Penalties for Children (HSC SSCE Legal Studies): Revision Notes
Penalties for Children
When children and young people commit offences, the legal system treats them differently from adults. The primary focus is on rehabilitation rather than punishment. This reflects the belief that young offenders have the greatest potential to be reformed and successfully reintegrated into society.
The approach to youth justice recognises that children and young people, due to their developmental stage and capacity for change, respond better to rehabilitative interventions than punitive measures. This fundamental principle shapes all aspects of how the legal system deals with juvenile offenders.
Purpose of sentencing for young offenders
While the general purposes of sentencing were covered in earlier chapters, children's criminal proceedings place rehabilitation as the primary objective. This approach is consistent with the Convention on the Rights of the Child, which recognises that children and young people have a better chance than any other group of offenders to be successfully rehabilitated and reintegrated into society.
Key principles under section 6
Section 6 of the Children's (Criminal Proceedings) Act 1987 (NSW) sets out important principles that courts must consider when dealing with children. The principles specifically relevant to sentencing include:
Core Sentencing Principles for Children
- Proportionality: The penalty imposed on a child must be no greater than that which would be imposed on an adult for the same offence
- Community reintegration: Children should receive assistance to reintegrate into the community and maintain connections with their family and community
- Accountability and reparation: Children should accept responsibility for their actions and, where possible, make reparation for them
- Victim consideration: Subject to other principles, the court should consider the effect of the offence on the victim
Courts must also consider both mitigating and aggravating factors when determining an appropriate sentence. These include both objective factors (relating to the offence itself) and subjective factors (relating to the offender's personal circumstances). Victim impact statements are now also permitted in the Children's Court, allowing victims to express how the crime has affected them.
Sentencing options for children
For most children's offences, penalties are significantly less severe than those available for adults. This ensures the focus remains on rehabilitation rather than punishment. However, for specific serious indictable offences heard by higher courts (such as homicide), ordinary adult sentences may be applied. For other serious offences, the higher court has discretion to decide whether ordinary law or children's penalties should apply.
Section 33 of the Children's (Criminal Proceedings) Act 1987 (NSW) lists the available penalties for children. These are outlined below in order of increasing severity:
Dismissal
The court can dismiss the charge without punishment or conviction. However, the court may still decide to issue a caution to the young offender. This is the most lenient option available.
Conviction
For young offenders, the court has discretion about whether to record a conviction. However, for children under years old, no conviction can be recorded under any circumstances. This protects younger children from the long-term consequences of having a criminal record.
Adjournment
The court can adjourn or defer sentencing for up to months. This allows time to assess the child's prospects of rehabilitation before making a final sentencing decision at a later date. During this period, the court can monitor the young person's behaviour and progress.
Bond
The court can release the child on a good behaviour bond for a maximum period of two years. The court will impose conditions that it considers appropriate. A bond can also be combined with a fine if the court deems it necessary.
Youth justice conference
The court can release the child subject to complying with a youth justice conference outcome plan. A youth justice conference is a diversionary measure under the Young Offenders Act 1997 (NSW) that brings together the offender, victim (if willing), and other relevant parties to address the offending behaviour in a more holistic manner.
Youth justice conferences provide a restorative justice approach, allowing the young offender to understand the impact of their actions, hear directly from those affected, and participate in developing a plan to make amends. This process often leads to better outcomes than traditional court proceedings.
Fine
The court can impose a fine of up to penalty units ($1,100). However, the court must carefully consider the child's age and their ability to repay the fine. Imposing an unrealistic fine could undermine the child's rehabilitation prospects.
Probation
The court can impose a bond with a probation order for up to two years. This is overseen by an officer from NSW Juvenile Justice, who supervises the young person and ensures they comply with the conditions of their probation.
Community service order
A community service order is considered a severe penalty. The court can order:
- Up to hours of community service if the child is under years old
- Up to hours of community service if the child is years or over
Before imposing this penalty, an assessment must be conducted to confirm whether the child is suitable for a community service order. This ensures the young person has the capacity and circumstances to successfully complete the requirement.
Suspended control order
Similar to a suspended sentence for adults, the court can suspend a control order (see below) for up to two years. The order is suspended subject to the young person's good behaviour during that period.
Control order
A control order is the most severe penalty available for children. It is similar to an adult sentence of imprisonment, except that:
- The young offender serves their sentence in a juvenile justice centre rather than an adult correctional facility
- The maximum sentence is years (compared to potentially much longer for adults)
A control order involves detention, meaning the young person is held in custody for the duration of their sentence.
Juvenile justice centres
Juvenile justice centres (also called youth detention centres) are facilities where young offenders serve control orders. They are managed by NSW Juvenile Justice, which operates as part of the Department of Human Services. These centres are overseen by the Children (Detention Centres) Act 1987 (NSW).
Purpose and facilities
Juvenile justice centres house:
- Young offenders sentenced to control orders
- Some young accused people held on remand while awaiting the finalisation of their court trial
The centres aim to provide a safe, humane and secure environment for young offenders. Beyond simply detaining young people, juvenile justice centres provide:
- Educational facilities to ensure young people continue their schooling
- Recreational facilities to promote physical and mental wellbeing
- Counselling services to address underlying issues
- Personal development programs to build life skills
All these facilities and programs are designed to encourage rehabilitation and support the reintegration of young offenders back into the community upon their release.
Control orders as last resort
Control orders must only be used as a last resort. When imposing a control order, the court must provide clear reasons explaining why no other penalty is appropriate. This requirement ensures that detention is only used when absolutely necessary.
Non-Parole Periods for Longer Sentences
For control orders longer than six months, the court must also announce a non-parole period. This is the minimum time the young offender must serve before being eligible for release. However, in some circumstances, young offenders may be released before the end of their non-parole period, particularly if they demonstrate significant progress in their rehabilitation.
Sentencing considerations for young offenders
Although the Children's (Criminal Proceedings) Act 1987 (NSW) clearly outlines sentencing principles and emphasises rehabilitation, courts must carefully consider various social factors when determining an appropriate sentence.
Social factors
The Seen and Heard report noted that courts need to pay greater attention to social factors when sentencing young offenders. These include:
- Homelessness: Whether the young person has stable accommodation
- Family circumstances: The nature of family relationships and support available
- Educational needs: Whether the young person is engaged in education and their learning requirements
- Health requirements: Any physical or mental health issues that need addressing
Understanding these social factors is crucial because they often contribute to offending behaviour and must be addressed to achieve successful rehabilitation. A young person without stable housing or family support, for example, faces significantly greater challenges in avoiding reoffending.
Practical considerations
When determining which penalty to impose, courts must consider the practical impact on the young person's rehabilitation:
Fines: The court must carefully consider the offender's ability to repay a fine and whether it will negatively affect their rehabilitation prospects. An unaffordable fine could lead to further offending or undermine the young person's attempts to move forward.
Community service orders: These are most beneficial when:
- The service location is close to the young person's home
- The conditions are realistic and achievable
- The requirements are not so difficult that the young person is likely to breach them
Control orders: Given the serious effects of detention, courts must thoroughly consider all alternative penalties before imposing a control order. Detention can disrupt education, damage family relationships, and expose young people to negative influences from other detainees.
Balancing rehabilitation with offence seriousness
The seriousness of the offence is an important sentencing consideration. However, unlike with adult offenders (where serious offences often lead to increased emphasis on retribution and deterrence), courts must maintain their rehabilitative focus when sentencing children.
This principle is illustrated in the case of R v GDP.
Case Study: R v GDP (1991) 53 A Crim R 112
GDP was years old when he committed serious criminal damage to property with two friends. The damage was extensive and included:
- Breaking through a window
- Drilling into a safe
- Defacing cars
- Smashing furniture
- Lighting dangerous fires
The total damage amounted to $550,000. Despite this serious offending, GDP was otherwise well-regarded by his teachers and had no prior criminal history. The original judge sentenced GDP to a -month custodial sentence.
The Appeal and Outcome:
GDP appealed to the Court of Criminal Appeal, where a panel of three judges held that the sentence was manifestly excessive. The court explained that sentencing principles for children are fundamentally different from those for adults:
- General deterrence and retribution are less important for young offenders
- Rehabilitation is the primary aim for offenders as young as GDP
- A custodial sentence would be positively damaging to GDP's rehabilitation
By this time, GDP was commencing Year and facing his HSC examinations. The court reversed the original sentence and substituted it with a -month probation order instead. This case demonstrates that even for serious property offences causing significant damage, rehabilitation remains the paramount consideration for young offenders.
Exceptions: grave adult behaviour
There are, however, exceptions to the rehabilitation-focused approach. When a young offender is involved in repeated offences or engages in grave adult behaviour, other sentencing objectives may become relevant.
Grave adult behaviour occurs when a young offender has acted like an adult in committing the offence. This is indicated by:
- The seriousness of the offence
- The level of premeditation involved
- The deliberate nature of the offending
- Other factors suggesting adult-like decision-making
When grave adult behaviour is established, the court may see the young person as having acted like an adult. In such cases, sentencing objectives such as deterrence and community protection may carry more weight than they normally would for child offenders.
Case Study: R v Pham & Ly (1991) 55 A Crim R 128
This case contrasts sharply with R v GDP. It involved two main offenders, with one just under years old at the time of the offence. The young offenders committed a home invasion robbery with the following features:
- They broke into the house early in the morning, knowing the occupants were at home
- They bound and gagged the victims with sticky tape
- They placed blankets over the victims' heads
- They then robbed the property, taking jewellery and other items
At the time of the offence, one offender was on bail and the other was on probation. The original judge sentenced both offenders to months on remand. However, the Director of Public Prosecutions appealed the sentence to the Court of Criminal Appeal.
The Appeal and Outcome:
The appeal court overturned the sentence as 'wholly inappropriate' and inadequate. The court ruled that despite the offenders' young ages, there must be reasonable proportion between:
- The sentence imposed
- The seriousness of the crime committed
- The need to protect the community
The case was referred back for resentencing, with the expectation of a significantly harsher penalty. This case illustrates that when young offenders engage in grave adult behaviour—particularly violent, premeditated crimes against vulnerable victims—the rehabilitative focus may be tempered by considerations of community protection and appropriate punishment.
Key Points to Remember:
- Rehabilitation is paramount: For children and young offenders, rehabilitation is the primary purpose of sentencing, not punishment or deterrence
- Maximum control order: The most severe penalty available is a control order of years served in a juvenile justice centre, not an adult prison
- Section 6 principles: Courts must consider principles including proportionality, community reintegration, accountability, and victim impact when sentencing children
- Sentencing options: Children have access to various penalties from dismissal through to control orders, with most being significantly less severe than adult equivalents
- Social factors matter: Courts must carefully consider homelessness, family circumstances, educational needs, and health requirements when determining appropriate sentences
- Last resort principle: Control orders must only be imposed as a last resort, with clear reasons why no other penalty is appropriate
- Grave adult behaviour exception: When young offenders engage in serious, premeditated offending that demonstrates adult-like decision-making, courts may place greater emphasis on deterrence and community protection alongside rehabilitation