New South Wales Consolidated Acts

CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987 - SECT 19

19 Court may direct imprisonment to be served as a juvenile offender

(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender.

Note 1 : The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987 .

Note 2 : Section 9A of the Children (Detention Centres) Act 1987 provides that persons who are 18 years of age or older are not to be detained in a detention centre in certain circumstances.

(1A) In the case of a person of or above the age of 18 years who is serving, or has previously served, the whole or any part of a term of imprisonment in a correctional centre, such an order may not be made unless the court decides that there are special circumstances justifying detention of the person as a juvenile offender.

(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless--

(a) in the case of a sentence for which a non-parole period has been set--the non-parole period will end within 6 months after the person has attained that age, or

(b) in the case of a sentence for which a non-parole period has not been set--the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

(3) A person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless--

(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or

(b) in the case of a sentence for which a non-parole period has been set--the non-parole period will end within 6 months after the person has attained that age, or

(c) in the case of a sentence for which a non-parole period has not been set--the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

This subsection is subject to subsection (2).

(4) A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise--

(a) that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977 ),

(b) that the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres,

(c) that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person's offence, any assistance given by the person in the prosecution of other persons or otherwise.

(4A) In particular, a finding of special circumstances may not be made simply because of the person's youth or simply because the non-parole period of the person's sentence will expire while the person is still eligible to serve the sentence as a juvenile offender.

(4B) A court that makes a finding of special circumstances must make a record of its reasons for making that finding in the particular case.

(5) A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section. Any such application requires the leave of the court.

(6) The warrant of commitment that is issued under section 62 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence of imprisonment the subject of an order under this section--

(a) must indicate that the sentence is the subject of such an order, and

(b) must specify how much of the sentence is to be served as a juvenile offender, and

(c) must, despite the provisions of that section, commit the person to whom it relates to a detention centre.

(7) Nothing in this section, or in any order under this section, limits the operation of section 9A or 28 of the Children (Detention Centres) Act 1987 .

(8) In this section--

"correctional centre" has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999 .