Under the Children, Youth and Families Act 2005 (CYFA), Category A 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 relating to the jurisdictional presumptions took effect on 5 April 2018.
Practice Direction No 2 of 2018 applies to charges involving Category A Serious Youth Offences from 5 April 2018.
Category A Serious Youth Offences
Under section 3 of the Criminal Procedure Act 2009, a Category A serious youth offence means any of the following offences—
- murder;
- attempted murder;
- manslaughter;
- child homicide;
- homicide by firearm;
- an offence against any of the following sections of the Crimes Act 1958 —
- section 15A (intentionally causing serious injury in circumstances of gross violence);
- section 77B (aggravated home invasion);
- section 79A (aggravated carjacking);
- section 197A (arson causing death);
- section 318 (culpable driving causing death);
- an offence against any one of the following—
- section 4B of the Terrorism (Community Protection) Act 2003;
- a provision of Subdivision A of Division 72 of Chapter 4 of the Criminal Code of the Commonwealth;
- a provision of Part 5.3 or 5.5 of the Criminal Code of the Commonwealth;
- a provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth as in force before its repeal;
Children’s Court Jurisdictional Presumptions
For the purposes of the Children 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 time of alleged offending, but does not include a person who is 19 years or older when proceedings are commenced in the court.
Section 356(3) of the CYFA that the Children’s Court must hear and determine an indictable charge summarily, other than the six listed death-related offences, unless the child charged with a Category A serious youth offence objects or section 356(6) applies.
Section 356(6) provides that the Children’s Court must not hear and determine such a Category A Seious Youth Offence charge summarily unless:
- the child or the prosecution requests that the charge be heard and determined summarily; and
- the Children’s Court is satisfied that the sentencing options available to it under the CYFA are adequate to respond to the child’s offending; and
- any of the following applies:
- it is in the interests of the victim or victims that the charge be heard and determined summarily;
- the accused is particularly vulnerable because of cognitive impairment or mental illness; or
- there is a substantial and compelling reason why the charge should be heard and determined summarily.
In determining whether there are substantial and compelling reasons, the Court must have regard to Parliament’s intention that Category A Serious Youth Offences should not normally be heard and determined summarily (CYFA s356(7)).
The following death-related offences must be heard in a higher court (s516(1)(b)):
- murder;
- attempted murder;
- manslaughter;
- child homicide;
- arson causing death (Crimes Act s197A);
- culpable driving causing death (Crimes Act 1958 s318).
Uplift of Category A Serious Youth Offences
| Mandatory uplift to a higher court | |
| Child charged with death-related category A serious youth offence | Murder |
| Attempted murder | |
| Manslaughter | |
| Child homicide | |
| Arson causing death (Crimes Act s 197A) | |
| Culpable driving causing death (Crimes Act s 318) | |
| Presumption of uplift to a higher court | |
| Child aged 16 years or over at time of alleged category A serious youth offence | Intentionally causing serious injury in circumstances of gross violence (Crimes Act 1958 s 15A) |
| Aggravated home invasion (Crimes Act s 77B) | |
| Aggravated carjacking (Crimes Act s 79A) | |
An offence against any one of the following:
|
|
Sentencing presumptions
A court must not make a youth justice centre or youth residential centre order for a young offender sentenced for a Category A serious youth offence unless it is satisfied that exceptional circumstances exist (Sentencing Act 1991 s32(2C)-(2D)). A young offender is defined as an offender who, at the time of being sentenced, is under the age of 21 years (Sentencing Act 1991 s3).
