Children and the criminal law

Contributed by TimothyHampson and current to 27 July 2018

Criminal responsibility

A person under the age of 10 years is not criminally responsible for any act or omission (s. 29 WA Criminal Code.

A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that they ought not to do the act or make the omission (s 29 WA Criminal Code).

Children's Court jurisdiction

If a person was under the age of 18 when they committed an alleged offence, then the Children’s Court has exclusive jurisdiction to deal with their matter(s19(1) CCA). If an alleged offender is over the age of 18, the Children’s Court still has the power to deal with their matter as long as that person committed the alleged offence before they turned 18 (s 19(2) CCA).

Section 19B CCA states that if a person who is under the age of 18 is charged with an indictable offence then they can request to have their matter heard and tried on indictment in the District Court or Supreme Court (adult courts). However, this can only happen if the alleged offence they committed would have been tried as an indictable offence if they had committed the same offence as an adult.

The children’s Court also has the power to transfer a child’s charge to the adult Magistrates Court once they have turned 18 if that child has been charged with the same offence as an adult (s. 19(C) CCA.

Section 19(D) CCA states that if a person was charged with an indictable offence before they turned 18 but has now turned 18, the court can order the complaint to be transferred to the Magistrates Court. The court must have regard to the following matters before being able to transfer the matter. The seriousness of the offence, whether there is an adult co-offender involved, the length of time since the offence was committed and whether the child is appearing before the Children’s Court for other offences.

Bail

The police, a Justice of the Peace or an authorised officer may grant bail.Children have a qualified right to bail (Bail Act 1982 (WA) Sch 1 Pt C cl 2). However, bail may still be refused due to any of the following reasons. If the judicial officer or authorised officer believes that if the child is not kept in custody, he/she will fail to appear in court, commit an offence, interfere with a witness or obstruct the course of justice, or endanger the safety, welfare or property of any person then bail may be refused. Other reasons bail may be refused is if the judicial officer or authorised officer believe the accused needs to be held in custody for his own protection or the offence/offences are too serious for the accused to be released. Bail could also be refused if the court believes there is no responsible adult who can provide a written promise that the child will comply with the bail conditions (Bail Act 1982 (WA) Sch 1 Pt C cl 2). It is still possible for bail to be granted notwithstanding the above factors if there are special circumstances. The child’s age is an important factor when considering bail, especially if exceptional circumstances must be shown.

If the young person is refused bail, they can be held by the police until they are ready to be put into detention (YOA s. 19.) The young person must be placed in detention as soon as practicable (YOA s.19).

A responsible adult must sign a written undertaking stating a child will comply with all conditions of the Bail Undertaking before a child can be granted bail.A responsible person is usually a person who lives with the child or has very close contact with the child and it can be either a parent, relative, employer or other person the court thinks can influence the conduct of the child and provide the child with support. (Schedule 1 part C 2).

An adult surety might also be required before a child can be released on bail. A surety is a person who undertakes in writing that they will forfeit a specified amount of money if the accused fails to comply with any requirement of his bail undertaking (s.35). Other conditions such as a curfew, not to be on a railway line, not to contact the victim, to stay away from a certain place, or reporting to the police station might also be imposed.

If a child is 17 years old or over and has sufficient maturity to live independently without guidance or control from a parent, then the judicial officer or an authorised officer might agree to release the child on their own undertaking without the need for a responsible person undertaking ((Bail Act 1982 (WA) Sch 1 Pt C cl 2).

A child under the age of 17 and who does not have a responsible adult might be eligible for the Metropolitan Youth Bail Service (MYBS). An officer from the Department of Corrective Services will assess the young person to see if they are eligible for the program. If the young offender is accepted into the program they will have to reside at an approved hostel or with a responsible person approved by MYBS. The MYBS is available in all Perth metropolitan Children’s Courts and can be contacted on 9227 2500. For young people in rural areas of Western Australia who are unable to locate a responsible adult, Department of Corrective Services – Youth Justice Service of that region may be able to assist with options that are available for youth supervised bail.

Remand for treatment and observation

If a young person is appearing before the Children’s Court on a charge, the Court can remand the young person to an appropriate place for up to 21 days. This is for observation and assessment. It is also done so a report can be made in relation to the persons condition and so recommendations can be made by an expert in relation to the persons future treatment. The court must have reason to believe that the person is suffering from a mental disorder, nervous disorder or handicap before remanding the young person. A responsible adult for the young person will be given the opportunity to be heard by the court before the court makes this decision (Young Offenders Act s. 49).

Procedure on a Plea of Guilty

The child will attend court with at least one parent or a responsible adult. The Court can order a parent or responsible adult to attend Court, unless they have a reasonable excuse for not be able to attend. If you are not sure what paperwork you have received or have lost it, you should contact the court to confirm when your charge is listed in Court. The Perth Children’s Court opens at 8.30am and the Court’s Criminal Court proceedings, including the other State Children’s Courts, usually start at 10am. It is very important to attend court when appearing on a criminal charge. If you forget to attend you will not know whether a new date has been set or whether a warrant has been issued for your arrest. If you are on bail and you miss your court date, it is more likely a warrant will be issued for your arrest.

A young person attending court should come dressed in a respectable manner, wearing clean clothes and closed footwear. The first thing to do is sign in at the security desk by providing your full name. Anyone who is attending court must go through the electronic scanner, so security can make sure no dangerous objects will be taken into court. A Security Officer will tell you which court room to go to. You then proceed to the waiting area outside the court room. At some point the Security Officer will call the names of the parties to enter the court room. If the young person charged has not seen a lawyer they should ring the Children’s Court to see if a Duty Lawyer will be available or arrive at court early at about 8.30am so they can speak to a Duty Lawyer (free service). If no Duty Lawyer is available you can ask the court to adjourn (put matter off to another day) your matter so you can get legal advice. It is important to bring all court paperwork including papers that were issued to you when arrested by police.

Once in the court room the young person will be told to sit at the back of the court to wait to be called up to the bench. When called, a staff member in the court will show the young person where to sit. If a child is not represented by a lawyer the court must explain the nature of the court proceedings and ensure that the child understand this (YOA s. 44). The court may require a responsible adult to be present before it deals with the matter (s.45 YOA). The Magistrate will ask the young person to stand so the charge can be read to them. It is important for the young person to listen carefully as the charge is what the police allege what you did. The Magistrate will ask how you plead to the charge. If you plead ‘guilty’ it means “yes, I did do it”.

The young person should refer to the Magistrate as ‘Your Honour.’ After pleading guilty the police prosecutor will read the details of the offence. It is important for the young person to listen very carefully and if there is anything that they do not agree with they should tell their lawyer or the Magistrate anything they think is incorrect.

The Magistrate will then ask the Youth Justice Officer to present a copy of the child’s Criminal Record to the court. This information is first handed to the child through their lawyer where it will be checked for accuracy and then handed to the Magistrate.

The child’s lawyer will then present a plea in mitigation to the court. A ‘plea in mitigation’ is where the child’s lawyer tells the court about the child. Some things that are often mentioned are whether the child is sorry for what they have done, whether they have apologised to the victim, the child’s personal background including family background, whether the child is employed, whether a parent of the child has already taken action to punish the child, like grounding. The plea in mitigation involves explaining the offender’s circumstances to the court and to provide an explanation as to why the offender committed the offence. The plea in mitigation is relevant when the Magistrate is deciding on an appropriate sentence for the young person.

The Magistrate will also expect the lawyer to comment on sentencing. For example, whether the young person is capable of doing community work.

Character references from the child’s employer, doctor or family friend are often presented to the court and these are intended to help the child receive a more lenient sentence. A parent or guardian of the child can ask to address the court in relation to the facts or the sentence to be imposed by the court.

Court reports

The court might request a report from a Youth Justice Officer before a sentence is imposed (YOA s. 48). The details that often appear in the report include the child’s education, work history, leisure activities, their friendships and their offending behaviour and what plans the child has for the future.

The Juvenile Justice Officer is there to supervise and meet regularly with the young person and their parents and strategies are discussed to help the young person live a law abiding lifestyle. They also liaise with both government and non-government services.

The report also contains recommendations in relation to the appropriate orders that the Magistrate could make. The lawyer representing the child usually has the opportunity to read the report.

The court may be asked by a Juvenile Justice Officer or the child’s lawyer to order psychiatric or psychological reports. After the magistrate has read these reports the child, their lawyer or the child’s parent will be asked if they would like to comment on the reports, including whether they agree with the reports or whether there are additional points they would like to make.

Procedure on a Plea of Not Guilty

Pleading ‘not guilty’ means you are denying that you committed the offence, or that you believe you have a defence to the charge. Your charge is then listed for a hearing on another day that is suitable for both parties.

The child will usually, but not always, attend a pre-trial conference or directions hearing. The pre-trial conference gives the child the opportunity to change or maintain their plea. If the child does not want to plead guilty then a hearing date will be set.

At the hearing the court hears the evidence from both parties, including witnesses and then decides whether the child is guilty or not.

Evidence of children

EVIDENCE ACT 1906 section 106E says a child (person under the age of 18) is allowed to have a support person with them when they give evidence in court. The support person must be approved by the court and must not be someone who will act as a witness or is another party to the proceedings. Where a child will be giving evidence in a proceeding, the court can appoint another person to act as the child’s communicator. The person’s appointed role is to explain to the child any questions put to them and explain to the court the evidence given by the child (s. 106 F).

The Victim Support Service can be contacted on (08) 9425 2850 or Freecall 1800 818 988 if a child is a victim or witness to a crime and needs support.

Hearings

Most people as long as they are competent to give evidence at a hearing do so by oath or affirmation. An oath or affirmation is a promise you make to the court that you will tell the truth.

At a hearing the general process is as follows. The Prosecutor goes first by calling their witness. After the witness has told their story the child’s lawyer (the defence) will then cross examine the witness. The child’s lawyer will ask the witness questions with the purpose of testing the prosecution evidence. The Prosecutor then has the opportunity to re-examine their witness. They do this to clear up any matters that were raised in cross examination. This process continues until all the prosecutor’s witnesses have given evidence. Then it is the defence’s turn (the child charged is the first witness) to present their case by following the same procedure. At the end of this process both parties’ lawyers provide a closing address to the court. The Prosecutor will point out the key facts that shows the child is guilty and the defence will point out the key facts to show why the child is innocent.

The Magistrate will then decide whether the prosecution has proved beyond reasonable doubt that the child did commit the offence or offences charged with. The Magistrate will dismiss the charge and allow the child to go free if they have any doubt.

If the child is found guilty the court will then listen to what the child has to say and consider any reports about the child.

Sometimes the sentencing is adjourned to another day especially if the Magistrate needs further information before they can administer an appropriate sentence.

Juvenile Justice Team (JJT)

The Young Offenders Act 1994 Section 7 states that measures other than judicial proceedings should be preferred when dealing with young offenders in certain circumstances. Section 7 of the Act also states that a responsible adult should play an active role in the care and supervision of a young person. Further, there should be support for family members or groups who could help prevent or minimise the likelihood of the young person offending again. Another principle of juvenile justice is that some offences committed by young people should be dealt with in a way where the young person can think about accepting responsibility for their actions. The Juvenile Justice Team (JJT) operates in line with these principles of juvenile justice

The court, police and in some cases a prosecutor can refer a young person to the Juvenile Justice Team. In most cases a referral is usually done by a police officer. The referral of a young person to the Juvenile Justice Team is an alternative option to charging the young person. However, The Young Offenders Act 1994 says that If an offence can be dealt with by way of caution then a police officer should issue a caution to the young person instead of referring the young person to the JJT.

There are a number of offences that make a young offender inelligible for the JJT. These are deemed more serious offences and are listed in the Young Offenders Act as Schedule 1 or Schedule 2 offences.

To be eligible for JJT the young person must accept responsibility for the alleged offence and agree to being referred to the JJT. Once the juvenile is referred, the team notifies all other parties that will be participating in the meeting. This usually includes a responsible adult (guardian or parent) police officer, juvenile justice officer and victim.

If for some reason the JJT cannot agree on how to deal with the young offender, the JJT can instead refer the young offender to court. However, even though ther young offender as already taken responsibility for the alleged offence this cannot be used as evidence in court and it does not constitute an admission of guilt by the young offender.

At the beginning of the JJT meeting it will be explained to the young person the nature of the allegations, so they can take proper responsibility for what they have done. The victim has the opportunity to let the young person know how the young person’s actions have affected them. The young person can also discuss anything relevant to the offence.

The JJT puts in place an action plan that the young person is expected to adhere to. If the young person fulfils all their obligations in the action plan, then that is the end of the matter. If the young person does not satisfy these obligations, then the JJT has the option of referring the young person back to the police officer who did the referral or if the young person was referred by a court then back to that court and the final sentence for the young person may be worse than if they had complied with the JJT.

Interactions with Police

Many young people under the age of 18 have had contact with the police in public and some have been questioned and interviewed by police at the police station. It is very important that young people know their rights when dealing with the police.

If a police officer wants to ask a person questions without an intention to make an arrest, that person only needs to provide their name, date of birth and current address. If by choice a person being questioned decides to volunteer additional information and it appears to the police that person may have been involved in the commission of an offence, and will be charged, the police should provide that person with a caution. A caution might be ‘’you ae not obliged to speak but if you choose to, what you say may be given in evidence." For a child it may be best to say ‘’I do not wish to respond to any questions until my parents or lawyer are here.”

Arrest

If the police suspect a young person has been involved in an offence they may want to ask them questions. The police may also ask the young person to come back to the police station, so they can question them there.

A person can be arrested almost anywhere. It can be done on the street, at work or at the young person’s school or home. It can take place any time during the day or at night. The police arrest someone so they can begin the process of charging a person with an offence. The police can enter any place, including any vehicle they suspect you are in, to search you and make an arrest (CIA s.132).

There are a number of ways the police can arrest you. They can do this with a warrant issued by the court or a Justice of the Peace.

If a police officer reasonably suspects that a person has committed, is committing or is about to commit a serious offence then they can arrest that person (CIAs.128(2)).

A police officer can arrest a person for an offence that is not serious in a number of ways. Some examples are where the police reasonably suspect the following: They reasonably suspect that a person has committed, is committing or is about to commit an offence, they reasonably suspect it is the only way to verify a person’s personal details (name, date of birth and address), they reasonably suspect that a person is concealing something (e.g. weapon or spray can etc) that is relevant to an offence or they reasonably suspect a person is endangering another person’s safety (CIAs.128(3)). When a person is arrested it is important that they do not try to escape.

Rights of a person under arrest and taken into custody

Criminal Investigation Act 2006 section 137 and 138 states the rights that a person under arrest has. These rights include privacy from the media, medical treatment if needed, a reasonable opportunity to contact a friend or relative, an interpreter is allowed if the arrested person has trouble understanding English. Other rights include not having to do an interview with the police unless an interpreter is available and the opportunity to speak with a lawyer and to be warned, before being interviewed as a suspect.

A person under the age of 18 has additional rights. YOA s. 20 says if the police want to question a young person they have apprehended because of the commission of an offence, they cannot ask that young person any questions about that offence or any other offence (they can ask questions expressly authorised to ask by any other written law though ) they suspect the young person has committed unless they have ensured that a responsible adult has received notice of the intention to question the young person (YOA s20). Further, if the police have charged a young offender, a member of the Police Force is to ensure that a responsible adult is given notice of the charge as soon as is reasonably practicable. However, a notice does not have to be given to a responsible adult if after reasonable enquiry the responsible person is unable to be located.

If the police want to charge a young person with an offence, a responsible adult needs to be notified of their intention to do this, as soon is as reasonably practicable. The notice must include the whereabouts of the young person and the offence/offences the young person was apprehended for. The notice must also include the particulars in relation to which the young person will be questioned or charged (YOA s.20). This notice requirement can be waived in certain circumstances such as where police are unable to ascertain the whereabouts of a responsible adult or if it would not be appropriate to notify a responsible adult. (YOA s.20)

Police interviews

The police may want to interview a young person who has been taken into custody. A child does not have to participate in a police interview and the child is only obliged to state their name, date of birth and current address. The child should be cautioned before be interviewwed as a suspect and must be given the opportunity to contact a lawyer. If the child has problems conversing in and understanding english then the interview should not be done until an interpreter or a qualified is present ( Criminal Investigation Act 2006). If a child wishes to be interviewed by the police they have the option of doing the interview while a responsible adult is present. If the child’s responsible adult is not available another independent person can be requested. Although it is police policy to have a responsible adult present when a child is being interviewed, there is no requirement by law to do this.

Young person taken into custody and not released on bail

A young person in custody who is not released on bail, whether or not bail has been refused, is to be taken to and placed in a detention centre as soon as practicable after the person’s apprehension (YOA s. 19(2)). However, the young person may be held in the custody of police until arrangements can be made for the young person to be placed in a detention centre (YOA s.19(3)).

If the young person is appearing before a court and the court believes the young person is suffering from a mental disorder, nervous disorder or handicap the court can make an order that the young person be held for up to 21 days so assessments can be done on the young person (YOA s. 49).

A young person may also be detained in a detention centre during the period for which the person has been remanded by a court, or during the period of the person’s detention on committal for trial in the Supreme Court or the District Court (YOA s. 21).

If a young person reaches the age of 18 years while detained in a detention centre, the court, upon the application of the Chief Executive Officer, may direct that the person be transferred to a prison and treated as an adult prisoner on remand.

Searches (basic and strip-search)

If an officer reasonably suspects that a person has in his or her possession or under his or her control something relevant to an offence ( e.g. spray paint, knife, drugs, mobile phone), the officer can do a basic search or a strip search of the person (CIA s 68). A thing relevant to an offence is anything that is intended to be used, obtained, has been used or may afford evidence of an offence (CIA s.5).

An officer has wide powers to seize things relevant to an offence, whether or not it is a thing that the officer suspected was in the possession or under the control of the person ( CIA s. 68). The officer may enter any place where the person to be searched is reasonably suspected to be and search for the person. However, they must not enter a dwelling (e.g. persons home) or an area associated with a dwelling unless the police officer reasonably suspects the person is in that area, does not reside in that dwelling and does not have the permission from a person who does reside in the dwelling to be in that area ( CIA s 68).

An officer can stop and enter a vehicle in which the person to be searched is reasonably suspected and conduct a search. An officer has the power to stop and enter a vehicle in which the person to be searched is reasonably suspected by the officer to be. This power may be exercised by an officer in the area associated with a dwelling but only if the officer reasonably suspects that the person in charge of the vehicle does not reside in the dwelling and the vehicle is not in that area with the express or implied permission of a person who does reside in the dwelling (CIA s. 68).

A basic search and a strip search are two types of searches that can be done. A basic search involves things such as an electronic scan, frisk search, removing the person’s headwear, gloves, footwear or outer clothing (like a coat or jacket) but not the inner clothing or underwear (CIA s.63).

A strip search involves the removal of a person’s clothing or anything they are wearing. This also includes anything covering the person’s private parts. The person’s mouth can also be searched but not any other orifice. (CIA s.64).

The standard rules for a basic search and a strip search are as follows. The searcher must, if reasonably practicable do all of the following things: identify himself or herself to the person, let the person know the reason for the search, ask the person to consent to the search, if the person does not agree to the search tell them that it is an offence to obstruct the person doing the search (CIA s 70). A basic search if practicable needs to be done by a person of the same gender as the person being searched (CIA s. 71). The following are further requirements that must be complied with pursuant to Section 70(3) of the Act. A search needs to be done as quickly as is reasonably practicable. A search must not be any more intrusive than is reasonably necessary in the circumstances. If the searcher is going to remove anything the person is wearing, they must tell the person why it is considered necessary to do so. The person must be allowed to dress as soon as the search is finished. The person must be provided with a reasonably adequate replacement for any clothing or footwear seized, if the person is left without adequate clothing or footwear. The person must not be questioned while the search is being done about any offence that they are suspected of having committed.

The following requirements stated in Section 72 of the Act provide for additional rules in relation to a strip search. Unless the strip search is being done on a person in custody, it cannot be done unless the searcher reasonably suspects that it is necessary in the circumstances. If a strip search involves removing anything the person is wearing or searching the person’s private parts they must be of the same gender as the person being searched, unless the searcher is a doctor or a nurse. Any person present must, if practicable, be of the same gender as the person being searched. The search must a be done in circumstances providing reasonable privacy to the person. The search must not involve the removal of more articles/clothes being worn by the person than is reasonably necessary. It must not involve more visual inspection than is reasonably necessary. The number of people present while the search is done must not be more than is reasonable (excluding a responsible person present or a support person), there must not be more people present than is reasonably necessary to ensure the search is done effectively and to ensure the safety of everyone present. If the person is a protected person (protected person means a person who is under 18 or an incapable person ( CIA s. 73) , it must, if practicable, be done in the presence of a responsible person or another person who can provide the protected person with support and represent his or her interests.

Prosecuting a young person

If a police officer reasonably believes a person under the age of 18 has committed an offence or is about to commit an offence, the police officer must consider a number of options when dealing with the young person before prosecuting them.

The police need to consider whether it would be appropriate to provide the young person with a caution instead of charging them. The caution needs to be verbal or written. The police keep a record of cautions issued. However, the (YOA s.22) states a caution may not be given for Schedule 1 or Schedule 2 offences as these offences are deemed to be too serious to be dealt with by way of caution. Refer to the Young Offenders Act 1994 for the list of Schedule 1 or Schedule 2 offences.

The police also need to consider whether it would be appropriate under the circumstances to refer the young person to the Juvenile Justice Team (see chapter on JJT) as an alternative to laying charges.

A police officer must also decide whether it is appropriate under the circumstances to charge the young person. That might involve charging the young person without detaining them or charging the young person and releasing them while the JJT is considering the young person’s matter.

In some circumstances the police may charge and release the young person on bail. If the young person fails to appear in court at the time they are supposed to, then the court may issue a warrant for the young person’s arrest. The young person may then be detained in custody until they are next due to appear in court (Bail Act 1982 s. 59B). In some circumstances the police may decide to detain the young person without releasing them on bail.

When charging a young person a notice to attend court should be used in preference to a summons (YOA s. 42).

Sentencing options

The Children’s Court can refer a young offender to the Juvenile Justice Team (JJT). The JJT offer an alternative way to deal with young people who have committed offences or may be in the early stages of offending. The court should refer young offender to the JJT when they have no prior offences and the offence is not a Schedule 1 or 2 offence listed in the Young Offenders Act 1994 WA. If the young person is facing a number of charges where some cannot be referred to the JJT, the court can still refer some of the charges as long as they are eligible for JJT. For more information refer to Juvenile Justice Teams mentioned above.

Court conferencing

Court Conferencing is a program designed for young offenders who have committed serious offences (Schedule 1 or 2 offences) and who cannot be referred to the Juvenile Justice Team. Very serious offences including sexual offences cannot be referred to Court Conferencing. The young offender must plead guilty to the offence before being eligible for the program. The court then adjourns the sentence (YOA s. 68) for 12 weeks. A meeting is then held with the young person, victim, police officer and juvenile justice officer. An action plan is put together and there will be punitive requirements imposed on the young offender which could include things like paying money to a charity or writing an essay. If the young offender complies with all the requirements of the program the Magistrate will usually deal with the matter under (s. 67 YOA) where no further action will be taken and no conviction recorded.

The Court can dismiss matter with no punishment

The court may choose not to punish the young person for their actions. The court does not have this option if the young person has committed 3 offences or more. However, if the young person has committed multiple offences that relate to one incident then the multiple offences will be treated as only one (YOA s. 66).

YOA section 67 gives the court the power not to punish the offender if it is satisfied that the young offender or a responsible adult has provided an undertaking to the court that the court approves of, or a responsible adult has or will punish the young offender in a manner that the court approves of.

Before the court decides whether to refrain from punishing the young offender, the court can adjourn the matter until the responsible adult has administered the punishment or the undertakings have been given or fulfilled (YOA section 68).

No punishment but security or recognisance

If a young person agrees to keep the peace and behave for a period of up to 12 months then the court can impose a Good Behaviour Bond with or without a surety. The court will impose an amount that they think is appropriate. If the child re-offends or breaches the peace then they must pay the prescribed amount. The child usually needs to have the capacity to pay the bond. However, if the child breaches the peace or reoffends, Community Service Work might be imposed instead. The child does not record a conviction for less serious offences (non Schedule offences) unless there are exceptional reasons for doing so ( YOA s. 55 (2)). However, the child will record a conviction for more serious offences (Schedule 1 or 2 offences) unless exceptional circumstances can be established. If a child receives a conviction it will be ‘spent’ (spent conviction means the disclosure of that conviction is limited) 2 years after the end of the good behaviour bond (s. 189(2)).

No punishment - responsible adult bond

The court may ask a responsible adult to enter into a bond, instead of the child. The responsible adult gives security (the amount of money set by the court) and promises that the young offender will keep the peace and be of good behaviour for a period up to 12 months. If the child fails to keep the peace or re-offends, the responsible adult will forfeit the monetary amount set by the court. The young offender does not record a conviction unless there are exceptional reasons for doing so (YOA s. 55(2)). If the young offender has committed a Schedule 1 or 2 offence then a conviction will be recorded unless the court is satisfied there are exceptional reasons not to do so (YOA s 55(1)). Any conviction the young offender gets will be spent 2 years after the end of the Good Behaviour Bond (s. 189(2)).

Fine

If a young person has committed an offence that is punishable by imprisonment, the Court can order the offender to pay a fine up to the sum $2000 instead of sentencing the young offender to imprisonment (YOA s. 71). A fine can only be imposed if the offender has the means to pay. The court makes enquiries to determine whether the offender has the capacity to pay the fine before making an Order (YOA s. 72).

If the child received a fine before they were 18 and they are still under the age of 18, the court will specify a time that the fine must be paid or allow the young person to pay by installments (YOA s. 65 (2)).

If the person is under the age of 18 and they default on payment they will receive a Notice to Attend Court unless sufficient cause to the contrary is shown ( s. 65). The court will usually ask the defaulter whether they would agree to a Community Work Order being made instead of having to pay the fine ( YOA s. 65A). If the defaulter agrees, a Community Work Order will be made so the young offender can do community work in respect to the unpaid amount concerned. If the defaulter does not agree to a Community Work Order then an Order for Detention of the young person may be made unless sufficient cause to the contrary is shown (YOA s.65A).

If the young person received the fine before they were 18 and have now turned 18 and have defaulted in any payment, the fine will be registered with the Fines Enforcement Registry unless a Community Work Order or a Detention Order has been made, or unless sufficient cause to the contrary is shown ( YOA s. 65).

If a young person has reached the age of 18 when they were fined the offender can apply to the court for a Time to Pay Order (YOA s. 64(2, Fines Penalties and Infringement Notices Act 1994 s 32(2)) if they are not able to pay the fine within 28 days from when it was imposed 32(2). The court must ensure that any payment to be made under the Order is within the offender’s means to pay it. (Fines, Penalties and Infringement Notices Enforcement Act 1994 (s. 35A)). If the offender has been given a Time to Pay Order but does not pay the fine at the required time then register can make order to attend for work and development ( s. 47A), make a license suspension order or issue an enforcement warrant in respect of the offender (s. 42).

Compensation restitution

When a young person has been found guilty of an offence, the Prosecutor may apply to the court for an Order of Compensation or Restitution to any person who has suffered damage or loss caused by the offence (YOA s. 56(1)). The Court can make an Order for a monetary sum that the court thinks reasonable and can ask the offender to pay in lump sum or by instalments. The court must have regard to the means of the person against whom the order is made and whether that person has the capacity to pay (YOA s. 56(2).

If the Court makes an Order, payment is made to the Registry of the Court and the Registry will then transmit the payment to the victim/payee ( YOA s. 56(3)).

The person has 28 days from when the Order was made to make payment. If they do not make payment the victim/payee can lodge a certificate copy of the Order with an affidavit stating to what extent the Order has not been complied with. There is no fee involved when doing this. Once lodged, the Order is seen as judgment of the court and may be enforced accordingly. (SENTENCING ACT 1995 section 119). The victim/payee may not want to take further action though.

When a young person is found guilty of an offence and a compensation, fines or or restitution is ordered, the Court can make an Order for the young person to the pay costs in relation to the proceedings as well. The Court will consider a person's financial position and capacity to pay (YOA s. 57)

The Court may order that a responsible adult pay any compensation, restitution or costs where the young person defaults on these payments ( YOA s. 58). The Court will have regard to the responsible adult’s financial circumstances before making an Order that they pay.

Conditional Release Order (CRO)

A CRO is the same as an IYSO, but with possible detention in default if the offender breaches the Order. An IYSO must have a supervision condition and the standard conditions are that the young person not re-offend, must comply with the directions of the supervising officer and not to move to a new residential address without the supervisor's permission (YOA s. 109)

A Conditional Release Order must not exceed 12 months ( YOA s. 107). The Order will cease to have effect when the sentence of detention would have expired ( YOA s105) or when discharged or cancelled by the court. If there is more than one sentence of detention, the Order will cease to have effect when either sentence of detention expires ( YOA s106). If a custodial sentence is imposed, or the offence is listed as a Schedule 1 or 2 offence, a conviction must be recorded unless the court is satisfied there are exceptional reasons for not doing so ( YOA s55(1)).

Youth Community Based Order (YCBO)

A court can make a Youth Community Based Order imposing attendance conditions, community work conditions, supervision conditions or any other conditions it deems necessary. Any Order that is made by the court must state clearly the conditions it imposes on the young offender. An Order can only be made if the offender agrees to it and the court thinks the Order would be appropriate under the circumstances (YOA s. 74). A Youth Community Based Order comes to an end when the offender has satisfied all the conditions in the Order and the period which the Order imposes supervision conditions has ended. The Court also has the power to cancel the Order even if the person bound by the Order has not satisfied all the requirements YOA76(2). Further the Court has the power to cancel the current Order and make a new Order in its place or amend an Order (s. 80). If a person bound by a YCBO does not follow the conditions in the Order, or commits an offence while they are on a YCBO, the court can deal with this in a number of ways. If there has been a failure to comply with a condition in the Order the Court may order that no action be taken (only if trivial in nature), amend the Order or cancel the Order and apply a different sentence that was available to the Court when it found the offender guilty (s. 83).

If a person is subject to a YCBO because they committed an offence but then commits another offence, the Court has the power to cancel the original YCBO and make a new one that covers both offences (s. 85).

An Order can have one or more of the following conditions:

Attendance conditions

The Court can order a person to attend educational or rehabilitation programs. However, this must not be for more than 6 months. The place of attendance must not be further than 30km away from the participants home and cannot order the person to attend for any continuous period that lasts more than 7 days (s. 88).

Community work conditions

The offender will have to do unpaid work for a specified number of hours. This can range from 10 hours up to 100 hours. The work must be completed within 3 months from when the Order was made and the work is supervised ( s. 92). The supervisor must take into consideration the offender’s other commitments like school, or whether the young person has work commitments when giving orders. Community work cannot be imposed on anyone under the age of 12 (s. 90).

Supervision conditions

The offender is required to report, submit to supervision and any other contact and to comply with such other requirements that are specified in the Order (s. 95). The maximum period the young offender can be supervised is 12 months. Only a Judge has the power to make this this condition longer but it must not be for a period longer than two years.

Intensive Youth Supervision Order (IVSO)

The provisions applying to a Youth Community Based Order also apply to an Intensive Supervision Order without detention, unless otherwise specified ( YOA s. 100)

If any condition of a Youth Community Based Order or Intensive Youth Supervision Order without detention is not complied with or observed, the offender may receive a Notice to attend Court so the breach can be dealt with ( YOA s82). If the child re-offends while the order is in force then the child has breached the order ( YOA s83(1)). The child is also in breach if the court finds that the young person failed to comply with any condition of the order (YOA s83)).

The court can do the following things in relation to a breach (YOA s83(2)): If the child's failure to comply with the order was trivial the court may take no further action, the court can amend the order, or cancel the order and deal with the offender any way, including making a new YCBO or IYSO without detention.

In relation to a Conditional Release Order, the child will receive a Notice to attend Court if any condition of a CRO is not observed (YOA s113) . If the young person re-offended while the Order was in force then they are in breach of the Order ( YOA s114(1)). The child will also be in breach of the Order if the court finds that the young person failed to comply with any condition of the Order while it was in force ( YOA s114(1)).

If offender is to be breached for re-offending during order, proceedings for the offence must be commenced within 6 months of the CRO expiring (s115(a))

If offender is to be breached for failing to comply with any condition of the order, the notice alleging the breach must be issued while the CRO is in force and the court must find that the young person failed to comply, within 6 months of the CRO expiring (s115(b)).

Drug Court

The aim of Drug Court is to encourage people with an illicit drug dependency to seek treatment for rehabilitation purposes and to reduce criminal behaviour . The Drug Court at the Perth Children’s Court sits every second Friday. Children living in WA but outside the metropolitan area can apply to be referred to the court.

To be eligible for Drug Court the young person must indicate a plea of guilty to their charges, admit that they have an illicit drug dependency and be willing to engage in drug treatment. They must also be facing current charges that relate to an illicit drug dependency.

A Magistrate at the Children’s Court decides whether the young person is suitable to be assessed by the Drug Court. If the young person is deemed not suitable, then the Magistrate can deal with the charges in the usual way.

If the young person is found suitable for Drug Court, the Magistrate will then put the charges on hold and place the young person on bail. During this 4 weeks the young person will be assessed by the Court Assessment and Treatment Service (CATS) and they often have to comply with specific conditions. The usual conditions include urine tests, obeying a curfew, staying in close contact with their CATS Officer and counselling. If the person is on bail these conditions are usually mandatory and if the young person does not comply with any conditions that the Magistrate has asked them to fulfil, they may have to return to the Drug Court to be sentenced immediately. If all conditions are complied with then the young person should be accepted into one of the Drug Court programs. Once the young person completes the Drug Court program they then return to Court to be sentenced. If the young person has done the right thing while on the program their sentence is likely to be much better than the sentence they would have received if they had not completed the program.

A person can leave the program at any time but the consequence is that they will be sentenced in the usual way and this can sometimes include a sentence of detention.

Cyrenian House offers support to parents and carers who need some support for dealing with someone who has a drug or alcohol problem.

Custodial sentence

An Order for the Detention of a young person can only be used by the Court as a sentence of last resort. The Court must state in writing why it is the only appropriate way to dispose of the matter (YOA s. 120). A sentence of detention must not be longer than 6 months if the offender is under the age of 18 (YOA s.118).

If the young person has already spent time in custody for the offence that they are being sentenced for then the Court can take this into consideration and reduce the period of detention that the offender will have to serve (YOA s.119).

If an offender is over the age of 16, the Court on the application of the Chief Executive Officer can move the child from a Detention centre to a prison. However, the Court can only do this if it has a very good reason. An example of a good reason would be where the child is putting the safety of other detained children and risk (YOA s. 178). A child will generally be assessed for a Supervised Release Order after serving half of the sentence of detention.

Special orders s 124 - 126

The Court can usually only detain a child as a sentence of last resort and for no longer than 6 months. However, the Court does have special powers to deal with young people who repeatedly commit serious offences. A serious offence includes a Schedule 2 offence (listed in YOA), an offence pursuant to section 401 of the WA Criminal Code.

If the young offender has served two separate custodial sentences for a serious crime and is in Court for an offence that would result in a third custodial sentence, the Court can then make a Special Order against the child if it is highly likely they will commit another serious offence resulting in a custodial sentence.

A Special Order can only be made if the Director of Public Prosecutions makes a submission to the Children’s Court explaining why a Special Order is needed (YOA s. 126). If a Special Order is made, the offender must serve 18 months in addition to the custodial sentence of either detention or imprisonment (YOA s. 128). Once 12 months has elapsed the offender will be eligible for release under a Supervised Release Order (YOA s.128).

A Special Order cannot be made by a Magistrate and must go before the President of the Children’s Court (YOA s. 126(5)). The offender or Chief Executive Officer can ask for a review 3 months after the Special Order was made but the Attorney General must agree to a review before it can be done (YOA s.129).

Adult orders that can apply to children

The Young Offenders Act 1994 Section 50A says if a person is aged 17 but under the age of 18 at time of sentencing then the Children’s Court can apply an adult Community Based Order in the sentencing Act 1995. YOA Section 50B says if the person committed an offence under the age of 18 but is aged 18 at the time of sentencing, then the sentencing options in part 5 of the Sentencing Act apply but the principles of juvenile justice must still be taken into consideration.

Conditional Release Order (Sentencing Act 1995 Section 47)

A CRO can only be imposed if the court reasonably believes the offender will not reoffend and supervision of the offender is not needed. A CRO must not last longer than 24 months and the offender must follow specific requirements. The court can place a broad range of requirements on the offender. The court also has the power to prohibit the offender from being released until the offender or a surety has provided a written undertaking that a monetary amount will be provided to the court, or a monetary amount of money will be deposited and forfeited to the court in the event the offender does not comply with the CRO, or reoffends while CRO is in place. If an offender refuses to provide a written undertaking the court may fine the offender, instead of ordering a CRO.

Communiy Based Order (Sentencing Act Section 61)

A CBO must last at least 6 months but no longer than 24 months.
The offender must comply with standard conditions that include reporting to a specific place within 72 hours after being released, notifying a Community Corrections Officer (CCO) of a change of their address or employment and the offender must not leave Western Australia without the CEO’s permission.

If the court imposes a CBO, the order must include either a supervision requirement (offender must stay in contact with a Community Corrections Officer, or a programme requirement (attend educational, vocational or personal development programmes) or a community service requirement (doing unpaid community work from a minimum of 10 hours up to a maximum of 120 hours).

Intensive Supervision Order (Sentencing Act Section 68)

An ISO must be made by the court and the order must last for at least 6 months but no longer than 24 months (s.69(6)).
An ISO can only be made if the court has received a Pre-sentence Report in relation to the offender.

A person subjected to an ISO will be supervised by a Community Corrections Officer (CCO). The CCO can order the offender to be in contact with them at specified times (section 71). Unless an ISO says otherwise, an offender must contact the CCO at least once every 28 days, otherwise they have breached the Order (Section 71).

An ISO must have a program requirement, a community service requirement or a curfew requirement or, it can include all three requirements (s73).

For a program requirement the offender must obey any Orders given by a CCO. Typical Orders include treatment of the offender (but only if an expert has recommended it), to attending educational workshops or to live at a certain place.

A Community Service requirement involves doing unpaid work for a minimum of 40 hours up to a maximum 240 hours. The offender must do a minimum of 12 hours of this work in any 7-day period.

A Curfew requires an offender to remain at a specified place for a specific period of time or to submit to surveillance or monitoring as ordered by a CCO. The curfew must not last longer than 6 months. If an offender has to remain at a specific place it must be for at least two hours and must not be longer than 12 hours on any day. If the offender has permission from the Community Corrections Officer, or needs to go to work, or is at risk of injury or death, or needs urgent medical treatment they are allowed to leave the place they have been ordered to stay at (s. 75(8)).

Imprisonment/suspended imprisonment

A Magistrate in the Children’s Court cannot order a term of detention for longer than 6 months. They cannot impose a sentence of imprisonment more than 3 months if the offender is under 18, nor can they impose a term of imprisonment for more than 6 months if the offender is 18 ( CCWA section 21 AND YOA s118(2)). However, if a magistrate is presiding over a matter where the sentence imposed is likely to be longer than what they are allowed to order, then the matter will have to be dealt with by the President of the Children’s Court who can impose a longer sentence (s. 21(5)),

The Court also has the power to sentence the offender to indefinite imprisonment ( YOA s.118(3)) though a Magistrate of the Children’s Court cannot do this.

Section 118(5) of the Young Offender’s Act 1994 says the Sentencing Act 1995 applies to a young person if the statutory penalty for an offence is imprisonment and the court dealing with the offender decides to impose a custodial sentence. This means the Children’s Court can impose a Suspended Term of Imprisonment on the young offender pursuant to the Act ( SA s. 76). This means the young offender does not serve any part of the sentence that has been suspended ( SA s.77). If the young offender commits another offence during the suspension period where the statutory penalty is or includes imprisonment, or the court makes an Order under Section 80 (in relation to re-offenders) then the young person will be imprisoned ( SA s. 77).

Re-hearing reviews and appeals

If an Order is made under the CHILDREN'S COURT OF WESTERN AUSTRALIA ACT 1988 in relation to a child in the absence of their parent or guardian, the Order can be set aside by the court if reasonable notice of the charge or application was not provided to the parent or guardian. Before an Order can be set aside the parent or guardian must apply to the court within three months from when the Order was made. This time frame can be extended by the court if there are exceptional circumstances (s. 27).

The President of the Children’s Court can order a review of any original proceedings in which an Order was made against a person under the age of 18 that was made under the Young Offenders Act 1994 or the Children and Community Services Act 2004. However, this does not apply to an Order made following conviction on indictment (s. 28). An Order for a Review can also be made by the following people: A CEO of the Department of the Public Service , or a parent or guardian of the young person against whom an Order may be made in the proceedings, or the young person to whom the proceedings relates to, or the prosecutor who is involved in the proceedings (s.28). If a Review of an Order is granted the court has the power to set aside or vary any finding or Order that was made in the original proceeding. The court may also make any finding or order which it could have made in the original proceeding (s. 28(3). At the rehearing no new evidence can be admitted unless the court thinks there are good reasons reasons to do so (s. 28(4)).

The President of the Children’s Court on its own motion or upon the application of the child, or the CEO of the Department of the Public Service or by the Prosecutor can apply to have an order reconsidered. The President has the power to confirm the original Order, or dismiss the original order and make any new order that the court could have made in relation to the offence ( s.40). The child or the CEO must put in their application within one month from when the original order was made, or it cannot be reconsidered. The CEO can put in an application at any time (s.40(2).

Appeals to the Supreme Court or Court of Appeal can also be made under section 41 to section 43.

Section 41 states that Appeals against a decision of a Magistrate can be made to the Supreme Court.

Section 42 states an Appeal can be made to the Supreme Court in relation to any finding, order or other decision not made by a Judge in relation to a hearing of an Application under Part 4 or 5 of the Children and Community Services Act 2004. Part 4 relates to Orders made in relation to protection and care of children and part 5 relates to orders in relation to protection proceedings for children.

Section 42A states that decisions from the District Court and Supreme Court in relation to criminal matters can be appealed to the Court of Appeal.

Appeals to the Court of Appeal can also be made in relation to Part 4 or 5 of the Children and Community Services Act 2004 (s. 43).

Road traffic offences and mandatory licence disqualification

The Road Traffic (Authorisation to Drive) Act 2008 section 16 says that Provisional licence holders (“P-platers”) who commit specified offences automatically have their licence cancelled and are required to re-sit their test. This also applies to Provisional Licence holders who have had their licence disqualified. They will be disqualified from holding or obtaining a licence for 3 months or for the duration/period of any disqualification.

If you are the victim

Interactions with police

The police are well trained to deal with victims of crime. If you are the victim of a crime you should report the crime to the Police. If it is an emergency, call 000. Otherwise you can either go to the nearest police station or call 131 444.
For victims of sexual assault, the Sexual Assault Resource Centre operates a 24 hour emergency hotline and they can be contacted on 08 9340 1828 or 1800 199 888.

Your rights

Once the accused has been charged and the matter is proceeding through the legal system a victim has the right to be updated and informed about the matter. The victim can do this by contacting the police who are investigating the matter. Alternatively, the Victim Support Service is available to keep victims informed about the matter.

General information for the victim

When a person is charged with a crime they are then called the ‘accused’ . If the person who is charged is under the age of 18, the police may give the accused a caution, refer them to the Juvenile Justice Team or they will receive a Notice to Attend Court.

If the accused is an adult they will usually have to appear in the Magistrates Court. However, if the charge is of a serious nature then the matter will be dealt with by one of the superior courts (that is the District or Supreme Court).

If the accused pleads guilty to their charges the victim does not have to attend court. However, the victim may want to sit in court as a member of the public to hear the sentencing. Further, the DPP or the Child Witness Service can tell the victim the sentencing outcome. The victim may also be asked to provide the judge with a Victim Impact Statement.

If the accused pleads not guilty, a date for the trial will be set. If the victim is served with a Witness Summons they will have to attend court to provide evidence as a witness. If the victim does not attend court at the time they are supposed to they are committing an offence. If there is a good reason for not being able to attend court, the police officer in charge of the case must be notified as soon as possible so a new trial can be set.

Sometimes a young person who is a victim will feel anxious about having to attend court. If the accused is aged 18 or over then the trial will take place in one of the adult courts. The victim is allowed to make an application to the court in relation to giving their evidence in a separate room. This application can also include a request to have a support person present when they give their evidence.

When the Magistrate or Judge is deciding on the appropriate sentence for the accused, the victim has no say in the kind of sentence it should be. However, a victim does have the right to submit a Victim Impact Statement to the Magistrate or Judge explaining the impact the crime has had on the victim and this statement can being taken into consideration when deciding on an appropriate sentence for the accused.

Where to get help

The Victim Support Service

If your child has been the victim of an assault or robbery or has witnessed a crime you can speak with a counsellor from the Victim Support Service, phone (08) 9425 2850 or Free call 1800 818 988.

Child Witness Service

The police, government agency or a caregiver can refer a child to the CWS. The CWS assists children under the age of 18 who may need to give evidence in court as a victim or witness. The CWS aims to reduce the trauma for a young person giving evidence in court, assess the young person to establish the child’s needs when giving evidence in court, liaise with the Director of Public Prosecutions and police so the child and their family can be updated about the progress of the matter through the court. The CWS also helps the child prepare a Victim Impact Statement if needed. The CWS does not offer counselling but can refer clients to appropriate counselling services. Referrals should be made by calling the CWS on (08) 9425 2850.

Counselling services

The Department of Child Protection and the Princess Margaret Hospital Child Protection Unit offers counselling to children who are victims of abuse.
Kids Help Line: for people aged between 5 and 25. Can be contacted on 1800 551 8000.

Criminal defences

There are a number of different defences a person who has been charged can raise. A successful defence might reduce the offence they have been charged with to a lesser offence or it may lead to an acquittal. The following are some of the main defences that apply to criminal offences committed in Western Australia. Once a defence is raised it is up to the prosecution to disprove the defence the defence beyond reasonable doubt.

Provocation

Provocation consists of any wrongful act or insult of such a nature that is likely to cause an ordinary person to deprive themselves the power of self-control, and to induce that person to assault the person who provoked them. Assault must be an element of the offence before a person can rely on the defence of provocation ( s. 245). For example, the defence of provocation cannot be raised in relation to grievous bodily harm because assault is not an element of that offence. Another requirement is that the defence can only apply if a person acted suddenly to the provocation and before there is time for their passion to cool. The accused’s force must also be proportionate to the provocation ( s. 246). An act done lawfully can never be provocation (s. 245).

Self-defence

The defence of self defence may be established if the following can be demonstrated. The person believes the act was necessary to defend themselves or another person from a harmful act. This includes a harmful act that is not imminent. The harmful act committed was a reasonable response and the person who committed the act believes it was a reasonable way to act. There must also be reasonable grounds for the person to believe that their response was reasonable ( s.248). If a person murders someone in self defence they will be guilty of the offence of manslaughter and not murder.

Insanity

A person is presumed to be of sound mind until it is proven otherwise ( s. 26). A person cannot be held criminally responsible for an act or omission due to unsoundness of mind (recognised mental disorder) if at the time of doing the act or making the omission the person did not have the capacity to understand what they were doing, or have the capacity to control their actions, or the capacity to know that they ought not to do the act or make the omission ( s. 27).

Intoxication

If a person commits an offence because their mind was influenced by drugs and alcohol then there is usually no answer to a criminal charge. However, the defence of insanity ( s. 28) applies to a person whose mind is unintentionally ( the person can’t have done this deliberately) disordered by intoxication or stupeficaction caused by drugs, liquor, or by any other means.

When intention is a specific element of an offence, then intoxication whether intentional or unintentional may be taken into consideration to determine whether in fact the intent existed.

Alibi

Alibi evidence is used to show that the accused was not at the place where the crime took place. The accused can give this evidence or other witnesses. If the accused intends to give or adduce any alibi evidence written notice of the alibi evidence must be provided to the prosecutor at least 14 days before the trial date (Criminal Procedure Act 2004 section 62).

Infancy

A person under the age of 10 cannot be held criminally responsible for any act or omission. A child under the age of 14 can only be held criminally responsible if the prosecution can prove that the child (at the time of doing the act or making the omission) had the capacity to know that they should have not of done the act or make the omission ( s. 29).

Acting under lawful authority

A person cannot be criminally responsible for acts done in execution or obedience of the law ( s. 31).

Duress

To establish the defense of duress the accused must believe that a threat was made, The threat will be carried out unless an offence is committed and doing the act or making the omission is necessary to prevent the threat from being carried out. The act or omission must be a reasonable response to the threat in the circumstances as the person believes them to be and there must be reasonable grounds for those beliefs. If the accused has conspired to enter into an illegal arrangement with the person who made the threat then this offence cannot be established ( s. 32).

Ignorance of law/honest claim of right

It is not a defence for an offender to say they did not understand the law when they committed an offence. However, if knowledge of the law is an element that the prosecution must prove to establish a defence, then in these circumstances the person charged may say they did not have that knowledge of the law when they commited the offence or that they had a legitimate claim to the property they stole when they committed the offence (s. 22).

Unwilled acts or omissions

An accused cannot be held criminally responsible for their actions or their failure to do something that occurs independently of their will. There are some exceptions to this defence. An exception to this rule is where there was a deliberate application of force and an abnormality, defect or weakness on the part of the victim results in the more serious injury of death or grievous bodily harm. Another example might be where a person has a dangerous thing in their hand (e.g. fire stick) that could endanger the health, safety or life of another person. The person holding the dangerous thing must take reasonable care and reasonable precautions to avoid any danger otherwise they will be held liable for injuring the other person (crim code s. 266).

Mistake of fact

Where a person does something wrong they may not be criminally responsible for their actions if what they did or failed to do was an honest and reasonable mistake (s. 24). For example, if a person has been charged with sexual penetration of a child under 16, it is a defence to the charge if the offender can prove there were reasonable grounds to believe the child was aged 16 and over, or that the accused person was not more than three years older than the child (Crim code s. 321). However, this defence can never apply where the child was under 13.

Emergency

If a person commits an act or fails to act when they are supposed to by law, then they will not be responsible for their act or omission if it was because of a sudden and extraordinary emergency. However, there must be reasonable grounds for the act or omission and the person must have acted in a reasonable way ( s. 25).

Defence of home invasion

An accused is allowed to use any force they believe, on reasonable grounds, to be necessary to protect their dwelling (s. 244)

Defence of property

An accused is entitled in certain circumstances to defend their moveable property against trespassers (ss251, s252, s253).