Children and the Law – NSW Criminal Law

Children and the Law – NSW Criminal Law

This article contains general information for children involved in criminal law matters in
NSW and should not be considered tailored legal advice. This information is generic and if
you need to talk about a specific case, we encourage you to contact our office to arrange a
confidential appointment with one of our criminal defence lawyers.
If you are under the age of 18 years and you have an initial conference (up to one hour) with
one of our lawyers, but decide you do not want to use that lawyer, then we will not charge
you for that conference. If you decide you do want us to act on your behalf, then we will
charge you based on our hourly rate for the conference.

Who is a child?

Basically anyone under the age of 18 years is considered a “child” under the NSW
legislation.
Specifically, the Young Offenders Act 1997 (NSW) defines a child as “a person who is of or
over the age of 10 years and under the age of 18 years”.
In NSW, a child under the age of 10 years cannot be charged with a criminal offence because
there is a presumption that a child under 10 years is unable to commit a criminal offence. If in
doubt, we refer you to Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW).
If the child is aged between 10 and 14 years, the Prosecution (i.e. the other side) will need to
prove, in addition to proving the elements of the offence, that the child knew what they were
doing was seriously wrong. The test of “knowing that the act was wrong” is whether the child
knew that it was wrong according to the ordinary principles of reasonable men. This
presumption that a child over 10 years and less than 14 years is unable to have the necessary
criminal mind is known as “doli incapax”.

What penalties can the Children’s Court impose?

In New South Wales, the penalties imposed on adults and children are quite different and the
law regarding child offenders emphasises rehabilitation and education. You should talk to a
lawyer for tailored advice as they will be able to tell you the likely penalty.
The maximum penalty the Children’s Court can impose on you for one offence is two years
in a juvenile detention centre. If you have been convicted of more than one offence, the
maximum penalty for all offences is three years in a juvenile detention centre.
What kinds of charges does the Children’s Court hear and will my case stay in the
Children’s Court?

The simple answer to this question is “not necessarily”.
If you have been charged with a not so serious offence then your case will be finalised in the
Children’s Court. These minor offences are called “summary offences” and the more serious
offences are called “serious children’s indictable offence”. As mentioned earlier, this

If you are aged between 16 to 18 years and you have been charged with a traffic offence, then
your case will be dealt with in the Local Court (not the Children’s Court). This is because it is
generally accepted that, if you are old enough to hold a Learner’s Drivers Licence, then you
are old enough to face the consequences of disobeying the road rules and you should not be
given any special treatment just because of your age.

However, if you have been charged with a traffic AND criminal offence and that criminal
offence arose out of the same circumstances as the traffic offence, then your case will be
heard in the Children’s’ Court (assuming the criminal offence does not fall under the category
of “serious children’s indictable offence). For example, if you have been charged with
speeding as well as take and drive a vehicle without the consent of the owner, then your case
will be heard in the Children’s Local Court.

If you are under 21 years of age, and have been charged with a criminal offence that allegedly
took place when you were under 18 years of age, then your case will be heard in the
Children’s Court.

However, if you are over 21 years of age and have been charged with a criminal offence that
allegedly took place when you were under 18 years of age, then your case will be heard in the
Local Court.

Can the police inform my parents if I have only been given a warning?
If you have been given a warning, the police MAY notify your parents (either in writing,
verbally or in person) that a warning has been given to you. However, they should NOT
notify your parents if they are of the opinion that that information may pose an unacceptable
risk to your safety, welfare or well-being. Basically, the police have the discretion to tell your
parents and there is no “hard and fast” rule.

It is also worth noting that the Children’s Court is a “closed court” which means the public
cannot watch your case. Additionally, your name will not appear on the Online Court
Registry.

If you are under the age of 18 years and you admit the crime to the police, the police can only
rely on that admission if:

  • The admission was made in the presence of whoever is responsible for you (i.e. your
    parent, your guardian, whoever has lawful custody of you, or whoever has the care for
    you but does not necessarily have lawful custody of you);
  • The admission was made in the presence of an adult (not a police officer or
    investigating official). However, if you are under the age of 14 years, then the person
    who is responsible for you must have consented to that adult being present during the
    admission. If you are over 14 years, then you can choose the adult without the consent
    of the person responsible for you.
  • The admission was made in the presence of a lawyer chosen by you.
    However, any Magistrate has the discretionary power to basically say, “well, even though an
    adult was not there, I have considered the particular circumstances of the case, and I am of
    the view that that information / statement / confession / admission should be admitted in
    evidence”. Therefore, like many other areas of criminal law, there are always exceptions and
    you should always bear this in mind when talking to the police.
  • What if the police give me a caution and during the caution I made a confession or
    admission or gave information to the police which I probably should not have given?
    If you are given a caution, and during that caution you make a statement, confession,
    admission or provide information to the police, the police cannot use that as evidence in any
    subsequent criminal or civil case against you. This also applies if the information / confession
    / admission was given during a Youth Justice Conference.
    I was charged with a criminal offence and the Court gave me a caution. What happens
    to the finger prints, palm prints and photographs the police took?
    If you are given a caution in the Children’s Court, then the Commissioner of Police MUST
    ensure that any fingerprints or palm prints or photographs taken of you in connection with the
    offence are destroyed.
  • What should I do if police question me about a crime or arrest me?
    If police question you about a crime or they charge you with a crime, you need to speak with
    a lawyer as soon as possible. You should not participate in an interview with the police and
    we encourage you to read our blog “The Right to silence – Why you should keep your mouth
    shut”.
  • Our lawyers will explain to you what you have been charged with, what the police have to
    prove in Court, advise you as to the best course and the next steps, and represent you in
    Court. We regularly attend police stations to obtain instructions and we are available 24/7.
    Author: Mariah Maltezos, Criminal Defence Lawyer.

Leave a Reply

Name
Name*
Website
Website