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Flashcards in Young Offenders Deck (28)
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Which act outlines the criminal age of responsibility

Children (Criminal Proceedings) Act 1987 (NSW)


What are different categories of criminal age of responsibility

  • Children under 10 years of age cannot be charged with a criminal offence as they are too young to form criminal intent (mens rea)
  • Children between the ages of 10 and 13. Common law rebuttable presumption of doli incapax  Once a child turns 10, they are still presumed incapable of committing a criminal offence but this presumption is allowed to be rebutted à the prosecution may be able to show that the child at the time of the alleged offence, actually knew that their act was seriously wrong and not just ‘naughty’
  • Young people 14-17 years of age Once a person turns 14 years of age, the presumption of doli incapax no longer applies and the offender can be found criminally responsible for their actions à however, additional protections still apply under the Children’s (Criminal proceedings) Act 1987 NSW


What additional protections still apply to young people aged 14-17 under the Children (Criminal Proceedings) Act 1987 (NSW)

  • Prohibits reporting the child’s name
  • Requires that conviction is cleared after 3 years if no more crimes have been committed
  • Requires the matter will be heard in Children’s Court


What are arguments for lowering the age of criminal responsibility

  • Children today are better educated – they go to school from 5 years of age and learn quickly about right and wrong.
  • Children, through technology, are exposed to the realities of the world and learn what constitutes criminal behaviour earlier in their lives.
  • Children who display criminal behaviour harm the victim and society and these people deserve justice and safety in the form of the perpetrator (the child) being punished


Arguments against lowering the age of criminal responsibility

  • Current laws are consistent with international law and the Convention on the Rights of the Child (CROC) adopted in 1989. Art 41 of the treaty encouraged establishment in all countries, laws of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law)
  • Children who commit crimes do not attend school regularly and often truant and do not learn what exactly constitutes criminal behaviour.
  • Children develop their understanding of right and wrong at different stages of their life and doli incapax helps to protect against the different levels of maturity by forcing the prosecution to prove that understanding on a case-by-case basis


Arguments for lifting age of criminal responsibility

  • Children are not adequately protected
  • Exposes children to CJS to early 
  • Increases number of youth in detention
  • SMH art 2020 'Putting children under 14 in jail is wrong and wasteful'

  • Lower than other jurisdictions

  • UN urges for it to be increased


Which act outlines rights of children when questioned or arrested

  • Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
  • Children (Criminal Proceedings) Act 1987 (NSW


What are the rights of children when being questioned

  • Police have the right to ask a person to identify themselves (all ages)
  • They have the right to remain silent during questioning at any time (all ages)
  • Right to support of a responsible adult à Under s13 Children (Criminal Proceedings) Act 1987 (NSW), any information given by a young person is inadmissible in court unless there is a responsible adult present (additional protections for young people)
  • If a person is under 18, a strip search can be conducted only if an independent responsible adult is present à no strip searches are permitted for children under 10. (additional protections)


What are rights of children during arrest and interrogation

  • Police must inform the person that they are under arrest and why and inform the person of the police officer’s name and station à reasonable force may be used. (all ages)
  • Child’s parent or guardian must be contacted ASAP à Young person must have a support person or interview friend, such as a parent or solicitor at the police interview (for people 14 and above, police must get the young person’s agreement on who they want as a support person)
  • R v Cortez, CE, ME, IKEA & LT (2002), the Supreme Court ruled that the custody manager must inform a young person that legal aid advice is available over the phone and give them the opportunity to ring it (under 18)
  • A caution must be given (all ages)
  • For young people 14 years or over, fingerprints or photographs may be taken for the purpose of identifying them but must apply to the Children’s Court for younger children àSimilarly, DNA samples for under 18-year olds are only allowed with a court order. If the criminal matter is not proved in court, all fingerprints, photos or DNA must be destroyed (under 18)


How is arrest treated when dealing with young people

  • The United Nations Convention on the Rights of a Child (CROC) 1989 obliges countries to use arrest as a last resort


Which act establishes the Chilren's Court

  • Children’s Court Act 1987 (NSW)


What is the dual role of the Children's Court

  • Dealing with the criminal matters of children and young people under 18 years of age (except serious indictable offences such as murder, manslaughter, armed robbery or sexual assault, all of which will be heard in a higher court)
  • Dealing with matters of care and protection of children and young people referred to it by the Department of Community Services.


What are some of the procedures that must be followed by the Children's Court under the Children (Criminal Proceedings) Act 1987 (NSW)

  • In the Children’s court the matter will be heard summarily (without a jury), before a single magistrate
  • Children’s proceedings are conducted in a closed court in order to protect the identity of the child, only parties to proceedings are present and reporters or family of victim if court allows
  • The media cannot publish the name of any child involved unless authorised by the court or the child is deceased
  • Court must take measures to ensure child understands the proceedings
  • Conviction will not be recorded if child is under 16 years of age
  • Available penalties and sentencing procedures differ from those of ordinary courts


What is the Children's Court Clinic established under the Children’s Court Act 1987 (NSW).

  • Main function: make a clinical assessment of children and submit reports to the court to help it make a decision in the best interests of the child


In children’s criminal proceedings what must the purpose of sentencing give primary weight to



What are main sentencing issues outlined under the Children’s (Criminal Proceedings) Act 1987 (NSW)

  • Penalty imposed on a child shall be no greater than an adult for the same offence.
  • Children should be assisted with reintegration into the community
  • Children should take responsibility for their acts and make reparation where possible.
  • The effect of the victim should be considered (note: Victim Impact Statement have recently been permitted in the Children’s Court)


What is the most severe penalty available to children

  • A control order
  • Maximum time served is 2 years


Which act establsihes Youth Justice NSW

The Children (Detention Centres) Act 1987 (NSW)


What has been one of the main driving forces increasing the number of youth in detention

  • Arguably the main reasons why many ends up in Youth Justice Centres is amendments to the Bail Act 1978 (NSW)
  • The new Bail Act 2013 (NSW) commenced May 2014 contained tough bail conditions such as movement restrictions and curfews. Along with placing the onus on the accused to show cause why their detention is not justified
  • Lead to more young people being held on remand
  • 80% of young people held on remand do not go on to receive a custodial sentence à yet they suffer the negative effects of being incarcerated


Which act outlines the main alternative programs for young offenders (diversionary measures)

The Young Offenders Act 1997 (NSW)


What are the two models within the Youth Justice System

  • Welfare model
  • Justice model


What does the Young Offenders Act 1997 (NSW) aim to do

  • The Young Offenders Act embraces the welfare model of juvenile justice encouraging offender rehabilitation over punishment


What alternative measure does Young Offenders Act 1997 (NSW) establsih

  • Young offenders who have committed an offence covered by the Act may proceed through a three-tiered system of diversionary processes
  • Warnings
  • Cautions
  • Youth Justice Conferences


What is a warning

  • A warning is an official notice given to a young offender without any conditions attached for a minor offence.
  • Relatively informal and can be given at any place but must tell the offender the nature, purpose and effect of the warning.


What is a caution 

  • A formal, recorded alternative to prosecution for a more serious offence
  • Young offender must admit to the offence and must consent to receiving a formal police caution
  • Can later be taken into account in the Children’s Court and so can have important consequences


What must offender do before attending a YJC

Offender must admit guilt to an offence and consent to having it dealt with by this method


Who are the participants within a YJC

  • The offender
  • A conference convenor
  • A police officer (investigator)
  • A member of the offender’s family
  • The offender’s legal representative
  • Another adult chosen by the offender
  • A specialist youth officer
  • The victim and the victim’s support purpose


What are main benefits of a YJC

  • Allow offender to take responsibility for their actions and make reparation to the victim
  • Promote better family understanding of the issues
  • Provide offender with appropriate support services to overcome problems (i.e. the reasons for offending)
  • Increase the rights of the victim in the criminal justice process.
  • The principles of ‘restorative justice’ underpin YJC (making reparation to the victim)