The criminal law relating to children in Queensland is governed by the Juvenile Justice Act 1992. According to the law, a “child” is a person who has not yet turned 17 years of age. (In certain cases however, the courts can also treat as children those who have allegedly committed offences when under 17, but who have since turned 17.)

Questioning Children

If the police wish to question a child about a criminal offence, then normally it is a requirement that the child be accompanied by a parent, lawyer, justice of the peace or some other adult nominated by the child.

Unless there are good reasons why this requirement is not complied with by police, courts have a discretion to exclude any statement given by a child so that it cannot be used as evidence against that child in a court proceeding.

Fingerprints and Other Identification

Specific provisions apply to the taking of fingerprints and other identifying particulars from children. Because it is rare for children to be arrested, police do not usually obtain identifying particulars such as fingerprints and photographs from a child suspect. A police officer must apply to a children’s court magistrate to obtain such identifying particulars. The magistrate must then decide whether it is fair and reasonable for the child to be required to provide the particulars wanted by the police.

If a children’s court magistrate does grant the police officer’s request to obtain such identification, then the child is required to appear at a nominated police station and provide the particulars. Failure by the child to comply with the order is an offence. If a child does provide such particulars then the child is generally allowed to have a parent, lawyer, justice of the peace or a nominated adult present at the time.

COMMENCING PROCEEDINGS AGAINST THE CHILD

It is usually the police who investigate criminal offences thought to have been committed by children or adults. If an investigating police officer believes that a child is responsible for a criminal offence, the police officer has two options, namely:

• to take action which does not require the child to go through the court system; or
• to charge the child with the offence and require the child to appear before a court.

Diverting Children Away From Court

A police officer has the discretion to decide not to charge a child, but rather administer a caution to the child, or seek to have the child take part in a “community conference” where the child is brought face to face with the victim and the issues concerning the offences are discussed between the victim and offender.

If a caution is issued, the child is not prosecuted for the offence. Cautions are only given for relatively minor offences, although they have been applied in a wide variety of circumstances, such as shoplifting, fighting and traffic offences. Normally before a caution will be issued, the child must admit guilt and consent to being cautioned. The police may require the child to issue an apology to the victim.

Charging Children With Offences

If a child is to be charged with an offence there are a variety of methods by which this can occur. Attendance notices are the most common means of starting proceedings against the child. An attendance notice is a document served on the child requiring his or her appearance in a children’s magistrates court at a specified time. Service of the notice avoids the need for an arrest. If a child is served with a notice, the police officer serving it must advise the parents of the child if they can be located.

The child must appear at the court at a specified time and failure to do so allows the court to order the immediate arrest of the child.

The most serious option available for charging a child is by arrest. The child is taken by police and held in custody until he or she is either processed for bail or has appeared in court. The Juvenile Justice Act contains a policy that children should be detained in custody (even if only briefly) as a last resort and only if able to be held at a suitable facility. However, a police officer can arrest a child for certain specified reasons including if the arrest is considered necessary to prevent a repetition or continuation of an offence.

All proceedings against a child begin in the Children’s Magistrates Court before a children’s court magistrate. The matter may be heard entirely by the children’s court magistrate or it may have to be referred to one of the higher courts, namely the Children’s Court of Queensland (or a District Court judge but sitting as a children’s judge) or the normal District or Supreme Court.

PROGRESSING THROUGH THE COURT SYSTEM

As to how a child will be dealt with for a particular charge depends on the nature and seriousness of the charge involved. Offences committed by children are generally one of two types, either “simple offences” or “indictable offences”.

Which Court?

All children who are charged initially come before a children’s magistrate who will either deal with the matter or refer it to a higher court.

Simple offences are charges of a minor nature which can be dealt with by a children’s court magistrate. Examples of offences that are dealt with by a children’s magistrate include shop-lifting, obscene language, and possessing a drug implement such as a bong.

Other matters which may have to proceed to a higher court are called “indictable offences”. These are categorised as either “serious offences” or “non-serious offences”. (“Serious offences” are those where the maximum jail term available, if the offence were committed by an adult, is fourteen (14) years or more.)

Most indictable offences (“non-serious” ones), which come before a children’s magistrate can usually be determined in front of the children’s magistrate or at a higher court before a children’s court judge, depending on the choice (or “election”) of the child. This election is usually made in consultation with a legal representative who advises the child on the best course of action to take. Examples of offences in this category include most assaults and dishonesty offences, including stealing.

All “serious offences” such as murder, rape, grievous bodily harm and some drug offences cannot be heard by a children’s magistrate and must ultimately be heard by a judge in a higher court – either a children’s court judge or a judge of the District Court or Supreme Court.

Parents and Guardians

As a general rule, when a child is appearing before the courts, the child’s parent/s or guardian/s are required to attend. The court can actually order their attendance and the parent/guardian commits an offence if not so attending after being served with a copy of the court’s order.

In any proceeding where a child is charged before a court, the court has to take steps to ensure, as far as possible, that both the child and any parent or guardian of the child present has a full opportunity to be heard and participate in the proceedings. This usually means that explanations are provided to the child as the matter continues, and the child and parent/guardian will be given an opportunity to speak to the magistrate or judge. Such an opportunity will normally be given even where a child is represented by a lawyer.

Publicity

As a general rule, the identity of children charged with criminal offences is not allowed to be published. It is illegal to publish any material concerning a proceeding against a child for a criminal offence which could lead to the identification of the child. Such matters would normally include the child’s name, address, school, place of employment, photograph or anything else which could lead to the identification of the child.

Contesting the Charges – Pleading Not Guilty

If the child wishes to plead not guilty to the charge against him or her, then a trial follows. This will normally be some weeks or months after the initial charge is laid against the child. A trial before a children’s magistrate is called a “hearing”. If the proceeding is conducted before a judge (either a children’s court judge or in the District Court or Supreme Court) then it is called a “trial”. In a hearing/trial the prosecution presents evidence through witnesses and exhibits which it says demonstrate the guilt of the child who has been charged. The child, usually through legal representation, has the opportunity to test the prosecution case by questioning prosecution witnesses and making submissions to the presiding magistrate or judge. The child can then also give evidence on his or her own behalf, and if need be, call evidence from other witnesses on his or her behalf.

At the conclusion of the hearing or trial, the magistrate or judge must decide whether the prosecution has proven its case against the child. As with adult courts, the burden rests on the prosecution to prove the charge against the child. The child is presumed innocent and does not have to prove anything in his or her defence. To be found guilty the court must be satisfied to a high degree of proof – beyond reasonable doubt, that the child is responsible for the offence. In the District and Supreme Court this decision is made by a jury of 12 people. When a child is before a children’s court magistrate or children’s court judge, the magistrate/judge sits alone and hears the case without a jury, and makes all decisions relevant to the case.

Pleading Guilty

If a child pleads guilty to a charge, or after a hearing or trial is found guilty, the child will be sentenced by the court.

SENTENCING OPTIONS FOR CHILD OFFENDERS

If a child is found guilty at the conclusion of a hearing or trial, or if the child pleads guilty to the charge, the court is then required to “sentence” the child for the offence. Sentencing involves the imposition of a punishment upon the child due to the child’s offending behaviour.

The options open in sentencing a child for an offence are found within the Juvenile Justice Act. There are a number of sentences which can be imposed on a child, either individually or in combination. Together with any punishment to be imposed, the court must also consider whether to record a conviction against the offending child. As can be seen below, this will sometimes depend on the punishment imposed.

Reprimand

This type of sentence is generally imposed only for minor matters. No conviction is recorded when a reprimand is administered.

Good Behaviour Order

The effect of such order is to obtain from a child a written promise that the child will behave and not violate the law for the period of the order. The order can be for a period of up to one year. If the child commits a further offence during the period of the order, then when subsequently sentencing the child, the court can have regard to the fact that an order was in place and was breached by the commission of a new offence. Generally this will mean a heavier punishment than if the child had not been on a good behaviour order at the time of the new offence. When a good behaviour order is made, no conviction is recorded against the child.

Fine

A fine can only be ordered against a child if the court is satisfied the child has the capacity to pay the fine. The court must examine the resources available to the child and determine whether the child can pay. A fine can be paid over a nominated period of time, for example, by instalments. If the child does not pay the fine, then it is possible for the fine order to be cancelled and the child to be ordered to perform unpaid community service.

The court has a discretion whether or not to record a conviction when ordering a fine against a child.

Probation

A child can be ordered to perform probation as supervised by the Department of Families, Youth and Community Care. Probation is essentially a period of government monitoring or supervision, usually by way of regular visits. A child must consent to being on probation before it will be imposed. The probation period can be for up to two years for most offences and up to three years for a “serious offence”.

A probation order normally contains conditions concerning the residence, employment and future behaviour of the child. The order can also contain special conditions such as insisting the child submit to medical or psychological treatment, and drug or alcohol rehabilitation or counselling.

The sentencing magistrate or judge has a discretion whether or not to record a conviction when imposing probation.

Community Service

If the child is thirteen years or over, he or she can be ordered to perform community service as part of a sentence for an offence. Community service can only be imposed if the child consents. It is simply unpaid work in the community and a variety of types of work are available. The court can order that the child perform unpaid community work of up to 100 hours for a thirteen or fourteen year old child, and up to 200 hours for children aged fifteen and over. Generally the community service has to be completed within a year.

Though a conviction may be imposed with an order of community service, the magistrate or judge has a discretion not to record a conviction.

Detention

When children are kept in custody they are said to have been placed in “detention”, rather than “jail”. As mentioned above, a child will only be detained in custody as a last resort and only if appropriate facilities for detention are available. A court can only detain a child after having ordered and considered a pre-sentence report, usually compiled by the Department of Families, Youth and Community Care. A pre-sentence report includes the circumstances surrounding the physical and mental health of the child, background of the family, education and employment of the child and the family, and the circumstances in which the child was found guilty.

A children’s court magistrate can order detention for up to one year, whereas a judge can order detention for a greater period depending on the category of offence committed. Generally a child will spend 70% of the designated detention period actually in detention. The court can order that the child be released after serving only 50% of the order if there are special considerations. A conviction may be recorded if a child is sentenced to detention, however the magistrate or judge has a discretion not to record a conviction.

Immediate Release Order

The court can also order a child’s immediate release from custody and order that the child participate in a program organised by the Department of Families, Youth and Community Care. Such an order will only be made if a pre-sentence report indicates the child is suitable for such an order and if the child agrees to such an order. If the child later breaches an immediate release order then a period of detention can be imposed. The court retains a discretion whether or not to record a conviction when imposing this sentence.

Restitution and Compensation

The court can also order that a child pay restitution and/or compensation. A child may be ordered to pay restitution when he or she has damaged, broken, or stolen property from a victim. Compensation may be ordered when the child has caused personal injury.

Appeals

Children have rights, similar to adults, to appeal decisions against them. The appeal rights available to a child will depend on the charge against them and whether the matter was heard by a magistrate or a judge. Decisions made by a children’s magistrate can usually be appealed to the District Court. The decision of a children’s court magistrate concerning sentence only can also be reviewed by a children’s court judge.

Decisions by children’s court judges can usually be appealed to the Court of Appeal.

Please note that very strict time frames apply for lodging of appeals after a conviction or sentence – often only a couple of weeks. You are advised to seek urgent advice from a lawyer if you wish to consider lodging an appeal against a decision by a magistrate or judge.

If you have any questions or would like to speak with one of our solicitors, please contact us.

If an accused is found guilty at the conclusion of a hearing or trial, or if the defendant pleads guilty to the charge, the court is then required to “sentence” the person for the offence.

The options open in sentencing for any offence are found within the Penalties and Sentences Act. There are a number of sentences which can be imposed on an offender, either individually or in combination.

Together with any punishment to be imposed, the court must also consider whether to record a conviction against the offender. As can be seen below, this will sometimes depend on the punishment imposed.

Good Behaviour Order

The effect of such order is to obtain from the offender a written promise that the offender will behave and not violate the law for the period of the order. The order can be for a period of up to one year. If the offender commits a further offence during the period of the order, then when subsequently sentencing, the court can have regard to the fact that an order was in place and was breached by the commission of a new offence. Generally this will mean a heavier punishment than if there had not been a good behaviour order in place at the time of the new offence. When a good behaviour order is made, usually no conviction is recorded against the offender.

Fine

A fine can only be ordered if the court is satisfied the offender has the capacity to pay the fine. The court must examine the resources available and determine whether the offender can pay. A fine can be paid over a nominated period of time, for example, by instalments. If the offender does not pay the fine, then it is possible for the fine order to be cancelled and the offender to be ordered to perform unpaid community service.

The court has a discretion whether or not to record a conviction when ordering a fine to be paid.

Probation

An offender can be ordered to perform probation as supervised by the Department of Corrective Services. Probation is essentially a period of government monitoring or supervision, usually by way of regular visits. An offender must consent to being on probation before it will be imposed. The probation period can be for up to three years for most offences.

A probation order normally contains conditions concerning the residence, employment and future behaviour of the offender. The order can also contain special conditions such as insisting the offender submit to medical or psychological treatment, and drug or alcohol rehabilitation or counselling.

The sentencing magistrate or judge has a discretion whether or not to record a conviction when imposing probation.

Community Service

An offender can be ordered to perform community service as part of a sentence for an offence. Community service can only be imposed if the offender consents. It is simply unpaid work in the community and a variety of types of work are available. The court can order that the offender perform unpaid community work of a minimum of 40 hours up to 240 hours.  Generally the community service has to be completed within a year.

Though a conviction may be imposed with an order of community service, the magistrate or judge has a discretion not to record a conviction.

Intensive Corrections Orders

An Intensive Corrections Order (ICO) is granted under the Penalties &Sentences Act 1992. The court can:

• make an order for up to 12 months; and
• order that the offender serve the remainder of their sentence in prison if they are found to have contravened the requirements of their order; and
• specify the amount of hours per week (up to a maximum of 12 hours) of community service and program attendance.

Suitability

• Offenders who have not yet been sentenced to imprisonment, or who may have served several short sentences, or
• First or second time offenders convicted of more serious offences, or
• Offenders with a high risk of reoffending.

General requirements

The offender must:

• not commit another offence during the period of the order;
• report to an authorised corrective services officer on admission and thereafter report and/or receive visits at least twice a week;
• take part in counselling, attend programs and perform community service for up to 12 hours per week;
• reside if directed at a nominated community residential facility for up to seven days;
• notify every change of employment or residence within two business days;
• not leave Queensland without permission, and only under exceptional circumstances, and
• must comply with every reasonable direction of an authorised corrective services officer.

Intensive Drug Rehabilitation Orders

The Drug Rehabilitation (Court Diversion) Act 2000 empowers the Drug Court to divert offenders from imprisonment to treatment by making an intensive drug rehabilitation order (IDRO).  The order involves frequent appearances before the Drug Court for assessment of progress, as well as attending and completing rehabilitation programs and treatment as directed.

Regular drug testing also assists in monitoring abstinence. Each offender’s sentence is reviewed on conclusion of his or her drug rehabilitation program. Drug courts are located at Beenleigh, Southport, Ipswich, Townsville and Cairns.

Suitability for an IDRO may exist for offenders who:

• are dependent on illicit drugs;
• have an offence that does not involve physical violence or sexual aspects;
• have no outstanding warrants or charges for physical or sexual assault;
• have pled guilty to the offences;
• are facing a possibility of imprisonment;
• are not currently serving a period of imprisonment; in custody or on parole;
• show a willingness to participate in the program; and
• live within the area defined by the jurisdiction of the drug court.

General requirements:

• conviction recorded;
• suspended prison sentence imposed;
• must not re-offend during the period of the order;
• must notify change of residence or employment within two business days;
• must not leave Queensland without permission;
• must comply with all reasonable directions;
• must perform community service as directed; and
• must submit to urinalysis as directed.

Rehabilitation program requirements are divided into three phases and individually tailored for each offender, and may include:

• abstinence from non-prescribed drugs and prescribed drugs unless currently medically required;
• residence requirements;
• drug counselling;
• Regular attendance at case management appointments with QCS and Queensland Health;
• attendance at drug court to present weekly journal;
• attendance at specified programs;
• ‘no-go-zones’;
• person bans;
• restitution;
• detoxification; and
• residential rehabilitation.

Imprisonment

Suspended Sentences

If a court sentences you to a term of imprisonment (jail) for 5 years of less, the court can suspend your sentence for up to 5 years. The court may suspend your sentence immediately so you do not go to jail at all or partially, after you serve a period of time in jail.

If you are charged with an offence while on a suspended sentence, you should seek legal advice immediately.

Court Ordered Parole

Court ordered parole provides an offender with a fixed parole release date for offenders sentenced to three years imprisonment or less, who were not convicted of a sex offence or an offence declared to be a serious violent offence.

Requirements:

• there should only be one parole release date or parole eligibility date in existence for an offender;
• only offenders serving a period of three years imprisonment or less are entitled to court ordered parole; and

If an offender is sentenced to actual imprisonment for offences committed during a Parole Order, the Parole Order is automatically cancelled.

Parole Eligibility Date only

Where an offender is sentenced to a term of imprisonment of more than 3 years, the court may only set a Parole Eligibility Date. This means that an offender will need to make an Application for Parole to the Department of Corrections. Applications for parole can take between 4 to 6 months to be considered. It is therefore usually prudent to submit an application at least 4 months prior to the Parole Eligibility Date.

Restitution and Compensation

The court can also order that a child pay restitution and/or compensation. A child may be ordered to pay restitution when he or she has damaged, broken, or stolen property from a victim. Compensation may be ordered when the child has caused personal injury.

If you have any questions or would like to speak with one of our solicitors, please contact us.

Pleas of Guilty

If a plea of guilty is to be entered it can normally be done very swiftly, often at the first mention date. It is advisable to obtain legal assistance before entering a plea of guilty.

Upon entering a plea of guilty, the defendant will listen to the police prosecutor read out a summary of the case against him or her. The defendant is then entitled to address the magistrate to explain:

• why he or she committed the offence; and
• any relevant factors which should be taken into about when determining the punishment for the offence.

Following this, the magistrate will normally consider what he or she has heard from both sides and then impose a punishment on the defendant.

Hearings

If a person does not want to plead guilty, the matter is set for a “hearing” where the magistrate hears evidence and decides whether or not the accused person is guilty. Hearings in the Magistrates Court are often heard a couple of months after the first mention.

An accused is entitled to see all of the exhibits and witness statements collected by the police prior to hearing. On the other hand, a defendant generally does not have to disclose his evidence to the police in advance of the hearing.

The normal process followed at a hearing is that the prosecution calls each of its witnesses one at a time. Each witness is examined (questioned) by the prosecutor and then cross-examined by the defendant (or the defendant’s lawyer).

The prosecutor can then re-examine the witness on a limited basis if need be. At the conclusion of the prosecution case, the defence can then present its case if it wants to introduce any evidence.

Every defendant is presumed to be innocent and it is the prosecution that must prove guilt beyond a reasonable doubt. Therefore, an accused person has the right not to give evidence and can elect to not call any other witnesses. If the defendant elects to give evidence or call other witnesses, the order of questioning outlined above is reversed during the defence case.

If you have any questions or would like to speak with one of our solicitors, please contact us.

People charged with criminal offence are usually granted bail upon their entering into an undertaking (promise) that they will appear at the next Court date. Bail can be granted by police at the watch-house if a person is arrested, or by the magistrate when a person first appears in court on a summons or notice to appear (or if bail has been refused by the police following arrest).

Defendants have a general entitlement to be granted bail, although there are some “show cause” situations under the Bail Act, where the responsibility switches to the accused to show why they should be granted for bail.

Bail will generally be granted unless it is considered that there is an unacceptable risk that the accused will commit further offences whilst on bail, interfere with witnesses, or fail to appear at the next court date.

Bail Applications

Bail applications refer to a court hearing where a person charged with a crime appeals to be released from police custody to appear in court at a later date. What this means is that the charged person does not have to remain in prison until their case is heard in court, leaving them free to remain in society.

If bail applications are successfully argued and are approved, there are usually a number of conditions placed upon the person to restrict their movements and activities until they are tried. These conditions and restrictions are known as ‘an undertaking as to bail’, and if these are not obeyed then a warrant can be issued for the person’s arrest. An arrest warrant will also be issued if they do not appear for their court date.

When a court considers the bail applicant, it will take into account several elements of the case and the applicant. These will generally be the nature of the crime committed, the defendant’s links to the community and family ties, the defendant’s bail record and the strength in the prosecution’s case.

If a court rejects a bail application, it will usually be based on the defendant failing to convince the court that they will respect conditions of bail and not abscond, commit more offences or contact witnesses.

The court may also refuse bail for various reasons ranging from for the defendant’s own protection, the defendant already serving a custodial sentence or defendant has already absconded in other proceedings.

One of the most important elements of bail applications from a criminal lawyers defense perspective can be the bail monetary amount. In some bail applications, a financial payment will be required as a guarantee of the defendant returning to court. Ideally, this will be as low an amount as possible with many people using their homes and such as collateral.

If you have any questions or would like to speak with one of our solicitors, please contact us.

There are three ways people can be charged with a criminal offences:-

• being arrested and formally charged;
• complaint and summons;
• notice to appear.

Arrest

Arrest means a person is taken to a watch-house and formally charged at that point. The person is usually fingerprinted and photographed. Bail may be granted by the watch-house keeper. If bail is refused at that stage, a person must stay in custody until brought before a magistrate at the earliest possible opportunity and an application for bail may be made to the magistrate.

Complaint and Summons

A complaint and summons allows police to formally put a charge in writing, and serve the document on a defendant. The defendant then has to appear in the specified Magistrates Court on the specified date which is usually about 3 to 4 weeks later. By choosing to charge someone by way of summons rather than by arrest, the police avoid the need to arrest the defendant and take them to a police station. Of course this is also preferable for the person charged.

Notice to Appear

A notice to appear is another alternative by which police can start proceedings against a defendant. A notice to appear is a short document which provides a general description of the offence charged.

If you have been served with a notice to appear, you must turn up to the court at the specified time.

A notice to appear must allow a person at least fourteen (14) days to obtain legal advice before the first court appearance.

The police may also issue a “notice of identifying particulars” with a notice to appear or a summons. This requires that a person charged with an offence attend at a police station within 48 hours to provide identifying particulars (such as fingerprints, photographs etc) as required.

This has the advantage of allowing a person to attend to provide fingerprints at a time convenient to them, as opposed to it being done immediately following arrest. Failure to attend and provide identifying particulars is a criminal offence and the defendant may also be charged with Contravene Requirement.

When a person is charged by way of summons or notice to appear, they are legally obliged to appear in court at the specified time. Failure to appear will usually result in the court issuing a warrant for the arrest of the defendant.

If you have any questions or would like to speak with one of our solicitors, please contact us.