young offenders

Question 1

what is youth justice?

Answer 1

youth justice is the area of law and policy concerned with young people and the criminal justice system

Question 2

what is the concept of doli incapax?

Answer 2

doli incapax (‘incapable of wrong’) refers to the inability of children under the minimum age of criminal responsibility to form criminal intent

Question 3

how are young people treated by the law based on age?

Answer 3

• 0-9 years - doli incapax
• 10-13 - presumption of doli incapax, but not always used
• 14-17 - treated under a range of legislation related to children

Question 4

what happens during the process of identification in the questioning of young people?

Answer 4

police ask offenders to identify themselves through their name and address; this applies particularly to young people, such as being presumed under 18 whilst possessing alcohol

Question 5

what is the right to silence?

Answer 5

the right to silence means that when police ask questions, people have the right to silence without being suspected to have committed a crime; this applies to young people

Question 6

what are young peoples’ right to the support of a responsible adult?

Answer 6

young people have the right to additional protection, by way of a responsible adult other than a police officer being present to help with understanding legal terms

Question 7

what are young peoples’ rights in terms of searches?

Answer 7

for the most part, police searches apply the same way for adults and young people, the exception being strip searches, which are not permitted on children under 10, and are permitted but only with an adult other than police present for 11-18 year olds

Question 8

what are young peoples’ rights in terms of legal advice?

Answer 8

the young person’s parents or carers are to be notified of their arrest as soon as possible, unless they may be a threat; young people have the right to legal advice

Question 9

what are young peoples’ rights in terms of caution of rights?

Answer 9

young people and adults have the same rights when it comes to being cautioned on their arrest; they are informed that they do not need to say or do anything, however anything they may say or do could be used as evidence

Question 10

what are young peoples’ rights in terms of detention and identification?

Answer 10

unlike with adults, the maximum amount of time that a young person can be detained is only four hours, which can be extended to up to another four hours if police obtain a warrant

Question 11

what are young peoples’ rights in terms of forensic procedures, photos and searches?

Answer 11

police are allowed to obtain photographs or fingerprints of young people aged 14 and over, but for those younger than that, they must first apply to the Children’s Court to do so; if the child is found not guilty, police are required to destroy this evidence at the request of the child’s parents or guardians

Question 12

why are children treated differently than adults in the criminal justice system?

Answer 12

children are treated differently than adults in the criminal justice system due to the recognition that young people may have different levels of maturity, impulsivity and a greater capacity for rehabilitation; this means that children are not to be held fully responsible for their actions the same way adults are

Question 13

what factors make the Children’s Court and its proceedings different from other courts?

Answer 13

• always heard by a magistrate, with no jury
• always heard in a closed court, so as to protect the identity of the child
• the media may not publish the name of any child who is involved in the process, unless authorised by the court or if the child is deceased
• court proceedings must comply with the Children (Criminal Proceedings) Act 1987 (NSW)
• the child must be given the fullest opportunity to be heard and participate
• the child must be made to understand the court proceedings, and their questions regarding the process must be answered
• different penalties and sentencing procedures are used

Question 14

what is the Children’s Court Clinic?

Answer 14

the Children’s Court Clinic refers to the arm of the Children’s Court that makes clinical assessments of children and submit reports to the court, regarding ‘specific psychological, psycho-social or mental health issues’ that may be present in a child who must face court

Question 15

what penalties can be imposed against young offenders in the Children’s Court?

Answer 15

• dismissal
• conviction
• adjournment
• bond
• youth justice
• fine
• probation
• community service order
• suspended control order
• control order

Question 16

what is dismissal as a penalty for young offenders?

Answer 16

a dismissal is the letting go of a charge without punishment or a conviction, but possibly with a caution being issued to the offender

Question 17

what is conviction as a penalty for young offenders?

Answer 17

a conviction is the recording of a crime committed by a young offender, however this cannot happen for offenders younger than 16 years of age

Question 18

what is adjournment as a penalty for young offenders?

Answer 18

adjournment is the deferral of a sentence for up to 12 months, in order to assess the child’s prospects of rehabilitation

Question 19

what is a bond as a penalty for young offenders?

Answer 19

a bond is a requirement of good behaviour by a young offender for up to two years

Question 20

what is youth justice as a penalty for young offenders?

Answer 20

youth justice is a plan created for a young offender to have to comply to, based on a youth justice conference

Question 21

what is a fine as a penalty for young offenders?

Answer 21

a fine is a monetary penalty of up to 10 penalty units ($1100), with the child’s age and ability to repay it being taken into consideration

Question 22

what is probation as a penalty for young offenders?

Answer 22

probation is a bond overseen by a Youth Justice officer, in which offenders are allowed to remain out of incarceration

Question 23

what is a community service order as a penalty for young offenders?

Answer 23

a community service order requires up to 100 hours for children under 16, or up to 250 hours for children aged 16 and over, in which, after assessment, the offender must provide community service

Question 24

what is a suspended control order as a penalty for young offenders?

Answer 24

a suspended control order is the suspension of a control order for up to two years, subject to good behaviour by the offender

Question 25

what is a control order as a penalty for young offenders?

Answer 25

a control order is the most severe penalty against young offenders, in which they are put in detention in a Youth Justice Centre, for up to two years

Question 26

what alternatives to court are considered with young offenders?

Answer 26

• warnings
• cautions
• youth justice conferences

Question 27

what are warnings as an alternative to court for young offenders?

Answer 27

a warning is an official notice given to a young person by an investigating officer, without any conditions attached; it is relatively informal, and cannot be given by an officer for an act of violence, a repeat offence or a graffiti offence; the officer must keep a record of the warning

Question 28

what are cautions as an alternative to court for young offenders?

Answer 28

a caution is a formal, recorded alternative to prosecution where a young offender admits to the offence and consents to receiving a formal police caution; a caution is not a conviction, however it may be taken into account in the Children’s Court and thus can have important consequences

Question 29

what are youth justice conferences as an alternative to court for young offenders?

Answer 29

a youth justice conference is a meeting set up between a young offender, a conference convenor, an investigating official, a member of the offender’s family or extended family, the offender’s legal representative, another adult chosen by the offender, a specialist youth officer and potentially the victim to give the offender a chance to admit to their offence and take responsibility for their actions; the procedure of youth justice conferences is outlined in the Youth Offenders Act 1997 (NSW)

Question 30

what are some acts of legislation that relate to young offenders?

Answer 30

• Children (Criminal Proceedings) Act 1987 (NSW)
• Children’s Court Act 1987 (NSW)
• Young Offenders Act 1997 (NSW)
• Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Question 31

what are some cases that relate to young offenders?

Answer 31

• R v GDP (1991) - appeals, aim of rehabilitation, ‘manifestly excessive’ sentencing
• R v LMW (1999) - doli incapax
• R v Pham & Ly (1991) - remand, ‘wholly inappropriate/inadequate’ sentencing, referral

Question 32

what are some media articles that relate to young offenders?

Answer 32

• “Police face watchdog hearing over the strip-search of 16-year-old girl” (2019), The Sydney Morning Herald
• “Juvenile Justice bosses ‘approved unlawful isolation’, lawsuit claims” (2019), The Sydney Morning Herald

Question 33

what are some statistics that relate to young offenders?

Answer 33

Bureau of Crime Statistics and Research (BOCSAR):
* boys are 14 times more likely than girls to end up in the Children’s Court
* 15-17 year olds are 13 times more likely to end up in the Children’s Court than 10-14 year olds
* Aboriginal children are 26 times more likely to end up in the Children’s Court than non-Aboriginal children