Should Minors Charged with Serious Offences be Released on Bail?

The issue of minors committing criminal offences has been in the spotlight after the recent incident where a 16-year-old was charged with sexual assault after the alleged gang rape of a 14-year-old girl in Sydney’s west.

Sexual offences perpetrated by minors against other minors are dealt with differently from offences committed by adults, depending on the age of the defendant and the severity of the alleged offence.

The 16-year-old was refused bail and didn’t apply to Parramatta Children’s Court for further consideration, so he will remain in custody until his scheduled court appearance.

What age are children considered criminally responsible?

According to NSW law, children can be considered to be criminally responsible for an offence they commit from the age of 10.

If a child is charged with a crime and they were between the ages of 10 and 14 when the crime was committed, the prosecution will need to be able to prove that they knew what they were doing was wrong.

If it is shown that a child did know that what they were doing was wrong at the time they committed a criminal offence, they can be convicted through the children’s court.

What are the bail regulations regarding serious offences?

The process of granting or refusing bail is governed by the NSW Bail Act 2013.

Recent changes to bail legislation mean that rather than the previous system of certain offences having a presumption for or against bail, cases are judged on their individual circumstances and the perceived risk to the community of releasing an alleged offender.

Rather than taking a blanket approach to whether or not to refuse bail, judges and magistrates are now required to look at whether the alleged offender poses an unacceptable risk to the community or themselves if they are released, along with the likelihood that they will interfere with witnesses or evidence.

They will also be assessed as to their likelihood of attending court on the nominated date.

Are children eligible to receive bail?

Although the 16-year-old in the above case was refused bail, generally young people have the same right to be granted bail as adults.

Bail is more likely to be granted if the alleged offender is perceived to be less of a threat to the community.

As sexual assault is considered to be a more serious offence it can be more difficult for an alleged offender to be granted bail. If a minor is refused bail by the police, they are entitled to appear before court (in this case Parramatta Children’s Court) to request bail from a magistrate at the earliest possible date.

Although commonly defendants are required to have someone post money as security that they will abide by their bail conditions, children who are on bail are often given strict conditions they will be required to adhere to instead.

Sometimes these conditions, such as a 24-hour curfew (which amounts to home detention), can be onerous and disruptive to their education.

How will the court decide whether or not to grant a minor bail?

When deciding whether or not to grant bail to an alleged offender under the age of 18, the court will take into consideration the same factors as they would for an adult as well as any additional factors which might be significant.

Age plays an important part in how criminally responsible they are perceived to be for their alleged crime.

The closer in age the defendant is to 18, the more likely it is that they will be viewed as being responsible and aware that what they were doing was wrong.

Other special circumstances can include the defendant’s family situation and living arrangements, whether they have any special needs, and any mental or physical health conditions they might have.

If bail is granted, the defendant will be required to live at a nominated address under certain conditions.

If it is refused, the young person will be required to remain at a detention centre, or in custody, until the date of their hearing.

If a minor has been refused bail and wishes to apply to the children’s court for consideration, it’s a good idea for them and their parents or guardians to seek legal advice.

Anybody seeking bail should try to present the strongest possible case in front of the magistrate and having experienced legal help from a specialist criminal defence lawyer can make the difference between bail being granted or refused.