Youth Justice Act 1992

An Act to provide comprehensively for the laws concerning children who commit, or who are alleged to have committed, offences and for related purposes

1Short title

This Act may be cited as the Youth Justice Act 1992.

s 1 amd 2009 No. 34 s 9

2Objectives of Act

The principal objectives of this Act are—

(a)to establish the basis for the administration of juvenile justice; and

(b)to establish a code for dealing with children who have, or are alleged to have, committed offences; and

(c)to provide for the jurisdiction and proceedings of courts dealing with children; and

(d)to ensure that courts that deal with children who have committed offences deal with them according to principles established under this Act; and

(e)to recognise the importance of families of children and communities, in particular Aboriginal and Torres Strait Islander communities, in the provision of services designed to—

(i)rehabilitate children who commit offences; and

(ii)reintegrate children who commit offences into the community.

s 2 prev s 2 om R4 (see RA s 37)

3Youth justice principles

(1)Schedule 1 sets out a charter of youth justice principles.

(2)The principles underlie the operation of this Act.

s 3 amd 1996 No. 22 s 4

sub 2002 No. 39 s 4

amd 2009 No. 34 s 45 (3) sch pt 3 amdt 38

4Definitions

The dictionary in schedule 4 defines particular words used in this Act.

s 4 amd 2002 No. 39 s 5 (1)

Note—prev s 4 contained definitions for this Act. Definitions are now located in schedule 4 (Dictionary).

5Note in text

A note in the text of this Act is part of the Act.

s 5 ins 2002 No. 39 s 6

7Meaning of police officer starting a proceeding

In this Act, mention of a police officer starting a proceeding against a child for an offence includes—

(a)obtaining a warrant for the arrest of a child on a charge for an offence; and

(b)arresting a child for an offence without a warrant.

8Meaning of serious offence

(1)Subject to subsection (2), in this Act serious offence means—

(a)a life offence; or

(b)an offence of a type that, if committed by an adult, would make the adult liable to imprisonment for 14 years or more.

(2)An offence is not a serious offence if—

(a)it is a relevant offence under the Criminal Code, section 552BA; or

Editor’s note—

Criminal Code, section 552BA (Charges of indictable offences that must be heard and decided summarily)

(b)it is an offence that is the subject of a charge to which the Criminal Code, section 552A or 552B applies; or

Editor’s note—

Criminal Code, section 552A (Charges of indictable offences that must be heard and decided summarily on prosecution election) or 552B (Charges of indictable offences that must be heard and decided summarily unless defendant elects for jury trial)

(c)under the Drugs Misuse Act 1986, section 13, proceedings for a charge for the offence may be taken summarily; or

Editor’s note—

Drugs Misuse Act 1986, section 13 (Certain offences may be dealt with summarily)

(d)under the Drugs Misuse Act 1986, section 14, proceedings for a charge for the offence may be taken summarily.

Note—

Proceedings for a charge for an offence may not be taken summarily under section 14 if the prosecution allegations include an allegation as to a commercial purpose.

Editor’s note—

Drugs Misuse Act 1986, section 14 (Other offences that may be dealt with summarily if no commercial purpose alleged)

(2A)If it is necessary for the purposes of subsection (2) to have reference to the table of excluded offences included in the Criminal Code, section 552BB, a reference in that table to the circumstance that the offender does not plead guilty to an offence is taken to be a reference to a child not admitting to committing the offence.

(3)For the purpose of this section, the type of an offence includes the circumstances in which it is committed.

s 8 amd 1996 No. 22 s 6; 1997 No. 3 s 122 sch 2; 2010 No. 26 s 151

9Meaning of court that made order

(1)In this Act, mention of the court that made a particular order on sentence includes, if the order was made by—

(a)the Supreme Court—any sittings of the Supreme Court in its criminal jurisdiction at any place in Queensland; or

(b)the District Court—any sittings of the District Court in its criminal jurisdiction at any place in Queensland; or

(c)a Childrens Court judge—any sittings of a Childrens Court judge at any place in Queensland; or

(d)a Magistrates Court—any Magistrates Court sitting at any place in Queensland; or

(e)a Childrens Court magistrate—any Childrens Court magistrate sitting at any place in Queensland.

(2)Subsection (1) applies even though the court is not constituted by the same judicial officer who made the order originally.

s 9 amd 1996 No. 22 s 3 sch 1; 1999 No. 19 s 3 sch

pt 2 hdg prev pt 2 hdg ins 1996 No. 22 s 7

om 1998 No. 39 s 23

pres pt 2 hdg ins 2002 No. 39 s 7

pt 2 div 1 hdg ins 2002 No. 39 s 7

10Division does not apply to 2 general ways of proceeding

This division has no effect on—

(a)the charging of a child under the Justices Act 1886, section 42(1A); or

(b)a proceeding on an indictment.

s 10 prev s 10 ins 1996 No. 22 s 7

om 1998 No. 39 s 23

pres s 10 ins 2002 No. 39 s 7

11Police officer to consider alternatives to proceeding against child

(1)Unless otherwise provided under this division, a police officer, before starting a proceeding against a child for an offence other than a serious offence, must first consider whether in all the circumstances it would be more appropriate to do 1 of the following—

(a)to take no action;

(b)to administer a caution to the child;

(c)to refer the offence to the chief executive for a restorative justice process;

(d)if the offence is a minor drugs offence within the meaning of the Police Powers and Responsibilities Act 2000 and the child may be offered an opportunity to attend a drug diversion assessment program under section 379 of that Act—to offer the child that opportunity in accordance with that section;

(e)if the offence is a graffiti offence and the child may be offered an opportunity to attend a graffiti removal program under the Police Powers and Responsibilities Act 2000, section 379A—to offer the child that opportunity in accordance with that section.

Note—

Because of section 134, a police officer must consider offering the same opportunities for diversion from the court system as apply to a child to a person who committed an offence as a child but is now an adult.

(2)The circumstances to which the police officer must have regard include—

(a)the circumstances of the alleged offence; and

(b)the child’s criminal history, any previous cautions administered to the child for an offence and, if the child has been in any other way dealt with for an offence under any Act, the other dealings.

(3)If necessary, the police officer must delay starting the proceeding in order to comply with a requirement under subsection (1) or (2).

(4)If, on complying with subsections (1) and (2), the police officer considers it would be more appropriate to act as mentioned in subsection (1)(a), (b), (c), (d) or (e), then the police officer must do so.

(5)If, on complying with subsections (1) and (2), the police officer considers it would not be more appropriate to act as mentioned in subsection (1)(a), (b), (c), (d) or (e), the police officer may start a proceeding against the child for the offence.

(6)The police officer may take the action mentioned in subsection (1)(a), (b), (c) or (e) even though—

(a)action of that kind has been taken in relation to the child on a previous occasion; or

(b)a proceeding against the child for another offence has already been started or has ended.

(7)Subsection (1) does not prevent a police officer from taking the action mentioned in subsection (1)(a) to (c) for a serious offence.

s 11 ins 1996 No. 22 s 8

amd 1998 No. 39 s 24; 2000 No. 5 s 461 sch 3

sub 2002 No. 39 s 7

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2013 No. 31 s 80; 2016 No. 39 s 10

12Preferred way for police officer to start proceedings

A police officer starting a proceeding against a child for an offence, other than a serious offence, must start the proceeding by way of complaint and summons or notice to appear, unless otherwise provided under this Act.

s 12 reloc 1996 No. 22 s 3 sch 1

sub 2002 No. 39 s 7

13Police officer’s power of arrest preserved in particular general circumstances

(1)A police officer may use the police officer’s power of arrest under the Police Powers and Responsibilities Act 2000, section 365(3), without a warrant, to arrest a child for an offence without regard to sections 11 and 12 only if the police officer believes on reasonable grounds—

(a)the arrest is necessary—

(i)to prevent a continuation or a repetition of the offence or the commission of another offence; or

(ii)to obtain or preserve, or prevent concealment, loss or destruction of, evidence relating to the offence; or

(iii)to prevent the fabrication of evidence; or

(iv)to ensure the child’s appearance before a court; or

Note—

Under the youth justice principles in schedule 1, it is a principle of this Act that a child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances.

(b)the child is an adult; or

(c)the child is contravening section 278 or is unlawfully at large.

(2)In deciding for subsection (1)(b) whether the police officer had reasonable grounds, a court may have regard to the child’s apparent age and the circumstances of the arrest.

(3)Also, a police officer may use the police officer’s power of arrest under the Police Powers and Responsibilities Act 2000, section 365(2), without a warrant, to arrest a child without regard to sections 11 and 12.

(4)Also, a police officer may use the police officer’s power of arrest under a warrant issued under the Bail Act 1980 without regard to sections 11 and 12.

(5)To remove any doubt, it is declared that this section does not affect a police officer’s power under the Police Powers and Responsibilities Act 2000, section 365(3), to arrest a child without warrant for a serious offence.

s 13 reloc 1996 No. 22 s 3 sch 1

sub 2002 No. 39 s 7 (amd 2003 No. 37 s 82)

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2009 No. 34 s 45 (3) sch pt 3 amdt 38; 2014 No. 9 s 3; 2016 No. 38 s 4; 2019 No. 23 s 48 sch 1 pt 1

pt 2 div 2 hdg ins 2002 No. 39 s 7

14Purpose of caution

The purpose of this division is to set up a way of diverting a child who commits an offence from the courts’ criminal justice system by allowing a police officer to administer a caution to the child instead of bringing the child before a court for the offence.

s 14 amd 1996 No. 22 s 3 sch 1

reloc 1996 No. 22 s 3 sch 1

sub 2002 No. 39 s 7

15Police officer may administer a caution

(1)A police officer instead of bringing a child before a court for an offence may administer a caution to the child.

(2)The child is then not liable to be prosecuted for the offence.

(3)The caution is not part of the child’s criminal history.

s 15 amd 1994 No. 87 s 3 sch 1

reloc 1996 No. 22 s 3 sch 1

sub 2002 No. 39 s 7

16Conditions for administration of police caution

(1)A police officer may administer a caution to a child for an offence only if the child—

(a)admits committing the offence to the police officer; and

(b)consents to being cautioned.

(2)A police officer who administers a caution, or who requests the administration of a caution under section 17, must, if practicable, arrange to be present at the administration of the caution—

(a)an adult chosen by the child; or

(b)a parent of the child or a person chosen by a parent of the child.

(3)The commissioner of the police service may authorise a police officer who the commissioner considers has sufficient training or experience (authorised officer) to administer cautions.

(4)If a police officer administering a caution is not an authorised officer, the caution must be administered in the presence of an authorised officer.

s 16 reloc 1996 No. 22 s 3 sch 1

sub 2002 No. 39 s 7

17Caution administered by respected person of Aboriginal or Torres Strait Islander community

(1)If a caution is to be administered to a child who is a member of an Aboriginal or Torres Strait Islander community, an authorised officer mentioned in section 16—

(a)must consider whether there is a respected person of the community who is available and willing to administer the caution; and

(b)if a respected person of the community is available and willing to administer the caution—must request the person to administer the caution.

(2)In a proceeding, evidence that a person purported to administer a caution under subsection (1) as a respected person mentioned in the subsection is evidence that the person was a respected person.

s 17 reloc 1996 No. 22 s 3 sch 1

sub 2002 No. 39 s 7

18Caution procedure must involve explanation

(1)A police officer who administers, or requests the administration of, a caution to a child must take steps to ensure that the child and the person present under section 16(2) understand the purpose, nature and effect of the caution.

(2)The steps that can be taken include, for example—

(a)personally explaining these matters to the child; and

(b)having some person with training or experience in the cautioning of children give the explanation; and

(c)having an interpreter or other person able to communicate effectively with the child give the explanation; and

(d)supplying an explanatory note in English or another language.

s 18 amd 1994 No. 87 s 3 sch 1; 1996 No. 22 s 3 sch 1

reloc 1996 No. 22 s 3 sch 1

sub 2002 No. 39 s 7

19Caution procedure may involve apology to victim

(1)This section applies only after a police officer decides that a caution should be administered to a child for an offence.

(2)The procedure of administering a caution to a child for an offence may involve the child apologising to a victim of the offence if—

(a)the police officer administering, or requesting the administration of, the caution considers that an apology is an appropriate course of action in the particular circumstances of the case; and

(b)the child is willing to apologise; and

(c)the victim is willing to participate in the procedure.

s 19 orig s 19 amd 1993 No. 76 s 3 sch 1

om 1996 No. 22 s 11

pres s 19 (prev s 19) amd 1996 No. 22 s 12 (1)

renum and reloc 1996 No. 22 ss 12 (2), 3 sch 1

sub 2002 No. 39 s 7

20Child must be given a notice of caution

(1)If a caution is administered to a child for an offence, the police officer who—

(a)administered the caution; or

(b)under section 17, requested the administration of the caution;

must give the child a notice in a form approved by the commissioner of the police service.

(2)The notice must state—

(a)that a caution was administered to the child; and

(b)the time and date the caution was administered; and

(c)the child’s name; and

(d)the substance of the offence; and

(e)the police officer’s name and rank; and

(f)the place where the caution was issued; and

(g)the names of all persons present when the caution was issued; and

(h)the nature and effect of a caution.

(3)In a proceeding, a document purporting to be a notice or copy of a notice is evidence that the child was administered a caution for the offence in the circumstances stated in the notice.

(4)A document mentioned in subsection (3) is not evidence that the child committed the offence.

s 20 (prev s 10) amd 1996 No. 22 s 10 (1)

renum and reloc 1996 No. 22 s 10 (2)

amd 2000 No. 22 s 34

sub 2002 No. 39 ss 7, 9

21Childrens Court may dismiss charge if caution should have been administered or no action taken

(1)If a child pleads guilty before a Childrens Court to a charge made against the child by a police officer, the court may dismiss the charge instead of accepting the plea of guilty if—

(a)application is made for the dismissal by or on behalf of the child; and

(b)the court is satisfied that the child should have been cautioned instead of being charged or no action should have been taken against the child.

(2)In deciding the application, the Childrens Court may have regard to—

(a)any other cautions administered to the child for any offence; and

(b)whether any previous conference agreements have been made by the child.

(3)If the court dismisses a charge under subsection (1) because the child should have been cautioned, the court may—

(a)administer a caution to the child; or

(b)direct a police officer to administer a caution to the child as directed by the court.

(4)The caution is not part of the child’s criminal history.

s 21 amd 1996 No. 22 s 13

sub 2002 No. 39 ss 7, 9

amd 2009 No. 34 s 10; 2016 No. 39 s 11

pt 2 div 3 hdg ins 2002 No. 37 s 7

amd 2012 No. 41 s 4

sub 2016 No. 39 s 12

22When police officer may refer offence for restorative justice process

(1)This section applies if a child admits committing an offence to a police officer.

(2)Instead of bringing the child before a court for the offence, the police officer may, by written notice given to the chief executive, refer the offence to the chief executive for a restorative justice process.

(3)However, the police officer may make the referral only if—

(a)the child indicates willingness to comply with the referral; and

(b)having regard to the deciding factors, the officer considers—

(i)a caution is inappropriate; and

(ii)a proceeding for the offence would be appropriate if the referral were not made; and

(iii)the referral is a more appropriate way of dealing with the offence than starting a proceeding.

(4)The deciding factors for referring an offence to the chief executive for a restorative justice process are—

(a)the nature of the offence; and

(b)the harm suffered by anyone because of the offence; and

(c)whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process.

(5)The police officer must inform the child generally of the restorative justice process and potential consequences for the child if he or she fails to properly participate in the process.

(6)If the referral is accepted by the chief executive, the chief executive must give written notice of the acceptance to the police officer and the child.

s 22 sub 2002 No. 39 ss 7, 9

amd 2012 No. 41 s 5

sub 2016 No. 39 s 13

23If restorative justice agreement is made as a consequence of referral for restorative justice process

(1)This section applies if—

(a)a police officer refers an offence committed by a child to the chief executive for a restorative justice process; and

(b)a restorative justice agreement is made as a consequence of the referral.

(2)The child is not liable to be prosecuted for the offence unless otherwise provided under this Act.

s 23 amd 1996 No. 22 s 14

sub 2002 No. 39 ss 7, 9; 2016 No. 39 s 13

24Powers of police officer if referral is unsuccessful or if child contravenes restorative justice agreement

(1)This section applies if a police officer refers an offence committed by a child to the chief executive for a restorative justice process and—

(a)the chief executive returns the referral to the officer under section 32(1); or

(b)the child fails to comply with a restorative justice agreement made as a consequence of the referral.

(2)In considering what further action is appropriate, the police officer must consider—

(a)the matters mentioned in section 11(2); and

(b)any participation by the child in the restorative justice process; and

(c)if a restorative justice agreement was made as a consequence of the referral—anything done by the child under the agreement.

(3)The police officer may—

(a)take no action; or

(b)administer a caution to the child; or

(c)refer the offence to the chief executive for another restorative justice process; or

(d)start a proceeding against the child for the offence.

s 24 amd 1996 No. 22 s 15

sub 2002 No. 39 ss 7, 9

amd 2012 No. 41 s 6; 2016 No. 39 s 14

24AChildrens Court may dismiss charge if offence should have been referred to restorative justice process

(1)If a child pleads guilty before a Childrens Court to a charge made against the child by a police officer, the court may dismiss the charge instead of accepting the plea of guilty if—

(a)application is made for the dismissal by or on behalf of the child; and

(b)the court is satisfied the offence should have been referred to the chief executive for a restorative justice process under section 22, regardless of whether or not the child admitted committing the offence to the police officer.

(1A)In deciding the application, the Childrens Court may have regard to—

(a)any cautions administered to the child for any offence; and

(b)whether any previous restorative justice agreements have been made by the child.

(2)If the court dismisses the charge, the court may refer the offence to the chief executive for a restorative justice process.

(3)However, the dismissal of the charge does not prevent a police officer restarting a proceeding against the child for the offence or a court sentencing the child for the offence if—

(a)the chief executive returns the referral under section 32(1); or

(b)the child fails to comply with a restorative justice agreement made as a consequence of the referral.

(4)For part 3, the police officer is taken to be the referring authority for a referral made under subsection (2).

(5)If the court decides to—

(a)make an order of dismissal under the Justices Act 1886, section 149 and give the child a certificate of the dismissal; or

(b)give the child a certificate of dismissal under the Criminal Code, section 700;

the court must not give the child the certificate until the child discharges his or her obligations under a restorative justice agreement made as a consequence of the referral.

s 24A ins 2016 No. 39 s 14

pt 2 div 4 hdg ins 2002 No. 39 s 7

25Application by police officer for permission to take child’s identifying particulars

(1)This section applies if a child has been charged, without being arrested, with an indictable offence or an offence against any of the following Acts that is an arrest offence—

•Criminal Code

•Drugs Misuse Act 1986

•Police Service Administration Act 1990

•Regulatory Offences Act 1985

•Summary Offences Act 2005

•Weapons Act 1990.

(2)A police officer (the applicant) may apply to a Childrens Court magistrate (the court) to have all or any of the identifying particulars of the child taken.

(3)The applicant must give notice of the application to—

(a)the child; and

(b)a parent of the child, unless a parent can not be found after reasonable inquiry; and

(c)the chief executive.

(4)The court may decide the application in the absence of a person mentioned in subsection (3), if the court is satisfied that subsection (3) has been complied with.

(5)On the application—

(a)the applicant and anyone mentioned in subsection (3) is entitled to be heard and to provide evidence; and

(b)the court may act on statements of information and belief.

(6)The court may order the identifying particulars to be taken if it is satisfied, on the balance of probabilities, of all the following facts—

(a)someone has committed the charged offence;

(b)there is evidence of identifying particulars of the offender that are of the same type as the identifying particulars the applicant seeks to have taken from the child;

(c)the child is reasonably suspected of being the offender;

(d)the order is necessary for the proper conduct of the investigation of the offence.

(7)The order must state the investigation for which the order is made.

(8)If the child will not be in custody when the particulars are taken, the order must require the child to report to a police officer at a stated police station between stated hours within 7 days to enable a police officer to take the identifying particulars.

(9)A child must not contravene the order.

Maximum penalty (subject to part 7)—10 penalty units.

(10)If the child will be in custody when the particulars are taken, the order must require the particulars to be taken at the place the child is held in custody.

(11)This section is subject to section 26.

(12)In this section—

charged offence means the offence with which the child is charged or an offence arising out of the same, or the same set of, circumstances.

parent, of a child, includes someone who is apparently a parent of the child.

s 25 sub 2002 No. 39 ss 7, 9

amd 2005 No. 4 s 30 sch 1

26Support person must be present when identifying particulars are taken

(1)In a proceeding for an offence, a court must not admit into evidence against a defendant identifying particulars taken from the defendant under section 25 unless the court is satisfied a support person chosen by the child was present when the identifying particulars were taken.

(2)Subsection (1) does not apply if—

(a)the prosecution satisfies the court there was proper and sufficient reason for the absence of a support person when the particulars were taken; and

(b)the court considers that, in the particular circumstances, the particulars should be admitted into evidence.

(3)This section does not require that a police officer permit or cause to be present when the identifying particulars are taken a person whom the police officer suspects on reasonable grounds—

(a)is an accomplice of the child; or

(b)is, or is likely to become, an accessory after the fact;

for the offence or another offence under investigation.

(4)Also, this section does not require that a police officer permit or cause to be present when the identifying particulars are taken a parent of the child whom the police officer suspects on reasonable grounds is a person against whom the offence under investigation is alleged to have been committed.

(5)This section does not limit the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion.

s 26 sub 2002 No. 39 ss 7, 9

27Destruction of identifying particulars taken under court order

(1)Identifying particulars taken from a child under an order under section 25 must be destroyed if the investigation for which the order was made does not result in a sentence order being made.

(2)For subsection (1), the destruction must happen within 7 days of whichever of the following happens last—

(a)if the investigation is for an offence for which a proceeding had started when the order was made and the proceeding ends without a sentence order being made—the end of the proceeding;

(b)if the investigation is for an offence for which a proceeding is started within 28 days after the order is made and the proceeding ends without a sentence order being made—the end of the proceeding;

(c)if the investigation is for an offence for which a proceeding is not started within 28 days of the order—the end of the period of 28 days.

Note—

See the extended meaning of charged offence in section 25.

(3)An applicant who obtains an order to have identifying particulars taken from a child under section 25 must not fail to ensure the particulars are destroyed under this section, unless the applicant has a reasonable excuse for failing to do so.

(4)A failure to comply with subsection (3) may be dealt with as a breach of discipline under the Police Service Administration Act 1990.

s 27 sub 2002 No. 39 ss 7, 9

amd 2012 No. 41 s 7

28Division does not limit other provisions

This division does not limit provisions of the Police Powers and Responsibilities Act 2000 authorising the taking of someone’s identifying particulars to the extent to which those provisions apply to a child.

s 28 sub 2002 No. 39 ss 7, 9

pt 2 div 5 hdg ins 2002 No. 39 s 7

29Support person must be present for statement to be admissible

(1)In a proceeding for an indictable offence, a court must not admit into evidence against the defendant a statement made or given to a police officer by the defendant when a child, unless the court is satisfied a support person was present with the child at the time and place the statement was made or given.

(2)Subsection (1) does not apply if—

(a)the prosecution satisfies the court there was a proper and sufficient reason for the absence of a support person at the time the statement was made or given; and

Examples—

1There was a reasonable suspicion that allowing a support person to be present would result in an accomplice or accessory of the relevant person taking steps to avoid apprehension.

2A support person was excluded under the Police Powers and Responsibilities Act 2000.

(b)the court considers that, in the particular circumstances, the statement should be admitted into evidence.

(3)This section does not require that a police officer permit or cause to be present when a child makes or gives the statement a person the police officer suspects on reasonable grounds—

(a)is an accomplice of the child; or

(b)is, or is likely to become, an accessory after the fact;

in relation to the offence or another offence under investigation.

(4)This section does not limit the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion.

s 29 amd 1996 No. 22 s 16

sub 2002 No. 39 ss 7, 9

pt 3 hdg ins 1996 No. 22 s 8

sub 2002 No. 39 s 7; 2016 No. 39 s 16

pt 3 div 1 hdg prev pt 3 div 1 hdg (orig pt 2 div 6 hdg) renum and reloc 1996 No. 22 s 3 sch 1

om 2002 No. 39 s 7

pres pt 3 div 1 hdg ins 2016 No. 39 s 16

30Object of part

The object of this part is to provide for the use of a restorative justice process for a child who commits an offence.

s 30 amd 1993 No. 32 s 3 sch 1

sub 2002 No. 39 ss 7, 9

amd 2012 No. 41 s 8

sub 2016 No. 39 s 16

31The restorative justice process

(1)This part applies if a police officer or a court (each a referring authority) refers an offence to the chief executive for a restorative justice process.

(2)The restorative justice process is to be a conference.

(3)However, the restorative justice process is to be an alternative diversion program if—

(a)the referral is made by a police officer under section 22 or made by a court under section 24A or 164; and

(b)a conference can not be convened for any reason other than—

(i)the chief executive being unable to contact the child after reasonable inquiries; or

(ii)the child being unwilling to participate in the conference.

s 31 sub 2002 No. 39 ss 7, 9

amd 2009 No. 25 s 83 sch

sub 2012 No. 41 s 9; 2016 No. 39 s 16

32Returning referrals

(1)The chief executive may, by written notice given to the referring authority, return the referral if—

(a)the chief executive is unable to contact the child after reasonable inquiries; or

(b)the chief executive has made reasonable requirements of the child to attend an interview about the process and the child has failed to attend as required; or

(c)the chief executive considers it necessary for a victim of the offence to participate and the victim does not wish to participate or can not be located after reasonable inquiries; or

(d)during the restorative justice process the child denies committing the offence to the chief executive, a convenor or victim of the offence; or

(e)the chief executive is satisfied that an appropriate restorative justice agreement is unlikely to be made within a time the chief executive considers appropriate; or

(f)the chief executive considers that the referral is unsuitable for a restorative justice process; or

(g)a conference is convened for the referral and the convenor ends the conference without an agreement being made.

(2)The notice must state the reasons for returning the referral, and the reasons may be considered by a court in any later proceeding for sentencing the child for the offence.

(3)The referring authority must make reasonable efforts to inform the child that the referral has been returned.

s 32 ins 2002 No. 39 s 7

sub 2012 No. 41 s 10; 2016 No. 39 s 16

pt 3 div 2 hdg prev pt 3 div 2 hdg ins 1996 No. 22 s  8

om 2002 No. 39 s 7

pres pt 3 div 2 hdg ins 2016 No. 39 s 16

33Object of division

This division provides for the use of a conference to allow a child, who commits an offence, and other concerned persons to consider or deal with the offence in a way that benefits all concerned.

s 33 ins 2002 No. 39 s 7

sub 2012 No. 41 s 11; 2016 No. 39 s 16

34Who may participate in conference

(1)The following persons are entitled to participate in the conference—

(a)the child;

(b)the victim;

(c)the convenor;

(d)a representative of the commissioner of the police service;

(e)a parent of the child;

(f)if requested by the child, 1 or more of the following—

(i)the child’s legal representative;

(ii)a member of the child’s family;

(iii)another adult;

(g)if requested by the victim, 1 or more of the following—

(i)the victim’s legal representative;

(ii)a member of the victim’s family;

(iii)another adult;

(h)another person approved by the convenor.

Examples for paragraph (h)—

1a representative of the chief executive

2a person present for the purpose of training, research or education

3for an Aboriginal or Torres Strait Islander child who is from an Aboriginal or Torres Strait Islander community, a respected person of the community or a representative of a community justice group that may be in the community

(2)To ensure that a victim of the offence is informed of his or her entitlement to participate in the conference, the referring authority must give the chief executive contact information for the victims of the offence.

(3)For subsection (1)(h), if the child is an Aboriginal or Torres Strait Islander person from an Aboriginal or Torres Strait Islander community, the convenor must consider inviting to attend the conference either or both of the following—

(a)a respected person of the community;

(b)if there is a community justice group in the community—a representative of the community justice group.

s 34 ins 2002 No. 39 s 7

amd 2004 No. 11 s 596 sch 1; 2009 No. 34 s 11; 2012 No. 41 s 12

sub 2016 No. 39 s 16

35Convening conference

(1)The conference may be convened only if—

(a)the child and the convenor attend the conference; and

(b)there is a degree of victim participation in the conference through—

(i)the attendance of the victim or a representative of the victim; or

(ii)the use of pre-recorded communication recorded by the victim for use in the conference; or

(iii)a representative of an organisation that advocates on behalf of victims of crime.

(2)The convenor is responsible for convening the conference and must be independent of the circumstances of the offence.

(3)The conference must be directed towards making a conference agreement.

(4)If the child is not legally represented at the conference, the convenor must ensure the child—

(a)is informed of the right to obtain legal advice; and

(b)has reasonable information about how to obtain legal advice and a reasonable opportunity to do so.

(5)The conference ends when a conference agreement is made or the convenor brings the conference to an end because—

(a)the child fails to attend the conference as required; or

(b)the child denies committing the offence at the conference; or

(c)the convenor concludes a participant’s conduct or failure will result in a conference agreement being unlikely to be made; or

(d)the convenor concludes a conference agreement is unlikely to be made within a time the convenor considers appropriate.

(6)If the conference ends without a conference agreement but the convenor considers it is worthwhile persisting with efforts to make a conference agreement, the convenor may convene another conference.

s 35 ins 2002 No. 39 s 7

sub 2012 No. 41 s 13; 2016 No. 39 s 16

36Conference agreement

(1)A conference agreement is an agreement reached at the conference—

(a)in which a child admits committing the offence; and

(b)in which the child undertakes to address the harm caused by the child committing the offence.

(2)The conference agreement must be in the approved form and be agreed to and signed by—

(a)the child; and

(b)the convenor; and

(c)if a representative of the commissioner of the police service participates in the conference—the representative; and

(d)if a victim of the offence participates in the conference—the victim.

Note—

If a court makes a presentence referral, the court must, amongst other things, have regard to the child’s obligations, and anything done by the child, under the conference agreement in sentencing the child for the offence. See section 165(6).

(3)The conference agreement may not provide for the child to be treated more severely for the offence than if the child were sentenced by a court or in a way that contravenes the sentencing principles in section 150.

(4)A copy of the conference agreement must immediately be given to each person who signed the agreement.

(5)To remove any doubt, it is declared that the conference agreement may contain a requirement that the child must comply with outside the State.

Example—

A conference agreement may require the child to perform voluntary work for a charity that is located outside the State.

s 36 ins 2002 No. 39 s 7

sub 2012 No. 41 s 14; 2016 No. 39 s 16

37Amendment of conference agreement by chief executive

(1)This section applies if the chief executive considers that the conference agreement is or becomes unworkable, including, for example, because compliance with the agreement has become impossible or unsafe.

(2)The chief executive may, if the child agrees, amend the conference agreement to the extent necessary to make the agreement workable.

(3)In deciding how to amend the conference agreement, the chief executive must take reasonable steps to find out, and give effect to, the views of each participant who signed the agreement.

(4)The amended conference agreement replaces the original agreement and takes effect from its amendment by the chief executive.

(5)After amending the conference agreement, the chief executive must make reasonable efforts to give a copy of the amended agreement to each participant who signed the agreement.

s 37 ins 2002 No. 39 s 7

amd 2012 No. 41 s 15; 2013 No. 31 s 81

sub 2016 No. 39 s 16

pt 3 div 3 hdg ins 2016 No. 39 s 16

38Alternative diversion program

(1)An alternative diversion program is a program, agreed to by the chief executive and the child, that involves the child participating in any of the following to address the child’s behaviour—

(a)remedial actions;

(b)activities intended to strengthen the child’s relationship with the child’s family and community;

(c)educational programs.

(2)The program must be designed to—

(a)help the child to understand the harm caused by his or her behaviour; and

(b)allow the child an opportunity to take responsibility for the offence committed by the child.

(3)The program may not provide for the child to be treated more severely for the offence than if the child were sentenced by a court or in a way that contravenes the sentencing principles in section 150.

(4)The program must be in writing and be signed by the child.

(5)The chief executive must give the referring authority a copy of the alternative diversion program.

s 38 ins 2002 No. 39 s 7

sub 2016 No. 39 s 16

pt 3 div 4 hdg ins 2016 No. 39 s 16

39Convenors

(1)A convenor is responsible for convening a conference.

(2)The chief executive may approve appropriately qualified persons as convenors.

(3)A convenor has all the powers—

(a)necessary to perform the responsibilities of a convenor; or

(b)conferred on the convenor under this Act or another Act.

s 39 ins 2002 No. 39 s 7

sub 2016 No. 39 s 16

40Admissibility of particular evidence

(1)An admission about committing the relevant offence, made by the child while participating in a restorative justice process, is inadmissible in any proceeding.

(2)Subsection (1) extends to—

(a)any written material or other correspondence made for the purpose of the restorative justice process; or

Example—

a written apology given as a requirement of a conference agreement

(b)actions of the child, done for the purpose of the restorative justice process, that make evident that the child committed the relevant offence.

(3)However, evidence that would otherwise be inadmissible in a proceeding because of subsection (1) is admissible—

(a)if the child agrees to the admission of the evidence; or

(b)in a proceeding under part 7, division 2.

(4)In this section—

relevant offence, in relation to a restorative justice process, means the offence to which the process relates.

s 40 ins 2002 No. 39 s 7

amd 2012 No. 41 s 16

sub 2016 No. 39 s 16

41Notice of successful completion of restorative justice agreement

If a child discharges his or her obligations under a restorative justice agreement made as a consequence of a restorative justice process, the chief executive must notify the referring authority for the process accordingly.

s 41 ins 2002 No. 39 s 7

amd 2012 No. 41 s 17; 2013 No. 31 s 82

sub 2016 No. 39 s 16

pt 4 hdg amd 1996 No. 22 s 9

sub 2002 No. 39 s 8

pt 4 div 1 hdg om 2002 No. 39 s 9

pt 4 div 2 hdg (prev pt 4 div 3 hdg) renum 1996 No. 22 s 3 sch 1

om 2002 No. 39 s 9

pt 4 div 3 hdg (prev pt 4 div 4 hdg) renum 1996 No. 22 s 3 sch 1

om 2002 No. 39 s 9

pt 4 div 4 hdg (prev pt 4 div 5 hdg) renum 1996 No. 22 s 3 sch 1

om 2002 No. 39 s 9

42Preferred way of starting proceedings

(1)A proceeding against a child for an offence, other than a serious offence, must be started by way of complaint and summons.

(2)This section does not apply to a police officer.

Note—

The requirement for a police officer to start a proceeding by complaint and summons or notice to appear is dealt with by section 12.

(3)This section does not affect—

(a)the charging of a child under the Justices Act 1886, section 42(1A); or

(b)the arrest of a child for escaping from lawful custody or who is unlawfully at large; or

(c)a proceeding against a child on an indictment.

s 42 sub 2002 No. 39 s 9

amd 2014 No. 9 s 3A; 2016 No. 38 s 5

43Service of complaint and summons if offender a child

(1)A complaint and summons requiring a child to appear before a court to answer a complaint of an offence must be served on the child a reasonable time before the child is required to appear before the court.

(2)The complaint is also to be served on—

(a)a parent of the child, unless a parent can not be found after reasonable inquiry; and

(b)the chief executive.

(3)A person serving a complaint and summons on a child must do so—

(a)as discreetly as practicable; and

(b)not at or in the vicinity of the child’s place of employment or school, unless there is no other place where service may be reasonably effected.

(4)Subject to the Police Powers and Responsibilities Act 2000, sections 382(3) and 388, this section does not apply to a notice to appear.

(5)In this section—

parent, of a child, includes someone who is apparently a parent of the child.

s 43 amd 1996 No. 22 s 17; 2002 No. 39 s 11; 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86)

44Proof of service of complaint and summons in compliance with this Act

(1)A statement in a deposition made for the purposes of the Justices Act 1886, section 56(3)(b) that the complaint and summons was served as required by this Act is evidence of that fact.

(2)The Justices Act 1886, section 56(5) applies to the deposition.

45No costs against child for lodgement of complaint and summons

In a proceeding started against a child by complaint and summons, a court must not order the child to pay the cost of lodging the complaint and summons with the clerk of the court.

46Proceeding in relation to simple offence in absence of child

(1)Subject to subsection (2), a Childrens Court magistrate may hear and determine a proceeding against a child in relation to a complaint and summons for a simple offence in the absence of the child in the way set out in the Justices Act 1886, part 6.

(2)Under subsection (1), the only sentence order a Childrens Court magistrate may make against a child in the child’s absence is an order imposing a fine, and then only if the child has indicated in writing to the court that the child has a capacity to pay a fine of a specified amount that is equal to or greater than the fine ordered to be paid.

pt 5 div 1 hdg ins 2014 No. 9 s 4

om 2016 No. 38 s 6

pt 5 div 2 hdg ins 2014 No. 9 s 5

om 2016 No. 38 s 8

47Bail Act 1980 applies

(1)Subject to this Act, the Bail Act 1980 applies in relation to a child charged with an offence.

Note—

Particular provisions of the Bail Act 1980 do not apply in relation to children. See, for example, sections 7, 11, 16 and 16A of that Act.

(2)A review of a sentence order under part 6, division 9 is an appeal for the purposes of the Bail Act 1980.

s 47 amd 2014 No. 9 s 4A; 2016 No. 38 s 7; 2019 No. 23 s 9

48Releasing children in custody in connection with a charge of an offence

(1)This section applies if a court or police officer is deciding whether to release a child in custody in connection with a charge of an offence or keep the child in custody.

(2)The court or police officer must decide to release the child unless required under this Act or another Act to keep the child in custody or exercising a discretion under this or another Act to keep the child in custody.

Notes—

1See, for example, sections 48AAA(2), 48AE and 48A for when a child must not be released from custody.

2See also the Bail Act 1980, section 13 for when only particular courts may grant a person bail.

s 48 ins 2002 No. 39 s 12

amd 2005 No. 70 s 114; 2009 No. 34 s 12; 2019 No. 10 s 26

sub 2019 No. 23 s 10

amd 2020 No. 19 s 158

48AAA Releasing children in custody—risk assessment

(1)This section applies if a court or police officer is deciding whether to release a child in custody in connection with a charge of an offence or keep the child in custody.

(2)The court or police officer must decide to keep the child in custody if satisfied—

(a)if the child is released, there is an unacceptable risk that the child will commit an offence that endangers the safety of the community or the safety or welfare of a person; and

(b)it is not practicable to adequately mitigate that risk by imposing particular conditions of release on bail.

(3)Also, the court or police officer may decide to keep the child in custody if satisfied that, if the child is released, there is an unacceptable risk that—

(a)the child will not surrender into custody in accordance with a condition imposed on the release or a grant of bail to the child; or

(b)the child will commit an offence, other than an offence mentioned in subsection (2)(a); or

(c)the child will interfere with a witness or otherwise obstruct the course of justice, whether for the child or another person.

(4)Subsection (5) applies if—

(a)the child is before a court; and

(b)the court has information indicating there may be an unacceptable risk of a matter mentioned in subsection (2) or (3), but does not have enough information to properly consider the matter.

(5)The court may remand the child in custody while further information about the matter is obtained.

s 48AAA ins 2020 No. 19 s 159

48AA Matters to be considered in making particular decisions about release and bail

(1)This section applies if a court or police officer is making any of the following decisions in relation to a child in custody in connection with a charge of an offence (the alleged offence)—

(a)whether there is an unacceptable risk of a matter mentioned in section 48AAA(2);

(b)whether there is an unacceptable risk of a matter mentioned in section 48AAA(3);

(ba)whether to release the child despite being satisfied there is an unacceptable risk of a matter mentioned in section 48AAA(3);

(c)whether to release the child without bail or grant bail to the child.

(2)The court or police officer must have regard to the following matters of which the court or police officer is aware—

(a)any promotion by the child of terrorism;

(b)any association the child has or has had with a terrorist organisation, or with a person who has promoted terrorism, that the court or police officer is satisfied was entered into by the child for the purpose of supporting the organisation or person—

(i)in the carrying out of a terrorist act; or

(ii)in promoting terrorism.

Note—

See also section 48AB.

(3)Also, if the decision is being made by a court, the court must have regard to the sentence order or other order likely to be made for the child if found guilty.

(4)In making a decision mentioned in subsection (1)—

(a)the court or police officer may have regard to any of the following matters of which the court or police officer is aware—

(i)the nature and seriousness of the alleged offence;

(ii)the child’s criminal history and other relevant history, associations, home environment, employment and background;

(iii)the history of a previous grant of bail to the child;

(iv)the strength of the evidence against the child relating to the alleged offence;

(v)the child’s age, maturity level, cognitive ability and developmental needs;

(vi)if the child is an Aboriginal person or Torres Strait Islander—a submission made by a representative of the community justice group in the child’s community, including, for example, a submission about—

(A)the child’s connection with the child’s community, family or kin; or

(B)cultural considerations; or

(C)considerations relating to programs and services established for offenders in which the community justice group participates;

Note—

See also section 48AC.

(vii)any other relevant matter; and

(b)for a decision mentioned in subsection (1)(c)—the court or police officer may have regard to any of the following—

(i)principle 18 of the youth justice principles;

(ii)the desirability of strengthening and preserving the relationship between the child and the child’s parents and family;

(iii)the desirability of not interrupting or disturbing the child’s living arrangements, education, training or employment;

(iv)the desirability of minimising adverse effects on the child’s reputation that may arise from being kept in custody;

(v)the child’s exposure to, experience of and reaction to trauma;

(vi)the child’s health, including the child’s need for medical assessment or medical treatment;

(vii)for a child with a disability—the disability and the child’s need for services and supports in relation to the disability;

(viii) if the child is an Aboriginal person or Torres Strait Islander—the desirability of maintaining the child’s connection with the child’s community, family and kin;

(ix)if the child is under 14 years—the particular desirability of releasing children under 14 years from custody due to their vulnerability and community expectations that children under 14 years are entitled to special care and protection.

(6)In deciding whether there is an unacceptable risk of a matter mentioned in section 48AAA(3), the court or police officer may—

(a)consider whether a condition could, under section 52A, be imposed on a grant of bail to the child; and

(b)have regard to the effect on the risk of imposing the condition.

(7)The court or police officer must not decide it is satisfied there is an unacceptable risk of a matter mentioned in section 48AAA(2) or (3) only because 1 or both of the following apply—

(a)the child will not have accommodation, or adequate accommodation, on release from custody;

(b)the child has no apparent family support.

(8)In this section—

terrorist organisation see the Criminal Code (Cwlth), section 102.1(1).

s 48AA ins 2019 No. 23 s 10

amd 2020 No. 19 s 160

48AB Promotion of terrorism and references to terrorist acts

(1)For section 48AA(2), a person or organisation promotes terrorism if the person or organisation—

(a)carries out an activity to support the carrying out of a terrorist act; or

(b)makes a statement in support of the carrying out of a terrorist act; or

(c)carries out an activity, or makes a statement, to advocate the carrying out of a terrorist act or support for the carrying out of a terrorist act.

(2)To remove any doubt, it is declared that a reference in section 48AA(2) or subsection (1) to a terrorist act—

(a)includes a terrorist act that has not happened; and

(b)is not limited to a specific terrorist act.

s 48AB ins 2019 No. 23 s 10

48AC Representatives of community justice groups must advise of particular matters

(1)This section applies if a representative of a community justice group in a child’s community makes a submission to a court or police officer for section 48AA(4)(a)(vi).

(2)The representative must, if requested by the court or police officer, advise the court or police officer whether—

(a)a member of the community justice group is related to the child or the victim of the offence with which the child has been charged; or

(b)there are circumstances that give rise to a conflict of interest between a member of the community justice group and the child or victim of the offence.

s 48AC ins 2019 No. 23 s 10

amd 2020 No. 19 s 161

48AD

s 48AD ins 2019 No. 23 s 10

om 2020 No. 19 s 162

48AE Releasing children whose safety is endangered because of offence

(1)This section applies in relation to a child in custody in connection with a charge of an offence.

(2)A court or police officer must not release the child from custody if satisfied—

(a)the child’s safety would be endangered if the child were released; and

(b)the factors endangering the child’s safety arise from the circumstances of the offence; and

(c)in the circumstances, there is no reasonably practicable way of ensuring the child’s safety other than by keeping the child in custody.

(3)A court or police officer must not decide it is satisfied of the matters mentioned in subsection (2) only because—

(a)the child will not have accommodation, or adequate accommodation, on release from custody; or

(b)the child has no apparent family support.

s 48AE ins 2019 No. 23 s 10

48AReleasing children found guilty of terrorism offences or subject to Commonwealth control orders

(1)This section applies in relation to a child in custody in connection with a charge of an offence if the child—

(a)has previously been found guilty of a terrorism offence; or

(b)is or has been the subject of a Commonwealth control order.

(2)Despite any other provision of this Act or the Bail Act 1980, a court must not release the child from custody unless the court is satisfied exceptional circumstances exist to justify releasing the child.

(3)In considering whether exceptional circumstances exist to justify releasing the child, the court may have regard to any relevant matter.

(4)If the court releases the child, the order releasing the child must state the reasons for the decision.

(5)This section does not affect the operation of section 48AAA(2) or (3) or 48AE.

s 48A ins 2019 No. 10 s 27

amd 2019 No. 23 s 11; 2020 No. 19 s 163

48BReasons for decisions to keep or remand children in custody

(1)If a court makes an order keeping or remanding a child in custody in connection with a charge of an offence, the order must state the reasons for the decision.

(2)If a police officer decides to keep a child in custody in connection with a charge of an offence, the police officer must make a record of the reasons for the decision.

(3)The keeping or remanding of a child in custody is not unlawful merely because a court or police officer does not comply with subsection (1) or (2).

(4)Subsection (1) is subject to the Bail Act 1980, section 12.

s 48B ins 2019 No. 23 s 12

49When arrested children must be brought before Childrens Court

(1)This section applies if a child is arrested on a charge of an offence and is in custody in connection with the charge.

(2)The child must be brought before the Childrens Court to be dealt with according to law—

(a)as soon as practicable and within 24 hours after the arrest; or

(b)if it is not practicable to constitute the court within 24 hours after the arrest—as soon as practicable on the next day the court can practicably be constituted.

(2A)However, if the child is being detained under the Police Powers and Responsibilities Act 2000, chapter 15, part 2, the child must be brought before the Childrens Court to be dealt with according to law—

(a)as soon as practicable and within 24 hours after the child’s detention under that part ends; or

(b)if it is not practicable to constitute the court within 24 hours after the child’s detention under that part ends—as soon as practicable on the next day the court can practicably be constituted.

(3)This section does not apply if the child is being dealt with in a way mentioned in the Police Powers and Responsibilities Act 2000, section 393(2)(c) or (d) or (3)(b).

s 49 amd 2002 No. 39 s 13; 2004 No. 37 s 86 sch 1; 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86)

sub 2019 No. 23 s 13

50Dealing with children not brought before Childrens Court in accordance with s 49

(1)This section applies if—

(a)a child is arrested in connection with a charge of an offence and delivered into the custody of a police officer at a place that is a police station, police establishment or watch-house; and

(b)the child is not being detained under the Police Powers and Responsibilities Act 2000, chapter 15, part 2; and

(c)section 49 applies in relation to the child, but the child has not been brought before the Childrens Court in accordance with that section.

(2)The police officer for the time being in charge of the place or, if the place is a watch-house, a prescribed police officer within the meaning of the Bail Act 1980, section 7, must—

(a)give the child a release notice or a notice to appear and release the child from custody under section 51; or

(b)grant bail to the child and release the child from custody under section 52; or

(c)keep the child in custody.

(3)However, if the child is released under the Police Powers and Responsibilities Act 2000, section 378 or 379—

(a)subsection (2) does not apply; and

(b)any proceeding against the child for the offence is discontinued even though the child may have been charged with having committed the offence.

(4)Also—

(a)subsection (2) applies subject to sections 48, 48AAA and 48AE; and

(b)a police officer may not, under subsection (2)(a), release the child if the child—

(i)has previously been found guilty of a terrorism offence; or

(ii)is or has been the subject of a Commonwealth control order; and

(c)subsection (2)(b) applies subject to the Bail Act 1980, section 13.

s 50 sub 2002 No. 39 s 14

amd 2003 No. 92 s 26; 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86); 2019 No. 10 s 28; 2019 No. 23 s 14; 2020 No. 19 s 164

51Release of child without bail

(1)This section applies if, under section 50, a police officer decides to release a child without bail.

(2)The officer may release the child into the custody of the child’s parents or release the child to go at large.

(3)Before releasing the child, if the officer does not issue and give to the child a notice to appear, the officer must give the child a notice in the approved form (a release notice).

(4)The release notice must set out—

(a)the child’s name; and

(b)the offence or the nature of the warrant on which the child was held in custody; and

(c)the name of the police officer who started the proceeding, or justice who issued the warrant, on which the child was held in custody; and

(d)the court into whose custody the child is required to surrender under the conditions of release; and

(e)the time and place the child is required to surrender into the court’s custody; and

(f)a warning that a warrant will be issued for the child’s arrest if the child fails to surrender into the court’s custody.

s 51 amd 1993 No. 32 s 3 sch 1; 1996 No. 22 s 3 sch 1; 2002 No. 39 s 15

52Conditions of release on bail—generally

(1)This section applies if a court or police officer decides to grant bail to a child who is being held in custody in connection with a charge of an offence.

(2)The court or officer must release the child on the child’s own undertaking, without sureties and without deposit of money or other security, unless the court or officer is satisfied it would be inappropriate in all the circumstances.

(3)If the court or officer does not release the child under subsection (2), the court or officer must consider the conditions for the release of the child on bail in the following sequence—

(a)the release of the child on the child’s own undertaking with a deposit of money or other security of stated value;

(b)the release of the child on the child’s own undertaking with a surety or sureties of stated value;

(c)the release of the child on the child’s own undertaking with a deposit of money or other security of stated value and a surety or sureties of stated value.

s 52 ins 2002 No. 39 s 16

amd 2009 No. 34 s 13; 2019 No. 23 s 15

52AOther conditions of release on bail

(1)This section applies if a court or police officer decides to grant bail to a child mentioned in section 52(1) and the child is being released from custody.

(2)The court or police officer may impose another condition on the grant of bail, other than a condition about appearing before a court or surrendering into custody, only if the court or police officer is satisfied—

(a)there is a risk of the child doing a thing mentioned in section 48AAA(2)(a) or (3); and

(b)the condition is necessary to mitigate the risk; and

(c)the condition does not, having regard to the following matters of which the court or police officer is aware, involve undue management or supervision of the child—

(i)the child’s age, maturity level, cognitive ability and developmental needs;

(ii)the child’s health, including the child’s need for medical assessment or medical treatment;

(iii)for a child with a disability—the disability and the child’s need for services and supports in relation to the disability;

(iv)the child’s home environment;

(v)the child’s ability to comply with the condition.

(3)A condition imposed under subsection (2)—

(a)must state the period the condition has effect (the stated period); and

(b)stops having effect at the end of the stated period.

(4)In deciding the stated period for a condition, the court or police officer must—

(a)consider the matters mentioned in subsection (2)(c); and

(b)ensure the stated period is no longer than is necessary to mitigate the risk mentioned in subsection (2)(a).

(5)The court or police officer must not impose on a grant of bail to the child a condition that the child must wear a tracking device while released on bail.

(6)If the child is not an Australian citizen or a permanent resident, the court or police officer must consider imposing a condition under subsection (2) requiring the child to surrender the child’s current passport.

(7)Subsection (2) does not limit the power of a court to impose conditions on a grant of bail under section 151(9).

(8)In this section—

Australian citizen see the Australian Citizenship Act 2007 (Cwlth), section 4.

permanent resident see the Bail Act 1980, section 11(10).

s 52A ins 2019 No. 23 s 16

amd 2020 No. 19 s 165

52BReasons for decisions to impose particular conditions

(1)If a court imposes a condition on the grant of bail to a child under section 52A, the order granting bail must state how the condition is intended to mitigate the risk mentioned in section 52A(2)(a).

(2)If a police officer imposes a condition on the grant of bail to a child under section 52A, the police officer must make a record of how the condition is intended to mitigate the risk mentioned in section 52A(2)(a).

s 52B ins 2019 No. 23 s 16

53Granting of bail by audio visual link or audio link

(1)A court may allow anything that must or may be done in relation to the granting of bail to a child to be done over an audio visual link or audio link if the child agrees to the use of the link and the court is satisfied the child has had an opportunity to obtain independent legal advice.

(2)The provisions of the Evidence Act 1977 relating to the use of an audio visual link or audio link in criminal proceedings apply for, and are not limited by, subsection (1).

s 53 ins 2002 No. 39 s 16

54Custody of child pending court appearance

(1)Until brought before a court, a child arrested on a charge of an offence or a warrant issued under this Act who is not released from custody must be held in the custody of—

(a)the commissioner of the police service; or

(b)the chief executive in accordance with arrangements mentioned in subsection (2).

(2)The commissioner of the police service must make arrangements with the chief executive for an arrested child wherever practicable to be placed in a detention centre until brought before a court.

(3)The chief executive must take the action necessary to hold the child in custody in accordance with the arrangements.

s 54 amd 1996 No. 22 ss 18, 3 sch 1; 1998 No. 39 s 25

55Court may in all cases release child without bail

(1)If, under this Act or the Bail Act 1980, a court may grant bail to a child and release the child from custody, the court may instead—

(a)release the child into the custody of a parent; or

(b)permit the child to go at large;

without bail.

(2)The release of a child without bail must be subject to a condition that the child surrenders into the custody of the court before which the child is required to appear at the time and place for the time being appointed for the child to do so.

(3)Subsection (1) does not limit the power of a court to grant bail.

s 55 amd 2002 No. 39 s 17

56Custody of child if not released by court

(1)Except where the child remains the prisoner of the court, a court that remands a child in custody must remand the child into the custody of the chief executive despite the provisions of any other Act to the contrary.

Note—

See also part 5A in relation to a child who remains a prisoner of a court.

(2)Subsection (1) does not apply to a person who is an adult being dealt with for an offence committed by the person as a child if, under section 136, 137 or 138, the person must be held in a corrective services facility.

(3)Jurisdiction conferred by an Act on a court—

(a)to commit a person to a place of detention (other than a detention centre) pending appearance before a court; and

(b)to give directions to the person in charge of the place;

is taken, if the person is a child and subsection (1) applies, instead to confer jurisdiction on the court to remand the child into the custody of the chief executive and to give directions to the chief executive.

(4)A court that remands a child into the custody of the chief executive must order the commissioner of the police service to deliver the child as soon as practicable into the custody of the chief executive.

(5)A child held by the commissioner of the police service under an order made under subsection (4) is—

(a)before being delivered to the chief executive—in the custody of the commissioner of the police service; and

(b)after being delivered to the chief executive—in the custody of the chief executive.

(6)Subject to subsection (7), the chief executive may keep a child mentioned in subsection (4) who is in the chief executive’s custody in places that the chief executive determines from time to time.

(7)The chief executive can not determine under subsection (6) that a child is to be kept in a prison.

s 56 amd 1996 No. 22 ss 19, 3 sch 1; 1998 No. 39 s 26; 2002 No. 39 s 18; 2019 No. 38 s 84

57Warrant for arrest of child who fails to appear after release without bail

Subject to this Act, the provisions of the Bail Act 1980 relating to the issue of warrants for the arrest of defendants who fail to surrender into the custody of the court before which they were required to appear after being permitted to go at large without bail apply to a child who fails to appear after being released into the custody of a parent, or permitted to go at large, without bail.

58Custody of child arrested on court warrant

If, under an Act, a court issues or orders the issue of a warrant for the arrest of a child (other than a warrant for the commitment of a child to a detention centre) it must order the commissioner of the police service to have the child promptly brought before a court to be dealt with according to law.

s 58 amd 1996 No. 22 s 3 sch 1

59Childrens Court judge may grant bail

(1)Subject to this part, a Childrens Court judge may—

(a)grant bail to a child held in custody on a charge of an offence; or

(b)enlarge, vary or revoke bail granted to a child in, or in connection with, a criminal proceeding within the meaning of the Bail Act 1980;

whether or not the child has appeared before the Childrens Court judge in, or in connection with, the offence or criminal proceeding.

(2)Subsection (1)(a) applies even if the child has previously been refused bail by the Childrens Court.

(3)Despite the Bail Act 1980, section 13(1), a Childrens Court judge may grant bail to a child in relation to whom that section applies.

(4)This section does not limit the power a court or person ordinarily has to grant, enlarge, vary or revoke bail.

s 59 amd 1993 No. 32 s 3 sch 1; 2019 No. 10 s 35 sch 1; 2019 No. 23 s 17

59APolice officers must consider alternatives to arrest for contraventions of bail conditions

(1)This section applies if—

(a)a police officer reasonably suspects a child has contravened or is contravening a condition imposed on a grant of bail to the child; and

(b)the contravention is not an offence.

(2)This section also applies if a police officer reasonably suspects a child is likely to contravene a condition imposed on a grant of bail to the child.

(3)Before arresting the child under the Police Powers and Responsibilities Act 2000, section 367(3)(a)(i) in relation to the contravention or likely contravention, a police officer must first consider whether, in all the circumstances, it would be more appropriate to do 1 of the following—

(a)to take no action;

(b)to warn the child of the action a police officer may take under paragraph (c) or the Police Powers and Responsibilities Act 2000, section 367(3) in relation to a contravention of a condition imposed on the grant of bail;

(c)if the contravention or likely contravention is in relation to a condition other than a condition for the child’s appearance before a court—to make an application under the Bail Act 1980 to vary or revoke the bail.

(4)For subsection (3), the circumstances the police officer must consider include the following—

(a)the seriousness of the contravention or likely contravention;

(b)whether the child has a reasonable excuse for the contravention or likely contravention;

(c)the child’s particular circumstances of which the police officer is aware;

(d)other relevant circumstances of which the police officer is aware.

(5)If a police officer considers that, in all the circumstances, it would be more appropriate to act as mentioned in subsection (3)(a), (b) or (c), then a police officer must do so.

(6)In this section—

reasonably suspects means suspects on grounds that are reasonable in the circumstances.

s 59A prev s 59A ins 2014 No. 9 s 5

om 2016 No. 38 s 8

pres s 59A ins 2019 No. 23 s 18

pt 5A hdg ins 2019 No. 38 s 85

59BDefinitions for part

In this part—

corrective services officer see the Corrective Services Act 2006, schedule 4.

watch-house officer see the Police Service Administration Act 1990, section 1.4.

youth justice staff member means—

(a)a detention centre employee; or

(b)another employee of the department in a capacity that involves supervising children in the chief executive’s custody.

s 59B prev 59B ins 2014 No. 9 s 5

om 2016 No. 38 s 8

pres s 59B ins 2019 No. 38 s 85

59CChild in custody of proper officer of a court

(1)A child who is required by law to surrender himself or herself into the custody of a court must do so by surrendering himself or herself into the custody of the proper officer of the court.

(2)A child who surrenders himself or herself into the custody of a court is in the custody of the proper officer of the court until the child is—

(a)released on bail or without bail; or

(b)discharged; or

(c)remanded into the custody of the chief executive; or

(d)otherwise dealt with as the court directs.

s 59C ins 2019 No. 38 s 85

59DPowers of proper officer of a court

The proper officer of a court has, in relation to a child who is a prisoner of the court or mentioned in section 59H(1), all the powers of the chief executive under this Act, in relation to a detainee, that are necessary for the discharge of the proper officer’s functions.

s 59D ins 2019 No. 38 s 85

59EProper officer of a court may ask for help to perform functions

(1)To help the proper officer of a court perform the proper officer’s functions, the proper officer may ask—

(a)the chief executive to provide youth justice staff members; or

(b)the chief executive (corrective services) to provide corrective services officers; or

(c)the commissioner to provide police officers or, to the extent the commissioner considers it appropriate, watch-house officers.

(2)Subsection (1)(a) applies only in relation to functions performed at, or in relation to, a place prescribed by regulation.

(3)The chief executive, chief executive (corrective services) or commissioner must comply with the request.

(4)In this section—

chief executive (corrective services) means the chief executive of the department in which the Corrective Services Act 2006 is administered.

s 59E ins 2019 No. 38 s 85

59FOfficers providing help to proper officer of a court

(1)In helping the proper officer of a court under section 59E, a youth justice staff member, corrective services officer or watch-house officer may exercise powers—

(a)prescribed by regulation for this section; and

(b)as if—

(i)the child who is a prisoner of the court or mentioned in section 59H(1) were a detainee; and

(ii)for a corrective services officer or watch-house officer—the officer were a youth justice staff member; and

(c)as otherwise prescribed by regulation.

(2)Subsection (1) does not limit the help the youth justice staff member, corrective services officer or watch-house officer may give to the proper officer of the court to perform the proper officer’s functions.

s 59F ins 2019 No. 38 s 85

59GDelegation of powers of proper officer of a court

The proper officer of a court may delegate the proper officer’s functions or powers under this part, including functions or powers prescribed by regulation under section 59F or 59I, to an appropriately qualified person.

s 59G ins 2019 No. 38 s 85

59HDetention of children in court cells

(1)A child who is not a prisoner of a court may be detained in a court cell if the child is lawfully in custody to attend before a court or another entity.

(2)While detained in the court cell, the child is in the custody of the proper officer of the court where the court cell is located.

(3)The proper officer of the court is responsible for the management, security and good order of the court cell, despite anything in the State Buildings Protective Security Act 1983.

s 59H ins 2019 No. 38 s 85

59IRegulation about exercise of powers

(1)This section applies in relation to—

(a)the exercise of the chief executive’s powers by the proper officer of a court under section 59D; and

(b)the exercise of powers by a youth justice staff member, corrective services officer or watch-house officer under section 59F.

(2)A regulation may state matters about the exercise of the powers, including, for example—

(a)conditions or requirements about the exercise of the powers and how the conditions or requirements may be satisfied or complied with; or

(b)requirements about keeping records, or giving information, about the exercise of the powers.

(3)In this section—

condition includes a limitation or restriction.

s 59I ins 2019 No. 38 s 85

60Court jurisdiction generally unaffected

This Act does not affect the jurisdiction a court has apart from this Act in relation to a child charged with an offence, unless this Act otherwise provides.

61Application of Mental Health Act 2016

The Mental Health Act 2016 applies to a child charged with an offence as it applies to an adult.

s 61 amd 1996 No. 22 s 20; 1998 No. 39 s 27; 1999 No. 9 s 3 sch; 2000 No. 63 s 276 sch 2

sub 2000 No. 16 s 590 sch 1 pt 2

amd 2016 No. 5 s 923 sch 4

62Childrens Court judge

A Childrens Court judge has jurisdiction—

(a)to hear and determine under division 7 a charge against a child for an offence; and

(b)to delegate sentencing power to a Childrens Court magistrate under section 185; and

(c)to hear bail applications under section 59; and

(d)to perform other functions and exercise other powers conferred on the judge under this Act; and

(e)to review under section 118 a sentence order made by a Childrens Court magistrate.

s 62 prev s 62 om 2002 No. 39 s 25

pres s 62 amd 1996 No. 22 s 3 sch 1; 2002 No. 39 s 19; 2009 No. 34 s 14; 2014 No. 9s 6; 2016 No. 38 s 9

63District Court jurisdiction in aid

(1)For the purpose of the jurisdiction in relation to persons and matters assigned to a Childrens Court judge under this Act, a Childrens Court judge has the same powers and jurisdiction as the District Court has in its criminal jurisdiction in relation to persons and matters assigned to the District Court.

(2)The powers and jurisdiction conferred under subsection (1) are in addition to those otherwise conferred under this Act.

(3)To the extent that another provision of this Act is inconsistent with subsection (1), the other provision prevails.

s 63 amd 1999 No. 19 s 3 sch; 2002 No. 39 s 20

64Childrens Court magistrate

(1)All proceedings under the Justices Act 1886 for the hearing and determination of charges against children for offences, including committal proceedings, must be heard and determined before a Childrens Court magistrate.

(2)A Childrens Court magistrate has jurisdiction to hear and determine the proceedings.

(3)A Magistrates Court and justices conducting committal proceedings do not have that jurisdiction.

65Magistrates Court jurisdiction in aid

(1)For the purpose of the jurisdiction in relation to persons and matters assigned to a Childrens Court magistrate under this Act, a Childrens Court magistrate has the same powers and jurisdiction as a Magistrates Court has under the Justices Act 1886 in relation to persons and matters assigned to the Magistrates Court.

(2)The powers, authorities and jurisdiction conferred under subsection (1) are in addition to those otherwise conferred under this Act.

(3)To the extent that another provision of this Act is inconsistent with subsection (1), the other provision prevails.

s 65 amd 2002 No. 39 s 21

66Application of usual laws where necessary

(1)Subject to subsections (2) and (3), for the purposes of the powers and jurisdiction of a Childrens Court conferred by this Act, the provisions of the Criminal Code, Justices Act 1886 and other Acts apply to—

(a)the institution and conduct of a proceeding before a Childrens Court; and

(b)the exercise by a Childrens Court of its powers and jurisdiction; and

(c)the enforcement of an order made by a Childrens Court.

(2)Provisions applied under subsection (1) apply, with all necessary modifications and any prescribed modifications—

(a)in relation to a Childrens Court judge in the way they apply in relation to the District Court; and

(b)in relation to a Childrens Court magistrate in the way they apply in relation to a Magistrates Court.

(3)To the extent that another provision of this Act is inconsistent with a provision applied under subsection (1), the other provision of this Act prevails.

s 66 amd 1999 No. 19 s 3 sch

67Limitation on justices

(1)If the Childrens Court is constituted by 2 justices, the court’s jurisdiction in relation to a proceeding against a child for an offence is limited to—

(a)the hearing and determination of a charge of a simple offence in a case where the child pleads guilty; and

(b)taking or making a procedural action or order.

(2)The justices can not make the following—

(a)a detention order;

(b)a conditional release order.

(3)This section does not affect a limitation placed on the power of a justice under the Justices of the Peace and Commissioners for Declarations Act 1991.

s 67 amd 2002 No. 39 s 22; 2012 No. 41 s 18; 2016 No. 38 s 10

68Infringement notices

If, under an Act, an adult may elect to pay a monetary penalty prescribed under the Act in relation to a simple offence instead of being prosecuted on complaint and summons for the offence, a child may also elect to pay the monetary penalty instead of being prosecuted.

s 68 amd 1997 No. 82 s 65; 1999 No. 70 s 166 sch 1

69Presence of parent required generally

(1)If a parent of a child is not present when the child appears before a court charged with an offence, the court, after making inquiries of those present as to—

(a)the whereabouts of the child’s parents; and

(b)whether a parent of the child has been informed of the proceedings as required under—

(i)section 43; or

(ii)the Police Powers and Responsibilities Act 2000, section 392;

may adjourn the proceeding to enable a parent to be present at the time and place to which the proceeding is adjourned.

(2)The court may recommend that the chief executive provide financial assistance to a parent of the child to ensure that a parent is present at the proceeding.

s 69 amd 1996 No. 22 s 21; 2002 No. 39 s 23; 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86)

70Court may order parent to attend

(1)A court before which a child appears charged with an offence may order a parent of the child to attend the proceeding as directed by the court.

(2)The order may be made on the prosecution’s application or on the court’s initiative.

(3)The court may cause the proper officer of the court to give written notice to the parent to attend as directed.

(4)If requested by the proper officer, the commissioner of the police service must help the proper officer to give the notice.

(5)The court may recommend the chief executive provide financial assistance to the parent to ensure the parent’s attendance.

(6)A person must not contravene a notice given to the person under subsection (3).

Maximum penalty—50 penalty units.

(7)A court that makes an order under subsection (1) may adjourn the proceeding to allow the parent to attend.

s 70 ins 1996 No. 22 s 22

71Consequence of parent’s absence

(1)This section applies if a parent of a child against whom a finding or order has been made in a proceeding for an offence satisfies the court on application that—

(a)the child was dealt with when no parent was present; and

(b)the parent making the application was—

(i)not aware of the time and place of the proceeding in sufficient time to allow the parent to be present; or

(ii)unable to attend for sufficient reason.

(2)The court may set aside the finding or order if it considers that it is in the interests of justice to do so, for example if it considers that the child’s capacity to make an election or other decision relating to the proceeding was adversely affected.

(3)The matter determined by the finding or order must then be heard and determined afresh.

(4)The application must be made within 28 days of the finding or order.

72Explanation of proceeding

(1)In a proceeding before a court in which a child is charged with an offence, the court must take steps to ensure, as far as practicable, that the child and any parent of the child present has full opportunity to be heard and participate in the proceeding.

(2)Without limiting subsection (1), the court must ensure that the child and parent understand, as far as practicable—

(a)the nature of the alleged offence, including the matters that must be established before the child can be found guilty; and

(b)the court’s procedures; and

(c)the consequences of any order that may be made.

(3)Examples of the steps a court may take are—

(a)directly explaining these matters in court to the child and parent; and

(b)having some appropriate person give the explanation; and

(c)having an interpreter or another person able to communicate effectively with the child and parent give the explanation; and

(d)causing an explanatory note in English or another language to be supplied to the child and parent.

73Ordinary practice applies to explanations if child is represented

This part does not—

(a)prevent an explanation required to be given to a person, or an inquiry required to be made of a person, from being given to or made of a lawyer representing the person; or

(b)prevent the lawyer from responding to the explanation or inquiry on behalf of the person.

s 73 amd 2004 No. 11 s 596 sch 1

74Chief executive’s right of audience generally

(1)This section applies to a proceeding before a court in which a child is charged with an offence.

(2)The chief executive is entitled to be heard by the court on matters mentioned in subsection (3), even though the chief executive is not a party to the proceeding.

(3)The matters are—

(a)adjournment of the proceeding; and

(b)matters relating to the custody or release from custody of the child pending completion of the proceeding; and

(c)sentence orders that may be made against the child; and

(d)without limiting paragraphs (a) to (c), matters on which the court considers the chief executive should be heard.

(4)However, the chief executive must not be heard on an issue under section 234.

(5)If the chief executive is a party to the proceeding, the chief executive may appear and be represented by an officer of the department.

s 74 sub 1996 No. 22 s 23

amd 1998 No. 39 s 28; 2002 No. 39 s 24; 2014 No. 9 s 7; 2016 No. 38 s 11; 2016 No. 39 s 17

75Adjournment power generally

(1)If it appears to the Childrens Court that a proceeding before it in relation to an offence could be more conveniently, economically or fairly heard before the Childrens Court at another place, the court may adjourn the hearing to that other place.

(2)The remand, bail and custody provisions of part 5 apply to the adjournment.

76One year limitation inapplicable if indictable offence dealt with summarily

(1)The purpose of this section is to ensure that a child may elect to have an indictable offence dealt with before a Childrens Court magistrate despite delay in prosecution.

(2)A Childrens Court magistrate may exercise jurisdiction under this part in relation to an indictable offence even though more than 1 year has passed since the offence was committed.

77Court to refrain from inappropriate summary hearing of indictable offence

(1)This section applies if a Childrens Court magistrate (the court) has jurisdiction to hear and determine summarily a charge against a child of an indictable offence (subject to the consent of the child).

(2)The court must refrain from exercising the jurisdiction unless it is satisfied that the charge can be adequately dealt with summarily by the court.

(3)The court may initially decide to exercise the jurisdiction on submissions made by the parties.

(4)If at any stage of the proceeding the court decides that the charge can not be adequately dealt with summarily by the court, any further proceeding before the court must be conducted as a committal proceeding.

s 77 prev s 77 om 2002 No. 39 s 26

78Procedural elections under this Act in relation to an indictable offence replace other elections

The rules set out in this part relating to election by a child of procedure in relation to an indictable offence apply despite any right of election that may be conferred on any person under any other Act or any provision of another Act that requires the indictable offence to be heard and decided summarily.

s 78 prev s 78 om 2002 No. 39 s 26

pres s 78 amd 2010 No. 26 s 152

79Court to check child’s legal representation

If a child appears before a court charged with an indictable offence but is not represented by a lawyer, the court may proceed with a hearing and determination only if it is satisfied that the child—

(a)has had reasonable opportunity to obtain representation by a lawyer; and

(b)has decided not to be represented by a lawyer.

s 79 prev s 79 om 2002 No. 39 s 26

pres s 79 amd 2003 No. 57 s 39 (1)–(2) sch 3

amd 2004 No. 11 s 596 sch 1

80Use of adduced evidence after change of procedure

(1)This section applies if a proceeding before a court (former proceeding) changes into another proceeding (new proceeding) before the court because of—

(a)an election or change of an election under this Act; or

(b)a decision of a court to refrain from exercising summary jurisdiction in relation to an indictable offence; or

(c)a decision of a court to remove the proceeding to its concurrent jurisdiction on discovering a misapprehension affecting the court’s treatment of the defendant as a child or adult; or

(d)a decision of a court to continue or hear a proceeding in its concurrent jurisdiction under division 11.

(2)If evidence has been adduced in the course of the former proceeding, the hearing again of the evidence in the new proceeding is at the discretion of the court.

(3)If the court decides against hearing the evidence again in the new proceeding, the evidence is taken to have been adduced by the party who adduced the evidence in the former proceeding.

s 80 prev s 80 om 2002 No. 39 s 26

pres s 80 amd 1996 No. 22 s 24

pt 6 div 2 hdg sub 2002 No. 39 s 26

pt 6 div 2 sdiv 1 hdg ins 1996 No. 22 s 25

sub 2002 No. 39 s 26

81Committal proceeding if the offence is a serious offence

(1)This section applies to a proceeding to be conducted before a Childrens Court magistrate (the court) in which a child is charged with a serious offence.

(2)A hearing of the charge before the court must be conducted as a committal proceeding.

(3)If the charge is changed to a charge of an offence other than a serious offence during the committal proceeding, subsection (1) is subject to divisions 3 and 4.

(4)If, in the proceeding, the child is also charged with an offence other than a serious offence, the court may treat the charge as a charge of a serious offence for the purpose of this section.

s 81 prev s 81 om 2002 No. 39 s 26

pres s 81 sub 1996 No. 22 s 25; 2002 No. 39 s 26

pt 6 div 2 sdiv 2 hdg ins 1996 No. 22 s 25

sub 2002 No. 39 s 26

82Application of sdiv 2

This subdivision applies to a proceeding to be conducted before a Childrens Court magistrate (the court) in which a child is—

(a)charged with an indictable offence other than a serious offence; and

(b)represented by a lawyer.

s 82 prev s 82 om 2002 No. 39 s 26

pres s 82 sub 1996 No. 22 s 25

amd 1999 No. 19 s 3 sch

sub 2002 No. 39 s 26

amd 2004 No. 11 s 596 sch 1

83Explanation and election at start

(1)Subject to section 77, before evidence is adduced at the proceeding, the court must explain to the child and any parent of the child who is present the child’s right of election mentioned in subsection (2).

(2)The child may elect—

(a)to have the proceeding conducted as a committal proceeding; or

(b)to have the proceeding conducted as a hearing and deciding of the charge summarily by the court.

(3)The court must also explain to the child and any parent of the child who is present that—

(a)after all the evidence to be offered in the proceeding on the part of the prosecution has been adduced; and

(b)the court is of the opinion that the evidence is sufficient to put the child on trial for an indictable offence other than a serious offence;

the child may elect—

(c)to have the proceeding conducted as a committal proceeding; or

(d)to have the committal proceeding discontinued and any further proceeding conducted as a hearing and deciding of the charge summarily by the court.

(4)The court must then ask the child whether the child consents to having the charge heard and decided summarily by the court.

(5)If the child consents, the court must proceed to hear and decide the charge summarily.

(6)If the child does not give the consent mentioned in subsection (4), the proceeding must be conducted as a committal proceeding, subject to divisions 3 and 4.

s 83 prev s 83 om 2002 No. 39 s 26

pres s 83 ins 1996 No. 22 s 25

sub 2002 No. 39 s 26

84Procedure on summary hearing

(1)On proceeding to hear and decide the charge summarily under section 83(5), the court must—

(a)reduce the charge to writing; and

(b)ask the child whether the child is guilty or not guilty.

(2)If the child pleads guilty the court must proceed in the same way as is provided in the Justices Act 1886, section 145(4).

(3)If the child pleads not guilty, the court may proceed in the same way as is provided in the Justices Act 1886, section 146.

s 84 prev s 84 om 2002 No. 39 s 26

pres s 84 ins 1996 No. 22 s 25

sub 2002 No. 39 s 26

amd 2017 No. 6 s 75 sch 1

pt 6 div 2 sdiv 3 hdg ins 1996 No. 22 s 25

sub 2002 No. 39 s 26

85Application of sdiv 3

This subdivision applies to a proceeding to be conducted before a Childrens Court magistrate (the court) in which a child is—

(a)charged with an indictable offence other than a serious offence; and

(b)not represented by a lawyer.

s 85 ins 1996 No. 22 s 25

sub 2002 No. 39 s 26

amd 2004 No. 11 s 596 sch 1

86Start as committal proceeding and explanation

(1)The proceeding must be conducted as a committal proceeding, subject to divisions 3 and 4.

(2)Before evidence is adduced at the proceeding, the court must explain to the child and any parent of the child who is present that—

(a)after all the evidence to be offered in the proceeding on the part of the prosecution has been adduced; and

(b)the court is of the opinion that the evidence is sufficient to put the child on trial for an indictable offence other than a serious offence;

the child may elect—

(c)to have the proceeding conducted as a committal proceeding; or

(d)to have the committal proceeding discontinued and any further proceeding conducted as a hearing and deciding of the charge summarily by the court.

s 86 ins 1996 No. 22 s 25

sub 2002 No. 39 s 26

pt 6 div 3 hdg sub 2002 No. 39 s 26

87Application of div 3

(1)This division applies if—

(a)a hearing before a Childrens Court magistrate (the court) of a charge against a child of an indictable offence is being conducted as a committal proceeding; and

(b)all the evidence to be offered in the proceeding on the part of the prosecution has been adduced; and

(c)the court is of the opinion that the evidence is sufficient to put the child on trial for an indictable offence other than a serious offence.

(2)This division applies whether or not the child is legally represented.

s 87 sub 2002 No. 39 s 26

88Explanation of election at end of prosecution case

(1)Subject to subsection (6) and section 77, the court must explain to the child, and any parent present in the court, the child’s right of election mentioned in subsection (2).

(2)The child may elect—

(a)to have the proceeding continue as a committal proceeding; or

(b)to have the committal proceeding discontinued and any further proceeding conducted as a hearing and deciding of the charge summarily by the court.

(3)The court must then ask the child whether the child consents to having the charge heard and decided summarily by the court.

(4)If the child consents, the court must discontinue the committal proceeding and proceed to hear and decide the charge summarily.

(5)If the child does not give the consent mentioned in subsection (4), the proceeding must continue as a committal proceeding.

(6)The court may, but need not, follow the process under subsections (1) to (5) if the child has already declined to give consent under section 83 for the charge to be heard and decided summarily.

s 88 ins 2002 No. 39 s 26

89Procedure on summary hearing

(1)On proceeding to hear and decide the charge summarily, the court must—

(a)reduce the charge to writing; and

(b)ask the child whether the child is guilty or not guilty.

(2)If the child pleads guilty the court must proceed in the same way as is provided in the Justices Act 1886, section 145(2).

(3)If the child pleads not guilty, the court may proceed in the same way as is provided in the Justices Act 1886, section 146, subject to section 80.

s 89 ins 2002 No. 39 s 26

pt 6 div 4 hdg sub 2002 No. 39 s 26

90Application of div 4

This division applies if a child enters a plea of guilty at a committal proceeding when addressed under the Justices Act 1886, section 104(2).

s 90 sub 2002 No. 39 s 26

91If the offence is a supreme court offence

If the offence to which the child pleads guilty is a supreme court offence, the court must order the child to be committed to be sentenced before the Supreme Court.

s 91 ins 2002 No. 39 s 26

92If the offence is a serious offence other than a supreme court offence

If the offence to which the child pleads guilty is a serious offence other than a supreme court offence, the court must order the child to be committed to be sentenced before a court of competent jurisdiction.

s 92 ins 2002 No. 39 s 26

93If the offence is an indictable offence other than a serious offence

(1)Subject to section 77, if the offence to which the child pleads guilty is an indictable offence other than a serious offence, the court must explain to the child, and any parent of the child who is present, the child’s right of election mentioned in subsection (2).

(2)The child may elect—

(a)to be committed to be sentenced before a court of competent jurisdiction; or

(b)to be sentenced by the Childrens Court magistrate.

(3)The court must then ask the child whether the child consents to being sentenced by the Childrens Court magistrate.

(4)If the child consents, the Childrens Court magistrate must proceed in the same way as is provided under the Justices Act 1886, section 145(2).

(5)If the child does not give the consent mentioned in subsection (4), the court must order the child to be committed to be sentenced before a court of competent jurisdiction.

s 93 ins 2002 No. 39 s 26

pt 6 div 5 hdg ins 2002 No. 39 s 26

94Application of div 5

This division applies if—

(a)a proceeding against a child for an indictable offence before a Childrens Court magistrate has been entirely conducted as a committal proceeding; and

(b)the child has not entered a plea of guilty when addressed under the Justices Act 1886, section 104(2); and

(c)all the evidence to be offered at the proceeding has been adduced.

s 94 sub 2002 No. 39 s 26

95If the offence is a supreme court offence

(1)This section applies if, on consideration of all the evidence adduced at the committal proceeding, the court is of the opinion that the evidence is sufficient to put the child on trial for a supreme court offence.

(2)The court must order the child to be committed to be tried before the Supreme Court.

s 95 ins 2002 No. 39 s 26

96If the offence is not a supreme court offence

(1)This section applies if, on consideration of all the evidence adduced at the committal proceeding, the court is of the opinion that the evidence is sufficient to put the child on trial for an indictable offence that is not a supreme court offence.

(2)The magistrate must order the child to be committed to be tried before a court of competent jurisdiction.

(3)If the court to which the child is ordered to be committed is a Childrens Court judge, the magistrate must comply with division 6.

s 96 ins 2002 No. 39 s 26

pt 6 div 6 hdg ins 2002 No. 39 s 26

97Application of div 6

This division applies if a Childrens Court magistrate decides to commit a child to be tried before a Childrens Court judge under division 5.

s 97 sub 2002 No. 39 s 26

98Election for trial with or without jury

(1)If the child is represented by a lawyer, then, before ordering the child to be committed to be tried under the Justices Act 1886, section 108, the court must explain to the child and any parent of the child who is present the child’s right of election mentioned in subsection (2).

(2)The child may elect—

(a)to be committed to be tried before the Childrens Court judge sitting without a jury; or

(b)to be committed to be tried before the Childrens Court judge sitting with a jury.

(3)After the explanation, the court must then ask the child whether the child consents to being tried before the Childrens Court judge sitting without a jury.

(4)If the child consents, the court must order the child to be committed to be tried by the Childrens Court judge without a jury.

(5)If the child—

(a)is not represented by a lawyer; or

(b)if represented by a lawyer—does not give the consent mentioned in subsection (4);

the court must order the child to be committed to be tried before the Childrens Court judge sitting with a jury.

s 98 ins 2002 No. 39 s 26

amd 2004 No. 11 s 596 sch 1

pt 6 div 7 hdg ins 2002 No. 39 s 26

pt 6 div 7 sdiv 1 hdg ins 2002 No. 39 s 26

99Childrens Court judge to have criminal jurisdiction over child charged with indictable offence

(1)A Childrens Court judge has jurisdiction to inquire of and hear and decide all indictable offences, wherever committed, charged against a child other than supreme court offences.

(2)For subsection (1), it does not matter where an offence is committed or whether or not a child has been committed to be tried or sentenced before the Childrens Court judge on a charge.

s 99 sub 2002 No. 39 s 26

100Sentencing for summary offence

Without limiting section 99, a Childrens Court judge may sentence a child on any charge for a summary offence on which the child consents to being sentenced by the judge under the Criminal Code, section 651.

s 100 ins 2002 No. 39 s 26

101General laws relating to indictable offence apply

Subject to this division, the provisions of the Criminal Code or any other Act relating to the hearing and deciding on indictment of an indictable offence apply to a proceeding for an indictable offence before a Childrens Court judge under this division.

s 101 ins 2002 No. 39 s 26

pt 6 div 7 sdiv 2 hdg ins 2002 No. 39 s 26

102When a jury is not required

(1)Subject to section 105, a Childrens Court judge must sit without a jury to try a child for an indictable offence if—

(a)for a committal charge—

(i)the child elected under section 98(2)(a) to be committed for trial before the judge sitting without a jury and has not withdrawn the election under section 103(3); or

(ii)the child elected under section 98(2)(b) to be committed for trial before the judge sitting with a jury, but has elected under section 103(4) to be tried before the judge sitting without a jury; or

(iii)the child was committed to be tried before a judge sitting with a jury under section 98(5), but has elected under section 103(5) to be tried before the judge sitting without a jury; or

(b)for a charge other than a committal charge the child elects under section 104 to be tried by the judge sitting without a jury.

(2)In this section—

committal charge means a charge on which a child is committed for trial or sentence before a Childrens Court judge, and includes a charge arising out of the same, or the same set of, circumstances.

s 102 sub 2002 No. 39 s 26

103Committal charge—change to jury requirement

(1)This section applies to a child who has been committed to be tried before a Childrens Court judge.

(2)If the child was committed under section 98(2)(a), but is not legally represented before the judge, the child must be tried by the judge sitting with a jury.

(3)Also, if the child was committed under section 98(2)(a), the child may withdraw the child’s election under the section to be tried before a Childrens Court judge sitting without a jury and elect instead to be tried before the judge sitting with a jury.

(4)If the child was committed under section 98(2)(b) to be tried before the judge sitting with a jury and the child is legally represented, the child may withdraw the child’s election under the section and elect instead to be tried before the judge sitting without a jury.

(5)If the child was committed to be tried before the judge sitting with a jury under section 98(5) and the child is legally represented before the judge, the child may elect to be tried before the judge sitting without a jury.

(6)An election or withdrawal of election must happen before the child enters a plea to the charge.

s 103 ins 2002 No. 39 s 26

104Charge other than committal charge—election by legally represented child for trial with or without jury

(1)This section applies to a charge against a child of an indictable offence before a Childrens Court judge that is not a committal charge mentioned in section 102.

(2)If the child is represented by a lawyer, the child may elect—

(a)to be tried before the judge sitting without a jury; or

(b)to be tried before the judge sitting with a jury.

(3)An election must happen before the child enters a plea to the charge.

s 104 ins 2002 No. 39 s 26

amd 2004 No. 11 s 596 sch 1

105When a trial by jury is necessary

If a child who is before a Childrens Court judge—

(a)is not represented by a lawyer; or

(b)if represented by a lawyer, has not elected, or withdraws an election, to be tried without a jury under another provision of this division; or

(c)if the judge decides that in the particular circumstances it is more appropriate for the child to be tried by the judge sitting with a jury;

the child must be tried before the judge sitting with a jury.

s 105 ins 2002 No. 39 s 26

amd 2004 No. 11 s 596 sch 1

pt 6 div 7 sdiv 3 hdg ins 2002 No. 39 s 26

106Child may change plea of guilty

(1)A child who appears before a Childrens Court judge after being committed to be sentenced on an indictable offence is in all cases entitled to enter a plea of not guilty when called on to enter a plea under the Criminal Code, section 600.

(2)To the extent that this section is inconsistent with the Criminal Code, section 600, this section prevails.

(3)Evidence that the child previously entered a plea of guilty at the committal proceeding is not admissible in the trial following the change of plea.

s 106 sub 2002 No. 39 s 26

pt 6 div 8 hdg prev pt 6 div 8 hdg om 2002 No. 39 s 35

pres pt 6 div 8 hdg sub 2002 No. 39 s 27

pt 6 div 8 sdiv 1 hdg ins 2002 No. 39 s 27

107Joint committal proceeding in relation to adult and child are allowed

Despite the Childrens Court Act 1992, section 21, a magistrate may at the same time conduct a committal proceeding—

(a)as a Childrens Court magistrate, in relation to a charge of an indictable offence brought against a child; and

(b)as a justice, in relation to an indictable offence brought against an adult;

if, were the child an adult, a committal proceeding in relation to each offence would have been conducted at the same time against both persons.

108Committal or committal proceeding for joint trial with another person

(1)Before a Childrens Court magistrate starts to hear and decide summarily a charge against a child for an indictable offence other than a serious offence, the prosecution may apply to the court for the proceeding to be conducted or continued as a committal proceeding for the purpose of having the child tried on indictment with another person.

(2)Before a Childrens Court magistrate commits a child for trial before a Childrens Court judge on a charge of a serious offence, the prosecution may apply to the court for the child to be instead committed for trial to another court of competent jurisdiction for the purpose of having the child tried on indictment with another person.

(3)On application under subsection (1) or (2), if the magistrate is satisfied that—

(a)the child may lawfully be charged in an indictment in which the other person will also be charged; and

(b)if the child were so charged it is unlikely an application would be granted resulting in the child’s trial being had separately from the other person; and

(c)in all the circumstances, including the relevant principles of this Act, the application should be granted;

the magistrate may grant the application and deal with the proceedings as requested.

s 108 prev s 108 amd 1999 No. 19 s 3 sch

pres s 108 sub 2002 No. 39 s 28

amd 2007 No. 38 s 145

pt 6 div 8 sdiv 2 hdg ins 2002 No. 39 s 29

109Definitions for sdiv 2

In this subdivision—

committed charge means the offence committed to be tried in the committed proceeding.

committed proceeding means a proceeding on a charge against a child of an offence committed to be tried before a Childrens Court judge.

s 109 ins 2002 No. 39 s 29

110Removal to another jurisdiction for joint trial with another person

(1)The prosecution may apply to a Childrens Court judge for the removal of a committed proceeding to a court of competent jurisdiction other than a Childrens Court judge for the purpose of having the child tried on indictment with another person.

(2)If the judge is satisfied that—

(a)the child may lawfully be charged in an indictment in which the other person will also be charged; and

(b)if the child were so charged it is unlikely an application would be granted resulting in the child’s trial being had separately from the other person; and

(c)in all the circumstances, including the relevant principles of this Act, the proceedings should be removed as requested;

the judge may grant the request and remove the proceeding as requested.

(3)In removing the proceeding, the judge may exercise power as if the proceeding had been brought before the wrong court.

s 110 ins 2002 No. 39 s 29

111Formal removal to another jurisdiction for joint trial involving another charge

(1)The prosecution may apply to a Childrens Court judge for the removal of a committed proceeding to a court of competent jurisdiction other than a Childrens Court judge for the purpose of having the child tried on an indictment charging the child with the committed charge and another charge on which the child will be dealt with as an adult.

(2)The judge may grant the request and remove the proceeding as requested.

(3)In removing the proceeding, the judge may exercise power as if the proceeding had been brought before the wrong court.

(4)This section does not limit the jurisdiction of any court of competent jurisdiction to try or sentence the child on the charge.

s 111 ins 2002 No. 39 s 29

112Concurrent jurisdiction available

Nothing in this division excludes a Childrens Court judge from presiding over the trial of a child in the judge’s concurrent jurisdiction to which a proceeding has been removed by the judge under this subdivision.

s 112 ins 2002 No. 39 s 29

113Removal ends possibility of trial without jury

Provisions of this division authorising a trial before a judge sitting without a jury do not apply to a proceeding removed to another court under this subdivision.

s 113 ins 2002 No. 39 s 29

pt 6 div 9 hdg amd 2014 No. 9 s 7A; 2016 No. 38 s 12

pt 6 div 9 sdiv 1 hdg ins 2002 No. 39 s 30

114Appeal rights generally

Other than as expressly provided by this part, this part does not affect the right of any person to appeal, or apply for leave to appeal, under the Criminal Code or otherwise against the order of a court or judicial officer.

s 114 amd 1999 No. 19 s 3 sch

sub 2002 No. 39 s 30

115Community based orders stayed during appeal

(1)If a child starts an appeal against a community based order made against the child, the effect of the order is stayed until the end of the appeal.

(2)If the period for which the community based order operates is relevant to the effect of the order or a program or anything else under the order, the period between the start and end of the appeal is not counted for the purpose of the effect of the order, program or other thing.

s 115 ins 2002 No. 39 s 30

pt 6 div 9 sdiv 2 hdg ins 2002 No. 39 s 30

116Appeals to Court of Appeal

The Criminal Code, chapter 67, relating to appeals or applications for leave to appeal applies, with necessary modifications and any prescribed modifications—

(a)in relation to a finding of guilt or order made in a proceeding against a child for an offence as it applies in relation to a conviction or order made in a proceeding against an adult for an offence; and

(b)in relation to a proceeding before a Childrens Court magistrate as it applies to a proceeding before a Magistrates Court; and

(c)in relation to a proceeding before a Childrens Court judge, sitting with or without a jury, as it applies in relation to a proceeding before the District Court.

s 116 ins 2002 No. 39 s 30

pt 6 div 9 sdiv 3 hdg ins 2002 No. 39 s 30

117Appeals under Justices Act 1886, pt 9, div 1

(1)The Justices Act 1886, part 9, division 1, applies in relation to an order made by justices dealing summarily with a child charged with an offence subject to subsections (2) to (4).

(2)To appeal under the division, an aggrieved person must appeal to the Childrens Court judge.

(3)All relevant references to a District Court judge are taken for the purpose to be references to the Childrens Court judge.

(4)A District Court judge does not have jurisdiction to hear and decide the appeal.

s 117 ins 2002 No. 39 s 30

amd 2014 No. 9 s 7B; 2016 No. 38 s 13

pt 6 div 9 sdiv 4 hdg prev pt 6 div 9 sdiv 4 hdg ins 2002 No. 39 s 30

om 2014 No. 9 s 7C

pres pt 6 div 9 sdiv 4 hdg ins 2016 No. 38 s 14

118Sentence review

A Childrens Court judge on application may review a sentence order made by a Childrens Court magistrate.

s 118 prev s 118 om 2014 No. 9 s 7C

pres s 118 ins 2016 No. 38 s 14

119Application for review

(1)An application may be made by—

(a)a child against whom the sentence order was made; or

(b)the chief executive acting in the child’s interests; or

(c)the complainant or arresting officer for the charge for which the sentence order was made.

(2)An application must be made within 28 days after the sentence order is made or within a later period that may at any time be allowed by the Childrens Court judge.

(3)In this section—

complainant means a complainant who makes a complaint under the Justices Act 1886.

s 119 prev s 119 amd 1996 No. 22 s 27; 1998 No. 39 s 29; 2002 No. 39 s 31; 2012 No. 17 s 51 sch

om 2014 No. 9 s 7C

pres s 119 ins 2016 No. 38 s 14

120Preliminary procedure

(1)The proper officer of the Childrens Court at the place where the Childrens Court judge is sitting must notify the applicant and all other parties of the place and time for the hearing of the application.

(2)Also, if the application is not made by the chief executive, the proper officer must notify the chief executive of the making of the application and the place and time for the hearing of the application.

s 120 prev s 120 amd 2009 No. 34 s 15

om 2014 No. 9 s 7C

pres s 120 ins 2016 No. 38 s 14

121Stay of proceeding and suspension of orders

(1)Without affecting—

(a)another power to stay the effect of an order of a court; or

(b)the operation of a law that has that effect;

      a Childrens Court judge may order a stay of all or any proceedings under a sentence order that is subject to a review application under this division.

(2)The Childrens Court judge may impose conditions the judge considers appropriate on the stay.

(3)Without limiting subsections (1) and (2), if a community based order is subject to a review under this division, the effect of the order is stayed until the end of the review.

(4)If the period for which the community based order operates is relevant to the effect of the order or a program or anything else under the order, the period between the start and end of the review is not counted for the purpose of the effect of the order, program or other thing.

(5)If a Childrens Court judge orders a stay of a proceeding under a sentence order, the proper officer of the Childrens Court at the place where the Childrens Court judge is sitting must notify the chief executive of the making of the order.

s 121 prev s 121 amd 2002 No. 39 s 32; 2007 No. 38 s 146; 2009 No. 34 s 16

om 2014 No. 9 s 7C

pres s 121 ins 2016 No. 38 s 14

122Conduct of review

(1)A review of a sentence must be by way of rehearing on the merits.

(2)The Childrens Court judge may have regard to—

(a)the record of the proceeding before the Childrens Court magistrate; and

(b)any further submissions and evidence by way of affidavit or otherwise.

(3)The review of a sentence order must be conducted expeditiously and with as little formality as possible.

s 122 prev s 122 om 2014 No. 9 s 7C

pres s 122 ins 2016 No. 38 s 14

123Review decision

(1)On reviewing a sentence order, a Childrens Court judge may—

(a)confirm the order; or

(b)vary the order; or

(c)discharge the order and substitute another order within the jurisdiction of the Childrens Court magistrate to make.

(2)The judge may also make any other order a Childrens Court magistrate could have made in connection with the sentence order as confirmed, varied or substituted under subsection (1).

s 123 prev s 123 om 2014 No. 9 s 7C

pres s 123 ins 2016 No. 38 s 14

124Interrelation with other types of appeal

(1)If a child starts a proceeding for an ordinary appeal against a sentence order—

(a)an application by the child for a sentence review of the sentence order can not be started; and

(b)any application by the child for a sentence review of the sentence order pending at the start of the proceeding for an ordinary appeal lapses.

(2)If—

(a)a child starts a proceeding for an ordinary appeal against a finding of guilt against the child in relation to which a sentence order was made; or

(b)a person other than a child against whom a sentence order has been made starts a proceeding for an ordinary appeal against the sentence order;

a Childrens Court judge can not proceed to hear and decide any pending application by the child for a sentence review against the sentence order until the ordinary appeal is finished.

(3)If—

(a)a complainant or arresting officer applies for a sentence review of a sentence order made against a child; and

(b)the child starts a proceeding for an ordinary appeal against the sentence order or the finding of guilt for which it was made;

a Childrens Court judge can not proceed to hear and decide the application for the sentence review until the ordinary appeal is finished.

(4)In this section—

application by a child for a sentence review, includes an application by the chief executive acting in the child’s interests.

ordinary appeal means—

(a)an appeal or application for leave to appeal under the Criminal Code, chapter 67; or

(b)an appeal under the Justices Act 1886, part 9.

sentence review means a review under section 118 of a sentence order.

s 124 prev s 124 amd 1996 No. 22 s 28; 1998 No. 39 s 30

om 2014 No. 9 s 7C

pres s 124 ins 2016 No. 38 s 14

125Incidents of review

(1)No costs may be ordered against a party on a sentence review.

(2)The decision of a Childrens Court judge on a sentence review—

(a)takes effect as the decision of the Childrens Court magistrate who made the sentence order reviewed; and

(b)subject to subsection (3), may be enforced or appealed against in the same way as the decision of the Childrens Court magistrate.

(3)Subsection (2) does not authorise—

(a)a further review by a Childrens Court judge of a sentence already reviewed under this division by a Childrens Court judge; or

(b)an appeal to the Childrens Court judge under the Justices Act 1886, section 222.

s 125 prev s 125 amd 2002 No. 39 s 33

om 2014 No. 9 s 7C

pres s 125 ins 2016 No. 38 s 14

126Orders at end of reviews

(1)Subject to section 311, if as a result of the decision of the Childrens Court judge on a sentence review, a child is required to serve a period of detention or the unserved part of a period of detention, the judge, as part of the order on the review, must direct that a warrant be issued to arrest the child and commit the child to a detention centre.

(2)Any justice may issue the warrant.

s 126 prev s 126 amd 1994 No. 87 s 3 sch 1

om 2014 No. 9 s 7C

pres s 126 ins 2016 No. 38 s 14

127Meaning of proceeding

In this division—

proceeding means a proceeding for the hearing and determination of a charge of an offence.

128Court may reopen proceedings

(1)If a court has—

(a)made a finding or order in relation to a child that is not in accordance with the law; or

(b)failed to make a finding or order in relation to a child that the court legally should have made; or

(c)made a finding or order in relation to a child decided on a clear factual error of substance;

the court, whether or not differently constituted, may reopen the proceeding.

(2)The power under subsection (1)(c) includes power to reopen proceedings because the finding or order was incorrectly made—

(a)in relation to the wrong person; or

(b)because a summons issued on a complaint originating the proceedings that resulted in the finding or order did not come to the knowledge of the child; or

(c)because it was made for a matter for which the child had been previously dealt with; or

(d)because of someone’s deceit.

(3)If a court reopens a proceeding, it—

(a)must give the parties an opportunity to be heard; and

(b)may make a finding or order in relation to the child—

(i)for a reopening under subsection (1)(a)—in accordance with law; or

(ii)for a reopening under subsection (1)(b)—the court legally should have made; or

(iii)for a reopening under subsection (1)(c)—taking into account the factual error; and

(c)may amend any relevant finding or order to the extent necessary to take into account the finding or order made under paragraph (b).

(4)The court may reopen the proceeding—

(a)on its own initiative at any time; or

(b)on the application of a party to the proceeding, the chief executive or the court’s registrar or clerk of the court, made within—

(i)28 days after the day the finding or order was made; or

(ii)any further time the court may allow on application at any time.

(5)Subject to subsection (6), this section does not affect any right of appeal.

(6)For an appeal under any Act against a finding or order made under subsection (3), the time within which the appeal must be made starts from the day the finding or order is made under subsection (3).

(7)In this section—

finding or order means a finding of guilt, conviction, sentence or other finding or order that may be made in relation to a person charged with or found guilty of an offence.

s 128 amd 1992 No. 48 s 207 sch; 1996 No. 22 s 29; 1997 No. 3 s 122 sch 2 (amd 1997 No. 38 s 143 (2)); 1998 No. 39 s 31

sub 2002 No. 39 s 34

129Removal of a proceeding because of lack of jurisdiction

(1)If a court is satisfied that it does not have jurisdiction to hear and determine a proceeding before it because of this Act, it may remove the proceeding to a court of competent jurisdiction.

(2)To remove and deal with the proceeding that remains before it, the court may—

(a)give directions it considers necessary; and

(b)take or make any procedural action or order the court of competent jurisdiction could take or make.

(3)Subsection (2) does not limit any other power the court may have to deal with the proceeding.

130Lack of jurisdiction discovered in course of a proceeding

(1)This section applies if, in the course of a proceeding, a court finds that it does not have jurisdiction to hear and determine the proceeding because of this Act.

(2)If the court has the necessary jurisdiction in its concurrent jurisdiction, it may continue the proceeding in the concurrent jurisdiction.

(3)If the court does not act under subsection (2), it may deal with the proceeding under section 129.

131Lack of jurisdiction discovered after proceeding ends

(1)This section applies if a finding or order has been made in a proceeding—

(a)on the assumption that the person charged was a child, when the person was an adult; or

(b)on the assumption that the person charged was an adult, when the person was a child.

(2)Application may be made to the court that made the finding or order to set aside the finding or order.

(3)The application may be made by—

(a)a party to the proceeding; or

(b)if the person charged in the proceeding was a child—the chief executive acting in the child’s interests; or

(c)the director of public prosecutions.

(4)The application must be made—

(a)within 28 days after the error is discovered by the applicant; or

(b)by a later day that the court may at any time allow.

(5)On hearing the application, the court may set aside the finding or order and—

(a)make the finding or order the court considers should have been made in the first place, if necessary after deciding what facts the court when differently constituted must have found when making the finding or order set aside; or

(b)take any action or make any order that could have been made by the court if it had discovered the error immediately before making the finding or order.

(6)A court can not set aside an acquittal under this section or an order dismissing a charge or discharging a person.

s 131 amd 1996 No. 22 s 30; 1998 No. 39 s 33

pt 6 div 11 sdiv 1 hdg ins 2002 No. 39 s 37

132Definitions for pt 6, div 11

In this division—

adult offence means an offence committed by an adult.

s 132 def adult offence ins 2002 No. 39 s 38 (2)

child offence means an offence committed by a child.

s 132 def child offence ins 2002 No. 39 s 38 (2)

offence ...

s 132 def offence om 2002 No. 39 s 38 (1)

offender means a person who has—

(a)committed an offence as a child; and

(b)since committing the offence become an adult.

sentence, in relation to an offender sentenced as an adult, includes orders made instead of sentence.

s 132 amd 1996 No. 22 s 3 sch 1

133Reference to offence includes alleged offence

A reference in this division to an offence committed by the offender includes, if the offender has not been found guilty of the offence, an offence the offender is alleged to have committed.

s 133 ins 2002 No. 39 s 39

pt 6 div 11 sdiv 2 hdg ins 2002 No. 39 s 40

134Offender treated as child

Subject to this division, the offender must be treated as a child for the purposes of this Act in relation to a child offence committed by the offender.

s 134 prev s 134 amd 1996 No. 22 s 50

om 2002 No. 39 s 72

pres s 134 amd 2002 No. 39 s 41

pt 6 div 11 sdiv 3 hdg ins 2002 No. 39 s 42

135Where offender is detained for adult offence

(1)This section applies if the offender is—

(a)being held on remand, in the chief executive’s custody, in connection with a charge of a child offence; or

(b)serving a period of detention, in a detention centre, for a child offence; or

(c)otherwise being held in custody in a detention centre.

(2)If a court remands the offender in custody in connection with a charge of an adult offence, the offender must be remanded into the custody of the chief executive and, for that purpose, section 56 applies as if the offender were still a child.

(3)Any term of imprisonment to which the offender is sentenced for an adult offence must be served in a detention centre.

(4)The requirement that the offender be held on remand in the chief executive’s custody under subsection (2), or serve a term of imprisonment in a detention centre under subsection (3), applies only while the offender continues to be held in custody in the detention centre other than under this section.

(5)The part of a term of imprisonment served in a detention centre under subsection (3) must be counted as part of the term of imprisonment.

(6)Subsection (3) does not limit part 8, division 2A.

s 135 prev s 135 amd 1994 No. 87 s 3 sch 1; 1999 No. 19 s 3 sch

om 2002 No. 39 s 72

pres s 135 ins 2002 No. 39 s 42

sub 2009 No. 34 s 17

136Offender remanded in custody for child offence

(1)This section applies if—

(a)a court remands the offender in custody in connection with a charge of a child offence; and

(b)the offender has been an adult for at least 1 year; and

(c)the offender is not—

(i)being held on remand, in the chief executive’s custody, in connection with a charge of another offence; or

(ii)serving a period of detention, in a detention centre, for a child offence; or

(iii)otherwise being held in custody in a detention centre.

(2)The offender must be held on remand in a corrective services facility.

s 136 prev s 136 om 2002 No. 39 s 72

pres s 136 ins 2002 No. 39 s 42

137Offender remanded in custody for adult offence and child offence

(1)This section applies if—

(a)a court remands the offender in custody in connection with charges of an adult offence and a child offence; and

(b)the offender is not—

(i)being held on remand, in the chief executive’s custody, in connection with a charge of another offence; or

(ii)serving a period of detention, in a detention centre, for a child offence; or

(iii)otherwise being held in custody in a detention centre.

(2)The offender must be held on remand in a corrective services facility.

s 137 prev s 137 om 2002 No. 39 s 72

pres s 137 ins 2002 No. 39 s 42

138Dealing with offender held in corrective services facility

(1)This section applies if the offender is being held on remand, serving a term of imprisonment, or otherwise being held in custody, in a corrective services facility.

(2)If a court remands the offender in custody in connection with a charge of a child offence, the offender must be held on remand in a corrective services facility.

(3)A period of detention to which the offender is sentenced for a child offence must be served in a corrective services facility.

(4)Subsection (2) or (3) continues to apply to the offender even if the offender ceases to be held in custody in a corrective services facility for any other reason.

(5)The period of detention served in a corrective services facility under subsection (3) must be counted as a period of detention.

(6)For holding the offender at a corrective services facility—

(a)the offender is liable to serve a term of imprisonment equal to the period of detention to which the offender is sentenced for the child offence; and

(b)the offender is taken to be a prisoner subject to the Corrective Services Act 2006; and

(c)any rights, liberties or immunities of the offender as a detainee are not preserved, transferred or otherwise applicable for the offender as a prisoner; and

(d)the day the offender would otherwise have been released under section 227, for the period of detention, is the day the offender is to be released on parole under the Corrective Services Act 2006.

(7)However, the release is subject to the Corrective Services Act 2006 as if granted under a court ordered parole order (the statutory parole order) and the provisions of that Act applying to parole orders also apply to the statutory parole order.

(8)This section applies subject to section 139.

s 138 prev s 138 amd 1999 No. 19 s 3 sch

om 2002 No. 39 s 72

pres s 138 ins 2002 No. 39 s 42

amd 2006 No. 29 s 518 sch 3; 2016 No. 39 s 18

139Application to be held in detention centre

(1)This section applies if—

(a)section 138(2) or (3) would otherwise apply to the offender; and

(b)the offender—

(i)has been an adult for less than 1 year; and

(ii)is not serving a period of detention in a corrective services facility under a transfer made under part 8, division 2A; and

(iii)is not being held on remand or serving a term of imprisonment for an adult offence.

(2)The offender may apply to a Childrens Court judge for an order that the offender be held on remand, or serve the period of detention, in a detention centre and not in a corrective services facility.

(3)The offender must immediately serve a copy of the application on the chief executive.

(4)The court may grant or refuse to grant the application.

(5)In deciding the application, the court must have regard to the following matters—

(a)the offender’s age at the time of the application;

(b)if the application relates to serving a period of detention—

(i)the length of the unserved part of the period of detention; and

(ii)the earliest time the offender may be released;

(c)the amount of time the offender has spent in a corrective services facility on remand, or serving a period of detention or term of imprisonment, for any offence;

(d)the amount of time the offender has spent in a detention centre on remand, or serving a period of detention or term of imprisonment, for any offence.

(6)If the court grants the application, the court must state the day on which the order takes effect.

s 139 prev s 139 om 2002 No. 39 s 72

pres s 139 ins 2002 No. 39 s 42

amd 2009 No. 34 s 18; 2016 No. 39 s 19

pt 6 div 11 sdiv 4 hdg ins 2002 No. 39 s 42

140When offender must be treated as an adult

(1)If 1 year has passed after an offender has become an adult—

(a)a proceeding afterwards started against the offender for a child offence must be taken as if the offender were an adult at the time of the commission of the child offence; and

(b)if found guilty in the proceeding—the offender must be sentenced as an adult.

(2)If—

(a)a proceeding has started against an offender for a child offence in the way provided in this Act for a child; but

(b)the proceeding has not been completed to a finding of guilty or not guilty by the time 1 year has passed after the offender becomes an adult;

then—

(c)the proceeding must be finished in the way provided in this Act for a child; but

(d)if found guilty—the offender must be sentenced as an adult.

(3)If, after a finding of guilt in a proceeding started against an offender as a child—

(a)the court has been unable to sentence the offender because the offender has—

(i)escaped from detention; or

(ii)failed, without reasonable excuse, to appear as required under the conditions of bail; or

(iii)failed, without reasonable excuse, to return to the detention centre at the end of a period of leave granted under section 269; and

(b)1 year has passed after the offender has become an adult;

the offender must be sentenced as an adult.

(4)An offender must not be treated as an adult under this section if the court is satisfied that there was undue delay on the part of the prosecution in starting or completing the proceeding.

s 140 prev s 140 om 2002 No. 39 s 72

pres s 140 amd 1996 No. 22 s 32; 2002 No. 39 s 43

141When offender may be treated as an adult

(1)This section applies if—

(a)a proceeding has started against an offender for a child offence in the way provided in this Act for a child (the childhood proceeding); and

(b)by the time 1 year has passed after the offender becomes an adult—

(i)the childhood proceeding has not been completed to a finding of guilty or not guilty; and

(ii)the offender, for another offence—

(A)is proceeded against as an adult; or

(B)has been sentenced as an adult.

(2)The court hearing the childhood proceeding may decide to continue the proceeding as if the offender were an adult when the child offence was committed.

(3)For subsection (2), the Childrens Court may continue the proceeding in its concurrent jurisdiction.

(4)If the offender is found guilty, the offender must be sentenced as an adult.

(5)This section applies despite section 140(2).

s 141 prev s 141 amd 1996 No. 22 s 51

om 2002 No. 39 s 72

pres s 141 ins 1996 No. 22 s 34

amd 2002 No. 39 s 44

142Continuing effect on offender of orders made when child

(1)An order that may be made under this Act against a child (the order) may be made even though the person concerned will have ceased to be a child before the order’s effect will have ceased under its terms.

(2)If a person against whom the order is made ceases to be a child before the order’s effect ceases under its terms—

(a)the order continues to apply as if the person continued to be a child; and

(b)other proceedings and orders arising out of the order that could have been taken or made in relation to the person had the person remained a child must be taken or made as if the person were a child.

(3)For subsection (2), a reference in this Act to a child subject to an order who commits an offence or contravenes the order is declared to include a reference to the child committing the offence or contravening the order while subject to the order after becoming an adult.

(4)Subsection (3) does not limit subsection (2).

(5)If—

(a)a proceeding or order mentioned in subsection (2)(b) may be taken before, or made by, a court if a person is found guilty of an offence before the court; and

(b)the person is found guilty before a Magistrates Court of an adult offence;

the court has concurrent jurisdiction to hear the proceeding or make the order.

(6)For subsection (5), any judicial officer constituting the Magistrates Court may constitute the Childrens Court.

s 142 prev s 142 om 2002 No. 39 s 72

pres s 142 amd 1994 No. 87 s 3 sch 1; 1996 No. 22 s 35; 2002 No. 39 s 45

143When order made as child may be dealt with as adult order

(1)This section applies if—

(a)a sentence order is made against a person as a child (the childhood sentence order); and

(b)a proceeding arising out of the order is taken before a court after the person becomes an adult.

(2)If the circumstances mentioned in subsection (3) apply, the court may decide to deal with the person as if—

(a)the childhood sentence order were a corresponding adult order made for the offence; and

(b)the offence were committed as an adult.

(3)The circumstances are—

(a)the person, for another offence committed as an adult—

(i)is being proceeded against; or

(ii)has been sentenced; or

(b)more than 1 year has passed after the offender becomes an adult.

(4)The court may declare the childhood sentence order to be a corresponding adult order and make all necessary changes to the childhood sentence order to change it to a corresponding adult order.

(5)The person is then subject to the corresponding adult order for the proceeding before the court and any further proceedings and orders.

(6)For the application of the Penalties and Sentences Act 1992—

(a)section 123 of that Act does not apply to a contravention of the childhood sentence order that happens before the order is declared under this section to be a community based order under that Act; and

(b)if the corresponding adult order is a probation order or community service order under that Act, section 12(6) of that Act does not apply to the court for the proceeding before the court.

(7)For subsection (2), the Childrens Court may continue the proceeding in its concurrent jurisdiction.

(8)In this section—

corresponding adult order to a childhood sentence order, means a type of sentence to which an adult is liable that is similar to the type of the childhood sentence order, for example—

(a)a probation order made under the Penalties and Sentences Act 1992 is a corresponding adult order to a probation order made under this Act; and

(b)a community service order made under the Penalties and Sentences Act 1992 is a corresponding adult order to a community service order made under this Act.

s 143 prev s 143 om 2002 No. 39 s 72

pres s 143 ins 1996 No. 22 s 36

amd 2002 No. 39 s 46

144Sentencing offender as adult

(1)Subject to subsections (2) and (3), a court sentencing an offender as an adult under section 140, 141 or 143 has jurisdiction to sentence the offender in any way that an adult may be sentenced.

(2)The court must have regard to—

(a)the fact that the offender was a child when the child offence was committed; and

(b)the sentence that might have been imposed on the offender if sentenced as a child.

(3)The court can not order the offender—

(a)to serve a term of imprisonment longer than the period of detention that the court could have imposed on the offender if sentenced as a child; or

(b)to pay an amount by way of fine, restitution or compensation greater than that which the court could have ordered the offender to pay if sentenced as a child.

(4)Subsection (3) applies even though an adult would otherwise be liable to a heavier penalty which by operation of law could not be reduced.

s 144 prev s 144 om 2002 No. 39 s 72

pres s 144 (prev s 106) amd 1996 No. 22 s 33 (1)–(2)

renum and reloc 1996 No. 22 s 33 (3)

amd 2002 No. 39 s 47

145Chief executive (corrective services) to be notified if offender sentenced as adult

(1)This section applies if, under this division, an order is made by a court sentencing an offender as an adult.

(2)The chief executive must immediately give the chief executive (corrective services) notice of the order.

s 145 prev s 145 om 2002 No. 39 s 72

pres s 145 ins 1998 No. 39 s 35

amd 1999 No. 9 s 3 sch; 2003 No. 57 s 39 (1)–(2) sch 3

146Extension of Act for detainee offender

(1)In this section—

detainee means a person serving a period of detention under a sentence order.

(2)If—

(a)a proceeding is started against a detainee for an offence committed within the period of 1 year after the detainee ceased to be a child; and

(b)the proceeding is started within 1 year of the commission of the offence;

the detainee may be treated as a child for the purpose of the proceeding.

(3)A court may treat the detainee as a child if it considers this appropriate, for example because—

(a)treatment of the detainee as an adult would disrupt the application of an existing sentence order; or

(b)the offence was committed in a detention centre in circumstances suggesting that the detainee should be treated as a child in relation to the offence; or

(c)a recommendation made by the chief executive or in a pre-sentence report supports the treatment of the detainee as a child.

(4)A court may act under this section on application by a party to the proceeding or on its own initiative.

s 146 (prev s 102) amd 1996 No. 22 s 31; 1998 No. 39 s 34

reloc and renum 2002 No. 39 s 36

pt 6 div 12 hdg ins 2002 No. 39 s 48

147Use of evidence of cautions and restorative justice agreements in deciding issue of criminal responsibility

A court considering an issue of criminal responsibility under the Criminal Code, section 29 in relation to a child may have regard to any previous caution administered to the child or any previous restorative justice agreement made by the child.

s 147 ins 2002 No. 39 s 48

amd 2016 No. 39 s 20

148Evidence of childhood finding of guilt not admissible against adult

(1)In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded.

(2)Subsection (1) applies even though the evidence would otherwise be admissible under the Evidence Act 1977, section 15 and the Criminal Law (Rehabilitation of Offenders) Act 1986, section 5(3)(b).

(3)This section does not prevent a court that is sentencing an adult from receiving information about any other sentence to which the adult is subject if that is necessary to mitigate the effect of the court’s sentence.

(4)For subsection (1), if a person is found guilty as a child of an offence, the person is not taken to have been found guilty as an adult of the offence merely because of the making of a declaration under section 143(4).

s 148 (prev s 114) amd 1996 No. 22 s 40; 2002 No. 39 s 51 (1)–(3)

reloc and renum 2002 No. 39 s 51 (4)

amd 2014 No. 9 s 8; 2016 No. 38 s 15

149Jurisdiction to sentence child exclusive

(1)A court that sentences a child for an offence must sentence the child under this part.

(2)Subsection (1) applies despite any other Act or law.

s 149 amd 1996 No. 22 s 3 sch 1

150Sentencing principles

(1)In sentencing a child for an offence, a court must have regard to—

(a)subject to this Act, the general principles applying to the sentencing of all persons; and

(b)the youth justice principles; and

(c)the special considerations stated in subsection (2); and

(d)the nature and seriousness of the offence; and

(e)the child’s previous offending history; and

(f)any information about the child, including a pre-sentence report, provided to assist the court in making a determination; and

(g)if the child is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the child’s community that are relevant to sentencing the child, including, for example—

(i)the child’s connection with the child’s community, family or kin; or

(ii)any cultural considerations; or

(iii)any considerations relating to programs and services established for offenders in which the community justice group participates; and

(h)any impact of the offence on a victim, including harm mentioned in information relating to the victim given to the court under the Penalties and Sentences Act 1992, section 179K; and

(i)a sentence imposed on the child that has not been completed; and

(j)a sentence that the child is liable to have imposed because of the revocation of any order under this Act for the breach of conditions by the child; and

(k)the fitting proportion between the sentence and the offence.

(2)Special considerations are that—

(a)a child’s age is a mitigating factor in determining whether or not to impose a penalty, and the nature of a penalty imposed; and

(b)a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community; and

(c)the rehabilitation of a child found guilty of an offence is greatly assisted by—

(i)the child’s family; and

(ii)opportunities to engage in educational programs and employment; and

(d)a child who has no apparent family support, or opportunities to engage in educational programs and employment, should not receive a more severe sentence because of the lack of support or opportunity; and

(e)a detention order should be imposed only as a last resort and for the shortest appropriate period.

(3)In determining the appropriate sentence for a child convicted of the manslaughter of a child under 12 years, a court must treat the victim’s defencelessness and vulnerability, having regard to the victim’s age, as an aggravating factor.

(4)If required by the court for subsection (1)(g), the representative must advise the court whether—

(a)any member of the community justice group that is responsible for the submission is related to the offender or the victim; or

(b)there are any circumstances that give rise to a conflict of interest between any member of the community justice group that is responsible for the submission and the child or victim.

(4A)In sentencing a child for an offence, a court may receive any information, or a sentencing submission made by a party to the proceedings, it considers appropriate to enable it to impose the proper sentence or make a proper order in connection with the sentence.

(6)In this section—

sentencing submission, made by a party, means a submission stating the sentence, or range of sentences, the party considers appropriate for the court to impose.

s 150 amd 2000 No. 42 s 6; 2002 No. 46 s 40 sch; 2002 No. 39 s 49; 2003 No. 57 s 39 (1)–(2) sch 3; 2004 No. 37 s 86 sch 1; 2005 No. 70 s 115; 2009 No. 35 s 208; 2009 No. 34 s 45 (3) sch pt 3 amdt 38; 2014 No. 9 s 9; 2016No. 16 s 9; 2016 No. 38 s 16; 2017 No. 8 s 101 sch 1; 2019 No. 23 s 4; 2019 No. 23 s 19

151Pre-sentence report

(1)A court, before it sentences a child found guilty of an offence, may order the chief executive to give to the court a pre-sentence report concerning the child.

(2)Before making the order, the court must consider whether a pre-sentence report is the most efficient and effective way to obtain information relevant to the sentencing of the child.

(3)However, subsection (2) does not apply if the court considers it may be required, under section 203 or 207, to make the order.

(4)Subject to subsection (10), the report must be made for the purpose of the sentencing of the child for the offence.

(5)The court may request that the report contain specified information, assessments and reports relating to the child or the child’s family or other matters.

(6)Also, the court may ask that the pre-sentence report be given to the court within a stated period that is reasonable, having regard to the likely complexity of the report.

(7)The pre-sentence report may not contain the chief executive’s opinion on what impact an order under section 234 may have on the child.

(8)Pending the giving of a pre-sentence report, the court may adjourn the proceeding and remand the child in custody or exercise the powers conferred by part 5 to grant bail to and release the child from custody.

(9)In releasing the child from custody, the court may impose conditions that it considers necessary to facilitate the preparation of the pre-sentence report, other than a condition that the child must wear a tracking device while on release.

(10)If an order is made under subsection (1), the chief executive must—

(a)give the court a written pre-sentence report in relation to the child; or

(b)give the court further written material to be considered with another pre-sentence report given to the court for another sentencing of the child.

(11)However, subsection (10)(b) applies only if the other sentencing of the child happens or happened not more than 6 months before the sentencing to which the order relates.

(12)The pre-sentence report or further material must be given to the court—

(a)within the period stated by the court under subsection (6); or

(b)if no period has been stated by the court—as soon as practicable after the order is made.

(13)If the chief executive gives the court further material under this section—

(a)the chief executive is taken to have complied with the order; and

(b)the further material together with the other pre-sentence report are taken to be a pre-sentence report for this part.

s 151 amd 1994 No. 87 s 3 sch 1; 1996 No. 22 s 37; 2002 No. 39 s 50; 2009 No. 34 s 19; 2012 No. 41 s 19; 2014 No. 9 s 9A; 2016 No. 38 s 17; 2019 No. 23 s 20

151APermitted use and disclosure of information for pre-sentence report

The chief executive may make information about a child, obtained under this Act or another Act, available to a person in order to assist the chief executive comply with section 151(1).

s 151A ins 2014 No. 39 s 71

152Pre-sentence report evidence

(1)The court may request the author of a pre-sentence report, or a person who gave a statement included in the report, to attend before the court in the way indicated by the court for the purpose of giving more information.

(2)The court may ask, and allow parties to the proceeding to ask, questions of a person attending the court under subsection (1).

(3)A court may give as much weight as it considers appropriate to a pre-sentence report or answers given in response to questions under subsection (2).

153Disclosure of pre-sentence report

(1)If a pre-sentence report is given to a court under section 151, the court must give a copy of the report as soon as practicable—

(a)to the prosecution; and

(b)if the child is represented by a lawyer—the lawyer.

(2)If the child is not represented by a lawyer, the court may give the report to the child or a parent of the child present in the court.

(3)The court may give directions it considers appropriate about a report given to anyone under subsection (1) or (2), including, for example, a direction limiting disclosure and a direction requiring the report’s return.

s 153 amd 1996 No. 22 s 38

amd 2004 No. 11 s 596 sch 1

153APermitted use and disclosure of information in a pre-sentence report

(1)This section applies to information—

(a)given under section 152; or

(b)included in a pre-sentence report.

(2)Subject to a direction given under section 153(3), nothing in this Act or another Act limits or restricts the use or disclosure of the information in court.

(3)Nothing in this section permits the publication of information that contravenes the Child Protection Act 1999, section 189.

s 153A ins 2014 No. 39 s 72

153B Court may require copies of report to be given to department

(1)A court that sentences a child for an offence may order that a copy of a medical or other report tendered during the sentencing proceeding must be given to the department.

(2)The order may include—

(a)the time within which the copy must be given to the department; and

(b)any other requirement to facilitate the giving of the copy to the department.

s 153B ins 2020 No. 32 s 69

154Finding of guilt as child may be disclosed while a child

(1)A finding of guilt against a child by a court for an offence, whether or not a conviction has been recorded, is part of the criminal history of the child to which regard may be had by a court that subsequently sentences the child for any offence as a child.

(2)Subsection (1) applies despite the Criminal Law (Rehabilitation of Offenders) Act 1986.

(3)However, subsection (1) does not apply to a finding of guilt against a child by a court for an offence if—

(a)the offence was referred to the chief executive for a restorative justice process under section 163(1)(d)(i); and

(b)a restorative justice agreement was made as a consequence of the referral.

s 154 amd 1996 No. 22 s 39; 2016 No. 39 s 21

155Mandatory sentence provisions inapplicable

A court that sentences a child for an offence—

(a)must disregard a requirement under any other Act that an amount of money or term of imprisonment must be the minimum penalty for the offence; and

(b)must take a requirement under any other Act that an amount of money or term of imprisonment must be the only penalty for the offence as providing instead that the amount or term is the maximum penalty for the offence.

156Preference to be given to compensation and restitution

If a court sentencing a child for an offence considers—

(a)that it is appropriate to make both of the orders that the child pay—

(i)an amount by way of compensation or restitution; and

(ii)an amount by way of fine; and

(b)that the child has insufficient resources to pay both amounts;

the court must give preference to ordering the child to pay only the compensation or restitution amount.

157Outstanding charge may be taken into account on sentence

(1)A court sentencing a child for an offence may take into account an outstanding charge against the child in the same way an outstanding charge may be taken into account when an adult is sentenced.

(2)The Penalties and Sentences Act 1992, section 189 applies for the purpose of subsection (1).

s 157 prev s 157 om 2002 No. 39 s 78

pres s 157 amd 1992 No. 48 s 207 sch

158Children entitled to explanation of sentence

(1)When making an order sentencing a child for an offence a court must take steps to ensure that the child understands—

(a)the purpose and effect of the order; and

(b)the consequences (if any) that may follow if the child fails to comply with the order.

(2)Examples of the steps a court may take are—

(a)directly explaining these matters in court to the child; or

(b)having some appropriate person give the explanation; or

(c)having an interpreter or other person able to communicate effectively with the child give the explanation; or

(d)causing an explanatory note in English or another language to be supplied to the child.

(3)Subsection (1) does not apply where the child’s presence is not required at sentence.

s 158 prev s 158 amd 1996 No. 22 s 55

om 2002 No. 39 s 78

pres s 158 amd 2002 No. 39 s 53

159Audio visual link or audio link may be used to sentence

(1)The court may allow anything that must or may be done in relation to the sentencing of a child who is legally represented to be done over an audio visual link or audio link, if the prosecutor and the child agree to the use of the link.

(2)The provisions of the Evidence Act 1977 relating to the use of an audio visual link or audio link in criminal proceedings apply for, and are not limited by, subsection (1).

s 159 prev s 159 om 2002 No. 39 s 78

pres s 159 ins 1999 No. 65 s 8

amd 2002 No. 39 s 54

160Copy of court order or decision to be given to child, parent etc.

(1)This section applies to the following (each of which is an order or decision to which this section applies)—

(a)a sentence order;

(ab)an order made under section 153B;

(b)a decision to dismiss a charge under section 21(1), with or without a further decision or direction under section 21(3) for the administration of a caution by the court or someone else;

(c)a decision to dismiss a charge under section 24A(1) for the referral of an offence to the chief executive for a restorative justice process;

(d)the referral of an offence to the chief executive for a restorative justice process under section 163(1)(d)(i);

(e)the referral of a child to a drug assessment and education session under section 172(3).

(2)A court that makes an order or decision to which this section applies must cause—

(a)the order or decision to be promptly reduced to writing by the proper officer of the court in the prescribed form or in the form of a verdict and judgment record under the Criminal Practice Rules 1999; and

(b)a copy of the order or decision to be given by the proper officer of the court to—

(i)the child; and

(ii)a parent of the child; and

(iii)the chief executive.

(3)If a person mentioned in subsection (2)(b) is not present in the court, the subsection—

(a)is sufficiently complied with if the proper officer of the court serves a copy of the order or decision on the person; and

(b)does not apply if the proper officer of the court is unable to ascertain the whereabouts of the person after reasonable inquiries.

(4)Failure to comply with subsection (2) does not affect the validity of the order or decision.

s 160 prev s 160 om 2002 No. 39 s 78

pres s 160 amd 1996 No. 22 s 42; 1998 No. 39 s 36; 2009 No. 34 s 20; 2010 No. 26 s 153; 2012 No. 41 s 20; 2016 No. 39 s 22; 2020 No. 32 s 70

pt 7 div 2 hdg prev pt 7 div 2 hdg ins 1996 No. 22 s 43

amd 2002 No. 39 s 55

om 2012 No. 41 s 21

pres pt 7 div 2 hdg ins 2016 No. 39 s 23

pt 7 div 2 sdiv 1 hdg ins 2002 No. 39 s 56

om 2012 No. 41 s 21

pt 7 div 2 sdiv 2 hdg ins 2002 No. 39 s 58

om 2012 No. 41 s 21

pt 7 div 2 sdiv 3 hdg ins 2002 No. 39 s 61

om 2012 No. 41 s 21

pt 7 div 2 sdiv 4 hdg ins 2002 No. 39 s 63

om 2012 No. 41 s 21

161Definitions for division

In this division—

child, in relation to a referral, means the child to which the referral relates.

court diversion referral see section 163(1)(d)(i).

offence, in relation to a referral, means the offence to which the referral relates.

s 161 orig s 161 om 2002 No. 39 s 78

prev s 161 ins 1996 No. 22 s 43

sub 2002 No. 39 s 57

om 2012 No. 41 s 21

pres s 161 ins 2016 No. 39 s 23

162When court must consider making court diversion referral or presentence referral

(1)If a child enters a plea of guilty for an offence in a proceeding before a court, the court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing the child.

(2)If a finding of guilt for an offence is made against a child before a court, the court must consider referring the offence to the chief executive for a restorative justice process to help the court make an appropriate sentence order.

s 162 orig s 162 om 1996 No. 75 s 535 sch 2 (also see 1997 No. 9 s 4 sch 2)

prev s 162 ins 2002 No. 39 s 58

om 2012 No. 41 s 21

pres s 162 ins 2016 No. 39 s 23

163Power of court to make restorative justice process referral

(1)The court may, by notice given to the chief executive, refer an offence to the chief executive for a restorative justice process if—

(a)the court considers the child is informed of, and understands, the process; and

(b)the child indicates willingness to comply with the referral; and

(c)the court is satisfied that the child is a suitable person to participate in a restorative justice process; and

(d)having regard to the deciding factors for referring the offence, the court considers the referral would—

(i)allow the offence to be appropriately dealt with without making a sentence order (a court diversion referral); or

(ii)help the court make an appropriate community based order or detention order (a presentence referral); and

(e)having regard to a submission by the chief executive about the appropriateness of the offence for a referral, the court considers the referral is appropriate in the circumstances.

(2)In this section—

deciding factors, for referring an offence, means—

(a)the nature of the offence; and

(b)the harm suffered by anyone because of the offence; and

(c)whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process.

s 163 orig s 163 om 2002 No. 39 s 78

prev s 163 ins 1996 No. 22 s 43

amd 2002 No. 39 s 59

om 2012 No. 41 s 21

pres s 163 ins 2016 No. 39 s 23

164Court diversion referrals

(1)This section applies if the court makes a court diversion referral.

(2)The making of the referral brings the court proceeding for the offence to an end and the child is not liable to be further prosecuted for the offence unless—

(a)the chief executive returns the referral under section 32(1); or

(b)the chief executive advises the court’s proper officer that the child failed to comply with a restorative justice agreement made as a consequence of the referral.

(3)If subsection (2)(a) applies—

(a)the court’s proper officer must bring the charge for the offence back on before the court for sentencing; and

(b)in sentencing the child, the court must not have regard to the referral being returned.

(4)If subsection (2)(b) applies, the court’s proper officer must bring the charge for the offence back on before the court for sentencing and the court must either—

(a)take no further action; or

(b)allow the child a further opportunity to comply with the agreement; or

(c)sentence the child for the offence.

(5)If the charge for the offence is brought back on before the court for sentencing, the court’s proper officer must give the child and the chief executive notice that the proceeding for the offence is to be heard by the court on a stated day.

(6)The notice must include a warning that, if the child fails to appear before the court in compliance with the notice, the court may issue a warrant for the child’s arrest.

(7)The notice restarts the proceeding from when it ended and the child is liable to be sentenced for the offence.

(8)If the child fails to appear before the court in compliance with the notice, the court may issue a warrant for the child’s arrest.

(9)If subsection (4)(a) applies, the court proceeding for the offence is brought to an end and the child is not liable to be further prosecuted for the offence.

s 164 prev s 164 ins 1996 No. 22 s 43

amd 2002 No. 39 s 60; 2009 No. 34 s 21

om 2012 No. 41 s 21

pres s 164 ins 2016 No. 39 s 23

165Presentence referrals

(1)This section applies if the court makes a presentence referral.

(2)On making the referral, the court may—

(a)give the directions it considers appropriate to the child or the chief executive; and

(b)adjourn the proceeding for the offence.

(3)If the chief executive returns the referral under section 32(1), the court must proceed with sentencing the child for the offence.

(4)If a restorative justice agreement is made as a consequence of the referral, the chief executive must—

(a)give the court a copy of the agreement; and

(b)inform the court of any obligations of the child under the agreement that have already been performed.

(5)If a restorative justice agreement is given to the court under subsection (4), the court must give a copy of the agreement as soon as practicable to—

(a)the prosecution; and

(b)if the child is represented by a lawyer—the lawyer.

(6)In sentencing the child for the offence, the court must have regard to—

(a)the child’s participation in the relevant restorative justice process; and

(b)the child’s obligations under the restorative justice agreement; and

(c)anything done by the child under the restorative justice agreement; and

(d)any information provided by the chief executive about sentencing the child.

s 165 prev s 165 ins 1996 No. 22 s 43

amd 2002 No. 39 s 62; 2009 No. 34 s 22

om 2012 No. 41 s 21

pres s 165 ins 2016 No. 39 s 23

pt 7 div 3 hdg ins 2002 No. 59 s 4

pt 7 div 3 sdiv 1 hdg ins 2002 No. 59 s 4

167Definitions for div 3

In this division—

approved provider see section 171.

attend, for a drug assessment and education session, means attend all of the session.

disqualifying offence see section 170.

drug assessment and education session, for a child, means a single one-on-one session provided by an approved provider involving assessment of the child’s drug use, drug education and identification of any appropriate treatment options for the child.

drug diversion court means a court prescribed under a regulation for the Penalties and Sentences Act 1992, section 15B to be a drug diversion court.

eligible child see section 168.

eligible drug offence see section 169.

s 167 ins 2002 No. 59 s 4

168Meaning of eligible child

(1)An eligible child is a child charged with an eligible drug offence who has pleaded guilty to the offence.

(2)The child is not an eligible child if—

(a)a charge against the child for a disqualifying offence is pending in a court; or

(b)the child has, at any time, been convicted of a disqualifying offence; or

(c)2 diversion alternatives have previously been given to the child.

(3)For subsection (2)(b), a conviction of a disqualifying offence does not include a conviction in relation to which the rehabilitation period has expired, and not been revived, under the Criminal Law (Rehabilitation of Offenders) Act 1986.

(4)For subsection (2)(c)—

(a)a diversion alternative has been given to the child if—

(i)a court has referred the child to a drug assessment and education session under section 172; or

(ii)the child has, at any time, agreed under the Police Powers and Responsibilities Act 2000, section 379 to attend a drug diversion assessment program; or

(iii)the child has been given a prescribed diversion alternative under a law of another State or the Commonwealth; and

(b)for counting the number of diversion alternatives given to the child, a diversion alternative—

(i)is counted even if it was given for an offence committed before the diversion alternative counted as the first diversion alternative was given; and

(ii)is not counted if it was given on the same day as the diversion alternative counted as the first diversion alternative was given.

(5)In this section—

conviction see the Criminal Law (Rehabilitation of Offenders) Act 1986, section 3.

prescribed diversion alternative means circumstances prescribed under a regulation for this definition that are similar to the circumstances mentioned in subsection (4)(a)(i) or (ii).

rehabilitation period see the Criminal Law (Rehabilitation of Offenders) Act 1986, section 3.

revived see the Criminal Law (Rehabilitation of Offenders) Act 1986, section 3.

s 168 ins 2002 No. 59 s 4

amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86)

169Meaning of eligible drug offence

(1)An eligible drug offence is—

(a)an offence by a child against the Drugs Misuse Act 1986, section 9 of unlawfully having possession of a dangerous drug if—

(i)each dangerous drug mentioned in the charge for the offence is a prescribed dangerous drug; and

(ii)for each dangerous drug mentioned in the charge, the total quantity of the substances, preparations, solutions and admixtures in the child’s possession containing the dangerous drug is not more than the prescribed quantity in relation to the dangerous drug; and

Example—

Assume the charge mentioned prescribed drugs X and Y. The prescribed quantity in relation to X is 1.0g and the prescribed quantity in relation to Y is 0.2g. The child had—

•0.2g of a preparation containing X and Y; and

•0.7g of a preparation containing X; and

•0.1g of an admixture containing Y.

The total quantity of the preparations in the child’s possession containing X is 0.9g (0.2 + 0.7) which is not more than the prescribed quantity in relation to X (1.0g).

The total quantity of the preparation and admixture in the child’s possession containing Y is 0.3g (0.2 + 0.1) which is more than the prescribed quantity in relation to Y (0.2g).

Subsection (1)(a)(ii) is not satisfied.

(iii)the court considers each dangerous drug mentioned in the charge was for the child’s personal use; or

(b)an offence against the Drugs Misuse Act 1986, section 10(2), (4) or (4A).

(2)In this section—

dangerous drug see the Drugs Misuse Act 1986, section 4.

prescribed dangerous drug means a dangerous drug prescribed under a regulation for the Penalties and Sentences Act 1992, section 15D.

prescribed quantity means a quantity prescribed under a regulation for the Penalties and Sentences Act 1992, section 15D.

s 169 ins 2002 No. 59 s 4

amd 2007 No. 37 s 103

170Meaning of disqualifying offence

(1)A disqualifying offence is—

(a)an offence of a sexual nature; or

(b)an offence against the Drugs Misuse Act 1986, section 5, 6, 8 or 9, other than an offence dealt with, or to be dealt with, summarily; or

(c)an indictable offence involving violence against another person, other than an offence charged under any of the following provisions of the Criminal Code—

•section 335

•section 340(1)(a), but only if the offence is the assault of another with intent to resist or prevent the lawful arrest or detention of the child or of any other person

•section 340(1)(b).

(2)A reference to a provision in subsection (1) or (4) includes a reference to a law of another State or the Commonwealth that corresponds to the provision.

(3)A reference in subsection (1)(c) to an indictable offence includes a reference to an indictable offence dealt with summarily.

(4)In this section—

offence of a sexual nature means an offence defined in the Criminal Code, section 210, 213, 215, 216, 217, 218, 219, 221, 222, 227, 228, 229B, 323A, 323B, 363A or chapter 32.

s 170 ins 2002 No. 59 s 4

amd 2008 No. 55 s 150 sch; 2016 No. 50 s 40 sch 1

171Meaning of approved provider

(1)An approved provider is an entity approved by the chief executive (health) by gazette notice to provide drug assessment and education sessions.

(2)In this section—

chief executive (health) means the chief executive of the department within which the Health Act 1937 is administered.

s 171 ins 2002 No. 59 s 4

pt 7 div 3 sdiv 2 hdg ins 2002 No. 59 s 4

172Reference to drug assessment and education session by court

(1)This section applies if a finding of guilt for an eligible drug offence is made against an eligible child before a drug diversion court.

(2)The court may refer the child to a drug assessment and education session if the child consents to attend the session.

(3)On making the referral, the court must—

(a)direct the child attend a drug assessment and education session by a stated date; and

(b)adjourn the proceeding for the offence.

s 172 ins 2002 No. 59 s 4

173If child attends drug assessment and education session

(1)This section applies if—

(a)a court refers a child to a drug assessment and education session and directs the child attend the session by a stated date; and

(b)the child attends the session by the stated date.

(2)The approved provider for the drug assessment and education session must give notice to the court’s proper officer that the child attended the session by the stated date.

(3)A notice under subsection (2)—

(a)brings the court proceeding for the offence to an end; and

(b)the child is then not liable to be further prosecuted for the offence.

(4)On the day the notice is received by the court, the child is taken to have been found guilty by the court of the offence without a conviction being recorded.

s 173 ins 2002 No. 59 s 4

174If child fails to attend drug assessment and education session

(1)This section applies if—

(a)a court refers a child to a drug assessment and education session and directs the child attend the session by a stated date; and

(b)the child fails to attend the session by the stated date.

(2)The approved provider for the drug assessment and education session must give notice to the court’s proper officer that the child failed to attend the session by the stated date.

(3)The court’s proper officer may—

(a)take no action; or

(b)bring the charge for the offence back on before the court for sentencing.

(4)For subsection (3)(b), the proper officer must give notice to the child and the chief executive that the proceeding for the offence is to be heard by the court on a stated day.

(5)The notice must include a warning that, if the child fails to appear before the court in answer to the notice, the court may issue a warrant for the child’s arrest.

(6)If requested by the proper officer, the commissioner of the police service must help the proper officer give the notice.

(7)If the child fails to appear before the court in answer to the notice, the court may issue a warrant for the child’s arrest.

(8)For part 5, if the court issues a warrant and the child is arrested under the warrant, the child must be treated as if arrested on a charge of an offence.

s 174 ins 2002 No. 59 s 4

amd 2009 No. 34 s 24

175Sentence orders—general

(1)When a child is found guilty of an offence before a court, the court may—

(a)reprimand the child; or

(b)order the child to be of good behaviour for a period not longer than 1 year; or

(c)order the child to pay a fine of an amount prescribed under an Act in relation to the offence; or

(d)subject to subsection (2), order the child to be placed on probation for a period not longer than—

(i)if the court is not constituted by a judge—1 year; or

(ii)if the court is constituted by a judge and section 176 does not apply—2 years; or

(da)if a restorative justice agreement is made as a consequence of a presentence referral relating to the child—order the child to perform his or her obligations under the agreement; or

(db)order that the child participate in a restorative justice process as directed by the chief executive; or

(e)subject to subsection (2), if the child has attained the age of 13 years at the time of sentence—order the child to perform unpaid community service for a period not longer than—

(i)if the child has not attained the age of 15 years at the time of sentence—100 hours; or

(ii)if the child has attained the age of 15 years at the time of sentence—200 hours; or

(f)if the child has not attained the age of 13 years at the time of sentence, make an intensive supervision order for the child for a period of not more than 6 months; or

(g)order that the child be detained for a period not more than—

(i)if the court is not constituted by a judge—1 year; or

(ii)if the court is constituted by a judge and section 176 does not apply—the shorter period of the following—

(A)half the maximum term of imprisonment that an adult convicted of the offence could be ordered to serve;

(B)5 years.

(2)An order of the following type may only be made against a child found guilty of an offence of a type that, if committed by an adult, would make the adult liable to imprisonment—

(a)a probation order under subsection (1)(d);

(b)a community service order;

(c)an intensive supervision order.

(2A)For subsection (1)(db), the offence the child is found guilty of is taken to be referred by the court to the chief executive for a restorative justice process.

(3)A court may make an order for a child’s detention under subsection (1)(g) with or without a conditional release order under section 220.

(4)This section has effect subject to the Childrens Court Act 1992.

s 175 amd 1996 No. 22 s 44; 2002 No. 39 s 64; 2012 No. 41 s 22; 2016 No. 38 s 18; 2016 No. 39 s 24

176Sentence orders—life and other significant offences

(1)If a child is found guilty of a relevant offence before a court presided over by a judge (the court), the court, may—

(a)order the child to be placed on probation for a period not longer than 3 years; or

(b)make a detention order against the child under subsection (2) or (3).

(2)For a relevant offence other than a life offence, the court may order the child to be detained for a period not more than 7 years.

(3)For a relevant offence that is a life offence, the court may order that the child be detained for—

(a)a period not more than 10 years; or

(b)a period up to and including the maximum of life, if—

(i)the offence involves the commission of violence against a person; and

(ii)the court considers the offence to be a particularly heinous offence having regard to all the circumstances.

(4)A court may make an order for a child’s detention under subsection (2) or (3) with or without a conditional release order under section 220.

(5)A court may make an order for a child’s detention under subsection (3), with or without an order under division 10, subdivision 5.

(6)The Criminal Code, section 305(2), (3) and (4) applies to a court sentencing a child to detention for life on a conviction of murder.

Note—

For the child’s parole eligibility, see section 233 of this Act and the Corrective Services Act 2006, section 181.

(7)Subsection (6) applies despite section 155.

(8)For the purpose of subsection (6), a reference in the Criminal Code, section 305 to imprisonment is taken to be a reference to detention.

(9)This section does not limit a court’s power to make an order under section 175.

(10)In this section—

relevant offence means a life offence, or an offence of a type that, if committed by an adult, would make the adult liable to imprisonment for 14 years or more, but does not include any of the following offences—

(a)an offence of receiving if the value of the property, benefit or detriment is not more than $5,000;

(b)an offence against the Criminal Code, section 419 or 421, if—

(i)the offence involved stealing or an intent to steal, or an intent to destroy or damage property, or the damage or destruction of property; and

(ii)the offender was not armed or pretending to be armed when the offence was committed; and

(iii)the value of any property stolen, damaged or destroyed was not more than $1,000;

(c)an offence that, if committed by an adult, may be dealt with summarily under the Drugs Misuse Act 1986, section 13.

s 176 amd 1996 No. 22 s 45; 2002 No. 39 s 65; 2009 No. 34 s 25; 2010 No. 26 s 154; 2012 No. 19 s 23; 2012 No. 41 s 23; 2016 No. 38 s 19

176ASentence orders—graffiti offences

(1)This section applies if—

(a)a child is found guilty of a graffiti offence before a court; and

(b)the child had attained at least the age of 12 years at the time of the offence.

(2)Without limiting section 175, the court must make a graffiti removal order for the child.

(3)Subject to sections 194A and 249(3), the graffiti removal order must order the child to perform graffiti removal service for a period no longer than—

(a)if the child has not attained the age of 13 years at the time of sentence—5 hours; or

(b)if the child has attained the age of 13 years, but not the age of 15 years, at the time of sentence—10 hours; or

(c)if the child has attained the age of 15 years at the time of sentence—20 hours.

s 176A ins 2013 No. 31 s 83

177More than 1 type of order may be made for a single offence

A court may make more than 1 type of sentence order for a single offence, subject to sections 178 to 180A.

s 177 ins 1996 No. 22 s 46

amd 2002 No. 39 s 66; 2013 No. 31 s 84; 2014 No. 9s 9C; 2016 No. 38 s 21

178Combination of probation and community service orders

(1)This section applies if a court makes, for a single offence (the original offence), a probation order and a community service order.

(2)The court—

(a)must make separate orders; and

(b)must not impose one of the orders as a requirement of the other.

(3)If the child contravenes one of the orders after the orders are made and is resentenced for the original offence, the other order is discharged.

s 178 ins 1996 No. 22 s 46

sub 2002 No. 39 s 67

178ACombination of graffiti removal order and probation and community service orders

(1)This section applies if a court makes, for a single graffiti offence (the original offence), a graffiti removal order and also one or both of the following orders—

(a)a probation order;

(b)a community service order.

(2)The court—

(a)must make separate orders; and

(b)must not impose one of the orders as a requirement of the other.

(3)If the child contravenes one of the orders, other than the graffiti removal order, after the orders are made and is resentenced for the original offence—

(a)the orders, other than the graffiti removal order, are discharged; and

(b)the court may, if it considers it appropriate, discharge the graffiti removal order.

(4)If the child contravenes the graffiti removal order after the orders are made and is resentenced for the original offence, all of the orders are discharged.

s 178A ins 2013 No. 31 s 85

178CCombination of restorative justice orders and other sentence orders

(1)This section applies if a court makes, for a single offence, a restorative justice order and any other sentence order.

(2)The court—

(a)must make separate orders; and

(b)must not impose one of the orders as a requirement of the other.

(3)If the child contravenes the restorative justice order after the orders are made and is resentenced for the offence, the court may discharge any or all of the other sentence orders.

(4)If the child contravenes one of the other sentence orders after the orders are made and is resentenced for the offence, the court may discharge the restorative justice order.

s 178C ins 2016 No. 39 s 25

179Combination of intensive supervision order and probation or detention order prohibited

A court may not make, for a single offence—

(a)an intensive supervision order; and

(b)a probation order or detention order.

s 179 ins 1996 No. 22 s 46

sub 2002 No. 39 s 67

180Combination of detention order and probation order

(1)This section applies if a court makes a detention order and a probation order for a single offence.

(2)A court may make the detention order only for a maximum period of 6 months and may not make a conditional release order.

(3)The probation order may only start when the child is released from detention under the detention order and be for a maximum period ending 1 year after the release.

s 180 ins 2002 No. 39 s 67

amd 2012 No. 41 s 24; 2013 No. 31s 86; 2016 No. 38 s 23

180ACombination of detention order and graffiti removal order

(1)This section applies if a court makes—

(a)a detention order and a graffiti removal order for—

(i)a single graffiti offence; or

(ii)multiple offences of which one is a graffiti offence; or

(b)a detention order for a child subject to 1 or more existing graffiti removal orders.

(2)The graffiti removal order—

(a)if subsection (1)(a) applies—starts when the child is released from detention under the detention order; or

(b)if subsection (1)(b) applies—is suspended until the child is released from detention under the detention order.

(3)Any period that, under section 194B(3) or 194D, applies to the graffiti removal order—

(a)if subsection (1)(a) applies—starts when the child is released from detention under the detention order; or

(b)if subsection (1)(b) applies—is extended by the period the child is detained under the detention order.

s 180A ins 2013 No. 31 s 87

181Other orders

A court that makes a sentence order against a child for an offence under section 175 or 176, in addition to the order, may make 1 or more of the following orders—

(a)an order allowed by division 11 requiring the child—

(i)to make restitution of property; or

(ii)to pay compensation of not more than an amount equal to 20 penalty units for loss to property; or

(iii)to pay compensation for injury suffered by another person;

(b)an order allowed by division 13;

(c)an order allowed by division 14.

s 181 amd 1996 No. 22 s 47

182Orders may be combined in 1 form

(1)This section applies if a court makes more than 1 sentence order against a child charged before it with more than 1 offence.

(2)The court may combine more than 1 of the sentence orders in 1 order form if each sentence order that the form deals with is—

(a)of the same type; and

(b)subject to similar conditions.

(3)The order form must contain, or have attached, a list of each offence for which the order form is made.

(4)In a proceeding, it is taken that a separate sentence order was made for each offence.

183Recording of conviction

(1)Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.

(2)If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.

(3)If a court makes an order under section 175(1)(c) to (g) or 176 or 176A, the court may order that a conviction be recorded or decide that a conviction not be recorded.

s 183 prev s 183 amd 1999 No. 19 s 3 sch

om 2002 No. 39 s 93

pres s 183 amd 1996 No. 22 s 48; 2002 No. 39 s 68; 2013 No. 31 s 88

184Considerations whether or not to record conviction

(1)In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—

(a)the nature of the offence; and

(b)the child’s age and any previous convictions; and

(c)the impact the recording of a conviction will have on the child’s chances of—

(i)rehabilitation generally; or

(ii)finding or retaining employment.

(2)Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose.

(3)A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded.

s 184 prev s 184 om 2002 No. 39 s 93

pres s 184 amd 1996 No. 22 s 3 sch 1

185Judge may delegate sentencing power to magistrate

(1)This section applies if—

(a)a proceeding in which a child may be sentenced for an offence is before a Childrens Court magistrate; and

(b)the Childrens Court magistrate considers that an appropriate sentence would be beyond the jurisdiction of the Childrens Court magistrate because of the limit to the jurisdiction set out in section 175(1)(d) or (g).

(2)The magistrate may request a Childrens Court judge to delegate to the magistrate the power to impose a sentence that, under section 175(1), may only be made if a judge constitutes the sentencing court.

(3)The Childrens Court judge has jurisdiction to delegate the power.

(4)The delegation must be made before any evidence is heard, plea entered or election made, unless the child—

(a)is represented by a lawyer; and

(b)consents to a delegation happening at a later time.

(5)The request and delegation may be made informally, including by any form of distance communication.

(6)The magistrate must inform the child of the delegation.

s 185 prev s 185 amd 1999 No. 19 s 3 sch

om 2002 No. 39 s 93

amd 2004 No. 11 s 596 sch 1

186Reference of case to Childrens Court judge for sentence

(1)If, in a proceeding for the sentencing of a child for an offence, a Childrens Court magistrate considers that the circumstances require the making of a sentence order—

(a)beyond the jurisdiction of a Childrens Court magistrate; but

(b)within the jurisdiction of a Childrens Court judge;

the magistrate may commit the child for sentence before a Childrens Court judge.

(2)In relation to a committal under subsection (1), the Childrens Court magistrate may make all orders and directions as if it were a committal following a committal proceeding.

(3)The Childrens Court judge may exercise sentencing powers to the extent mentioned in section 175.

s 186 prev s 186 om 2002 No. 39 s 93

187Reference to complying with, or contravening, an order

In this part, a reference to complying with, or contravening, a sentence order includes complying with, or contravening, a requirement applying to the order under a regulation.

s 187 prev s 187 om 2002 No. 39 s 93

pres s 187 ins 2002 No. 39 s 69

188Good behaviour order

A court that makes a good behaviour order against a child must impose a condition that the child abstains from violation of the law for the period of the order.

189Breach of conditions

(1)If a person against whom a good behaviour order has been made commits an offence during the period of the order, a court that deals with the person on a charge for the offence may have regard to the breach of the good behaviour order when determining its sentence for the offence.

(2)Otherwise a court must not take any action in relation to a breach of a good behaviour order.

190Child’s capacity to pay fine to be considered

A court may make an order requiring a child to pay an amount by way of fine only if it is satisfied that the child has the capacity to pay the amount.

191Requirements of fine order

An order made by a court requiring a child to pay a fine must direct that—

(a)the fine be paid by a specified time or by specified instalments; and

(b)the fine must be paid in the first instance to the proper officer of the court.