Recommendations

Updates and background for this project (Digest)

Recommendation 4.2
Section 8(1) of the Young Offenders Act 1997 (NSW) should be amended to provide that all offences committed, or alleged to have been committed, by children are covered by the Act, except serious children’s indictable offences, as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW), and except as otherwise provided by the Young Offenders Act 1997 (NSW).

Recommendation 4.3
Sections 28 and 47(2) of the Young Offenders Act 1997 (NSW) should be amended to include reference to a health and drug counselling professional where a child has been charged with an offence under the Drugs Misuse and Trafficking Act 1985 (NSW).

Recommendation 4.4
Section 13 of the Young Offenders Act 1997 (NSW) should be amended to provide that a warning may be given for an offence covered by the Act, other than an offence prescribed by the regulations for the purposes of the section.

Recommendation 5.1
Fisheries officers should be investigating officials for the purposes of the Young Offenders Act 1997 (NSW) in respect of offences under the Fisheries Management Act 1994 (NSW).

Recommendation 5.2
Neither an admission by a child of an offence, nor consent to diversionary processes, should be valid for the purposes of s 19, 23, 31, 36 or 40 of the Young Offenders Act 1997 (NSW) unless the admission is made, and consent given, after the child has received legal advice or has had a reasonable opportunity to receive legal advice. A “reasonable opportunity” should be defined to mean not less than four days between the time an allegation is made to the child that he or she has committed an offence and the commencement of the diversionary processes.

Recommendation 6.1
The application of s 20(7) of the Young Offenders Act 1997 (NSW), which limits the number of times that a young offender is entitled to be dealt with by caution, should be monitored by the Department of Juvenile Justice to ensure its compatibility with the Act’s aims and principles.

Recommendation 6.2
Section 31(4) of the Young Offenders Act (1997) (NSW) should be expanded to ensure that the reasons for a court’s giving a caution under that section are generally available, subject to any rights the young offender has to have his or her identity kept private.

Recommendation 6.3
Section 31 of the Young Offenders Act (1997) (NSW) should be amended to provide that where a court gives a caution it must make an order deeming the proceedings to have been withdrawn.

Recommendation 6.4
Sections 12 and 15 of the Criminal Records Act 1991 (NSW) should be amended so as to encompass warnings, cautions or conferences administered under the Young Offenders Act (1997) (NSW) and orders of the Children’s Court dismissing a charge and administering a caution. Section 15 of the Criminal Records Act 1991 (NSW) should be further amended by expanding the exceptions to the application of s 12 to include proceedings before the Children’s Court (including a decision concerning sentencing). Section 68 of the Young Offenders Act (1997) (NSW) should then be repealed.

Recommendation 6.5
The Young Offenders Act (1997) (NSW) should be amended to require that, when a court or other authorised person administers a caution under that Act, any photographs, finger-prints and palm-prints, and any other prescribed records (other than records of the Children’s Court) relating to the offence be destroyed.

Recommendation 7.1
The Young Offenders Act 1997 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW) should be amended to ensure that the Children’s Court has the power, on the completion of a youth justice conference outcome plan, to make orders that proceedings have been discontinued and that the original charge is dismissed outright.

Recommendation 8.1
Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) should be expanded to provide that, in imposing a penalty on a child, the court should, in appropriate cases, have regard to:

• the desirability that children should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties;
• the necessity for children who accept responsibility for their actions to make reparation; and
• the effect of the crime on the victim.

Recommendation 8.3
Section 33(5)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) should be amended to give the Children’s Court the power to impose any disqualification under the road transport legislation within the meaning of the Road Transport (General) Act 1999 (NSW) on a person whom it has found guilty of an offence. The Children’s Court should have this power notwithstanding that a conviction cannot be, or has not been, entered in respect of the offence pursuant to s 14 of the Children (Criminal Proceedings) Act 1987 (NSW).

Recommendation 8.4
Section 53 of the Fines Act 1996 (NSW) should be amended to provide that the Children’s Court has power to review the amount specified in any penalty notice in the light of the young offender’s means.

Recommendation 8.5
Penalty notices issued under the Fines Act 1996 (NSW) should contain a statement in plain English that a person under the age of 18 is entitled to challenge, in the Children’s Court, both the allegation that they have committed the offence in question and the amount of the fine.

Recommendation 8.6
The Children (Community Service Orders) Act 1987 (NSW) should be amended to give the Children’s Court express power to order that satisfactory participation in approved community-based, educational, vocational or personal development programs may be credited towards Community Service Orders.

Recommendation 8.7
A Protocol should establish which department or departments has responsibility for a young person appearing before the Children’s Court in a criminal matter who is in need of care and protection and/or bail or crisis accommodation. The Protocol should promote co-operation in such matters between the Children’s Court, the Department of Juvenile Justice and the Department of Community Services, in the child’s best interests.

Recommendation 8.8
The New South Wales Parliament should review the definition of “parent” in the Children (Protection and Parental Responsibility) Act 1997 (NSW) with a view to extending the definition to include the Director-General of the Department of Community Services. At the least, the Government should consider extending the definition in relation to the power given to a court pursuant to s 7 to require the attendance in court of one or more parents.

Recommendation 9.1
The name of the Children’s Court should be changed to the Youth Court and magistrates of that court should be known as Youth Court Magistrates.

Recommendation 9.2
Section 8 of the Children’s Court Act 1987 (NSW) should be amended to provide that the Attorney General should appoint a District Court judge to head the Children’s Court.

Recommendation 9.3
The head of the Children’s Court, after consulting the Chief Magistrate of the Local Courts, should appoint magistrates to be Children’s Magistrates.

Recommendation 9.4
The Children’s Court should consider initiating a rural circuit.

Recommendation 10.1
The Bail Act 1978 (NSW) should be amended to provide for a presumption in favour of bail where the court has referred a young person to a youth justice conference.

Recommendation 10.2
Section 32 of the Bail Act 1978 (NSW) should be amended to include separate bail criteria for young people that include the existing criteria and incorporate the principles set out in section 6(b)-(d) of the Children (Criminal Proceedings Act) 1987 (NSW).

Recommendation 10.3
The bail criteria for young people should specify that the court, when assessing whether to grant or refuse bail, must have regard to the nature of the place where the young person will be detained in custody if bail is refused.

Recommendation 10.4
The Bail Act 1978 (NSW) should specify that a young person must be granted bail if no appropriate place of detention is available.

Recommendation 10.5
The Bail Act 1978 (NSW) should be amended so that a court, in determining bail for a young person, may order that a background report relating to the young person’s welfare be furnished to the court, by a deadline ordered by the court.

Recommendation 10.6
The Bail Act 1978 (NSW) should be amended to provide that conditions attaching to the grant of bail in the case of a young person must be reasonable having regard to the principles in s 6(b)-(d) of the Children (Criminal Proceedings) Act 1987 (NSW), and are not excessive or unrealistic.

Recommendation 10.7
The Bail Act 1978 (NSW) should be amended to provide that information on the young person’s accommodation circumstances must be provided to the court (although not necessarily in a formal report) before a curfew condition may be imposed.

Recommendation 10.8
The Bail Act 1978 (NSW) should be amended so that, before imposing a bail condition on a young person, the authorised officer or court must be satisfied that the bail condition is appropriate having regard (as far as can reasonably be ascertained) to the capacity of the young person to understand and comply with the bail condition.

Recommendation 10.9
Section 9B of the Bail Act 1978 (NSW) should be amended so as not to apply to young people.

Recommendation 10.10
The Government should establish a Working Party to consider the provision of bail accommodation for young people, to identify the issues and problems pertaining to bail accommodation and to establish those areas most in need of increased bail accommodation, with the express aim of ensuring that no young person is held in remand unnecessarily.

Recommendation 11.1
Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be amended to give a judge who sentences a young offender in respect of a “serious children’s indictable offence” (as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW)) the discretionary power to make an order that the young offender be re-sentenced at a determinate time before the expiry of the non-parole period. For this purpose, “young offender” means a person who was under the age of 18 years when the offence was committed and under the age of 21 years when charged before a court with the offence.