CORE 1: CRIME

The nature of crime

The meaning of crime:
Crime: any act or omission of duty resulting in harm to society that is punishable by the
state. These actions can be made legal or illegal due to law reform.
Crimes are created by moral and ethical judgements placed on a persons behaviour by
society. However, this isnt always the case. For example, if you see someone injured, it
is unethical to walk away without helping them, however it isnt illegal,

Elements of a crime:
In order to be proven guilty of a criminal act, it must be proven that:
The accused intended to commit the crime (Mens Rea)
The accused actually committed the crime (Actus Reus)
Mens Rea
Mens rea, or guilty mind, refers to the accused intention to commit the crime. Except in
cases of strict liability (e.g. driving offences), the prosecution must prove that the
defendant was aware that their actions were considered a crime.
Actus Reus
Actus Reus, or guilty act, refers to the physical performance or conduct element of the
crime. The prosecution must probe that the defendant committed the crime.
Causation
The prosecution must show that there is a clear link between the act and the harm caused
by it. The act must be what caused the crime to be committed.
o E.g. R V. Blaue (1975)
Blaue was charges and convicted of murder after stabbing a woman who refused to have sex
with him. The woman refused a blood transfusion as it was against her religion and she died as
a result. It was argued that Blaue had no causation and the woman refusing to get a transfusion
was a Novus Actus (new intervening act) which broke the chain of causation. The court ruled
that Blaues actions were the substantial cause of death, not her refusal of a transfusion,
therefore his actions were considered the cause of her death.

Classifying crime
Indictable offences
Most serious crimes, such as murder, rape, etc.
Indictable offence trials must puss a committal hearing to ensure that there is sufficient
evidence to warrant a trial.
Maximum penalty if proven guilty is life in prison.
Summary offences
Less serious crimes, such as shoplifting.
Heard by a magistrate in the local court, without a jury.
Summary offences are brought on a charge called a summons
Maximum penalty if proven guilty is 2 years.

Offences against persons

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 Homicide:
o A homicide is committed when a person has unlawfully been killed. There are some
exceptions such as self-defence.
o There are 4 types of homicide:
1. Murder
Most serious- most severe punishment
Difficult for prosecutors to prove.
One of the following must be proven:
o There was a deliberate act to kill.
o There was a reckless indifference to human life, resulting in
death. E.g. discharging a firearm in a crowded street.
o Constructive Murder- A death occurred during the commission
of a serious crime. E.g. the shooting of a bank teller in an armed
robbery.
2. Manslaughter
The accused has a valid excuse for their actions.
Maximum penalty 25 years imprisonment.
2 types of manslaughter:
o involuntary the accused didnt intend to kill. (no mens rea)
o voluntary mitigating circumstances exist. E.g. the accused was
provoked or mentally impaired.
3. Infanticide
A mother killing her baby under 12 months
The mothers mental state is taken into account.
Mothers defend themselves claiming post-natal depression caused
their actions.
4. Death by reckless driving.
Increasing number of road deaths.
Speeding, DUI are the most important factors.
Maximum penalty 14 years.
Causation must be proved.
Assault
o Causing physical harm or threatening to cause physical harm to another person.
o In the case of Barton v Armstrong (1975), Barton was intimidated by Armstrong
who threatened to murder his family unless Barton approved the purchase of
Armstrongs shares in a company they had both been associated with, at an
inflated price. The threats were enough for Barton to claim assault.
Sexual assault
o Having sexual contact with a person without their consent. Includes having
unwanted sex with your spouse.
o The age of consent for sex in NSW is 16 years old. If a person over 16 has sex with a
person under 16, they can be charged with sexual assault.
o If consent was given under duress, or the victim didnt realise that they were giving
consent, the consent becomes invalid.

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 o Maximum penalty 14 years and 20 for aggravated sexual assault.
Offences against the sovereign
Crimes against property:
Larceny- stealing
Breaking and entering- forcing entry into a building in order to commit an offence.
Robbery - the accused tales a person's property directly from them or from their vicinity.
Usually involves the threat of violence.
White collar crime:
Tax evasion
o Most common white collar crime.
o Can range from fraudulently completing a tax return form to more serious cases
where elaborate tax avoidance schemes involving millions of dollars are used.
Insider trading
o A person with special knowledge of a company uses that knowledge to buy or sell
shares.
o Its illegal because it gives an unfair advantage to investors with special knowledge.
Computer crimes
o Money laundering, identity theft, scams, counterfeits and industrial espionage.
Drug offences:
Includes:
o Importation
o Manufacture and cultivation.
o Distribution, supply and trafficking.
o Possession and use of drugs.
Most common drug offence is the possession of cannabis.
Driving offences:
The Crimes Act 1900 (NSW), the Road Transport (Safety and Traffic Management) Act 1999
(NSW), and the Road Transport (General) Act (1999) NSW, Outline a range of offences
relating to the use of motor vehicles.
Most traffic offences are dealt with through issuing a fine and the adding of one or more
demerit points to the of the offenders license.
More serious offences (such as DUI) often result in a court case.
Driving offences are strict liability and mens rea doesnt need to be proven.
Public order offences:
Includes:
o Indecent behaviour
o Offensive language
o Littering
o Offensive conduct while drunk
o Graffiti
o Prostitution
These laws are based on societys moral and ethical values.
Preliminary Offences:

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 Attempts:
o Attempting to commit a crime is the same as actually committing the crime (excludes
attempted murder)
o The closer the crime is to being committed when the police arrest the person, the
easier it will be to prove in court.
Conspiracy:
o 2 or more people agree to commit a criminal act.
o A conviction for conspiracy is hard to obtain, as evidence is difficult to come by.

Parties to a crime
Principle in the first degree
The person who actually carries out the criminal act. This person is called the perpetrator.
Principle in the second degree
This person assists others in the commission of a crime. This person is present during the
crime but isnt the main participant. (same sentence as the perpetrator)
Accessory before the fact
Helps plan/prepare the crime but isnt present when the crime is conducted.
Accessory after the fact
This offence is recognised only in serious crimes and refers to the person who helps
criminals after committing a crime.

Factors affecting criminal behaviour

Social and economic factors
People who suffer some disadvantage may perceive further reasons to obey the laws that
hold our society together.
E.g. someone who has suffered family breakup or abuse may see society as being the cause
of their problems and therefore feel no desire to obey laws.
Genetic theories
Based on studies of chromosomal abnormalities (XXY)
Suggests criminal behaviour is genetically determined, therefore people are born criminals.
Political factors
People challenge the authority of the government and the laws of that government. This can
lead to protests and violence, such as terrorist attacks, violent demonstrations and
assassinations.
Self interest and greed
Society is becoming more materialistic and consumer driven. As a result, many criminals
become motivated by greed.

Crime prevention

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Situational crime prevention
Involves making it difficult for crimes to be committed by increasing the chances of getting
caught and making the crime more difficult to perpetrate.
AKA opportunity reduction
o E.g. many shops use surveillance cameras to deter people from stealing.
o Many cars are fitted with tracking devices in case they are stolen.
Social crime prevention
Aims to give people access to society and education on order to reduce the factors that are
likely to make a person commit a crime.
The most common strategy is the use of diversionary programs that provide a venue for
alternative activities. e.g. sporting groups, PCYC, and drop in centres.

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The criminal investigation process
Police powers:
The role of police is to prevent crime through maintaining a public presence and acting as a
deterrent.
Police also investigate criminal activities and assist in the prosecution of those charged with
offences.
The powers of police are contained in various acts of parliament.
Under S21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), (LEPRA)
police have the power to arrest.
To arrest someone, the police must have a warrant or must be arresting with the intention
of charging someone based on a reasonable suspicion.
Police have the powers to issue cautions and warnings for less serious offences and fines for
traffic offences.
Police have the power to stop, search and detain where they have reasonable grounds to
suspect that a person or vehicle is carrying illegal articles. However after they gave stopped
and detained someone to search, they must either set them free or arrest them.

Reporting and investigating a crime

Reporting crime
Police rely on the public to report crimes.
Programs such as crime stoppers and neighbourhood watch are designed to reinforce the
fact that without information from the public, the police would have difficulty solving and
preventing crimes.
Sometimes, people dont report crimes due to a fear of revenge or suspicion of the legal
system and police.
Investigating crime
Gathering evidence:
o this is crucial because a criminal charge has to be proven by the prosecution and the
proof is always based on evidence available for the court to view.
o Evidence may be physical, electronic or in the form of witness statements.
Use of technology:
o Surveillance technology provides more evidence.
o DNA technology is able to provide evidence as to who was at the scene of a crime.
Search and Seizure:
o the police have the right to search an arrested person and their belongings.
o This is essential to ensure the person doesnt possess any illegal drugs or weapons.
o An officer can only search someone who is under arrest.

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Arrest and charge, summons and warrants
Arrest and charge
The police have the power to arrest someone if:
o They believe that a person has committed, or is about to commit a crime.
o They witness a person commit a crime
o They have an arrest warrant for the person.
The NSW Police Force Code of Conduct states that, at the time of arrest, police officers are
to inform the person being arrested the reason for arrest as well as stating that to resist an
arrest is itself an offence.
Summons
In the case of summary offences, a summons may be issued rather than a person being
arrested.
A summons is a legal document requiring a person to attend court.
It gives details of the charge and outlines the consequences of failing to attend.
Warrants
A warrant is an order issued by the court, authorising police to do something, such as arrest
or search.

Bali and remand

Bail
Conditional release of a person until their case is determined by the courts.
Bail conditions are put in place so that the accused doesnt run away.
Bail may be granted by the court or by an authorised police officer in charge of the station.
Whether bail is granted or not depends on the severity of the charge.
Remand
Remand is a special type of detention when bail is denied that allows for the accused to be
held for the period of time before the trial.

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The criminal trial process
Court jurisdiction and the adversary system
The adversary system is a common law system where 2 advocates represent their parties
positions before an impartial person or group of people who attempt to determine the truth of
the case.
The local court:
The local court hears summary and committal hearings.
The Childrens Court:
Hears trials when the accused is:
o Less than 18 years old when charged, or is
o Less than 21 when charges for a crime committed when under 18.
Doesnt hear serious indictable offences, these are heard in special closed sessions in the
supreme court.
The aim of the Childrens court is to achieve the rehabilitation of the offender.
The Coroners court
Matters that involve enquiries into:
o The cause and manner of death of any person when there has been violence or
where the death is suspicious, and
o The cause of fires that damage property.
A coroner is a specially appointed magistrate who is required to conduct a coronial inquiry.
The Drug Court
a specialised diversionary court to help rehabilitate drug addicts.
The District Court
Deals with all indictable offences, apart from murder, attempted murder, treason, serious
sexual assault and kidnapping.
Supreme Court
Deals with the most serious indictable offences and appeals from lower courts.
Supreme Court of Appeals
Hears appeals from lower courts.
High Court
Hears constitutional matters and appeals from lower courts that relate to a matter of public
importance.

Legal personnel and representation

Magistrates:
Decides whether a person is guilty or not guilty in the local court where there is no jury,
and also decides the punishment.
Judges:
Interprets the law, assesses evidence presents, and controls how the trials unfold in their
courtroom. If a defendant is found guilty by the jury, the judge is to determine the
punishment/ sentence.

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Legal Aid
The Legal Aid Commission (LAC) was established to ensure that people unable to afford legal
representation have access to a lawyer. Legal aid is funded by the NSW government and is
administrated by the LAC.
The LAC offers 15-minute legal advice over the phone to anyone in need, however, to be
granted legal aid, the applicant needs to pass three tests.
1. Jurisdiction test: the case must fall into defined areas of law, such as family law,
some areas of civil law, childrens law, most indictable criminal law cases,
prisoners matters and mental health cases.
2. Means test: Assessment of the persons ability to afford their own
representation. Income and assets are taken into account, as are child care and
maintenance costs.
3. Merit test: determines the likelihood of the case succeeding.
The case of Dietrich v. Queen changed the way legal aid works in Australia because it
established the right to have legal representation when charged with a serious criminal
offence. So when some people cant afford a lawyer, they must be given one.

Charges, Pleas and Charge negotiation

The charge
A charge is a form of accusation against a person that does not imply guilt. Whether a
person is guilty or not is determined by the courts.
The plea
The law requires an accused person to make a plea in relation to the charges they are facing.
(either guilty or not guilty).
A plea of guilty means that the case will be dealt with quickly as there is no question about
the accused guilt. The matter goes straight to the sentencing.
A plea of not guilty means that the guilt of the accused is not assured. Therefore, the case
must go to trial.
Charge negotiation (plea bargaining)
A plea bargain refers to the negotiation of charges between the defence and the
prosecution. A plea bargain is used to get the accused to plead guilty.
There are 3 ways to plea bargain:
1. If the accused is facing several charges in relation to the same crime, the
prosecution may drop some charges if the defendant agrees to plead guilty to the
remaining charges.
2. Judges may sometimes give an indication of what a likely verdict will be and then
prompts the defendant to plead guilty.
3. The charge may be reduced to a lesser charge if the accused pleads guilty. E.g.
murder to manslaughter.
Pros-
Speeds up the criminal trial process
Results in a much simpler trial than if the accused pleads not guilty.

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 Cons-
Reducing the charge means that there is no consideration for the victim.
Prosecutors sometimes threaten more serious charges and so intimidate the defendant.

Defences
Complete defences
Duress
Where the defendant claims that the criminal act committed was due to threats or
injury to themselves by others. The threat can be to the defendant or to another
person.
Necessity
The defendant claims that the crime committed was done to stop a more serious crime
from occurring or to stop a more serious danger.
Mental illness (insanity)
The onus of proof for insanity lies with the defence. A person does not have the
necessary mens rea (intention)
Automatism
A defence used where a person was unable to control their actions causing a criminal
action to occur.
Self-defence
Reasonable force can be used in the defence of oneself to protect property or to stop a
serious crime occurring. The onus of proof lies with the prosecution who must disprove
self-defence beyond reasonable doubt. The issue with self-defence is determining what
reasonable force is.
Consent
The defendant claims that they acted with the victims consent. The defence can either
be complete, absolute or partial. It is often used in sexual offences.
Partial defences
Provocation
The accused was provoked by the victims into committing a crime. The prosecution has
the onus of proof, proving that the act of the accused was unlawful and without legal
excuse. In NSW, this can only be used for murder to manslaughter.
Diminished responsibility
The defendant acted while mentally ill or disabled and so is not entirely responsible for
their actions. The defendant is not mentally ill to the extent required in the defence of
mental illness.
Intoxication
A normally sane person is so affected by drugs or alcohol that they didnt know what
they were doing. Self induced intoxication generally isnt taken into account when
determining criminal liability.

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Sentencing and punishment
Statutory and judicial guidelines
Statutory guidelines
Under the Criminal Procedure Amendment Act (1998) NSW, NSW Parliament can give
guidelines to judges when handing down a punishment which reflects community
standards. A possible violation of the separation of powers as parliament is inferring with
the judicial process.
Judicial guidelines
Supreme court of NSW gives punishment guidelines to the district and local court to follow.
The sentences must be fair and consistent among all cases.

Purposes of punishment
Deterrence-
People know there is a consequence and therefore they avoid the crime. There are 2
types of deterrence; general and specific. General deterrence refers to creating
consequences for the whole community (e.g. lockout laws due to king hit), whereas
specific deterrence is a consequence given to the main offenders.
Retribution-
Its unfair for someone to profit from criminal enterprise, so society wants revenge. E.g.
the NSW Proceeds of Crimes Act allows police or authorities to confiscate any money or
assets which they believe have been gained by crime.
Rehabilitation-
The process of transforming a criminal into a good person. E.g. safer drivers course,
drug rehabilitation centres, etc.
Incapacitation-
If a person is locked up, they cant commit any more crimes.

Factors affecting a sentencing decision and the role of the victim in sentencing
Aggravating circumstances
Circumstances that would generally lead to a heavier penalty being given by the court.
The Crimes (Sentencing Procedure) Act 1999 (NSW), sets out aggravating factors in
considerable detail. These are listed below:
The victim was a police officer, emergency services worker, prison officer, judicial officer,
health worker, teacher, or other public officer carrying out their duties.
The offence involved actual or threatened violence, or the use of a weapon, explosive
chemical or biological agent.
The offender has a criminal record.
The offence involved gratuitous (unnecessary) violence.
Substantial emotional harm, loss or damage resulted from the offence.
The crime was a hate crime.
The offender abused a position of trust or authority in relations to the victim.
The victim was vulnerable or in a vulnerable position.
Mitigating circumstances

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 Circumstances that would generally lead to a more lenient penalty being given by the court.
The Crimes (Sentencing Procedure) Act 1999 NSW states that mitigating factors include
those that are relevant to the offence as well as to the offender. Mitigating factors include
those listed below:
The injury, emotional harm, loss or damage caused by the offence was not substantial.
The offence was not part of planned or organised criminal activity.
The offender acted under duress.
The offender has no significant record of a previous offence.
The offender is of good character.
The offender is unlikely to reoffend.
The offender has good prospects for rehabilitation.
The offender has shown remorse for the offence.
The offender was not fully aware of the consequences of what they did, due tot age or
disability.
The offender pleaded guilty.
The offender gave assistance to law enforcement authorities.

The court cannot take into account any aggravating or mitigating circumstances in
sentencing if is contrary to any act or rule of law.
Apart from aggravating and mitigating circumstances, many other factors affect the
sentencing decision. These factors include:
whether there are any guideline sentences to follow
the prescribed maximum and minimum penalty given under the Act.
The existence of any precedent
The plea, and, if guilty, when it was admitted and how much remorse is being
demonstrated.
Any plea bargaining?
Any prior offences and sentences, particularly for similar or related matters.
Any mental illness or other factors personal to the offender
The community standards and expectation in regards to the offence

Types of penalties
Fines: For summary and regulatory offences and is Advantages:
cost effective for society. For individual Costs little to enforce and is a
persons the impact varies according to source of revenue for the
income does it achieve fairness? Is it a government.
sufficient deterrent? (needs to be significant) Disadvantages:
Can be unfair because of
differing socio economic status
Bonds: Money is deposited and if conditions of the Adv:
bond are broken, money is forfeited. It Can a source of revenue and
provides and incentive for complying. It the loss of money is a
favors those with more money. A suspended deterrent to not comply
sentence works similarly but without money Dis:
and a prison sentence. To be effective there Not much of a punishment

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 must be a follow up
Probation: Requires good behaviour, regular contact and Adv:
no new offences. Those who break probation Keeps people out of prison
conditions are punished for original and Dis:
subsequent offences. May not be protecting society
Community Service These are used to punish minor criminals and Adv:
Orders: require offenders doing community work. Society reaps rewards while
Effective as community benefits and perpetrator is being punished
rehabilitates people. Despite money savings, Dis:
time is valuable and it achieves fairness Not a large deterrent and does
not protect society
Incarceration: Periodic Detention: Adv:
Also known as weekend detention. This Enabling individuals to keep
means offender can maintain family and family life and maintain work.
work ties and helps break the cycle of Dis:
differential association. It acts as a Reported to have inadequate
deterrent for crimes like white-collar attendance and many are
crimes where the offender is not a threat absent
to society. It acts as a balance and may Adv:
reduce recidivism. Offenders kept out of Jails and
Home Detention: are able to see their families,
This is based on technology as offender more opportunity for
wears a tracking device and must stay in rehabilitation
their home. It is cost saving and keeps Dis:
offenders away from prisons Chance of escapism, not
Imprisonment: protecting society
This is a denial of a persons liberty and is Adv:
used in cases of serious indictable Protecting society and
offences. The average term served is 12 punishing - deterrent
months and are severely regulated. It aims Dis:
to control but does not look towards the Expensive for state and does
release. not rehabilitate well.

Forfeiture of assets Under the proceeds of crimes Act This gives retribution to
(NSW), the police can confiscate assets if society and acts as a deterrent
they believe they are proceeds of criminal to future criminals.
activity

Criminal On spot fine for summary offences such as Saves court time and need for
Infringement Notice swearing or j-walking lawyers and no conviction
(CIN) record. However, may be seen as
a revenue raiser.

Diversionary Programs aimed to divert offenders away Gives people opportunity to

programs from formal courts and trying to rehabilitate reform before they become
them before they become hardened hardcore criminals but may be
criminals. Eg. Anger Management Program expensive to implement.
or youth conferencing.

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 Caution A police warning without arrest or charge. Police discretion used to save
time and focus on more serious
criminal activity. Given to first
time offenders or good people
who made a mistake.

Alternative methods of sentencing

Restorative justice
In NSW, restorative justice is most commonly used in juvenile offences, with the intention of
diverting them away from the courts.
A conference, which is attended by the offender, the victim, and supporters of each, who all
agree to participate. The offender must explain what happened, how they feel about the
crime, and what they shouldve done. The victim and others must explain the impact the
crime had on them.
Circle sentencing
Used mostly for Aboriginal offenders and seeks to break down mistrust and other barriers
between many aboriginal people and the courts, to improve levels of support for Aboriginal
people, to provide support for victims and promote confidence of Aboriginal people in the
court system.
Involves using respected community members in decision making and is designed to
introduce meaningful and relevant sentencing options.

Post sentencing considerations, including security classification, protective custody and parole
Security classifications
When a person is sentenced to prison, the Department of Corrective services examines the
risk that each prisoner presents. They must then decide in which category of risk the
prisoner belongs, so that they can be sent to the most appropriate gaol.
Classification Description Security requirement
AA Convicted terrorist Extremely high security; a prison within
a prison (supermax prison)
A1 and A2 Special Security risk External physical barrier with towers
(maximum security)
B Serious Offender External Physical barrier (medium
security
C1, C2 & C3 Trusted offender, requires limited No barrier required, no need for
supervision, maybe suitable for consistent supervision, often released in
day work release weekends or for work (minimum
security)
E1 and E2 Has escaped or attempted to Same as A1 and A2. Usually never

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 escape custody eligible for reclassification to C

Protective Custody
Under the Crimes (Administration of Sentences) act 1999 (NSW), prisoners who feel that
they are in danger from other prisoners can apply to be placed in protective custody. These
people are generally targets to other offenders.
Parole
Prisoners under full-time imprisonment for less than three years are released on parole at
the end of the non parole period.
With regard to serious offenders, the Protective Authority must give weight to comments by
the sentencing court, consider the recommendations and in particular must have regard to
the safety of the community
Preventative Detention and Continued Detention
Preventative detention is aimed at offenders whose history indicated that they have
established criminal behaviours. This is particularly the case with violent and sexual
offences.
E.G. In Kable v DPP (NSW) (1996), the High Court struck down legislation in NSW that was
aimed at keeping a convicted murderer in prison. Kable had written threatening letters to
the family of the victim from prison. The grounds were that the law violated the
separation of powers in the constitution by requiring the court to detain a person based
on material not admissible in court.
In NSW, the Crimes (Serious Sex Offenders) Act 2006 (NSW) allows the Supreme Court to
order continuing detention where there is a report prepared by a psychologist assessing
whether the offender is likely to commit further serious sexual offences.
Sexual Offenders Registration)
Serious sex offenders names are placed on a register with access by the police. This register
was established under Child Protection (offenders registration) Act 2000.
Offenders against children must keep the state police informed of their name, date of birth,
residential address, employment, motor vehicle registration, the offences and travel
arrangements for a specified period of time.
The register includes offenders who have committed murder; who have been found guilty of
sexual intercourse or persistent sexual abuse of a child under 18; have been convicted of
acts of indecency punishable by 12 months imprisonment or more; have caused a child to
be in sexual servitude; have been found guilty of kidnapping; or of promoting, publishing or
possessing child pornography.
Deportation

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 Non- citizens who are subject to a prison sentence of over 12 months and have been
resident in Australia for under 10 years automatically fail the character test in the Migration
Act (1958) (Cwlth). They may be deported from Australia.

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Young offenders
Age of criminal responsibility
When dealing with young offenders, every effort is made to provide the child with the
opportunity to start their adult lives in a positive fashion, without having to feel that,
because of minor breaches of criminal laws in their past, society will always discriminate
against them.
In NSW, a child under 10 is seen as incapable of forming criminal intent (mens rea). This is
referred to as Doli Incapax. As a result, the Children (Criminal Proceedings) Act 1987 (NSW)
states that a child under 10 cannot be charged with a criminal offence.
Between the age of 10-14, a presumption exists that a child is not able to form criminal
intent. This presumption is conditional and may be rebutted by the prosecution if they can
prove the child understood the wrongfulness of what they did wrong.

The rights of children when questioned or arrested

Children are vulnerable and therefore have special rights when dealing with the police. Their
welfare and safety will be of paramount concern.
A child does not have to answer questions unless they are driving a car, drinking alcohol in a
public place, suspected of being involved in or have witnessed a serious crime, travelling on
public transport or are involved in a car accident.
The police are allowed to ask a child to accompany them to the police station, but can only
insist if the child has been arrested.
A child may be searched, not strip-searched, if the police reasonably suspect they have in
their possession drugs, stolen goods, or a weapon.
If the police arrest a child, they will take them to the nearest police station and contact their
parents or guardians before conducting an interview, as required in s.22 od the Young
Offenders Act 1997 (NSW).
When the police wish to question a child, then a parent, guardian or solicitor must be
present, as required in s.13 of the Children (Criminal Proceedings) Act 1987 (NSW).
A statement taken by police from a person under 18 is inadmissible in court unless there
was an adult present.
In cases where no trusted adult is available, Salvation Army or other community support
personnel may be used. However, if the child is under 16, permission from the childs
parents/ guardian is required.
Use of on-the-spot fines
The Crimes Act 1900 (NSW) was amended in 2007 to allow police to issue on-the-spot fines
for certain minor offences. Most of these offences are committed by young people.
The offences that can receive on-the-spot fines include:
Minor fraud
Shoplifting
Possession of stolen goods
Offensive conduct
Offensive language
Obstructing traffic

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 Unauthorised entry of a vehicle or boat.
Fines for these offences range from $150 to $350. A person issued with a fine has 21 days to
pay it, and there will be no additional costs imposed nor any criminal record created.
The Young Offenders Act 1997 (NSW)
The Young Offenders act 1997 (NSW) aims to provide alternatives to court proceedings and
is designed to foster restorative justice and the rehabilitation of the child.
Under the Act, police may issue warnings, official cautions and arrange youth justice
conferences.
The act attempts to change the emphasis from punishment, while at the same time not
simply making children unaccountable for their actions.
The act was designed to reduce the number of children being kept in detention centres.
The act has eight principles:
1. The least restrictive form of sanction is to be applied against a child who has allegedly
committed an offence.
2. Children who have allegedly committed an offence are entitled to be informed about
their right to obtain legal advice and to have an opportunity to obtain that advice.
3. Criminal proceedings are not to be instituted against a child if there is an alternative and
appropriate means of dealing with the matter.
4. Criminal proceedings are not to be instituted against a child solely in order to provide
any assistance or services needed to advance the welfare of the child or his or her
family or family group.
5. If it is appropriate in the circumstances, children who have allegedly committed an
offence should be dealt with in their communities in order to assist their reintegration
or rehabilitation and to encourage family and community ties.
6. Parents are to be recognised and included in justice processes involving children, they
are to be recognised as being primarily responsible for the care and development of
children.
7. Victims are entitled to receive information about their potential involvement in, and the
progress of, action taken under the Young Offenders Act.
8. The over-representation of Aboriginal and Torres Strait Islander children in the criminal
justice system should be addressed by the use of youth justice conferences, cautions
and warnings.
Youth justice conferencing
Youth Justice conferences are informal gatherings where offenders, victims, family members
and the police are able to participate. The emphasis is on restorative justice and the
offender needs to show a willingness to apologise, financially compensate or undertake
community work if the conference is to succeed.
The department of Juvenile Justice supplies trained convenors that encourage those
affected by the criminal activity to have their say. The convenor will encourage the parties to
come up with an outcome plan. This needs to be primarily worked out by the offender and
victim.
Victims are not required to attend these conferences.

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Court appearances
If a child maintains their innocence to a crime, a Court Appearance Notice will be issued and
they will need to appear in court for a first hearing, where they will be asked to plead guilty
or not guilty.
If a child is over 14 and is charged by the police, the police may take photographs and
fingerprints, which are destroyed if the charges are dismissed in court. Police may also need
to decide, once a child is charged, whether to approve bail until the child appears in court.

Childrens Court: procedures and operation

The childrens court deals with a wide range of issues involving children, from welfare, care
and protection to criminal matters.
A person who is under 18 at the time they commit an offence will generally have their case
heard in the Childrens Court.
In certain circumstances, though over 18, offenders may be sentenced to a juvenile
detention centre if it believed to be a more appropriate or safer for them.
If a young person is charged with a serious criminal offence such as murder or sexual
assault, despite being only 16 or 17 years old, the charges will be referred to the supreme
court.
The childrens court is made to be less intimidating for children. There is little formality as
possible and legal technicalities are kept to a minimum.
Childrens Court magistrates
Childrens Court magistrates are carefully selected and trained to be sensitive and exhibit an
ability to relate to young persons.
There are currently 13 childrens court magistrates presiding over seven specialist Childrens
Courts in NSW.
Under s.11 of the Children (Criminal Proceedings) Act 1987 (NSW), it is an offence to publish
or broadcast the name of a child involved in criminal proceedings.
Background reports
If a child is found guilty of an offence, or pleads guilty, the magistrate usually adjourns the
case for a period of 2 or 6 weeks and asks for a confidential background report or Juvenile
Justice report to be prepared in time for the childs next court appearance.

Penalties for children

If criminal charges against a child are dismissed, no record of the charge will be kept and any
fingerprints or photographs taken will be destroyed on request.
If the child is proven guilty, the court can order any of the following outcomes.
A caution may be issued, which involves no penalty and no record.
The offender can be referred to a youth justice conference under the Young Offenders Act
1997 (NSW).
The offender can be fined up to $1000 based on the childs ability to pay.
The offender can be placed on a probation order, with conditions, for up to 2 years.
A community service order can be imposed, which involves up to 100 hours for children
under 16 years, or up to 250 hours for those older than 16.

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 A control order can be imposed and suspended if the child enters a good behaviour bond.
If the bond is broken, the child will have to serve the period of the control order in
custody.
A young offender can be placed on a control order to be served in detention for up to 2
years on any one offence and up to a maximum of three years.
The Childrens Court can impose other penalties, including:
The offender having to pay damages for harm caused to persons or property.
The confiscation of illegally obtained property.
Referral to the Youth Drug and Alcohol Court.

Alternatives to Court
Warnings
The Young Offenders Act allows the police to issue on-the-spot warnings to young people for
minor breaches of the law.
It should be noted that the police reflect the values of society by not extending warnings in
cases where violence has occurred.
Cautions
A caution is a formal record that a child has breached the law. This involves more serious
offences.
Cautions are only issued if the offender admits the offence, after having the opportunity to
receive legal advice.
Youth justice conferences
The Childrens Court may refer a young offender to a youth justice conference. These are
used if an offender has committed a crime that warrants a caution or more serious penalty.
Community Services of the Department of Juvenile Justice
According to the Department of Juvenile Justice (DoJJ), the prime focus of their community-
based interventions with young offenders is to address their offending behaviour in ways
that have been proven to effectively reduce the risk of reoffending.
Community offices of the DoJJ provide the following services:
Assessment reports to assist courts to determine suitable penalties and rehabilitation
strategies.
Supervision of juvenile offenders placed on good behaviour bonds, probation, parole
orders or community service
Support for young people who have problems seeking bail and those who have been
placed in remand.
Provision of programs that try to remedy or reduce the risk factors that could lead young
people to commit crimes.
Provision of specialised programs, including the Sex Offender Program and Violent
Offender Program
Casework management and networking with government and community-based
organisations to provide support services for juvenile offenders.
A prime aim of all these programs or strategies it to keep juveniles in their communities, to
try and maintain stable relationships with family, friends, education and employment
bodies, essentially providing these young people with security, and a support system.

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