The object of the Young Offenders Act 1993 as set out in Section 3 is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential. It is extremely important that the youth be made aware of his or her obligations under the law and of the consequences of a breach of the law. The protection of the community is an important aim and victims should be awarded compensation and restitutionwhere appropriate. As well, the Act requires that consideration be given to preserving and strengthening the young person's family relationships, and their sense of racial, ethnic or cultural identity should not be impaired. It is also an important consideration in the sentencing process that there should be no unnecessary interruption of the young person's education or employment.
A child under the age of 10 years cannot be charged with a criminal offence [Young Offenders Act 1993 s 5]. Between the ages of 10 and 14 years there is a presumption that a child does not have the capacity to know right from wrong and so cannot form an intention to carry out a criminal act. This is known as the common law doctrine of doli incapax. However, this can be rebutted by evidence to the contrary, as was done in a case where a 12 year old boy was charged with murder and evidence was admitted showing that he had an appreciation of right and wrong R v. M (1977) 16 SASR 589.
A victim of a crime committed by a person (including a child) may apply for compensation from the Victims of Crime Fund for injuries suffered as a result of the crime. The Fund can then recover monies paid out to the victim from the offender, see VICTIMS OF CRIME.
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, see arrest and questioning. 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 is unwise to answer such questions without legal advice.
In addition to the State laws relating to arrest, investigation, bail and remand, Section 14 of the Young Offenders Act 1993 states that the police must, as soon as possible after arrest, 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 youth (and who has a close association with the youth) or a person from Families SA. 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.
Arresting a child
A police officer can, without a warrant, arrest a youth who is reasonably suspected of an offence. In doing so the officer can enter or break into any place and use as much force as is reasonably necessary. The police have similar powers in relation to the investigation of a crime committed by a youth and in the questioning of a youth suspect as they have for an adult, see arrest and questioning.
The Bail Act 1985 applies to youths and adults. 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 provisions only rarely if ever ordered in adult matters such as:
- curfew restrictions;
- to be under the supervision by an officer from Families SA 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 Families SA 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 Families SA 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 juvenile detention 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 juvenile detention 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 (s 15 Young Offenders Act 1993 ).
For information on the powers of the police when making an arrest, the duty to answer questions asked by the police in the course of their investigations and the rights of an arrested person to apply for bail, see arrest and questioning.
The Young Offenders Act 1993 sets out a 3 tiered system of juvenile justice.
- police caution, formal and informal [ss 6 and 7 Young Offenders Act 1993]
- family conference [ss 9-12 Young Offenders Act 1993]
The Youth Court, which, when charges have been laid, 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 [Young Offenders Act 1993 s 17(2)].
Trivial offences can be dealt with by an 'on the spot' warning by the investigating police officer [Young Offenders Act 1993 s 6]. No punishment can be imposed at an informal caution but the young person should clearly understand the nature of the offence and the consequences of further similar behaviour. No 'official record' is kept but the police are required to record the informal caution in their patrol log and report it to the appropriate Divisional Intelligence Officer for recording. They will also deliver or post a 'Notice to Guardian of Informal Police Caution' to the youth's parent or guardian. This record does not constitute a criminal record and can't 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.
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 police Youth Officer at a meeting conducted at a police station with the youth and his or her guardians present (s8 Young Offenders Act 1993 ). 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 any formal caution. The offence 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, although records are maintained.
- 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 young person refuses to sign, the matter will be referred to a family conference or the Youth Court. Undertakings will have a maximum duration for three months and if successfully completed the young person cannot be prosecuted for the offence. The police officer must ask the victim whether he/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.
Where an offence is admitted by the youth but the offence is not sufficiently serious to warrant a prosecution in the Youth Court or a young person has previously had a formal caution, the matter may be referred for a family conference. The family conference is a meeting designed to make young offenders aware of the consequences of their behaviour. It is a non-adversarial model which involves discussion, often over a period of several hours, of the causes and damaging consequences of the offence 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 young offender, his or her family, a police youth 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 (Young Offenders Act 1993 s 12).
An undertaking may last up to twelve months. Penalties should not exceed such sentence as would be imposed by the Youth Court for comparable offences. A copy of any undertaking in relation to community service work or compensation is filed with the Registrar of the Youth Court. Payments of compensation by the youth must be made to the Registrar who will forward on the compensation to the victim(s) of the offence(s).
The Youth Justice Police Officer has power to veto any agreement or decision reached by the family conference. In that case, the youth must be formally charged and the matter brought before the Youth Court.
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, if the court thinks that the problem can be resolved, it may refer the case back to a family conference [Young Offenders Act 1993 s 17(2)].
The youth 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 criminal jurisdiction of the Youth Court deals with charges against children aged between 10 years and 18 years at the time the offence was committed. In its civil jurisdiction it hears and decides child protection applications, see children at risk of abuse or neglect.
A young person who denies the police allegations, who is alleged to have committed a serious offence, who offends repeatedly, or fails to complete an undertaking at a police caution or a family conference will be charged and referred to the Youth Court. Even after a charge has been laid, the Youth Court may still refer the matter for a police caution or a family conference (once the youth's guilt has been established) if the court believes this is more appropriate.
Proceedings in the Youth Court are conducted in much the same way as in the adult courts with the important difference that the Youth Court is a closed court and only those participating in the proceedings are allowed to attend. Reporting by the media is restricted. Publication of information which would tend to identify a youth is not allowed, nor any information revealing the name, address or school of any youth. Information which would tend to identify the victim or any other person involved in the matter, without their consent, is also prohibited. [Young Offenders Act 1993 s 13].
Criminal charges against people under 18 years must be heard in a court building separate from adult courts or, where that is not possible, in a separate part of an adult court building. The Youth Court in Adelaide hears youth matters only and sits daily. In Elizabeth the Youth Court sits weekly. In Port Adelaide and Christies Beach the Youth Court sits fortnightly and in Mount Barker each month. In most country courts there is a monthly visit by a magistrate who can, if required, preside over a Youth Court, and at other times Youth Court matters can be heard by a special justice.
If the offence is a summary offence the Youth Court has the same powers to sentence a youth as the Magistrates Court. Only a judge may deal with a major indictable offence. A judge may impose a maximum of 3 years detention, and a magistrate a maximum of 2 years. The Youth Court in Adelaide has four judicial officers available to deal with matters on a daily basis — a Senior Judge and another Judge, and two Magistrates. (Young Offenders Act 1993 s 22).
The Youth Court has the power to hear all offences (summary and indictable). Murder (homicide) is usually tried in the Supreme Court under the Young Offenders Act 1993 s 17(3). Other matters can also be referred to an appropriate adult court in certain circumstances. Where a youth is charged with a major indictable offence and the Director of Public Prosecutions determines that they pose an appreciable risk to the safety of the community, they may lay a charge against before the Magistrates Court so the youth can be dealt with as an adult [s 16(2)]. In assessing whether a youth poses such a risk, under s 15A the following factors must be considered:
- the gravity of the offence with which the youth is to be charged
- if the offence is part of a pattern of repeated offending
- the degree to which the youth has previously complied with any undertakings imposed by the Youth Court or any bail agreements
- the behaviour of the youth during any previous periods of detention
- where they have previously been released on licence, the degree to which they have complied with the conditions of the licence
Before committing a youth for trial or sentence in an adult court for an offence the Youth Court conducts a preliminary examination of the charge to satisfy itself that the youth has a case to answer, that is, there is sufficient evidence to justify a trial.
The Youth Court does not use juries. However, a youth who pleads not guilty to an indictable offence can request trial by jury in an appropriate adult court (either the Supreme Court or a District Criminal Court). This is a basic right for an adult and is available for a youth if the youth so wishes, after receiving legal advice.
After the court has established the guilt of a young offender, it may request a social background report from Families SA to assist in determining an appropriate sentence [s32 Young Offenders Act 1993 ].
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 is prepared by an officer of Families SA. 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. (Young Offenders Act 1993 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 ss 23-25] can sentence a youth to:
- detention in secure care for up to three years;
- be subject to home detention for a period of up to six months, provided the accommodation is available and appropriate, and the monitoring device is compatible;
- 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 Families SA, participation in a specified program, an obligation to carry out specified work or to reside at a specified address [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 and/or six months detention (Young Offenders Act 1993 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 s 27]. This is known as a supplementary undertaking.
A youth who is found guilty of murder must be sentenced to imprisonment for life [Young Offenders Act 1993 s 29(4)].
A youth who has been found guilty by the Supreme Court or District Court of any offence other than homicide may be sentenced in the same manner as an adult, or the Court may make any order that would be in accordance with how the Youth Court would sentence the youth, or send the matter back to the Youth Court for sentencing [Young Offenders Act 1993 s 29(1)]. Where a youth asks to be tried in the Supreme Court or District Court, he or she cannot be sentenced as an adult unless the court is satisfied that this is warranted by the gravity of the offence or the youth's history of offending [Young Offenders Act 1993 s 29(3)].
Under s 3(2a) of the Young Offenders Act 1993 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. However, where a youth is being dealt with as an adult the court may consider the general deterrent effect on other youths. 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 [s 3(2a(b)].
Recidivist young offenders
Where a young offender has been convicted of at least 3 separate serious offences or at least 2 serious sexual offences against a person under the age of 14, they can be declared as a recidivist young offender [Criminal Law (Sentencing) Act 1988 s 20C]. Where such a declaration is made then heavier sentences can be imposed. There are also implications for conditional release (see Detention).
Records are kept of appearances before the Youth Court and the court can receive information regarding the number of times a youth has attended a formal police caution, family conference and any previous court appearances. Contrary to popular belief, convictions in the Youth Court remain on record and if the offender is later found guilty of an offence in an adult court, those convictions as a child can be taken into consideration at the time of sentencing, see effects of criminal convictions. Matters dealt with by formal cautions or family conferences are disregarded once the person is 18 years of age. Should a victim of an offence wish to know the identity of the youth and how the offence has been dealt with then he or she must be provided with this information.
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 Young Offenders Act 1993 prohibits radio, television, newspaper, and any other media and 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. The court may also specifically prohibit publication of any other details.
Depending on certain circumstances a youth can be detained at home on home detention if granted, or in either of two centres.
The new Cavan Training Centre (at 26- 46 Goldsborough Road, Cavan) replaces the old Magill Training Centre and provides secure care for boys and girls on detention orders imposed by the court or on remand awaiting a hearing. A separate institution at 1 Jonal Drive, Cavan houses more mature boys serving medium to longer term detention orders.
Shortly after arriving at the centre a panel draws up an individual program for each youth. This usually covers matters such as education, workshop training, recreational interests and family and community involvement. The youth's progress and circumstances must be reviewed at least every six months by the Training Centre Review Board (Young Offenders Act 1993 s 39).
The Training Centre Review Board may, with certain conditions, authorise the youth's release before the full term of detention is served. This is known as conditional release (Young Offenders Act 1993 s 41). Two-thirds of the sentence must be served before the youth is eligible for early release. If any of the conditions are breached the youth may have to serve out the remainder of the original detention order. Where a young offender has been declared to be a recidivist young offender they are ineligible for conditional release until they have served at least four-fifths of their sentence (see Sentencing by the Youth Court).
Most youths who do not pay fines are given the option of undertaking a work program on a non-residential basis instead of being placed in secure care.
Once a youth reaches 18 years, upon application to a Judge of the Youth Court they can be transferred to an adult prison if the court is satisfied that a prison would be an appropriate place for that person to be held for the remainder of the period of their detention order (Young Offenders Act 1993 s 63(2)).
Section 63(4) Young Offenders Act 1993 provides for transfer of a youth of or above the age of 16 years to a prison on the application of the Chief Executive where the youth cannot be properly controlled in the training centre or, has been found guilty of assaulting an employee or another resident of the training centre within the preceding 14 days or, has persistently incited disturbance in the training centre; or has escaped or attempted to escape from the training centre.
A young person must have the opportunity to seek legal advice prior to a referral to a formal police caution or family conference. The Legal Services Commission provides a duty solicitor at most Youth Courts and the Youth Legal Service at the Adelaide Youth Court. The Youth Legal Service provides free legal advice and may represent children appearing in the Youth Court. The duty solicitor at the Youth Court will also advise and represent youths in custody who have been refused police bail. A lawyer is also available to represent children in child protection matters. An appointment should be made to see the duty solicitor well before the court date. Young people with other legal problems can get legal advice and apply for legal aid directly to the Legal Services Commission or consult a private lawyer or community legal centre.
If a young person is in doubt as to whether to plead guilty or not guilty, it is essential to obtain legal advice. The Duty Solicitor is often consulted in this situation. It is generally considered essential for a young person who pleads not guilty to have legal representation.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.