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  • Writer's pictureGeoff Harrison

Sentencing Children

Updated: Apr 8


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Published by Geoff Harrison | 29 September 2023


The principles that relate to dealing with juvenile offenders (as per the Childrens (Criminal Procedure) Act 1987 ('the Act'), deal more with rehabilitation than retribution however, children ie. under 18 will be dealt with more like adults depending upon the nature of the offence and their age. From the Bench book:


The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus (unreported, Court of Criminal Appeal, NSW, No 60074 of 1995, 3 November 1995); R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in “adult behaviour” (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.


The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A “child-offender” of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus; R v Voss at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).


Other Sources:

Cases:

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CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987 - SECT 33

Penalties


(1) If the Children's Court finds a person guilty of an offence to which this Division applies, it shall do one of the following things--

(a) it may make an order--

(i) directing that the charge be dismissed (in which case the Court may also, if it thinks fit, administer a caution to the person), or

(ii) discharging the person on condition that the person enters into a good behaviour bond for such period of time, not exceeding 2 years, as it thinks fit,

(b) it may make an order directing the person to enter into a good behaviour bond for a specified period, not exceeding 2 years,

(c) it may make an order imposing on the person a fine, not exceeding--

(i) the maximum fine prescribed by law in respect of the offence, or

(ii) 10 penalty units,

whichever is the lesser,

(c1) it may make an order releasing the person on condition that the person complies with an outcome plan determined at a conference held under the Young Offenders Act 1997 ,

(c2) it may make an order adjourning proceedings against the person to a specified date (not later than 12 months from the date of the finding of guilt) for any of the following purposes (but only if bail for the offence is or has been granted or dispensed with under the Bail Act 2013 )--

(i) for the purpose of assessing the person's capacity and prospects for rehabilitation,

(ii) for the purpose of allowing the person to demonstrate that rehabilitation has taken place,

(iii) for any other purpose the Children's Court considers appropriate in the circumstances,

(d) it may do both of the things referred to in paragraphs (b) and (c),

(e) it may make an order releasing the person on probation, on such conditions as it may determine, for such period of time, not exceeding 2 years, as it thinks fit,

(e1) it may do both the things referred to in paragraphs (c) and (e),

(f) it may, subject to the provisions of the Children (Community Service Orders) Act 1987 , make an order under section 5 of that Act requiring the person to perform community service work,

(f1) it may do both of the things referred to in paragraphs (e) and (f),

(g) it may, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999 , make an order committing the person for such period of time (not exceeding 2 years) as it thinks fit--

(i) in the case of a person who is under the age of 21 years, to the control of the Minister administering the Children (Detention Centres) Act 1987 , or

(ii) in the case of a person who is of or above the age of 21 years, to the control of the Minister administering the Crimes (Administration of Sentences) Act 1999 .


(1A) A good behaviour bond imposed under this section--

(a) must contain a condition to the effect that the person to whom the bond relates (the

"person under bond" ) will appear before the court if called on to do so at any time during the term of the bond, and

(b) must contain a condition to the effect that, during the term of the bond, the person under bond will be of good behaviour, and

(c) may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond--

(i) to perform community service work, or

(ii) to make any payment, whether in the nature of a fine, compensation or otherwise.


(1AA) Before making an order imposing a fine on a child, the Children's Court is to consider the age of the child and the following matters, where information is available in relation to those matters--

(a) the child's ability to pay the fine,

(b) the potential impact of the fine on the rehabilitation of the child.


(1B) If the Children's Court deals with a person under subsection (1) (g), it may make an order--

(a) suspending the execution of its order under subsection (1) (g) for a specified period (not exceeding the term of that order), and

(b) releasing the person on condition that the person enters into a good behaviour bond under subsection (1) (b) for such a specified period,

but only if the person is not subject to any other order under subsection (1) (g) or to any sentence of imprisonment. Part 4 of the Crimes (Sentencing Procedure) Act 1999 does not apply to an order under subsection (1) (g) whose execution is suspended under this subsection.


(1C) If the Children's Court makes an order under subsection (1) (g) (ii) committing a person to the control of the Minister administering the Crimes (Administration of Sentences) Act 1999 , the period for which the person is committed is taken to be a sentence of imprisonment for the purposes of that Act.


(2) The Children's Court shall not deal with a person under subsection (1) (g) unless it is satisfied that it would be wholly inappropriate to deal with the person under subsection (1) (a)-(f1).


(3) In deciding under which paragraph of subsection (1) it should deal with a person who is a child, the Children's Court shall not have regard to the question of whether the child is a child in need of care and protection under the Children and Young Persons (Care and Protection) Act 1998 .


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


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


(5) Nothing in this section limits or affects any power that the Children's Court may have apart from this section--

(a) to impose any disqualification under the road transport legislation on a person whom it has found guilty of an offence,

(b) to order the forfeiture of any property that relates to the commission of an offence of which it has found a person guilty, or

(c) to make an order for restitution of property under section 43 of the Criminal Procedure Act 1986 , or

(d) to make a community clean up order in respect of a fine imposed for an offence under the Graffiti Control Act 2008 .


(6) For the purposes of any provision of the road transport legislation that confers power on a court with respect to a person who has been convicted of an offence, a finding of guilt by the Children's Court for an offence is taken to be a conviction for the offence. Accordingly, following a finding of guilt, the Children's Court may exercise any power it could exercise under that legislation if the person had been convicted of the offence, unless the Court makes an order in respect of the person under section 33 (1) (a).

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) The functions of a juvenile justice officer in relation to the supervision of a person who has entered into a good behaviour bond or been released on probation under this section may be exercised by a community corrections officer (within the meaning of the Crimes (Administration of Sentences) Act 1999 ), and the functions of a community corrections officer in relation to the supervision of any such person may be exercised by a juvenile justice officer, in accordance with any arrangements between Juvenile Justice NSW and Corrective Services NSW.


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