Under 18 and charged with a criminal offence? A discussion on how juveniles can be ready for their matter.
CHARGED WITH A CRIMINAL OFFENCE AS A JUVENILE?
Are you under 18 and have been charged with a criminal offence and are anxious to know what to expect? Our Criminal Lawyers Sydney are amongst the Top Lawyers who can advise you on how the Children’s Court process will work from point of arrest to finalisation of your case. National Criminal Lawyers™ are experts at the Children’s Court processes from start to finish. We have represented hundreds of Juvenile defendants in New South Wales and are astute in helping you to prepare and providing representation in Court.
The purpose of this article as such is to assist juveniles (or often referred to as “young person”) who have been charged with a criminal offence. We discuss the process of arrest to the finalisation of the Court hearing.
ARRESTS OF JUVENILES IN NSW
It is often not necessary for young people to be arrested in order for police to investigate whether they have committed an offence. An appointment can be made for a young person to be interviewed by police at a police station. This enables the young person’s parents or another support person to attend. In most cases, arrest will not be necessary in order to bring you before a Court. Police can issue a Court Attendance Notice (CAN) requiring that a you attend court at a future date. Juveniles may also be dealt with for their offending conduct completely outside the court system by way of the issuing of an infringement notice and a fine. This procedure is commonly used with offences such as failing to pay a bus or train fare or failing to wear a bicycle helmet.
The law concerning the arrest of and the commencement of criminal proceedings against persons, especially children, for minor offences is clear. Arrest should be reserved for circumstances in which it is clearly necessary: Lake v Dobson (NSW Court of Appeal, 19 December 1980 unreported). Factors which should be considered by police in deciding whether a young person should be arrested include:
the seriousness of the offence;
whether the police can be sure of the identity of the young person;
whether arrest is necessary to prevent the young person continuing to commit offences;
whether forensic evidence needs to be maintained; and
whether the young person will be brought before a court or dealt with by way of an alternative process under the Young Offenders Act, i.e. warning, caution, or youth justice conference.
A police officer can arrest you if:
You are committing an offence;
You have, or he/she has reasonable grounds to suspect that you have, committed an offence;
You are breaching the peace;
You have breached your bail conditions;
A warrant (written authority) has been issued for your arrest;
He/she needs to serve an Apprehended Violence Order (AVO) on you or has a warrant for your arrest for serving an application for an AVO on you; and/or
He/she wishes to apply for a provisional (urgent) AVO against you.
The person arresting you should:
Tell you that you are under arrest;
Tell you why you are being arrested; and
A police officer should also tell you his/ her name and place of duty.
When you are taken to a police station you;
Should be given a document which sets out your rights;
You have a right to contact a lawyer, a support/other person and your parent or guardian; and
You are entitled a right to silence. In other words, you do not (and often advised not to) need to speak or any any questions.
IF I AM UNDER 18, CAN I BE CHARGED?
You cannot be charged with a criminal offence until you are 10 years old. Children under 10 are not seen as mature enough to commit criminal offences.
If you are between 10 and 14 years you may be responsible for offences you commit. If you are charged with a crime at this age it must be proved in court that you knew what you did was ‘seriously wrong’ at the time you did it, and not just ‘naughty’. Any young person aged 10 to 14 who gets in trouble with the police should get legal advice, as they may have a defence if they did not fully understand the consequences of what they did.
Once you turn 14 you will be responsible for any offence that you commit.
WHAT DOCUMENTS DO I GET IF I AM CHARGED BY THE POLICE?
After you are charged, depending on the offence you are charged with, you may be given several documents. Sometimes it can be difficult to read and understand these documents. You should carefully go through these documents to understand what offence you have been charged with, the allegations against you, what you must do next, whether you are on bail and what your bail conditions are.
Some of the important documents the police may give you after being charged are;
- A Court Attendance Notice (CAN);
- Police Fact Sheet;
The CAN will tell you:
- the date and time you must go to children’s court;
- what children’s court you must go to;
- the name of the police officer or authorised officer;
- what you have been charged with;
The Police Fact Sheet will tell you;
- the version of events according to the police;
- The Police fact sheet is usually attached to the CAN. The police write the facts based on what they saw and heard and what the victim or witnesses say they saw and heard.
The Police Facts Sheet should be given or sent to you with the CAN or you can get them when you go to court.
After being charged you should read the documents the police gave you carefully and make a note of anything you disagree with or anything that is wrong.
IF CHARGED AS A JUVENILE DO I GO TO COURT?
The Children’s Court deals with most offences committed by young people. If you are under 18 years when the offence was committed and are charged for that offence before you are 21, you will usually go before the Children’s Court.
If you have been charged with a traffic offence, you may need to go to the Local Court instead of the Children’s Court.
The New South Wales (NSW) Children’s Court (like other Children’s Courts in Australia) is a specialist court with specialist judicial officers (Children’s Magistrates and a Judge) which deals with juvenile offenders in NSW. These specialist courts recognise the need to have children’s cases dealt with by judicial officers with specialised skills in juvenile justice and the need for juvenile offenders to be dealt with in separate courts from adults.
BEFORE YOU GO TO COURT, REMEMBER:
Get legal advice as soon as you can; In NSW free legal advice and legal representation are available to young people in criminal matters both when they are being interviewed by police and when they appear in court.
Find out when your court date is (The court date and the address of the court that you MUST attend are detailed on your Court Attendance Notice or bail form). Make sure you come to the Children’s Court on this day;
Write down what happened. You should make notes in your own words about what occurred relating to your charge. This should include any conversations with police and witnesses. Make sure you do this while the events are fresh in your mind. This is a very important practical step you can take to prepare for your court appearance;
Remember to take all your police and court papers with you to any appointments with a lawyer;
WHO WILL BE IN COURT?
Often we are asked who is who in Court? Please click here for more information.
The children’s court is a “closed court”. This means that it is not open to the public. The only people in court are lawyers, the prosecutor, the magistrate, the court staff and you. You are allowed to bring in a few people to support you – family, youth workers, carers etc.
Most Children’s courts start at 9.30am. Cases are heard as soon as possible, but if the court is busy, there could be long delays.
When you have a lawyer, the Magistrate will speak to you through your lawyer.
WHAT IF I AM NOT GUILTY OF THE OFFENCE AS A JUVENILE?
In most cases if you plead not guilty, the Magistrate will order a ‘brief of evidence’ (also called a ‘brief’) to be served upon you, or your lawyer. The brief contains the evidence the police will rely on to prove their case. You will be given a date to come back to court after the brief has been served, to confirm you are still pleading not guilty.
You should carefully read through the brief line by line and note anything you disagree with.
Also write down your own version of what happened as soon as possible after it happened.
WITNESSES TO THE ALLEGATIONS
In Court you may also be asked through your lawyer whether you want all of the police officers and any other prosecution or your own witnesses to attend court. You must read the statements carefully and should get legal advice on the brief.
You will then be given a date for a defended hearing.
ON THE DAY OF THE HEARING
The police will present their case first. They will call their witnesses to give evidence, for example the police officer in charge of your case (also sometimes called the ‘OIC’) and any other witnesses. After each witness gives evidence, you or your lawyer have the right to cross-examine (question) them about their evidence or about other matters relevant to your case.
After the prosecutor has called all of their witnesses you are entitled to give evidence (if you want to) and to call witnesses. Generally, if you choose to give evidence, you would be the first defence witness to give evidence. The prosecutor is likely to cross-examine (question) you. Then you can call your witnesses. After each one gives evidence the prosecutor can cross-examine them. Each witness must wait outside the court room until it is their turn to give evidence. Make sure your witnesses are at court on the day of the hearing to give evidence in person.
After all witnesses have given evidence the prosecutor may make submissions to the magistrate about why you should be found guilty of the offence. Your lawyer can then make submissions, that is, tell the court why you should be found “not guilty” based on the evidence.
The Magistrate, after hearing both the police and defence case will decide either that:
- Your case is dismissed, which means you are free to go, and you have been found not guilty; or
- You have been found guilty. If this happens the Magistrate will then consider the penalty.
IF YOU PLEAD GUILTY
most cases, if you plead guilty, the Police Facts Sheet, which is the police version of events, will be read by the Magistrate. You should read it before the court case. If you agree that you are guilty of the offence but disagree with some of the things said in the Facts Sheet you should ask your lawyer to speak to the prosecutor. It may be possible to agree to some minor changes with the prosecutor. If you cannot reach an agreement with the prosecutor about what the Facts Sheet should say, you may have to have a hearing about the parts of the facts you disagree with instead of using a Facts Sheet at all. As with other hearings, both sides call witnesses so that the Magistrate can hear their evidence before deciding what facts are proved.
At sentence your lawyer will give an explanation about how and why the offence(s) happened and some information about yourself, your current financial situation, personal circumstances and general character. It is particularly important to tell the court if you are sorry and about any rehabilitation you have undertaken, for example drug or alcohol counselling, domestic violence programs, the traffic offenders’ program. If possible bring a letter from the counsellor or program coordinator about your attendance and any medical documents about your general health (including mental health).
PENALTIES IN THE CHILDREN’S COURT
WHAT WILL HAPPEN TO ME. CAN I GET LOCKED UP?
Your lawyer will give you advice about what sort of sentence (penalty), you are facing. It is important to know that the Children’s Court is focused on helping young people to not reoffend. It is different to an adult court and the penalties tend to be a little less harsh.
There are a range of penalties that can be imposed, including:
- Cautions- no penalty and no criminal record (dismissal without conviction);
- youth justice conferences;
- Conditional Release Order (CRO);
- Probations orders; and/or
- Community Corrections order
For very serious crimes, or where people have long criminal records, the court can impose:
- a control order (a sentence of detention / lock up)
If the Magistrate is considering a serious penalty or wants further information, you may be referred to the Juvenile justice Service (Probation and Parole) Service to get a presentence report (PSR). This report tells the court about you and what sort of penalties are suitable for you. Some Local Courts have a duty officer from Probation and Parole and this report can be prepared the same day.
Usually your case will be adjourned for several weeks so the report can be prepared. You must keep your appointment with the Juvenile justice Service. If you don’t keep your appointment, this will be reported to the Court.
HOW DOES THE MAGISTRATE WORK OUT WHAT MY SENTENCE SHOULD BE?
The magistrate will choose the sentence by balancing the following things:
- the seriousness of the crime you have committed
- whether you have a criminal record
- your background (family, school, employment etc)
- whether you have any particular issues that have caused you to get into trouble (drugs, alcohol, mental illness)
- whether you are likely to get into trouble again
Your lawyer will present this information to the magistrate. They will explain why you committed the crime, explain your circumstances and argue for the best possible outcome (sentence).
AFTER THE COURT HEARING
Before you leave the Court, find out whether you must sign any documents such as bonds or other orders and do this before you leave.
If you are not happy about the Children’s Court decision and you want to appeal, speak to your lawyer or ask the court staff about how to do this.
You can lodge the appeal form at court (or from juvenile detention if you have control order).
You must lodge your appeal within 28 days of the sentence date. In some circumstances this can be extended to three months.
For more information about appeals to the District Court, click here.
WILL I GET A CRIMINAL RECORD?
If you are under 16 and you plead guilty or are found guilty of an offence there will be no conviction recorded against you unless it was a serious offence. This means that you will not usually get a criminal record for offences committed when you are under 16 and these offences cannot be taken into account if you appear in the adult courts when you are older.
If you are 16 or older and plead guilty or are found guilty of an offence which is not serious, the Children’s Court may decide to not record a conviction against you.
If a conviction is recorded against you in the Children’s Court, you can have that conviction wiped from your record after 3 years if you have not been in any more trouble during those 3 years.
Please note there are many different kinds of records. A Criminal Record is where the court records a conviction against you. This is the record that most people worry about – it is the one that employers may ask about, or may be important for security licenses or visa applications.
There are however other kinds of “records” – everyone who has had a case in any court, including the Children’s Court, will have that case recorded on a Criminal History. This is basically an internal record only available to the courts and the Police. It is different to a Criminal Record and employers and other members of the public cannot find out about it.
However, if you get into trouble again, and find yourself facing the courts, the magistrate will have that criminal history and take into account your previous crimes. So your juvenile matters do not “disappear” as many people think. They will not generally affect you or come up in your life, but they will affect you if you get into trouble again as an adult.
WHY NATIONAL CRIMINAL LAWYERS™ ?
There are many reasons to choose National Criminal Lawyers™ :
- We are the best Sydney Criminal Defence Lawyers on offer;
- We are recognised as being the best Parramatta Criminal Lawyers, Burwood Criminal Lawyers, Liverpool Criminal Lawyers, Blacktown Criminal Lawyers and Sydney Criminal Lawyers.
- Our testimonials speaks for themselves;
- We realise how important the recording of a non-conviction is for juveniles especially for their prospects of employment and travel, and visa applications;
- We always seek to obtain for you the least restrictive option and penalty available and strive to be the Best Results Lawyers on sentence and penalty;
- We understand that one of the worst consequences of a conviction is the damage to your reputation. At National Criminal Lawyers we ALWAYS seek to restore your reputation;
- As one of the Top Law Firms Sydney we are experts at knowing what to present to the Court;
- We always guide you through the preparation work required and assist in helping you provide the best of character references and letters of apology. We also use the best psychologists, medical and other experts where required;
- We are familiar with all the Children Courts Magistrates and with Court staff such as Judges and Court officers and we deal with the police prosecutors cordially;
- We can guide you through the completion of educational/rehabilitative programs;
- National Criminal Lawyers™ can guarantee that a Specialist Criminal Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible and will not be subjected to a Junior or recently graduated Lawyer;
- We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. As the most Affordable Criminal Lawyer Sydney has to offer this is also done without breaking your pocket;
- National Criminal Lawyers™ are the best defenders of your rights. In particular at National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers™ are the best defenders of your rights;