When the accused is a young person
Age of criminal responsibility
In Australia, children under the age of 10 cannot be charged with a criminal offence.
Between 10 and 14 years old, the prosecution has to show that they knew what they were doing was seriously wrong for a case to continue.
If they were under 18 when the alleged offence occurred and have not yet turned 21, they are considered a ‘child’ under the law.
In this section, and in the courts, a ‘child’ charged with a criminal offence is referred to as a ‘young person’.
ODPP prosecutes serious crimes
The ODPP takes over the prosecution of most serious crimes involving a young person from police, including all sexual offences where the victim is a child.
The ODPP will contact you if you are a victim or another key witness in a matter we take over. We will also usually want to meet you before the matter goes to court to discuss your witness statement, help you feel prepared to give your evidence, and explain what is likely to happen in court on the day you appear (see Going to court and being a witness). If you have a Witness Assistance Service (WAS) officer, they will also help you feel ready to give your evidence. This can include taking you on a tour of a court so you know who the people are and what they do.
The Children's Court – first step in most matters
Most matters involving a young accused person start off in the Children’s Court, where they are asked to plead. (Traffic offences by a person old enough to have a licence are an exception and are dealt with in the Local Court.)
If there isn’t a Children’s Court in the area, the Children’s Court will usually sit in a Local Court courthouse.
Unlike other courts, Children’s Court proceedings are not open to the general public. To attend, you have to be directly involved, a family member of someone who died as a result of the crime, or a member of the media. Media reports cannot identify the young person, although if they are convicted of a very serious offence, the court can allow their name to be published.
Other ways in which the Children’s Court is different from other courts are that proceedings are less formal, and the magistrate will take care to explain to the young person what is happening and to give them the opportunity to be heard.
Next step depends on charges
Whether a matter stays in the Children’s Court or is committed (transferred) to the District or Supreme Court will depend on the charges and the nature of the crime. This is because there are limits on the penalties the Children’s Court can impose, and they may not be severe enough in very serious matters.
Other reasons a Children’s Court magistrate might commit a matter to a higher court include if adults were charged over the same offence and they are being dealt with in the District or Supreme Court.
When a matter is committed to a higher court, the young person will be dealt with there under the laws that apply to adults, although the judge will take their age into account when sentencing them. The judge can also choose to deal with the young person according to the penalties in the Children’s Court (see Sentencing in Prosecutions in the Children's Court below).
Very serious crimes committed by young people are called ‘serious children’s indictable offences’ (SCIOs). They include murder and manslaughter, serious sexual assaults and other crimes of personal violence, armed robberies, firearms offences and some drug offences. The ODPP takes over the prosecution of all these matters from police.
The Children’s Court does not have the power to deal with SCIOs and they are always committed for trial or sentence to the District Court, or to the Supreme Court for the most serious offences (see Matter goes to the District or Supreme Court).
Before this happens, what is called a ‘committal’ process takes place.
This is so the ODPP can examine whether the evidence the police gathered in their investigation is strong enough to support the charges laid, or whether there should be different, or more or fewer, charges.
If the young person was charged with an SCIO on or before April 30 2018, the committal process is almost the same as it is in the Local Court when an adult is charged with a serious crime, and you can read about it in detail here (see The committal process). As is explained, victims and witnesses are rarely called to give evidence at this stage, although it can happen.
An important difference between the two committals is that while an adult who pleads guilty at this point will get an automatic 25 per cent discount on their sentence, a young person won’t – although the judge will take their guilty plea into account during sentencing.
If a young person has been charged with sexually assaulting a child under 16 but the charge isn’t a ‘serious children’s indictable offence’ (SCIO), the ODPP can ask the magistrate to commit (transfer) the matter to the District Court if we think the crime is serious enough to be dealt with under the laws that apply to adults.
We can make this request whether the young person pleads guilty or not guilty.
To transfer a child sexual assault matter to the District Court, the magistrate has to be satisfied that:
• the evidence is strong enough to convince a jury beyond reasonable doubt that the young person committed the assault and
• the Children’s Court penalties may not be sufficient.
Rather than calling witnesses to the stand at this stage, the ODPP will provide written statements to the Children’s Court as our evidence. Victims of sexual assault will only have to give evidence during this early process if the magistrate agrees there are ‘special reasons’ in the interests of justice that they should, and these are difficult to show. Other witnesses can only be called if both the ODPP and the young person agree, or the magistrate is satisfied there are ‘substantial reasons’ in the interests of justice to call them. This is not as difficult as showing there are ‘special reasons’, but it is still a barrier.
If a prosecution witness is called, the young person has the right to cross-examine them. The young person also has the right to give their evidence, and / or to call their witnesses.
At the end of this process, if the magistrate does not consider the matter should be committed to the District Court the magistrate will deal with the matter in the Children’s Court (see Prosecutions in the Children’s Court below).
The matter will also stay in the Children's Court if the ODPP didn't ask that it be committed to the District Court.
The ODPP can ask the Children’s Court to make the same special arrangements for victims of sexual assault and other vulnerable witnesses that are available in other courts, such as giving evidence from an AVL room rather than in the same room as the young person.
Talk to the prosecutor before the case starts about what special arrangements may be available to you.
Less common paths to the District Court for a young accused person include when the charges are serious (indictable) and:
- the young person or the ODPP ask the magistrate for a trial in the District Court (which rarely happens)
- the young person pleads guilty at any time during the Children’s Court proceedings
- the ODPP files charges directly in the District Court (which also rarely happens).
Even if a young person is committed for trial in the District Court, if they are under 21 the matter can still end up back in the Children’s Court for sentencing. Or, the District Court judge can sentence the young person but apply the penalties available in the Children’s Court.
Most other criminal matters involving a young accused person will stay in the Children’s Court. If the young person pleads not guilty, the magistrate will hold a hearing. For guilty pleas, or if the young person is found guilty, the magistrate will sentence them under the Children’s Court penalty laws.
When a young person pleads not guilty, the magistrate will order the prosecution to serve its evidence (called a ‘brief’) within four weeks. A brief will usually include victim and witness statements, results of forensic tests, such as blood alcohol tests, and, if relevant, photos or maps of the scene of the incident.
The court will normally then adjourn for seven weeks so the young person’s lawyer can respond to the brief.
If after the adjournment the young person again pleads not guilty, the matter will be listed for a hearing.Domestic violence timetable
If the young person is charged with a domestic violence offence, a different process applies so the matter can be dealt with in the fastest possible time.
The prosecution will serve a ‘mini brief’ on the young person and their lawyer no later than the first time the matter is mentioned in court. This will include the alleged facts of the case, a copy of the victim’s statement, and any relevant photos.
The magistrate will usually ask the young person to enter a plea the first time the matter is mentioned in court. If the young person hasn’t had a reasonable chance to look at the mini brief or get legal advice, there will be an adjournment for up to 14 days.
If the young person pleads not guilty, the magistrate will set a hearing date. The prosecution will have to serve the rest of its brief 14 days or more before that date.
The steps in a hearing in the Children’s Court are very similar to those in the Local Court, although the process is much more informal and the magistrate will spend time explaining to the young person what is happening.
The main steps are:
- The prosecution makes an opening statement about the case (called a ‘submission’).
- The accused’s lawyer (the defence) may also make an opening submission.
- The prosecution calls its witnesses.
- The first prosecution witness gives his or her evidence-in-chief, then is cross-examined by the defence. The prosecution may then re-examine the witness, and the magistrate may also ask some questions. The other prosecution witnesses then give their evidence, following the same process (see On the day: Going to court and giving evidence).
- The defence calls its witnesses, who go through the same pattern of evidence-in-chief, cross-examination and re-examination. The young person does not have to give evidence but if they are going to it will be at this point, as a witness for the defence.
- The prosecution makes a closing address.
- The defence makes a closing address.
- The magistrate may adjourn to have more time to consider all the evidence and arguments.
- The magistrate announces the verdict.
- If it is ‘guilty’, the magistrate will sentence the young person (see below). Sentencing will usually start straight after the verdict, but it could be later so reports / character references can be prepared.
- If the verdict is ‘not guilty’, the young person is free to go.
Matters in the Children’s Court will sometimes be delayed or adjourned to another day. This can be upsetting and frustrating when you have spent time preparing to give your evidence and have planned your day around being in court.
Reasons for adjournments can include witnesses not being available; courtrooms not being available; the young person not having a lawyer, or changing their lawyer; the young person needing psychiatric or psychological assessment; the magistrate asking for a Juvenile Justice background report; or the prosecution waiting on crucial evidence.
The ODPP or police will tell you if we find out a matter has been delayed or adjourned, but we don’t always know until the day.
If a young person pleads guilty or is found guilty in a Children’s Court matter, the magistrate will sentence them.
If the magistrate doesn’t already have a background report on the young person – which Juvenile Justice usually prepares – there will be an adjournment so one can be provided. This normally takes two weeks when the young person is in custody and up to six weeks otherwise.
If the young person pleaded guilty and there hasn’t been a hearing, the lawyers for each side will agree on the facts of the case to provide to the magistrate (called ‘agreed facts’). The defence might also present psychological/psychiatric or medical reports, character references, information on the young person’s ties to the community, any rehabilitation program they may be involved in and, in some cases, an apology letter.
If you are a victim of a sexual or violent offence or are a family member of a victim who died as the result of a crime, you will usually be able to make a victim impact statement (VIS), if you want to. The prosecutor will hand it to the magistrate before the offender is sentenced. You can also choose to read it out, or have someone read it for you. Talk to the prosecutor as early as possible if you want to make a VIS as they can’t be made in all matters (see Making a victim impact statement).
The penalties available in the Children’s Court are different to those in other courts, and the court gives more weight to rehabilitation and education than to punishment and deterrence.
The magistrate will also consider the young person’s age, how much their youth contributed to them offending, the circumstances of the crime, and whether and when they pleaded guilty.
The maximum penalty the Children’s Court can impose for any one offence is two years
in detention, and, for more than one offence, three years in detention. Detention will be in a Juvenile Justice centre – the Children’s Court can’t send a young offender to prison. Children’s Court detention orders are called ‘control orders’.
Other penalties the Children’s Court can impose include a:
• suspended control order sentence (where a sentence to spend time in custody is suspended and the young person is released into the community on a good behavior bond)
• community service order
• probation period, which requires a higher level of contact with Juvenile Justice than a good behavior bond
• good behavior bond
• caution, which means the charges are dismissed without conviction
• dismissal of charges, with or without a caution.
If a young person is under 16 and pleads guilty or is found guilty in the Children’s Court, no conviction will be recorded, which means the offence won’t form part of their criminal history.
(See Sentencing for more information.)
If an offender was under 18 at the time of the offence and is still under 21 when being sentenced in the District or Supreme Court, the judge can order that some or all the detention period be served as a juvenile offender. After 21, an offender can’t serve time as a juvenile unless they are near the end of their non-parole period or their sentence.
If a young offender is sentenced to prison for an SCIO, they cannot serve it as a juvenile offender if they have turned 18 unless there are special circumstances. These can include that they have a disability, there is an unacceptable risk they will be harmed in prison, or they are near the end of their detention or non-parole period.
A young person can appeal to the District Court from the Children's Court against their sentence or conviction, or both. The ODPP can appeal if we think a penalty is not severe enough but we can’t appeal against a ‘not guilty’ finding. Both sides have 28 days to lodge an appeal.
After the appeal hearing, the District Court will either confirm (agree with) the sentence, vary (change) it, or revoke (cancel) it. The District Court can also send the matter back to the Children’s Court. If this happens, the Children’s Court has the same options – it can confirm, vary, or revoke the sentence.
The following principles apply to all courts dealing with a young person: