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The Law for Young People "Children's Court"
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* Private Solicitors
* Legal Aid
* Duty Lawyers
* Community Legal Centres
* Pre-sentence Report
* Psychological Reports
* Victim Impact Statements
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Disclaimer
The information contained in this site is only relevant to people in Queensland, Australia. The information contained in this publication should not be regarded as a substitute for professional advice and no responsibility is accepted for any errors or omissions or any loss or damage resulting from reliance on this. The information in this site should only be used as a guide to the law and workers should also consider personal ethics and organisational policy prior to taking action.
CHILDREN'S COURT
If a young person has turned 10yrs and is under 17yrs, they can be charged for criminal offences and brought before a Children's Court.
Young people who have been charged will first appear in the Children's Court, presided over by a magistrate. Some cases may then be taken to the Children's Court of Queensland (this court is presided over by a judge).
The Children's Court is a Magistrate's Court, and except for a few provisions set out in the Children's Court and Juvenile Justice Acts, this court will follow the rules for criminal proceedings in ordinary Magistrate's Courts. The major differences are:
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Children's Courts are closed to the general public.
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An officer from the Department of Families may be present.
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For all but the most serious indictable offences the Children's Court may deal with the case.
Recognising the young persons vulnerability, the court is required to take steps to assist the parent(s) and the young person to understand the proceedings of the court (s72) and the purpose and effect of the sentence imposed by the court (s158). The court may provide the explanation or request other appropriate persons to assist in giving these explanations. top
PEOPLE IN THE COURT
If the young person does not have a solicitor, they should ask if there is a duty solicitor available. If you ask the magistrate, they will give you time to get legal advice. Your solicitor will advise you on how the court works, and help you decide whether to plead guilty, or not guilty, or whether or not to request an adjournment.
Information is usually given to the magistrate in court by the police, your solicitor, and by an officer of the Department of Families. When entering or leaving a court room in which the magistrate is present, it is polite to bow to the position of the magistrate. top
YOUNG PEOPLE (under 17)
If a young person has turned 10yrs and is under 17 years, they can be charged for criminal offences and brought before a court.
A person under the age of 10 can NOT be charged with an offence.
If a young person is charged for an offence prior to their 17th birthday and they are brought before the court after they turn 17, the court will generally deal with this person as a child. If the person turns 18yrs before the case ends, the court may deal with them as an adult. If a person is over 18 years when they are charged for an offence which was committed while they were under 17 years, they will be dealt with as an adult.
The young person may speak to the magistrate.
All simple offences will be dealt with in the Children's Court. For all but the most serious indictable offences the young person may agree to the charges being dealt with by the Children's Court or may have the case taken to Children's Court of Queensland. Serious indictable offences must be heard before a judge in the Children's Court of Queensland
A person under the age of 14 years is presumed not to be criminally responsible for any act unless it can be proven that the young person at the time of the offence had the capacity to know right from wrong.
(Criminal Code, s.29).
If the young person is in custody, they may sit in the 'dock' during their court case. In some courts the young person may have to sit in the dock even if they are not in custody. top
MAGISTRATE
The magistrate may wear a black robe or a lounge suit. If you talk to the magistrate you should address them as 'Your Worship' and a judge as 'Your Honour'. If there is no magistrate available this position may be filled by two or more justices of the peace, however this option is seldom used. The magistrate will have control of the court and will make decisions and pass sentence if required. top
POLICE PROSECUTOR
The police prosecutor will normally present to the magistrate the case files for the day which they receive from the arresting officers. They may have records of the young person's history regarding any previous court appearances. For example, convictions, failure to appear in court, and bail history.
They may also inform the magistrate of any restitution sought and of their reasons for opposing Bail, if required. top
SOLICITOR
Young people have a number of options available to access legal representation for court.
1. Private Solicitors. There may be a cost involved and you should ask if there is a cost, and if so, how much it wioll cost. The solicitor may ask you to apply for legal aid so that you will not have to pay. Sometimes you will be asked to contribute to the cost.
2. Legal Aid Queensland. Application forms will need to be completed before a solicitor is assigned to your case.
3. Duty Lawyers. Duty Lawyers are available on the day of court and provide free representation.
4. Community Legal Centres. Community Legal Centres offer free legal assistance where available. There are 33 Community Legal Services in Queensland. Ring us to find your closest service.
- Logan Youth Legal Service (07) 3208 8199
- Aboriginal & Islander legal Service (07) 3221 1448
- Youth Advocacy Centre (07) 3857 1155
The solicitor's primary role is to represent the young person, while consulting with their parents or guardians. They should seek information from the young person, their parents, the Dept of Families and other relevant persons. The solicitor should be aware of the young person's capacity to give instructions. After informing the young person of their rights and options, they should take instructions from the young person and present submissions to the court. The young person (and not the parents or guardians) are the solicitor's client, to whom a duty of confidentiality is owed. top
FAMILY SERVICES OFFICER
Section 74 of the Juvenile Justice Act 1992 sets out the powers of the Department of Families representative in relation to court proceedings.
Before Children's Court, the Department's role includes speaking to the young person and their family to assess the young person's background and their attitude to offending in order to make submissions to the court.
During court, the DEpartment's officer has the authority to be present in court to make submissions on the question of bail and sentencing orders. However, the court may proceed without the Department's officer being present.
After court the Department's officer should explain any obligations the young person may have to report to the Department.
In some situations the magistrate may request the Department of Families to prepare a pre-sentence report in relation to a child who has pleaded or is found guilty of an offence. The purpose of this is to provide the magistrate with more detailed information on which to base their sentencing decision. In the situation where there is an application for Care and Protection the FSO is required to interview the parents and the young person with regard to the home situation and present this information to the court for consideration. top
COURT CLERK
This person keeps a record of the cases and will generally assist the magistrate. top
PARENTS AND OTHER FAMILY MEMBERS
The parents may speak to the magistrate. The court may order the parents to attend the court and they may be penalised up to 50 penalty points (about $3000) if they fail to attend. top
COURT SUPPORT
These volunteers are present in most courts in Queensland. Their role is to support and assist young people and their parents through with the processes of the court. top
OTHER PEOPLE ALLOWED IN COURT
- A witness giving evidence and their support person.
- A representative of an organisation concerned with the care and rehabilitation of the young person.
- Aboriginal or Torres Straite Islander Justice Groups.
Any other person which the court considers to be beneficial to the interest of the young person.
If the court case is held in the Children's Court of Queensland a representative of the media may be present as well as the general public. top
INDIGENOUS ELDERS
In sentencing Aboriginal or Torres Strait Islander young people, the court must take into account any relevant submissions made by a representative of the community justice group in the child's community (s.150). The submissions may include the young person's relationship to the relevant community, any cultural considerations or any relevant programs or services.
The aim is to better inform the court about the young person, the background to the offence, and avenues for rehabilitation. Indigenous Elders can make written or verbal submissions to the court before sentencing. top
WITNESS
If there is a need for witnesses to be called to give evidence, they will sit in the witness box while they talk. top
COURT ORDERED REPORTS
A court can order that a report be written in order to assist in the sentencing decision (s.151).
Pre-Sentence Reports. A pre-sentence report is prepared by the Department of Families or other helping professionals. The court is only able to order a pre-sentence report once the young person has entered a guilty plea or is found guilty of an offence. The purpose of this report is to provide the court with more detailed information on which to base their sentencing decision. The court generally allows three weeks to complete a pre-sentence report. The court cannot order a person to serve a period of detention unless a report has been requested, received and considered.
The report involves an officer from the Department of Families speaking with significant family members and the young person to assess the following:-
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the young person’s motivation for offending;
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the young person’s attitude towards offending behaviour;
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the young person’s criminal history and sentencing options;
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family history;
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the parent’s response to the offending behaviour.
Psychological Report. A psychological report is usually prepared by Child and Family Mental Health or another independent psychologist. This report details the young person’s mental health and the impact this may have on their offending behaviour. top
Victim Impact Statements. Although Victim Impact Statements are not court ordered reports, they are reports from the victim/s indicating the impact of the crime on their lives. A magistrate may decide if they want to read these reports. top
SENTENCING OPTIONS
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If a young person pleads guilty to an offence and the court considers that this person should have been cautioned, the court may dismiss the charge and administer a caution or order that a caution be administered. A court can also decide that no action should have been taken against the child.No convictions are recorded with cautions. top |
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| Youth Justice Conference (s.161) |
A Youth Justice Conference brings together the victim, the offender and the arresting police officer in a safe environment with one or more independent mediators who will assist the group to reach an agreement. The agreement should be aimed at assisting the young person making up for the offence. The victim and the offender may bring other people with them for support. The court may order a conference if the young person is found guilty of an offence and is willing to participate in the conference process (s.161). A magistrate or judge may order the conference either as a pre-sentence order with the possibility of a sentence being given on the completion of the conference, or as an alternative to sentencing (s.163, 165). If the court makes this order, the conference convenor supplies the court with a report on the conference outcome. If the conference is unsuccessful, the case will be referred back to the court. top |
| Reprimand (s175) |
The court will remind the young person that they have done something wrong and warn them to resist further offending. The court will not record a conviction. top |
| Fine (s190) |
A court may order a fine only if it is satisfied the young person has the capacity to pay, and must specify a time period within which the fine must be paid. top |
| Good Behaviour Order (s188) |
This order places the young person on good behaviour for up to one year (s. 175(b)). A young person on this order must not re-offend whilst placed on a period of good behaviour. If the young person re-offends ( breaches the order) within the set period, a court may consider this breach in sentencing for the new offence. top |
| Probation Order (s193) |
This Order requires the young person to report within 24 hrs (unless otherwise specified) to the Dept of Families. The period of this order may be no longer than 1 year if the court is not presided over by a judge, 2 years where a judge is presiding and 3 years for serious offences before a judge. During the period of the order, the young person must not reoffend, must comply with Departmental instructions and conditions imposed and must report as directed. The order may contain requirements with which the young person must comply. These requirements must relate to the offence and the court should provide written reasons for these recommendations or conditions. The court may only make a probation order where the young person agrees to comply with the order. If the order has been breached, the young person may have a warrant issued against them or be summonsed to court. The court may give the young person another chance to perform the order or may vary the order or resentence the young person. A young person or the Department may apply to the court to have the remainder of an order varied if some difficulty exists in complying with the present order. top |
| Community Service Order (s195) |
For a young person to receive this order they must be willing to comply with the order and there must be a suitable program available. This program is provided by the Department of Families. More than one community service order may exist at any one time, however the following limits apply. This order must be completed within 12 months unless otherwise stated by the court. While on this order the young person must comply with the Department's reasonable requests and must inform the Department within two days if they change their address. The Department should avoid interfering with the young person's school or work, and should also ensure separation from adult offenders who are also doing community service. If the young person has breached their order, they may be summonsed to court, or a warrant may be issued for their arrest if the young person can not be found or if the court feels the young person may not comply with the summons. top |
| Detention order (s207) |
A court may make such an order only after considering all other options and having received a presentence report prepared by the Department. Detention must be the only appropriate sentence and is used as a last resort, for the least appropriate length of time. The court, after making a detention order must give reasons for this action and have them recorded. If a detention order already exists, the new order may run concurrently (at the same time) or cumulatively (added onto the end of the first sentence). If two orders are made in the same proceedings, the total may not exceed 6 months if made by a magistrate or two years if made by a judge. If the charge is for a serious offence, the detention order may be for up to 14 years, or for very serious offences (eg. murder) a young person may receive a life sentence. If the young person has spent time in custody on remand, this period must be counted as part of the detention sentence. A young person may be released from custody for special circumstances after 50% of their sentence has been served. Failing this they must be released after serving 70% of the sentence and a "Supervised Release Order" must be made which will contain conditions of release. If these conditions are not met, the young person may be returned to complete the remainder of their detention order. Conditional Release Order (s219). This order is made as part of a detention order. If a suitable program exists for the young person and is supported in the presentence report, the court may order the young person to be released from custody with the condition that the young person attend the program. The program may not be longer then 3 months and the young person must also agree to participate with the program and other requirements as nominated. If the Conditional Release Order is completed, the remaining detention order will not apply. Should a young person fail to meet the requirements of the order, they may be returned to detention. top |
| Conditional Release Order (s219) |
This order is made as part of a detention order. If a suitable program exists for the young person and is supported in the presentence report, the court may order the young person to be released from custody with the condition that the young person attend the program. The program may not be longer then 3 months and the young person must also agree to participate with the program and other requirements as nominated. If the Conditional Release Order is completed, the remaining detention order will not apply. Should a young person fail to meet the requirements of the order, they may be returned to detention. top |
| Restitution and Compensation (s235) |
The court may order payment for replacement costs or damage caused to property from the offence (not more then 20 penalty points (1point = $75 ). The young person's capacity to pay must be considered. The order will specify the time to complete the order. top |
| Disqualification of Drivers Licence (s254) | If the young person has been convicted for an offence for which an adult may be disqualified, they too may be dealt with to the same extent. A young person may be disqualified from driving even if they do not currently hold a licence. top |
| Orders Against Parents (s258) |
If a court is satisfied that a parent has not provided proper supervision over their child, the court may order that parent to pay compensation. The court will take into consideration the parent's capacity to pay and specify a time to complete the payment. top |
| Intensive Supervision Order (s.203) |
This sentence option can only be made if the young person has not reached the age of 13years at the time of sentence. The Order can be made for a period of up to 6 months. For a young person to receive this order they must be willing to comply with the order. top |
| Conviction (s183) |
A conviction will not be recorded where a Reprimand or Good Behaviour order has been made. All other orders may be accompanied by a recorded conviction. top |
REFERENCES
All references are to sections within the Juvenile Justice Act 1992 unless otherwise indicated.
Acknowledgements
This information has been largely based on workshop papers produced by the Youth Justice Coalition (SEQLD). We wish to acknowledge the previous research and preparation by the Youth Justice Coalition and it's members and member organisations: Youth Advocacy Centre, Brisbane Youth Service, Youth and Family Service, North West Boarding inc. Young Parents Program, Youth Affairs Network Queensland.
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