1)(c). More generally, orders can also be revoked if the juvenile fails to appear when required (s 66(1)(d)) or if the juvenile applies for revocation of the order (s 66(1)(e)).

Hearings for non-compliance and revocation — s 67

While the court is not required to hold a hearing before revoking a parole order or taking action in relation to non-compliance, it is required to hold a hearing within 28 days of giving the juvenile notice of the revocation: s 67. The procedure for hearings is set out in Pt 4C, Div 8 (see [42-140]).

A juvenile may apply to the Supreme Court for a direction to the Children’s Court if alleging the order was revoked because of false, misleading or irrelevant information: s 70(1). The Supreme Court does not have power to consider the merits of the court’s decision except on the basis identified in s 70(4).

Reconsideration options after refusing or revoking parole — ss 72, 73, 74

If the court refuses to make a parole order or revokes a parole order, a juvenile may apply for reconsideration (under s 72 or s 73 respectively) and in either case the court must specify:

a new date when the juvenile will be eligible for parole: ss 72(a), 73(1)(a)
a hearing date to reconsider the question of the juvenile’s release: ss 72(b), 73(1)(b)
a date on or after which the juvenile can apply to the court for release on parole: ss 72(c), 73(1)(c).

In addition, if the court has revoked a parole order, it may defer determining any of the matters in s 73(1)(a)–(c) for a period of not more than 3 months, and may defer determining any of those matters on one or more occasions: s 73(1)(d), (2).

A juvenile can apply for parole after it has been refused or revoked, or if a decision has been deferred: s 74(1). Such an application should usually only be made on or after the date specified by the court: s 74(1)(a).

However, applications may be made at any time after the decision if:

new information becomes available that is relevant to either the grant of parole or a condition of parole: s 74(1)(b)(i), or
there has been a material change in the juvenile’s situation since the decision: s 74(1)(b)(ii).

An application can be supported by written submissions: s 74(3).

The court must set a hearing date (as soon as practicable) and give the juvenile notice of the date, time and place for the hearing (s 74(4)) but may refuse to consider applications it considers frivolous, vexatious or without prospect of success (s 74(5)). Section 76 deals with setting the date of parole after reconsideration. Where a parole order is refused, certain dates need to be specified: s 73.

[42-140] Procedure at hearings

The court may conduct hearings in accordance with Pt 4C, Div 8 and, unless otherwise ordered, s 10 of the Children (Criminal Proceedings) Act 1987: s 77. Section 10 concerns excluding the general public from criminal proceedings.

Upon giving written notice, a magistrate may require juvenile offenders or other persons to appear for the purpose of proceedings under Pt 4C and may also require the production of documents: s 78.

Sections 79, 80 and 81 concern the entitlement to representation, making submissions about the grant of parole and the court’s power to adjourn the proceedings. The State has power, at any time, to make submissions to the court concerning a serious offender: s 86. A serious offender is one serving a sentence of imprisonment or subject to a detention order after being convicted of a violence offence (defined in s 49): cl 107A Children (Detention Centres) Regulation 2015.

If the State, Minister, Attorney General or Secretary informs the court that they intend to make submissions with respect to parole, the court must provide them with a copy of the documents the court will use to make the decision: cl 107B.

Warrants may be issued if the juvenile fails to appear or if the court is of the view the juvenile will not appear if given notice: s 82.

A parole order is not invalidated by the court’s failure to comply with procedural requirements imposed by the Act: s 90.

Notice of a decision concerning the grant or revocation of parole must be given to the juvenile: s 89.

Requirement for reasons and finality

The court must keep a record of the proceedings: cl 107C.

The court must record its reasons for making a decision concerning parole: s 95(1). The reasons must address those matters that must be taken into account under Pt 4C: s 95(2).

Decisions by the court under Pt 4C are final: s 96. Notices must be served personally or by post: s 94.

[42-160] Terrorism related offenders

Special provisions concerning terrorism related juvenile offenders are in Div 5. Those provisions extend to juveniles engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism in NSW, any other part of Australia or in any other country: s 58(2). Division 5 applies to pending parole orders and to parole orders made before 26 February 2018: Pt 6, Sch 1 CDCA.

Division 5 applies to a juvenile who:

is subject to a detention order for, has previously been convicted of, or has been charged with, a terrorism offence (defined in s 58(1)),
is subject to a control order under Pt 5.3 Criminal Code (Cth),
has any associations with a terrorist organisation within the meaning of Pt 5.3, Div 102 Criminal Code (Cth),
has made statements, carried out activities, or has any associations or affiliation with persons or groups advocating support for terrorist acts or violent extremism: s 59.

Note:: Div 5 applies in addition to, and despite anything to the contrary in, any other provision of or made under this Part: s 61(3).

The court must not make a parole order for a juvenile known to the court to be a terrorism related offender (defined in s 58(1)) unless satisfied the juvenile will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism: s 60(1).

When deciding whether or not to release a terrorism related juvenile offender on parole the court must have regard to any credible information it has concerning the risk of the juvenile engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism: s 61(1). In making such a decision, it is appropriate for the court to have regard to advice from the NSW Police Force or any other public authority, Australia-wide, established for law enforcement, security or anti-terrorist purposes: s 61(2).

Parole orders under s 47 may be made if the juvenile is dying or there are other exceptional, extenuating circumstances: s 61(4).

Revoking or suspending terrorism related orders

A parole order directing the release of a juvenile offender known to the court to be a terrorism related offender must not be revoked or suspended unless the court is satisfied the juvenile will not engage in, or incite or assist others to engage in terrorist acts or violent extremism: s 60(2), (3).

A statutory parole order (s 44) may be revoked any time before or after the juvenile’s release on parole: s 60(4).