Juvenile Justice Since 1993

CHILDREN COMMITTING OFFENCES

• The main statute on how young offenders are treated in South Australia is the Young Offenders Act, 1993.

• The emphasis of this law is to ensure that young people who offend are made aware of their legal obligations and the consequences of breaching the law and are deterred against illegal conduct by sufficiently severe sanctions.

• The protection of the community is a specific object and victims may be compensated and restituted.

• As well, consideration should be given to preserving and strengthening the young person's family relationships, including their sense of racial, ethnic or cultural identity and not unnecessarily interrupting the young person's education or employment.

CRIMINAL RESPONSIBILITY

• A child under the age of 10 years cannot be charged with a criminal offence.

• Between the ages of 10 and 14 there is a presumption that a child does not have the capacity to know what he or she did was wrong and so cannot form an intention to carry out a criminal act.

• However, this can be overturned by evidence to the contrary, as was done with the case where a 12 year old boy was charged with murder and evidence was admitted showing he had an appreciation of right and wrong.

• A victim of crime committed by a person (including a child) may apply for compensation under the Criminal Injuries Compensation Fund for personal  injuries suffered as a result of the crime.  the fund can then attempt to recover monies paid out to the victim from the offender.

POLICE QUESTIONING

• A child who is questioned by the police has the same rights as an adult not to answer the 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 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 states that the police must, as soon as possible after arrest, explain the nature of the allegations, and inform the youth of his or her rights to legal representation.

• The police must take all reasonable steps to ensure that the child only be interviewed in the presence of a guardian or, if not available, an adult person nominated by the youth.  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 child 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.  The police have similar powers in relation to the investigation of a crime committed by a child and in the questioning of a child suspect as they have for an adult.

BAIL

• The Bail Act, 1985 applies to children and adults.  A child who has been arrested can apply for and be granted bail on his or her own recognizance (either with or without a guarantor) on the condition that the child will appear at a specified date, place and time.

• Where bail is not granted, the child is detained separately from adult prisoners in the care of the Department for Family and Community Services until the matter can be heard by the Youth Court.

Pathways Through the System

Offending Behaviour

• Investigating officer decides if the offence is a minor offence or a non minor offence. 

• The police officer will decide immediately whether to arrange a police caution, send the youth to a family conference, or send the youth to court. The decision on how to deal with the offending behaviour will depend on the seriousness of the offence, whether the youth has offended before and whether the youth admits the offence or denies it.   

• If the offence is denied the youth will go straight to Court.

• If the offence is admitted the police officer can decide to proceed with a formal or an informal caution. 

• Informal cautions would usually only be given where the offence is trivial and capable of being dealt with immediately by an "on the spot" caution. No official record is kept of an informal caution.

• If a formal caution is given The police officer will report the youth and the youth will be required to sign an admission of responsibility for the offence. The formal police caution will be issued by a senior police officer. 

• When a formal caution is given the youth’s guardians attend the cautioning meeting, where the offending behaviour is discussed, the youth formally cautioned and if necessary a range of sanctions imposed. If the police officer so decides other people including teachers from the youth's school and the person who was the victim of the offence may be involved. An official record will be kept of the formal caution.

• Where a youth commits a serious offence (i.e.. offending behaviour is determined by the police not to be a minor offence) then the matter proceeds direct to the Youth Court.

• The youth will also be dealt with in the Youth Court in respect of minor offences if they do not take any notice of the police caution, ignore the agreements/sanctions reached at a family conference, refuse to undertake community work or do not admit that they have committed the minor offence.

Trivial offences can be dealt with by an 'on the spot' warning by the investigating police officer.

• No sanctions can be imposed at an informal caution

• The young person should clearly understand the nature of the offence and consequences of further similar behaviour.

• No 'official record' is kept but the police are required to make a record of the informal caution in their patrol log and submit a report to the appropriate Divisional Intelligence Officer for  recording.  The will also deliver or post a 'Notice to Guardian of Informal Police Caution' to the child's guardian.

• A formal police caution may be administered where the investigating police officer considers the offence is more than trivial but can be adequately dealt with by the youth and his or her guardians attending a meeting with a cautioning officer.

•  Formal cautions are usually conducted at a police station as soon as practicable after the offence and are administered by a senior police officer or a special Youth Officer ,  A young offender may be required to do any or all of the following things -

  • pay compensation to the victim

  • carry out up to 75 hours (ten days) community service work

  • apologize to the victim or do anything else that may be considered appropriate

• An official record will be kept  of a formal caution.  The young person must sign an undertaking to complete everything that is agreed to.  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 can only last for three months and if successfully completed the young person cannot be prosecuted for the offence.

Following the issue of the formal caution the police may require the youth to do any or all of the following  

• Apologize lo the victim for what he/she did;

• Compensate the victim for the damage he/she caused or the goods he/she stole; 

• Carry out up to 75 hours (i.e. 10 days) of community work;   

• Anything else that may be appropriate.

  These sanctions or penalties are imposed after consultation with the youth and the others at the formal cautioning meeting. The youth is required to sign an undertaking to do what has been agreed by way of a sanction/penalty. If the youth does not do what he/she said they would do the youth will be

• Sent to a family conference or

• Charged and sent to Court.

• The police may decide that while a matter is a minor offence it nevertheless has some more serious element about it and  determine that the matter rather than being dealt with by way of a formal caution should be sent for a family conference.

•   Much emphasis is placed on the youth’s family being involved in the process of dealing with the consequences of the offending behaviour. Where appropriate not just parents are involved but other family members such as brothers, sisters, grandparents, aunts, uncles etc. can he involved.

•   Under the guidance of the conference coordinator and together with other key participants such as the victim and the police the family is central to the process of determining appropriate and effective resolutions to the offence.

•   The family conference is run under the auspices of the Youth Court.

•   As a result of the family conference agreed sanctions or penalties can be imposed including up to 300 hours of community service. Again if the youth will not comply with the sanctions/penalties the matter proceeds to the Youth Court. 

The Court 

• In Court the youth is entitled to be represented by a lawyer. This lawyer can either be arranged privately by the youth and his or her guardians where  the youth does not otherwise have a lawyer they can be represented by the duty lawyer. The Legal Services Commission provides funds so that there is always a duty solicitor available at the Youth Court.

• In addition to all of the sanctions/penalties which the  police and/or the family conference can impose the Court can also

  • Detain a youth in secure care for up to 3 years (i.e. youth jail);

  • Detain a youth at home for a further period of up to 6 months;

  • Impose a community work order for up to 500 hours; impose a fine of up to $2000.00;

  • Take away a driver's license.

• The Court can also impose obligations such as

  • That  the youth submit to supervision;

  • That the youth participate in a specified program (i.e. drug or alcohol rehabilitation, anger control etc.);     

  • That the youth reside where directed by the Court.

• Records are kept of all the youth's appearances before the Court. The Court can also access information regarding the number of times a youth has received a formal police caution and has been to a family conference. 

Role of the Police

• The Police have a key role in the Juvenile Justice System - their role is akin to that of a gatekeeper to the rest of the system, in that they will decide initially how an offence will be dealt with. 

•  The Police can issue formal or informal cautions;

• they can also report arrest and charge depending on the seriousness of the offence or if a young person is constantly offending.

• They can seek undertakings of community service, supervise it and require that restitution be made to the victim/s.

• They attend all Family Conferences.

• They are involved in a variety of prevention and diversion programmes. 

• If a youth commits a minor offence and is stopped by a police officer, or the police officer questions him/her about the offence later on, the officer Will decide immediately whether to:

  • arrange a police caution;

  • send the youth to a Family Conference; or

  • send the youth to court.

• The decision on how to deal with the offending behaviour will depend on:

  • the seriousness of the offence;

  • whether the youth has offended before;

  • whether the youth admits the offence or denies it.

• If the offence is denied the youth will go straight to court.

•   If the offence is admitted the police officer can decide to proceed with a formal or an informal  caution.

• An informal police caution will only be administered for those offences which can best be described as being trivial in nature, and are capable of being dealt with immediately by the delivery of an 'on the spot' caution.

• An informal caution will be a warning by the police officer against committing crime and against further offending.

• Informal cautions will only be given for very minor offences and where there has been no previous offending.

• No official record will be kept of an informal caution. 

•  A police officer may however, decide that the offence committed warrants a formal caution. 

•  If so, the police officer will report the youth and that he/she will be required to sign an admission of responsibility for the offence.

• The formal police caution will be issued by a senior police officer.

• A formal police caution may be administered where the offence is more than trivial but is nonetheless, one which can adequately be dealt with by having the youth and that person's guardians attend a meeting with a 'cautioning officer', where the offending behaviour can be discussed, the youth formally cautioned and, if necessary, a range of sanctions imposed.

• The Caution must, if practicable, be administered in the presence of a parent or guardian or an adult person who is closely involved with the youth.  It may also involve, if the police officer decides, other people including people from the youth's school and the person who was the victim of the offence.

• The caution can take place at a police station, at school, at home or anywhere else that is convenient.

• An official record will be kept of a formal caution. 

•   When issuing a formal caution, a police officer may require the offender to do any or all of the following things:

  • apologize to the victim for what he/she did;

  • compensate the victim for the damage he/she caused or the goods they stole;

  • carry out up to 75 hours (i.e. 10 days) of community work;

  • anything else that may be appropriate.

• The youth will be required to sign an undertaking to do everything that is agreed to. If the youth does not do what he/she said they would, the youth will be:

  • sent to a Family Conference and the matter will be dealt with more seriously;

  • charged and sent to court. 

 Where a youth has been arrested for a 'minor offence' the following procedures will apply: 

• Where a youth is eligible for bail, the 'Bail Authority' shall bail the young person for a period not less than 28 days. The police brief (including the relevant bail documents) shall forthwith following the arrest, be forwarded to the Divisional Youth Officer for determination regarding any further action to be taken, i.e. Caution or Conference or Court.

• Where a youth has been refused bail by the 'Bail Authority' the police brief (including the relevant bail documents) shall be forwarded forthwith to the Divisional Prosecution Unit for charges to be laid before the Youth Court. The Youth Court may either hear and determine the matter or refer it back for formal caution or Family Conference to take place. 

• For all other offences, a young person will be arrested. charged and the matter referred to the Youth Court.

  • The Court will determine the issues of bail and how, where and when the matter will be dealt with.

Family Conferences

The aim of Family Conferences is to provide mechanism for dealing effectively and justly with offenders, victims of crime and others affected by a youth's offending behaviour. The objectives of the conference process are to:

• divert young offenders from the court system;

• make young offenders aware of the consequences of their behaviour:

• make young offenders accept responsibility for their behaviour;

• provide victims with an opportunity to participate actively in the process of seeking reparation;

• arrange compensation, where appropriate, for material damage;

• involve the family and close friends of a young person whose behaviour has offended in the process of dealing with the consequences of that behaviour:

• allow all participants to deal with the issues not only at the level of rational debate but also at the emotional level; and 

• Lay the foundations for the gradual restoration of trust between the offender, his/her family and others directly affected by the crime.

• A Family Conference will be convened by a Youth Justice Coordinator who is appointed after consultation with the Senior Judge of the Youth Court and has authority under the Young Offenders Act to negotiate an appropriate penalty for the offence.

• A Youth Justice Coordinator will receive matters referred to Family Conference by the Police (usually a Police Youth Officer) who will have decided that because of the seriousness of the offence or some other consideration (e.g. that the youth has offended before), that a Family Conference is warranted.

• The Police Youth Officer will provide the Youth Justice Coordinator with the details of the offence, the youth's name, family details, victim's name and any other relevant information which will help the Youth Justice Coordinator to prepare for the conference.

• If a youth commits a more serious offence or ignores police cautions they will be referred to a Family Conference by the Police.

• Prior to a conference being held, the Youth Justice Coordinator will:

  • contact the youth, his/her parents or guardians, the victim and anyone else the Coordinator thinks can usefully contribute to the conference proceedings;

  • in consultation with all participants, arrange a suitable day, time and place to hold the conference; and

  • advise all the participants of the aims of the conference and any other matters they may wish to discuss or clarify.

•   At the Family Conference, the Youth Justice Coordinator will:

  • welcome and introduce all participants;

  • explain the purpose and aims of the conference;

  • ensure that everyone is familiar with the details of the offence (this will be done by the police representative who will read a summary of the offence);

  • ensure that all participants, including the youth and victim, have an opportunity to participate in the conference by discussing the youth's offending behaviour and the effects and consequences of that behaviour;

  • assist the participants in deciding an appropriate and mutually acceptable outcome; and

  • once an outcome has been agreed upon, formalize the agreement in writing and ensure that all participants understand it, especially the youth.

•   The Coordinator will also arrange for someone at the conference to supervise any undertakings that a youth has agreed to. This will often be the parents or other family members. Sometimes it may be a victim who will supervise the youth's compliance with an undertaking. This might happen where, for example, a youth has damaged the property of the victim and has undertaken to repair that damage.

•   All undertakings will have to be completed within an agreed specified time.

•   After the Conference:

  • A Youth Justice Coordinator will record the outcome of the conference. including any undertakings agreed to. The Coordinator will monitor the completion of undertakings. If a youth fails to complete any part of an undertaking within the required time, the Coordinator may refer the matter back to Police for the laying of a charge for the original offence in the Youth Court.

• In addition, where the Coordinator is of the opinion that there are other issues (e.g. care or welfare issues) that need to be addressed, she/he may refer the youth and family to an appropriate support agency. This will be done after consultation with and agreement of the family.

• A youth will also be sent to a Family Conference if the circumstances of their offending behaviour mean that they need to be dealt with in a stronger manner.

• If the youth denies the offence which the police officer alleges, they will be charged and sent straight to court.

• If the Conference cannot reach agreement the youth and the offence they committed are referred to Court.

• The Family Conference can be large or small but may include:

  • the young offender

  • his/her parents or family or friends

  • police officer

  • victim and possibly his/her family (if they wish to).

• It may also include any other people relevant to the youth or to the offence or to the victim.

• The youth is entitled to be advised by a solicitor but the solicitor cannot speak for the youth.

• Conferences can take place at any convenient place - for example, at premises set up specifically for Family Conferences, a school, the Town Hall. They may take place in a Court House or Police Station if no other place is available.

• All Family Conference proceedings are official and an official record will be kept of the outcome.

• The Family  Conference may require the youth to do any or all of the following things:

  • apologize to the victim; 

  • pay compensation to the victim for the damage they caused or the goods they stole; 

  • carry out up to 300 hours (40 days) of community service; 

  • anything else that everyone at the Family Conference agrees is appropriate to prevent the youth from offending again.

• If the police officer does not agree with a decision of the Family Conference the matter will be referred to Court.

• If the youth thinks the conference has been too hard on him/her, he/she can refuse to sign the agreement and the matter will go to court where the judge will decide what penalty to impose.

• If the youth doesn't turn up or does not carry out what was agreed at the conference, he/she may be charged with the offence and go to Court.

Youth Court

• Established under the Youth Court Act 1993.

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

• In its civil jurisdiction it hears and decides child protection applications.

• Criminal charges against people under 18  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 every day.  The Port Adelaide & Elizabeth courts have regular weekly  Youth Court sittings while the Christies Beach & Mount Barker courts sit as a Youth Court 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 or two justices of the peace.

•  The Youth Court has the power to hear all offences (summary & indictable) except homicide which is automatically tried in the Supreme Court.  Other matters can also be referred to an appropriate adult court in certain circumstances. 

• The Director of Public Prosecutions can apply for an order that a youth who has committed a very grave offence, or who has previously been found guilty of more than one serious offence be tried in the appropriate adult court.

• 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.

•  Before committing a youth fro trial in an adult court for an offence (other than homicide) 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.

• A youth who is found guilty of murder must be sentenced to imprisonment for life.

• A youth who has been found guilty by the Supreme Court or District Court of an offence other than homicide may be sentenced in the same manner as an adult or as the Youth Court may sentence the youth or may be sent back to the Youth Court for sentencing.

Appearing in Court

• A young person who denies the police allegations, allegedly commits a serious offence, 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.

In addition to the sanctions that can be imposed at a police caution or family conference, the Youth Court can –

• detain a young person in secure care for up to 3 years

• detain a young person at home for a further period of up to 6 months (current amendment)

• impose a community service work order of up to 500 hours

• impose a fine of up to $2,000

• take away  a driver's license.

• The Youth Court can also order a youth to submit to supervision, participate in a specified program or reside at a specified address.  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.

•  After the court has established the guilt of a young offender, it may request a social background report from the Dept. for Family & Community Services to assist in determining an appropriate sentence.

•  Proceeding in the Youth Court are conducted in much the same way as in adult courts, except sessions are closed and only those directly participating in proceedings are allowed.  Media reporting is restricted and publication of information which would tend to identify a youth is not allowed.

APPEALS

• A child can appeal to the supreme Court against an order made by the Youth Court in a criminal matter but must do so within 28 days.

DETENTION

• Depending on  certain circumstances a youth can be detained in either of two centres.

• The Magill Training Center provides secure care for boys & girls on detention orders imposed by the court or on remand awaiting a hearing.

• A separate institution at Cavan houses more mature boys serving medium to longer term detention orders.