Young people and the law

Focus of Sentencing: Young Offenders Act 1993 (SA) s 3(2a)

Under s 3(2a) of the Young Offenders Act 1993 (SA) the focus in sentencing a young offender is on the deterrent effect on the youth personally, not general deterrence, as is the case in the adult jurisdiction. In considering the need for general deterrence the court must also take into account the need to balance the protection of the community with the rehabilitation needs of the young offender: see s 3(2a)(b).

Legislation:

The criminal jurisdiction of the Youth Court deals with charges against youth aged between 10 and 18 years at the time the offence was committed.

The youth justice system in South Australia is regulated by the following pieces of legislation:

• Young Offenders Act 1993 (SA)
• Youth Justice Administration Act 2016 (SA)

These Acts are companion pieces of legislation which means that they are to be read together and understood as if they form a single Act: Youth Justice Administration Act 2016 (SA) s 5].

Section 3 of the Young Offenders Act 1993 (SA) sets out the importance of the following:

• that the youth be made aware of his or her obligations under the law and of the consequences of a breach of the law; and
• that the community be adequately protected against wrongful acts.

As far as the circumstances allow, in dealing with a youth under the Young Offenders Act 1993 (SA):

• victims should be awarded compensation and restitution where appropriate (in particular where victims suffer loss or damage);
• consideration should be given to preserving and strengthening the youth’s family relationships;
• there should be no unnecessary interruption of the youth’s education or employment; and
• the youth’s sense of racial, ethnic or cultural identity should not be impaired.

Criminal responsibility

A child under the age of 10 years cannot be charged with a criminal offence: Young Offenders Act 1993 (SA) s 5].

Police questioning

A child who is being questioned by the police has the same rights as an adult not to answer questions unless specifically required to by some Act or other law. This means that the child must tell the police his or her name and address, but does not have to answer questions about the alleged offence.

It would be unwise to answer any questions about an alleged offence before obtaining legal advice.

In addition to the other state laws relating to investigation, arrest, bail and remand, s 14 of the Young Offenders Act 1993 (SA) states that the police must, as soon as possible after the arrest of a youth, explain the nature of the allegations against him or her, and inform the youth of his or her right to seek legal representation. The police must take all reasonable steps to ensure that the child is only interviewed in the presence of a parent or guardian or, if not available, an adult person nominated by the child (and who has a close association with the child) or a person from the Department for Child Protection. Statements made to police by a child when a guardian or other adult is not present may not be accepted as evidence by a court in many cases.

Arrest

A police officer can, without a warrant, arrest a youth who is reasonably suspected of having committed an offence. In doing so the officer can enter or break into any place and use as much force as is reasonably necessary.

Bail

The Bail Act 1985 (SA) applies to both adults and youth. A youth who has been arrested can apply for and be granted bail on his or her own recognisance (either with or without a guarantor), that is on the condition that the youth will appear in court at a specified date, place and time.

Conditions of bail agreements in the Youth Court may include:

• curfew restrictions;
• to be under the supervision by an officer from Youth Justice and to obey that officers lawful directions;
• to participate in drug and/or alcohol counselling or other programs, projects or activities as directed by the supervising Youth Justice officer;
• to obey house rules at the nominated placement where the youth is required to reside;
• not to enter specified geographical areas – for example, the Adelaide City square mile;
• to attend school as directed by the supervising Youth Justice officer;
• to live at a suitable residence with adequate supervision.

Home detention bail now applies in Youth Court applications for release on bail but electronic monitoring facilities are limited.

Where bail is not granted, the youth is detained separately from adult prisoners. They are to be held in a Training Centre until the matter can next be heard by the Youth Court. If it is not possible for the youth to be taken to a Training Centre, the youth may be detained in a police prison, or police station, watch-house or lock-up approved of by the Minister. However whilst being detained at one of those locations, steps must be taken as are reasonably practicable to keep the youth from coming into contact with any adult person detained in that location: Young Offenders Act 1993 (SA) s 15.

Juvenile justice system

The Young Offenders Act 1993 (SA) sets out a three tiered system of juvenile justice.

Two tiers of pre-court diversion apply where the youth is a first offender or relatively low-level offender and admits to the alleged offending. They are:

• police caution, formal and informal: ss 6 and 7.
• family conference: ss 9-12.

When charges have been laid, the Youth Court hears and determines matters which are:

• disputed, however minor in nature
• the more serious offences, disputed or not
• alleged repeat offending
• breaches of undertakings given in the course of a formal police caution or family conference
• referrals to formal police caution or family conference where the matter could not be finalised because the youth has failed to attend as required
• breaches of obligations
• matters which the youth has requested the Court to deal with.

Within this structure the Youth Court has discretion to refer matters back to be dealt with by formal police caution or family conference where appropriate – for example, where the youth now admits allegations of minor or first offending which had previously been disputed or now agrees to attend diversionary proceedings despite prior failure to attend: see Young Offenders Act 1993 (SA) s 17(2).

Informal Police Cautions

Minor offences can be dealt with by a police officer giving an ‘on the spot’ warning, known as an informal police caution: Young Offenders Act 1993 (SA) s 6. This record does not constitute a criminal record and cannot be used in any court proceedings without the consent of the youth [s 6]. No further proceedings may be taken against the youth for the offence for which the youth was cautioned.

Formal Police Cautions

Where a youth has admitted an offence that is minor but more than trivial, the investigating police officer may refer it to a formal police caution. Formal cautions are administered by a senior police officer or a special Youth Police Officer at a meeting conducted at a police station with the youth and his or her guardians present: Young Offenders Act 1993 (SA) s 8.

If a formal caution is to be administered to the youth the police officer must explain to the youth the nature of the caution and the fact that an official record is kept of an formal caution. The offence then counts as prior offending should the youth re-offend and come before the Youth Court at a later date. However, it does not count in adult proceedings (after the youth turns 18 years) [see s 58].

A youth may be required to undertake to do any or all of the following:

• pay compensation to the victim of the offence;
• carry out up to 75 hours (ten days) community service work;
• to apologise to the victim (often in writing) or take any other appropriate action such as performing unpaid work for the victim.

Undertakings must be in writing and signed by the youth in the presence of a guardian or nominated adult. If the undertaking is not completed or the youth refuses to sign, the matter will be referred to a family conference or the Youth Court. Undertakings may have a maximum duration of three months and if successfully completed the youth cannot be prosecuted for the offence.

The police officer must ask the victim whether he or she wishes to know the identity of the youth and the subsequent outcome of the matter. Police are required to give that information if requested by the victim.

Family Conferences: Young Offenders Act 1993 (SA) s12

Where a minor offence is admitted by the youth and the offence is still not sufficiently serious to warrant a prosecution in the Youth Court, but the youth has already previously had a formal caution, the matter may be referred for a family conference.

A family conference is a meeting designed to make youth aware of the causes and consequences of offences they have committed. It is a non-adversarial model which involves discussion, often over a period of several hours, of the causes and consequences of offences in the hope that the youth will accept responsibility for the offence and not offend again.

A Youth Justice Coordinator is employed by the Youth Court to convene meetings between all parties, including the youth themselves, his or her family, a Youth Police Officer, any other relevant people. Although invited to attend, a victim’s attendance is voluntary. The meeting may take place at a variety of locations such as a school, community centre or police station. The purpose of the family conference is to involve all relevant parties in determining an appropriate punishment for the offence.

The family conference can impose any or all of the following undertakings on the youth:

• to apologise to the victim, either in writing or orally;
• to pay compensation to the victim;
• to carry out up to 300 hours community service work;
• to receive a formal caution against further offending;
• to do anything else appropriate under the circumstances to prevent re-offending

An undertaking may last up to twelve months.

If the youth fails to attend a family conference as convened, does not comply with a requirement of the conference or fails to comply with any undertaking, charges may be laid and the matter brought before the court. However, the court may refer the case back to a family conference: Young Offenders Act 1993 (SA) s 17(2).

The young person will be given the opportunity to explain and discuss the circumstances of the offence. While a youth is entitled to have a lawyer present at a family conference, he or she may not speak on behalf of the youth. The lawyer’s role is confined to giving legal advice. Any decision made at the conference is not valid unless both the youth and a representative from the police are in agreement.

The Youth Court: Confidentiality of proceedings

Proceedings in the Youth Court and proceedings in respect of youths in the District and Supreme Courts are held in closed court. Only persons properly concerned in the proceedings may attend. Section 13 of the Young Offenders Act 1993 (SA) prohibits radio, television, newspaper, or in any other way, any other persons from publishing in any way a report of criminal proceedings in the Youth Court which would tend to identify the youth’s name, address or school. It is also prohibited to identify the victim or any other person involved in the proceeding without their consent [s 13(c). The Court may also specifically prohibit publication of any other details.

Sentencing by the Youth Court

After the court has established the guilt of a young offender, it may request a social background report from Youth Justice to assist in determining an appropriate sentence: Young Offenders Act 1993 (SA) s 32.

This report will contain information on the social background and personal circumstances of the youth. It can also contain information relating to the offender’s awareness of victim impact issues. It can only be prepared once an offence against the youth has been admitted or proved. The report cannot contain any recommendation about sentence. Medical evidence can also be tendered to the court, for example, a psychiatric assessment of the youth. If these reports are to be taken into account by the court during sentencing then they should be made available to the youth, his/her parent and/or guardian and to the police prosecutor: see Young Offenders Act 1993 (SA) s 33]

In addition to the sanctions that can be imposed from a police caution or family conference, the Youth Court: Young Offenders Act 1993 (SA) ss 23-25 can sentence a youth to:

• detention in a training centre for up to three years;
• be subject to home detention for a period of up to 12 months or for periods not exceeding 12 months in total over two years or less, provided the accommodation is available and that the youth will be properly cared for there, and that adequate resources (including monitoring devices) are available for monitoring the youth while on home detention;
• a period of community service work of up to 500 hours, to be completed within a period not exceeding 18 months;
• pay a fine of up to $2500 for an offence;
• licence disqualification: if the youth does not hold a current drivers licence, then the disqualification would prevent the youth from obtaining one.

The Youth Court can also order a youth to submit to obligations including supervision by Youth Justice, participation in a specified program, an obligation to carry out specified work or to reside at a specified address: see Young Offenders Act 1993 s 26. If a youth fails to comply with a condition of their obligation he/she is guilty of an offence. The penalty for the breach is anywhere up to a $2500 fine or six months detention (or both) [see Young Offenders Act 1993 (SA) s 26].

The youth’s parents may also have to ensure that the youth complies with the conditions of the undertaking and to take specific action to guard against further offending [Young Offenders Act 1993 (SA) s 27]. This is known as a supplementary undertaking.

Recidivist young offenders

Where a young offender has been convicted of at least three serious offences (committed on separate occasions) or at least two serious sexual offences (committed on separate occasions), they can be declared as a recidivist young offender: Sentencing Act 2017 (SA) s 55. Where such a declaration is made then heavier sentences can be imposed. There are also implications for conditional release.