Under the Children, Youth and Families Act 2005 (CYFA), charges for Category A Serious Youth Offences and Category B Serious Youth Offences are subject to presumptions about the jurisdiction in which they may be heard and sentencing.
The provisions relating to sentencing came into effect on 26 February 2018, and the provisions related to the jurisdictional presumptions came into effect on 5 April 2018.
Practice Direction No 2 of 2018 applies to charges involving Category A and B serious youth offences from 5 April 2018.
Children’s Court jurisdiction
The Children’s Court has jurisdiction to hear most criminal offences charged against a child. The court can hear all summary offences charged against a child and indictable offences charged against a child, except the 7 death-related offences (set out below).
Whether the Children’s Court can hear a proceeding against a child accused depends on the child’s age and circumstances (personal jurisdiction) and the types of offences charged (subject-matter jurisdiction).
Personal jurisdiction
For the purposes of the court’s personal jurisdiction, “child” is defined in s3(1) of the CYFA as a person who is under 18 and at least 10 years of age at the age of alleged offending, but does not include a person who is 19 years or older when proceedings are commenced in the court.
The following table summarises the age groups in relation to the personal jurisdiction of the Children’s Court:
|
Age group of accused |
Summary of criminal jurisdiction |
|
Under 10 years at time of offence |
No criminal responsibility (a child under 10 cannot commit an offence) (CYFA s344). |
|
Between 10-13 years at time of offence |
Summary and indictable offences (except for the 6 death-related offences) may be tried summarily in the Children’s Court. The doli incapax rule applies to a child accused. The prosecution must prove that the child knew that his or her conduct was seriously wrong to rebut the presumption. |
|
14 to 18 years at time of offence |
Summary and indictable offences (except for the six death-related offences) may be tried summarily in the Children’s Court. |
|
19 years or over at time of hearing |
If the accused turns 19 before the proceeding is commenced, it should be commenced in the Magistrates’ Court. If the accused turns 19 during the course of the proceeding, the Children’s Court must determine the matter unless exceptional circumstances exist (CYFA s 516(5)). If the Children’s Court finds that exceptional circumstances exist, it must discontinue the proceeding and order that it be transferred to the Magistrates’ Court (CYFA s 516(6)). |
Subject-matter jurisdiction
The Children’s Court can hear and determine all charges against children for summary offences (CYFA s 516(1)(a)).
Section 516(1)(b) provides that the court also has jurisdiction to hear and determine summarily all indictable charges against children, subject to s356, except for the following death-related offences:
- Murder;
- Attempted murder;
- Manslaughter;
- Child homicide;
- Homicide by firearm;
- Arson causing death;
- Culpable driving causing death.
The Children’s Court also deals with children charged with Commonwealth offences, and section 20C(1) of the Crimes Act 1914 (Cth) provides that a Commonwealth offence may be tried, punished or otherwise dealt with as if it were a State offence.
The 7 death-related offences must be heard in a higher court. The Supreme Court has an unlimited jurisdiction to hear indictable offences (Constitution Act 1975 s 85). The County Court has jurisdiction to hear all indictable offences, except those excluded in s 36A of the County Court Act 1958. The County Court does not have jurisdiction to hear charges of murder and attempted murder against a child accused.
