146Participation does not rebut presumption

146 Participation does not rebut presumption

(1) The fact that a child under 14 years of age participates in an early diversion group conference does not rebut the presumption that a child who is under 14 years of age cannot commit an offence.

(2) Despite anything to the contrary in this Part, evidence referred to in sections 142, 143 and 144 is inadmissible in a proceeding against a child to determine whether the presumption that the child cannot commit an offence is rebutted.

It is presumed that a child who is 12 or 13 years of age cannot commit an offence—see section 11.

Chapter 5—Commencing a proceeding against a child

Part 5.1—Commencing a proceeding

147 Child to be proceeded against by summons

(1) There is a presumption in favour of proceeding by summons if an accused is a child, unless it would be clearly inappropriate to do so.

(2) Without limiting subsection (1), if a police officer decides to commence a criminal proceeding against a child for an alleged offence in accordance with the hierarchy of options, the police officer must proceed by summons*,* unless it would be clearly inappropriate to do so.

Section 92 sets out a hierarchy of options for dealing with alleged offending behaviour. A police officer may decide to commence a criminal proceeding against a child for an alleged offence if certain other actions are clearly inappropriate in the circumstances—see section 92(1)(e).

(3) In deciding whether it would be clearly inappropriate to proceed by summons under subsection (2), the police officer must have regard to each of the following matters—

(a) the nature and seriousness of the alleged offending;

(b) the number, frequency and nature of findings of guilt or convictions (if any) in respect of the child;

(c) any previous conduct of the child relevant to the alleged offending, including but not limited to whether the child has acknowledged responsibility or shown remorse for their behaviour;

(d) any harm caused to the victim (if any) of the alleged offending;

(e) whether the child presents a serious risk to community safety.

(4) Despite anything to the contrary in section 12 of the Criminal Procedure Act 2009, on the filing of a charge-sheet against a child, a registrar must not issue a warrant to arrest in the first instance, unless satisfied by sworn or affirmed evidence (whether oral or by affidavit) that the circumstances are exceptional.