15 / 9 / 2021

Children's Court of NSW & How It Works

Navigating a criminal charge can be difficult at the best of times and is even more daunting when you are under 18 years of age. A young person’s exposure to the criminal justice system can have a huge impact on their life, their feelings of self-worth and their development. Understanding how things work can help to alleviate some of the stress so we have provided a brief rundown of the Children’s Court of NSW and how it works.

The NSW Children’s Court hears cases for persons who allegedly committed offences when they were less than 18 years of age and who are still less than 21 years of age. Specialist Children’s Courts sit at Surry Hills, Parramatta, Campbelltown, Broadmeadow, Wyong, Port Kembla and Woy Woy. In many regional areas of NSW, there are Children’s Court circuits that sit on a rotational basis.

The role of the Children’s Court is to ensure that the best interests of children and young people are paramount to any proceedings. The Children’s Court is a closed court. This means that the general public are not allowed into the court and only the young person being dealt with at the time (or young people if there are co-accused) are permitted in court when a matter is being dealt with. The Magistrate, court staff, Prosecutor and legal practitioner for the young person will also be present in court. The young person is able to have any support person(s) they wish to accompany them into the court room. In some matters, a representative from Juvenile Justice may also be in the court room when the matter is dealt with. Unlike in other courts, in the Children’s Court, legal practitioners remain seated during proceedings and when addressing the Magistrate.

In NSW, the age of criminal responsibility is 10 years. There is currently a push around the country to increase the age of responsibility to 14. For young people charged with an offence who are under 14 years of age, there is a presumption that they lack the capacity to be held criminally responsible. This principle is called doli incapax and it is up to the prosecution to prove beyond reasonable doubt as part of their case that the young person did the act charged and when doing the act, knew it was wrong, as distinct from being merely naughty or mischievous.

Unless a young person has been charged with a Serious Children’s Indictable Offence (SCIO), the case will stay in the Children’s Court for the entire process. If a young person is charged with a SCIO it is committed to the District or Supreme Court for trial or sentence. There they are subject to the same sentence regime as adults. If a young person is charged with an offence that is not a SCIO, it is important to try to have the matter remain in the Children’s Court. This is particularly relevant for young people under 16 years of age because if their matter remains in the Children’s Court and proceeds to sentence, a conviction cannot be recorded against them (the Children’s Court must not record a conviction against a young person who is under the age of 16 and has discretion not to record a conviction against young people aged 16 to 18).

Rather than focussing on punishment and denunciation, when sentencing young people the Court promotes rehabilitation and diversion. A young person can only be sentenced to a term of imprisonment in a juvenile detention centre (called a control order) if the Court is satisfied that it would be wholly inappropriate to deal with the young person by an alternative penalty. There are a wide range of options for the Court to consider when sentencing a young person. Wherever possible, it is best to have the matter dealt with under the Young Offender’s Act. This Act diverts young people away from the criminal justice system and if a matter is dealt with under this Act, no conviction is recorded against the young person. The young person may receive a warning or a caution or may be ordered to participate in a Youth Justice Conference. Other penalties available to the court are found in the Children (Criminal Proceedings) Act, which penalties include, amongst others, non- convictions, fines, good behaviour bonds, probation and control orders.

In a whole range of ways the Children’s Court does things very differently to Courts that deal with adult matters but can still be complex. If you have any queries about the Children’s Court or you would like assistance with a charge that has been laid against a young person, please contact us to arrange a conference.

Helen Christinson, Senior Lawyer