If you are under 18
Anyone under the age of 18 is considered to be child in the eyes of the law and special provisions apply to children.Children under 10
Children under the age of 10 can’t be guilty of an offence. This is because the law assumes that children under 10 are too young to understand that what they are doing is wrong.
Children aged between 10 and 14
The law also assumes that children aged 10 - 14 who break the law are unable to understand that what they are doing is wrong. But, if it can be shown that a child aged between 10 and 14 did actually understand that what she or he was doing was seriously wrong, then he or she can be charged with an offence.
Children aged between 15-17
Children aged between 15 and 17 can be charged with offences, but there are special provisions that apply. The legal system tries to deal with children in a way that avoids them being locked up and helps them learn from their mistakes. But what happens will depend on the age of the child (in other words, how close to turning 18 the child is), what the child did, and whether the child has a history of getting into trouble.
If you are over 18
Once a person turns 18, he or she is an adult in the eyes of the law. Even if the person is still at school, he or she is legally an adult and adult penalties apply for breaking the law.
Police powers to arrest you & Arrest without a warrant
Generally, the police can arrest you without a warrant (permission from a court) if:
- you’re in the middle of committing an offence,
- you’ve just committed an offence, or
- the police have a reasonable suspicion that you’ve committed an offence
Court attendance notice instead of arrest
Police don’t need to arrest you to charge you. Police can charge you without arresting you by issuing you with a court attendance notice (summons) that tells you what charges have been made against you and when and where to attend court.
A court attendance notice can be issued for any offence committed in New South Wales or elsewhere if the police either know or suspect that you’ve committed an offence.
In many cases where the offence is only a minor one, police will issue you with a court attendance notice rather than arresting you.
However, police will arrest you if they reasonable suspect that it is necessary to :
- make sure you turn up at court,
- prevent an offence being repeated or continued, or prevent another offence from being committed,
- prevent a potential witness from being harrassed or interfered with
- prevent evidence being hidden, lost or destroyed,
- prevent fake evidence being created, or
- to protect you.
If they need to, police can arrest you at any time after they’ve issued a court attendance notice and before the matter comes to court after obtaining a specific warrant.
Arrest under an arrest warrant
Police can also arrest you if they have a warrant (written authority from a magistrate or judge issued under any law) for your arrest. Police do not have to have a copy of the warrant in their possessions, and it allows police to arrest you whenever they find you.
You can be arrested in this way if you’ve committed an offence, haven’t paid a fine or failed to attend court when you were supposed to.
Other arrest powers
As well as the arrest powers described above, the law gives police other arrest powers for various purposes.
For example, police have the power to arrest you on the road (LINK DRIVING) if you refuse to obey police directions for random breath testing, or random drug testing, or if you fail tests for alcohol or drugs when you’re pulled over on the road. Police can arrest you and take you to the nearest police station or a hospital for further tests.
In some limited circumstances, police have the power to arrest you even if you haven’t committed an offence but police believe you’re about to do the wrong thing. Police have this power of arrest when:
- you’re on bail. Police can arrest you because they reasonably believe you’re about to breach your bail conditions, or
- police have received complaints from the neighbours about your wild party. The police can arrest you to prevent “a breach of the peace” (disturbance).
Arrest of children
If you’re a child (under the age of 18), you will almost always be issued with a court attendance notice instead of being arrested and taken to a police station to be charged. However, you will be arrested if you are to be charged with any of the following :
- murder,
- an offence that can be punished with imprisonment for 25 years or life,
- serious drug offences,
- some serious sexual assault offences,
- assault with intention to have sexual intercourse, or
- serious firearms offences
You’ll also be arrested for other offences where police reasonably believe:
- that you won’t turn up for court,
- you’re likely to commit further offences, or
- that you should be in police custody because of your violent behaviour, or the violent nature of your offence.
Resisting arrest
If police arrest you, you’ll be told why you’re being arrested. If you try to resist arrest, police can use whatever force is reasonably necessary to arrest you or to prevent you from escaping after you’ve been arrested.
Resisting or hindering any police officer who is making an arrest or doing his or her duty is against the law. The maximum penalty for this offence is 12 months imprisonment, and /or a $1,100 fine.
What happens after you’ve been arrested?
After you've been arrested, you'll be taken to a police station. You'll be allowed to speak to a friend, relative, guardian or other independent person as well as to a lawyer, and ask them to come and be with you. You may be questioned and searched. Police can keep you at the station for up to 4 hours for investigation and questioning. This time can be extended to 12 hours with permission from a court.
Unless the police decide to end your arrest (LINK When will police end your arrest?), you, and anything found on you, will be taken before a magistrate or judge as soon as possible after you’ve been arrested. The magistrate or judge will decide whether you should continue to be detained until your case is heard and decided by the court, or whether you should be released on bail to return to court when your case is to be heard and decided.
Questioning and Investigation
Police may keep you in police custody for up to 12 hours after you’ve been arrested in order to carry out an investigation and to question you.
You have a right to remain silent - this means you don’t have to answer questions asked by the police. However, if you're involved in a car accident you must give details of the incident to the police.
Although you don't have to answer other questions, it may help if you talk with the police. It's a good idea to talk to a lawyer before you answer questions. You’re entitled to have a lawyer of your choice with you to give you advice in private or during any investigation.
If you agree to being questioned and you're under 18, police will make sure that you have a support person with you during the questioning. The support person can be a:
- parent or guardian,
- an adult (other than a police officer). If you're under 14 this will be a person your parent
- or guardian has agreed to have there. If you're 14 or over, it will be someone you've agreed to,
- or a lawyer you've chosen.
The police officer who conducts the interview has the right to judge whether your support person is a reasonably responsible adult. This means that they can request another support person be chosen should the person you have chosen is not deemed suitable.
Personal Searches
The police can search you and anything in your possession at the time of arrest or while you are in police custody for anything that:
- would be a danger to you,
- could be used to help you escape from custody,
- is connected to an offence that has already been committed, or
- is connected to an offence that you or someone else intend to commit
Police may seize and detain anything they find in that search. Anything found on you will be handed up when you appear before a magistrate or a judge.
Finger prints, palm prints and photos
Your finger prints, palm prints and photos may be taken at the police station. They are used for identification. If you're under 14, police will only take your finger prints, palm prints and photos if they have a court order allowing them to do so.
Getting charged and released from police custody
After police have considered any evidence they have, they’ll decide whether:
- you should be charged and released on bail or
- you should be charged and kept in custody, or
- it would be more appropriate to deal with the matter in some way other than by charging you (see Alternatives to court and sentencing), or
- you should be released without being charged.
When will police end your arrest?
Police can end your arrest at any time if:
- you’re no longer a suspect, or the reason for your arrest no longer exists. In this case you can be released without being charged;
- police decide it’s more appropriate to deal with the matter in some other way, for example, by issuing a warning or caution, or referring you to a youth justice conference (LINK Alternatives to court and sentencing); or
- police decide to charge you on summons (that is, by giving you a court attendance notice). This means you'll be free to leave police custody without any conditions. You'll have to attend court on the day your charges are heard.
Bail
If police charge you with an offence and don’t end your arrest as described above, police may decide to release you on bail.
You have a right to be released from police custody on bail if you've been charged with a minor offence. Bail is less likely to be granted where there are more serious charges involving murder, robbery, drug trafficking, domestic violence, weapons, and riots.
If police refuse to grant bail, you’ll be allowed to get advice from a lawyer, and you’ll be taken before a court as soon as possible to make a bail application. The court may then decide to release you on bail.
Both the police and the court will consider a number of things when making a decision about bail. In particular, if you’re under 18, or an Aboriginal or a Torres Strait Islander, or if you have an intellectual disability or mental illness, any special needs you might have will be taken into consideration.
If you’re granted bail by the police or the court, you’ll be released, but you’ll have to attend court on the day your charges will be heard.
Either police or the court can impose conditions when granting bail (for example, where you are to live, that you cannot associate with a particular person, or visit a particular place). Police can re-arrest you if they reasonably believe you have breached your bail conditions, or if police believe you’re about to breach your bail conditions.
If you’re not granted bail by a court, you’ll remain in custody (juvenile detention or prison) until the charges against you are heard and decided by a court and you are then either released, or depending on sentencing, detained or imprisoned for a further period.
Going to court and getting a sentence
If you’re over 18
If you were 18 or older when you committed the offence, you will be treated as an adult. You’ll either go to the Local Court or the District Court (or, in some cases, the Supreme Court) depending on the seriousness of the offence. All minor offences go to the Local Court.
These courts will use adult sentencing options when deciding your case. You can be sentenced in different ways depending on the offence you have committed – ranging from fines to imprisonment in the most serious cases, or both.
If you’re under 18
If you were under 18 when you committed the offence (and under 21 when you‘re charged before the court) the court you go to will depend on the type of offence you’ve been charged with.
The law divides offences committed by children into the following categories:
- serious children’s indictable offences – these are particularly serious offences committed by children;
- indictable offences – these are serious offences;
- summary offences – these are minor offences;
- traffic offences – these include driving and licence offences
In most cases you’ll go to the Children’s Court. The Children’s Court can hear and decide cases for any minor offences. The Children’s Court can also hear and decide cases for serious offences , although sometimes these will be transferred to an adult court (usually the District Court).
The Children’s Court cannot decide cases for any offences that are categorised as “serious children’s indictable offences”. These are very serious offences and will always go to an adult court (usually the District Court).
The Children’s Court also cannot decide cases for traffic offences (except in some limited circumstances). Traffic offences go to the Local Court.
The penalties that can be applied in your case will depend on the seriousness of the offence and which court you go to.
Summary (minor) offences
Summary offences involving children are always heard and decided in the Children’s Court.
Some examples of summary offences are:
- offensive conduct and offensive language
- obscene exposure
- wielding of knives in a public place or school
- violent disorder (three or more people together using or threatening unlawful violence)
- using of vehicles
- spiking drink or food.
When it comes to sentencing, the Children’s Court, like adult courts, can choose from several options. These include good behaviour bonds, fines, probation (released with conditions imposed by the court), community service orders, and detention. The Children’s Court can also dismiss charges that have been proven and issue a caution instead.
Unlike other courts, however, the Children's Court has special rules about the maximum penalty that can be given to people who were under 18 when they committed the offence, and under 21 when charged. The Children’s Court can give you the highest fine that an adult can get for the offence you’ve committed - but only if that fine is less than $1,100. If the adult fine is higher than $1,100, the court will not fine you any more than $1,100.
The Children's Court is also different to other courts when it comes to imprisonment. While an adult can be sent to prison for several years for committing an offence, the Children's Court can only send you to a juvenile detention centre for a maximum of 2 years. The Children’s Court can only make an order (“control order”) sending a child to a juvenile detention centre if it believes that no other penalty would be appropriate.
Serious offences (indictable offences).
Offences which are categorised as serious, but not as serious as the “serious children’s indictable offences” described below, can be heard and decided in the Children’s Court. When it comes to sentencing, the Children’s Court can choose from the same range of children’s penalties that are available for summary offences.
These cases can also be transferred from the Children’s Court to the District Court if the Children’s Court thinks there are circumstances which make the case more serious (for example, the child has committed a number of these offences, or the offence was very deliberately planned by the child, or the child was very close to 18 years old when the offence was committed).
If a case is transferred to the District Court, the District Court can choose whether to apply adult penalties or children’s penalties (this will depend on a few things, including the seriousness of the offence, the child’s criminal history, and the child’s age.
Sometimes, the District Court will send these cases back to the Children’s Court after the District Court has found the child guilty. In these situations, the cases are sent back to the Children’s Court so that that the Children’s Court can apply children’s penalties.
Some examples of offences that can be heard and decided in either the Children’s Court or the District
Court are:
- stealing a motor vehicle
- throwing rocks at a vehicle
- assault occasioning actual bodily harm
- assault occasioning actual bodily harm in the company of others
- stalking or harassing student or teacher at school
- drug dealing (not very large amounts)
Traffic (driving) offences
The Children’s Court does not deal with traffic offences.
These will go to the Local Court unless:
- the traffic offence is connected to another criminal offence, which is to be heard in the Children’s Court. For example, an offence of driving over the relevant alcohol limit would go to the Local Court unless the offender was also being charged with stealing a car in the same incident. In that case, both charges would be heard by the Children’s Court, or
- when the traffic offence was committed, the offender was not old enough to have a licence. For example, driving over the alcohol limit when you’re 15. A case like this would go to the Children’s Court.
The Local Court can give children’s penalties to under 18 year olds who are guilty of traffic offences. Like the Children’s Court, the Local Court in these cases can send a child to a juvenile detention centre, but not to prison.
Serious driving offences
Some driving offences that are very serious (for example, dangerous driving causing death or serious injury) may be transferred from the Local Court to the District Court.
Very serious criminal offences involving children - “serious children’s indictable offences”
Where children are charged with very serious offences, called “serious children’s indictable offences” they’ll go to the District Court. Some examples of these very serious offences are:
- murder
- drug dealing where very large amounts of drugs are involved,
- destroying or damaging property with the intention of endangering someone’s life,
- wounding or causing grievous bodily harm to any person with the intention of causing grievous bodily harm or with the intention of resisting arrest,
- some serious sexual assault offences;
- getting someone drunk in order to sexually assault him or her
- serious robbery and break and enter offences
- assault with intention to have sexual intercourse
- serious firearms offences.
The District Court will nearly always use adult penalties for children who commit these very serious offences. Even though adult penalties apply to children in these cases , the court still has to consider the special sentencing principles that apply to children, described below.
Will the court give you special consideration because you’re a child?
Whichever court you go to, the court must consider special legal principles relating to the sentencing of children before it makes any decision about penalty. According to these principles:
- children have legal rights and freedoms just as adults do. They have a right to be actively involved in decision-making processes that affect them;
- if children commit offences, they’re responsible for their own actions but because they’re young, they need guidance and help;
- if possible, it’s best to let children continue in their schooling or job without interruption;
- if possible, it’s best to let a child continue living in his or her own home; and
- any punishment given to a child should be no greater than the punishment that would be given to an adult for the same offence.
When the Local and District Courts are considering a child’s offence, the weight given to these sentencing principles will depend on the age of the child and the offence committed. The older the child and the more serious the offence, the more likely it is that the child will be treated similarly to an adult.
The law also requires all courts imposing any penalty to consider whether an offender’s age meant that he or she was not fully aware of the consequences of his or her actions. This consideration can affect the severity of the sentence that the court will impose.
Alternatives to court and sentencing
Where it's possible, and it's the right thing to do, police and magistrates will use alternative ways of dealing with offences involving children and young people.
For example, police may use warnings, cautions and youth justice conferences instead of laying charges to try to keep children out of the court system. Children’s Court magistrates may use cautions and youth justice conferences as alternatives to sentencing.
Warning
Police can give a warning instead of laying charges. A warning is often given for minor offences, particularly if it’s a first offence. A warning cannot be given if the offence involves violence. You can receive a warning without admitting to the offence.
Caution
Police can also give you a caution instead of charging you. A caution is more serious than a warning. It may be given for less serious offences. A caution cannot be given on more than three occasions.
If police decide to charge you and your matter ends up in the Children’s Court, the Children’s Court may decide to give you a caution instead of convicting you.
There are a few conditions that have to be met before an offence can be dealt with by a caution. One of the conditions is that you have to admit to committing the offence. You should get legal advice before you admit to anything.
Youth Justice Conference
Either the police or the court can refer a child offender to a youth justice conference. A youth justice conference brings the offender together with the victim, family members and others to discuss and agree on what the offender should do to make up for the wrongdoing - for example, apologise and repair damage.
There are a few conditions that have to be met before an offence can be dealt with in a youth justice conference. One of the conditions is that you have to admit to committing the offence. You should get legal advice before you admit to anything.
There are also other alternatives, like the Young Adult Criminal Conference scheme and the Youth Drug and Alcohol Court, which are designed to help children and young people who get into trouble to stay out of trouble.
Youth Drug Court
Children (aged 14 - 18) who are charged with offences that the Children’s Court can deal with and who are not eligible for a caution or youth justice conference can be referred to the Youth Drug Court.
Referrals are made for children who have a serious drug or alcohol problem, are suitable for treatment and rehabilitation, and agree to enter into a treatment program. Children will still be sentenced at the end of the program, but the court will take their participation and progress in the treatment program into account in sentencing.
Getting a fine
For some offences, you may be issued with a penalty notice (fine) instead of being prosecuted. For example, you may be fined by the police for speeding, or fined by railway staff for traveling on a train without a valid ticket.
If you’ve received a fine, you can dispute it and choose to have the offence dealt with by a court instead.
Courts can also fine you for some offences if you’re found guilty or if you plead guilty – for example a court may fine you for offensive conduct, or for possession of illegal drugs. Court fines may be given either on their own, or together with other penalties like good behaviour bonds.
If you want to dispute a fine, or if you can’t afford to pay it, you should get legal advice as soon as possible.
Fines for children
Penalty notices cannot be issued to children under 10. The policy of the NSW Police is not to issue fines to children under 14.
Any court that imposes a fine as a penalty, must consider the person’s ability to pay a fine. This is often a very important consideration where children and young people are involved.
The Children’s Court can give a child the highest fine that an adult can get for the offence - but only if that fine is less than $1,100. If the adult fine is higher than $1,100, the Children’s Court cannot give a fine of any more than $1,100.
Getting a criminal record
Recording of convictions for over 18’s
Any conviction (finding of guilt) for an offence will automatically go onto your criminal record.
Recording of convictions for under 18’s
If you’re found guilty of an offence in the Children’s Court and you’re under 16, a conviction will not be recorded against you. If you’re over 16, it’s up to the magistrate to decide whether a conviction should be recorded against you.
If you’re found guilty of an offence by the District Court (or the Supreme Court), you may have a conviction recorded against you, whether or not you’re under 16. It’s up to the court to decide if a conviction should be recorded against you.
What is the effect of having a criminal record?
Having a criminal record could affect your employment, or job or visa application; it could also count against you if you’re ever in trouble with the law again.
- Applying for a job
When you apply for a job, you may be asked whether you have any previous convictions. Criminal convictions may prevent you from being able to work in some fields or in positions of trust - for example, as an auctioneer, builder, travel agent, doctor, nurse, dentist, police officer, solicitor, judge, magistrate, justice of the peace or in the public service.
- Convictions for serious sex offences or other violent offences will prevent you from working in child-related employment.
- Criminal convictions may also affect your chances of getting other types of jobs.
You shouldn’t automatically rule yourself out of going for a job on the basis of your past record. If you’ve only committed a minor offence, and the offence doesn’t have any relevance to the job, or it doesn’t affect your ability to do the job, it may not be held against you.
Travelling overseas
When you apply for a visa to travel to a foreign country, you may be asked whether you’ve ever been arrested or convicted. You may be refused entry to some countries because of your criminal history.
The rules are different for each country. If you want to know about the rules for travel to any particular country, you should contact a consulate or the embassy for that country.
- If you’re ever in trouble again
Previous convictions will be brought up if you’re prosecuted for a criminal offence in the future.
You may have to answer questions about previous convictions under cross-examination in court. Previous convictions will also be taken into account by the court when it comes to sentencing (deciding your punishment). This will usually mean that you get a tougher penalty. A previous conviction will be taken into account even if it is a spent conviction (see below).
In some circumstances, a court that’s sentencing you can also take into account any previous finding of guilt made against you even though a conviction was not recorded (for example, if the court finds that you were guilty but decides to dismiss the charges).
Will convictions ever be removed from your criminal record?
- Spent convictions
In certain circumstances some convictions will become “spent” – this means that they’ll no longer be considered as part of your criminal record and, in most cases, won’t have to be disclosed to anyone. This means that if a question is asked about your criminal history, you can answer it without referring to your spent convictions. However, records of spent convictions will still be kept, and they may have to be disclosed in certain circumstances.
When can convictions become spent?
Most convictions will be spent :
- immediately if the court dismisses the matter without recording any conviction.
- after a crime-free period. This is a period of time in which you haven’t been convicted of an offence that can be punished with imprisonment, you haven’t been in a juvenile detention centre or prison, and you’re not on the run. If you’re convicted by the Children’s Court, you’ll have to complete a 3 year crime-free period before the conviction is spent. If you’re convicted by any other court, you’ll have to complete a 10 year crime-free period before the conviction is spent. The crime–free period for traffic offences is calculated separately to the crime-free period for other offences.
- Convictions for old offences that are now no longer an offence will also be considered to be spent.
Convictions that can never be spent
- Some convictions can never be spent. These include convictions for which a prison sentence of more than 6 months has been imposed. An order for detention in a juvenile detention centre, and an order for periodic detention are not counted as prison sentences for this purpose.
- Convictions for sexual offences can also never be spent. So for example, a conviction for obscene exposure will always be part of your criminal record.
- When do spent convictions have to be disclosed?
- Spent convictions will still have to be disclosed if you want to work in some positions of trust – for example, as a:
- police officer or prison officer
- firefighter (if the conviction was for arson)
- judge, magistrate, or JP
- teacher or teacher's aide
- provider of child care services, or
- in other child-related employment.
What other records will police keep about you?
The NSW Police Criminal Records Unit keeps a permanent record of all charges, warnings, cautions, youth justice conferences, court appearances, as well as convictions and sentences.
A permanent record is also kept of all arrests and police questioning, finger prints, photographs and palm prints.
Are these police records ever destroyed?
In most cases these records will not be destroyed. There are some limited circumstances in which they will be destroyed:
- if you make an application to the Police Commissioner and the Commissioner agrees to destroy them. This will only happen in certain cases.
- if the Children’s Court has found you not guilty, or if it dismisses the charge, the court will order the destruction of your photographs, finger prints and palm prints. The Court may also order their destruction in other circumstances if it thinks it would be fair to do so.
- any court that finds a child not guilty will order the destruction of photographs, finger prints and palm prints if requested by the child.
Can records of warnings, cautions and youth justice conferences be used against you in the same way as a criminal record for convictions?
Records of warnings, cautions and youth justice conferences are kept by the police and the Children’s Court. However they are not treated as convictions and do not form part of your criminal history.
Records of cautions and youth justice conferences will only be disclosed if:
- you come before the Children’s Court for another matter in the future or
- you apply to become a:
- police officer or prison officer
- firefighter (if the offence was arson)
- judge, magistrate, or JP
- teacher or teacher's aide
- provider of child care services, or
- in other child-related employment
- and in some other limited circumstances.
What about on-the-spot fines?
On-the-spot fines (penalty infringement notices) will not go on your criminal record.
On-the-spot fines for traffic offences will appear on your RTA traffic record. If you later go to court for another traffic offence, previous traffic fines can be taken into account by court when it’s deciding your punishment. This could result in a tougher penalty.
An offence for which you were given an on- the–spot fine may end up on your criminal record if you choose to go to court to argue against the fine. This can happen if the court finds you guilty of the offence (or you admit to it) and a conviction is recorded.
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