What is the Youth Justice System?
The legal system recognises that children who appear before a court for offending behaviour are at a vulnerable stage in their development. Therefore it is only appropriate that juveniles are dealt with separate from the adult criminal justice system. The youth justice system acknowledges that child offenders have much life ahead of them and therefore their successful reintegration into society is important. The Youth Justice Act 1992 (Qld) (“the Act”) governs youth justice in Queensland.
Who is a child?
In Queensland, a child is a person under the age of 17 years. The child’s age is determined at the time of the child commits the alleged offence. If a 17 year old is charged with an office, they are deemed an adult in the eyes of the law and will be dealt with according to the law as it applies to adults. In other states, a child is considered to be a person under the age of 18 years.
Criminal responsibility of children
- Children under the age of 10 cannot be held criminally responsible.
- Children between the ages of 10 and 14 are presumed not to be criminally responsible unless it can be proven that at the time the offence was committed, the child was able to distinguish between right and wrong.
- Children between 14 and 17 are capable of being criminally responsible but are not responsible to the same extent that an adult would be.
What happens on arrest?
Under the Police Powers and Responsibilities Act 2000 (Qld) a police officer can arrest a child without a warrant if they reasonably suspect that the child is committing or has committed a serious offence. Police must notify Youth Justice Services and the child’s parents. The child must also be brought promptly before a Childrens Court.
However children will only be detained as a last resort and in a facility suitable for children. What is more common is that a child will be served with a complaint and summons to appear before the Childrens Court. The same complaint and summons must also be served on the child’s parents. Other options available to police officers include:
- issuing a formal or informal caution or warning;
- referring the child to a youth justice conference; and
- referring the child to another available diversion program.
Applying for bail
Police have the power to release a child into the custody of a parent or to allow them to go “at large”. If a police officer does not grant a child bail, then a bail application can be made to the Childrens Court.
We can assist you in filing this application.
When deciding whether to grant bail and what conditions should be attached to the bail, the Magistrate will take into account a number of factors including:
- whether the child will surrender into custody
- whether the child is likely to commit another offence
- whether they are a danger to the safety or welfare of others
- whether they will interfere with the obstruction of justice
- the nature and seriousness of the offence
- the child’s character
- the child’s criminal history
- the child’s home environment and other background information
Some examples of conditions that can be placed on a child’s bail might be to:
- remain at a certain address
- adhere to a prescribed curfew
- stay away from a certain place
- refrain from contacting someone
A child does not commit an offence if they breach a condition of their bail though they may be apprehended and brought before the Childrens Court.
Hearings conducted in the Childrens Court
The Childrens Court is a special division of the Magistrates Court which deals with minor offences committed by juveniles. First time offenders will be heard in a closed court where only family members are allowed to be present. The offender’s identity and information relating to their identification will also be kept protected. If a child has pleaded guilty or has been previously found guilty of an offence in the Childrens Court then they will appear in an open court. An application can be made for the matter to be heard in a closed court and/or for the protection of the child’s identity.
Serious criminal offences will usually be referred by the Children’s Court to the Children’s Court of Queensland (CCQ) unless a Magistrate directs the matter to be dealt with in an adult court.
If a child is legally represented in the Children’s Court then the child can elect to a trial by judge or a trial by jury. If a child has no legal representation, the court will order a trial by jury.
A parent or guardian must attend court with the child. A court can adjourn the proceedings to ensure that a parent is aware of the hearing and can order a parent to be present. If a parent does not come to court on an order, they can be fined.
How we can help
My child has been charged – could my child go to jail?
If your child is charged with a serious offence, it is imperative that they get legal representation, as jail time may be in range. Engaging competent youth justice lawyers early can avoid greater complications at trial.
During Police questioning of my child, can anyone else attend?
Before a child is questioned by police, the child must be given the opportunity to speak to a support person and for that support person to be present during the questioning. This is important as children are in a vulnerable position and are unlikely to be aware of their legal rights. If your child is being questioned by police, we can assist you by being a support person to ensure that the police conduct the interview fairly. If a support person or another adult is not present when the child is questioned, the court can refuse to consider the statements made by the child.
Before a child being charged with a serious offence can be interviewed, the police are also required to allow the child to communicate with a friend or relative and contact a lawyer so that they can arrange to be present at the interview.
Representation in court
A child has a right to legal representation for their day in court. We can advocate on behalf of your child at a bail hearing and at trial.
It is essential that a child has legal representation at hearing or trial. Court proceedings are normally daunting for adults, but they are even more so for children. Often children do not understand the full implication of what is taking place, and are in no position to make submissions on the facts of their case. Having a youth justice lawyer also places a third party between the Magistrate and the child, meaning the child does not need to interact with the Magistrate and/or police as much as if they were self-represented.
Help with Sentencing
Youth justice lawyers can also assist in mitigating a sentence, which usually means more lenient penalties imposed upon the child.
Sentencing should take into account the child’s age and maturity and be purposed for the child’s rehabilitation. If the court finds a child guilty of an offence, a Magistrate or Judge may either hand down the sentence the same day or they might adjourn for a few days and request a pre-sentence report. This report is used to assist the Magistrate or Judge in determining what the sentence should be.
A youth justice officer will usually interview the youth before sentencing and may ask some questions about their personal circumstances and questions relating to the offence in order to better understand why the child broke the law. The contents of the report will include information such as the child’s attitude towards the offence and the victim, consequences the child has already experienced and their behaviour since those consequences. The final report is then presented to the Magistrate or Judge who will hand down the sentence. Sentencing options in Queensland include:
- Referral to community conference
- Referral to drug assessment and education session
- Good behaviour
- Community service
As with a trial, it is vital to seek legal advice and representation for sentencing. Youth justice lawyers can often suggest alternative sentencing options and work with both the child and the magistrate in order to reduce the length and severity of a penalty.
If your child has been charged with an offence, or you know someone who has, engaging youth justice lawyers is crucial to ensuring your child receives the help they need. To book an appointment with a youth justice lawyer, contact our office on (07) 3252 0011.