The youth justice system

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What is the youth justice system?

The law in New South Wales has a special system to deal with young people who have committed crimes.   

This law is called the Young Offenders Act 1997 (YOA).  The YOA provides alternatives to going to court if you have broken the law. Some of the alternatives include:

  • warnings
  • formal cautions and
  • youth justice conferences.

The law says that you should only have to go to court as a last resort.

Who is covered by the youth justice system?

The YOA covers young people aged between 10 and 17 years at the time when they allegedly broke the law.The YOA requires you to be under 21 when your problem is being dealt with.

What crimes are covered by the youth justice system?

Not all crimes are covered by the YOA.  Some crimes that are covered by the YOA include:

  • Shoplifting;
  • Offensive language;
  • Causing damage to property;
  • Having or drinking alcohol in a public place; and
  • Breaking and entering into a house and stealing (worth $60,000 or less).

When would I get a warning, caution or be asked to participate in a youth justice conference?

The YOA says that you should be given the least restrictive punishment that’s appropriate in the circumstances.

If a warning is not appropriate, an officer may decide to give you a caution. If a caution is not appropriate, an officer may decide that you need to attend a conference.

What you get depends on:

  • The seriousness of the crime
  • The degree of violence involved in the crime
  • The harm caused to any victim
  • The number and kind of crimes you have committed in the past
  • The number of times you have been dealt with under the YOA
  • Whether there is an appropriate alternative to criminal proceedings

To be able to get one of these alternatives:

  • your parents may be involved, and
  • you may have to admit what you’ve done and take responsibility for it.  
  • you may also have to talk to the person who you’ve harmed and apologise.

What crimes are not covered by the YOA?

Some crimes that are not covered by the YOA include:

  • traffic offences (so anything to do with driving a car, like speeding or drinking);
  • sexual offences;
  • stalking/intimidation offences, or breaches of an apprehended violence order;
  • if someone has died as a result of the crime; and
  • most drug offences, except for possession of very small amounts.

These crimes will be dealt with through regular legal processes, including going to court.  See our web pages on “When can I be convicted of a criminal offence” for more information about these crimes and what happens if you are accused of doing them.

Does going through the youth justice system affect my criminal record?

Crimes that are dealt with under the YOA will not be part of your criminal history.

You do not need to tell anyone about a warning, caution or conference unless it is about:

  • An application to be a police officer, prison officer, teacher and some other professions
  • Proceedings before the Children’s Court
  • An application for a working with children check clearance

If you’re 18 or under and you’ve been accused of a crime and want to know what could happen, please contact us here and we can give you free advice and information. Everything you tell us will be kept confidential.

Warnings

What crimes can I get a warning for?

A young person can be given an on-the-spot warning if they have done something illegal, or are believed to have done something illegal. You can only get a warning for a minor non-violent offence. Examples include:

  • trespassing,
  • possessing alcohol underage,
  • shoplifting or
  • offensive language

However, you cannot receive a warning for a graffiti offence.

You can still receive a warning even if you have already been given a warning before or you have committed an offence before.

A police officer can decide not to give you a warning if the police officer believes it is not in the interests of justice to do so.  One case this might happen is if you been given a warning five or six times and you keep breaking the law.

How are warnings given?

The police officer who gives the warning must ensure that you understand the warning and its consequences.

Police may tell your parents about the warning, either by letter or in person. However, if the police officer believes informing your parents about the warning would create an unacceptable risk to your safety and well-being, they shouldn’t tell your parents.

What happens if I get a warning?

If you receive a warning, the police can’t take any further action against you.  There cannot be any conditions or additional punishment attached to the warning.

How do warnings affect my criminal record?

If a warning is given to you, the police officer must record it. However, this record does not form a part of your criminal history – and it must be deleted once you turn 21.  You will not have to tell any future employers that you have received a warning.

Formal Cautions

A caution is a formal warning.  It is more serious than a warning.

What crimes can I get a formal caution for?

You can receive a caution for any of the crimes covered by the YOA but not for graffiti offences.

You are entitled to be given a formal caution if:

  • you admit to the offence in the presence of an adult (such as your parent or a lawyer); and
  • you agree to receiving a caution (as opposed to going to court); and
  • you can’t be given a warning because of the type of offence or because a caution is not considered to be in the interests of justice.

You can still receive a caution even if you have received warnings before or if you have committed an offence before.  However, there is a limit of three cautions – if you have already received three cautions, you cannot receive another one and instead you may have to go to court.

How are cautions given?

Police don’t give formal cautions on-the-spot. They give a ‘notice of caution’ that indicates that a formal caution will be given on another day between 10 and 21 days after the notice has been issued.

This notice must contain information including:

  • the details of the alleged offence,
  • the details of when and where the caution will be given,
  • the persons who may be present when the caution is given,
  • the name of the police officer who is the contact officer for the caution
  • the consequences of failing to attend the giving of the caution
  • the right to legal advice and where that advice can be obtained and
  • the right to have the matter dealt with in court rather than by a caution.  

The notice must also be in language that children can understand.

Before the formal caution is given, you can change your mind about being given a caution and choose to have the matter dealt with by a court. The officer in charge can also change their mind and refer the matter to a specialist youth officer who will consider whether a youth justice conference should happen instead.

The caution is given by a senior police officer or, sometimes, a respected member of the community, such as an Aboriginal elder. The person giving the caution must take steps to ensure that the child understands the purpose, nature and effect of the caution and the caution may only be given if the child is accompanied by a parent, guardian or other responsible adult.

What happens after I receive a caution?

If you receive a caution, the police can’t take any further action against you.  You receive a caution instead of having any other criminal penalty.  There cannot be any conditions or further penalties but you can be asked to write an apology to the victim.

Will formal cautions show up on my criminal record?

If a caution is given to you, the police officer must record it. This will appear on your ‘court alternatives history’ and may be seen by the Children’s Court if it deals with you for further offences.

However, this record does not form a part of your criminal history – and it may not be taken into account by an adult court. So, if you break the law after you turn 18, an adult court is not allowed to look at this information.   

Also, if the police take any photographs or fingerprints from you for a caution, they have to destroy these.

Will I have to tell an employer that I got a caution?

You only have to disclose a formal caution to a future employer if you are applying for certain jobs such as a teacher, police officer, a judge, a prison officer or to work with kids, and even then, you would only need to disclose it if they asked you about cautions specifically or your criminal history in general.  A caution will also be taken into account if the crime you received a caution for is arson and you are seeking a job as a fire fighter.  

If you’re 18 or under and you’ve been accused of a crime and want to know what could happen, please contact us here and we can give you free advice and information. Everything you tell us will be kept confidential.

Youth Justice Conferences

Youth justice conferences are more serious than formal cautions, but less serious than court proceedings.

What is the aim of the conference?

The purpose of a conference is for the people involved in a crime (including the offender and the victim) to make decisions about how the offender can make up for their crime. For example, the people at the conference might:

  • agree that the offender will do community service,
  • attend a rehabilitation program or
  • write an apology to the victim.   

This is an alternative to going to court.

These types of punishments are intended to promote the development of the young offender within their family group, to be the least restrictive option that is appropriate and to help the offender accept responsibility for their offences.

Who is eligible for a youth conference?

You can attend a youth justice conference:

  • for any of the offences covered by the YOA (see Youth Justice homepage to find a list of these);
  • if a caution is considered not serious enough by the investigating police officer;
  • you admit the offence; and
  • you agree to having a conference.   
  • the matter is then referred to a specialist youth police officer, who decides whether the matter is appropriate to be dealt with by a conference rather than a caution or going to court;

How does an officer decide that I need to attend a conference?

When the specialist youth police officer is deciding whether the matter should be dealt with by a caution, conference or court, they will consider

  • how serious the offence was, the seriousness of any violence,
  • the harm caused to the victim,
  • the number and types of crimes you have previously committed and
  • anything else the officer thinks is relevant

You can still go to a youth justice conference even if you have committed other offences before or been given a warning or caution or have attended a youth justice conference before.

Who can attend a conference?

The people who are allowed to attend the conference are:

  • the offender,
  • the offender’s parent or carer,
  • members of the offender’s family,
  • an adult chosen by the offender,
  • the offender’s lawyer,
  • the police officer who investigated the crime,
  • a specialist youth police officer,
  • the victim or a person chosen by the victim to represent them,
  • a support person for the victim and
  • sometimes a police officer who is in training.  

Other people may attend if necessary, such as an interpreter, a community member, a school representative or a disability or social worker.

The conference is run by a youth justice conference convenor (who is a community member that does not work for the police or the court.

Who runs a conference?

The conference is not run by the police but by a convenor appointed by a conference administrator.

Before it takes place the convenor must speak to the child, the victim, and everyone else involved. The convenor must also give the child a notice outlining the details of the conference, such as the offence for which the conference is held, date, time and place,  the right to legal advice and consequences of not attending the conference, amongst other things.

What happens at a conference?

A conference convenor must conduct a conference in a way that best helps it to reach an agreement about an outcome plan in relation to the child and the offence.  The convenor can run the conference in a way he or she thinks is suitable for the people attending.

What can result from a conference?

The purpose of the conference is to reach an outcome plan for the young offender that must be agreed to by both the victim and the young offender. The young offender and the victim (if the victim attends the conference) have to agree to the plan before it is enforceable.  If no plan can be agreed on, the matter will go back to the police to consider (or back to the Court, if it was the Court that ordered you to attend a conference).

Decisions and recommendations contained in the outcome plan could be:

  • an apology,
  • voluntary community work, or
  • participation in a program.  

When the outcome plan is completed, that is the end of the matter – there can be no additional criminal proceedings against the young offender.  If the outcome plan is not completed, court proceedings can be initiated against the young offender.

What happens if I end up not wanting to attend a conference?

You can change your mind about going to a conference before the conference starts.   If you do this, your offence will be dealt with by the Court. Police can also change their decision about sending you to a conference any time before the conference starts and decide instead to give you a caution or decide that the matter should be dealt with by the Court.  

How do Youth Justice Conferences affect a child’s record?

If a conference is held, it must be recorded. This will appear on the young offender’s ‘court alternatives history’ and may be seen by the Children’s Court if it deals with the young person for further offences.   This record does not form a part of the young person’s criminal history – and it may not be taken into account by an adult court.  

Will I have to tell a future employer about a youth justice conference?

You will have to tell future employers if you apply for certain jobs where you are asked to state your criminal history. These jobs are: if you apply to be a judge, police officer, prison officer, teacher, teacher’s aide, a provider of child care services or if you apply for a job working directly with children. It will also be taken into account if the offence you attended the conference for was arson and you are seeking a job as a fire fighter.

If you’re 18 or under under and you’ve been accused of a crime and want to know what could happen, please contact us here and we can give you free advice and information. Everything you tell us will be kept confidential.

Penalties given by a Court

In what court are criminal matters heard?

Most criminal matters against a young person are dealt with in the NSW Children’s Court.  Only very serious crimes (like murder) are dealt with in the District or Supreme Court.

What are the penalty options in the Children’s Court?

The Children’s Court can give a range of penalties:

Dismissal or dismissal with a caution
This means that there is no conviction and no punishment is given. This is usually only available for relatively minor offences.

Bond

A young person who is released on a bond must sign a document promising to be of good behaviour (that is, not commit any further offences) for a certain period up to two years.

Other conditions are often included in the bond, including that the young person accept supervision by an officer of the Department of Juvenile Justice or that they attend a certain program such as drug rehabilitation. If the bond is broken the young person can be brought to court and sentenced again for the original offence.

Court Costs Levy

A court costs levy (which is a financial penalty) is charged to a person who is convicted of an offence. This is not related to the offence itself but rather for the fact that you have been convicted in a court.

However, you will not need to pay the levy if:

  • your trial is heard in the Children’s Court; or
  • if the offence was traffic-related and it was heard in the Local Court but the punishment was handed down in the Children’s Court.

A court may also order that a convicted person who is under 18 years old does not have to pay the levy.

Victims Support Levy

The Victims Support Scheme is a fund which exists to provide support to victims of crimes. To help pay for the Scheme, a levy (which is a financial penalty) is charged to those who are convicted of an offence. If you are convicted of a serious offence or if you plead guilty to one, you will need to pay a levy of $156. For all other offences, the levy is $69.

However, the levy will not be charged if the offence only relates to:

  • offensive conduct;
  • using offensive language;
  • fare evading on public transport; or
  • parking of a vehicle.

Fines
The maximum fine the Children’s Court can give is $1,100. The Court can give a fine as well as a bond or probation.

A fine is not usually imposed unless the young person has some source of income and can pay the fine. The court allows 28 days to pay the fine, though this can be extended.

Referral to a Youth Justice Conference

If a young person admits they are guilty of the offence, they can be referred to a Youth Justice Conference (see above).

Youth Conduct Orders

If a young person has been charged with an offence under the Act, and a warning, caution or youth justice conference isn’t given, they may receive a Youth Conduct Order.  A Youth Conduct Order is an order setting out certain behaviour the young person has to follow or things they must not do.  Complying with a Youth Conduct Order gives the young person time to show good behaviour before a decision is made by the Court about whether they are guilty and what punishment should be given.

The young person has to consent to this unless they have pleaded guilty or the Court has found them guilty after a trial.  

A court can give a temporary youth conduct order to last for two months.   During this time, the young person must follow the order and participate in the preparation of a final conduct plan.   The Children’s Court can then make a final youth conduct order that requires the young person to follow the final conduct plan.  A final youth conduct order cannot be in effect more than twelve months.  

If the young person complies with the Youth Conduct Order, the Children’s Court may take this into account as a positive factor when dealing with the offence and may even dismiss the charge if the child did not plead guilty to or was not found guilty of the offence. Failure to follow the plan may result in the young person being returned to the Children’s Court.  

Adjournment for Rehabilitation orders

A court can order an adjournment for up to 12 months. This means the decision about punishment is on hold.  A court will do this where they are thinking of imposing a serious penalty but want to give the offender the chance to demonstrate that they have improved their behaviour. The adjournment will usually be subject to conditions, such as attending a drug and alcohol program. If the conditions of the adjournment are met and the offender has demonstrated that they have improved, the court will usually give them a less serious sentence.

Probation

Probation is just like a bond but the young person is almost always supervised by a Department of Juvenile Justice officer. If a young person breaks their probation order they will be taken back to court where a more serious punishment is likely to be imposed. Probation can be ordered in addition to a community service order.

Community service order

A community service order involves the young person doing unpaid work for the community, usually with a charity or community organisation for up to 250 hours.

Control orders

A control order means that the young person is sent to a detention centre for people under 18 run by the department of juvenile justice.  The control order cannot last for more than two years. A control order may not be made unless the court decides that a less severe penalty is not appropriate.

Penalty Options in the District Court and the Supreme Court

For more serious crimes, the case will be decided by the District or the Supreme Court.  Many of the sentencing options available to the Children’s court are also available to the District and Supreme Court.

For serious offences (such as murder) the full range of adult penalties is open to the court, including imprisonment.

Driver Licence Orders for Graffiti Offences

If you’re found guilty of a graffiti offence, the court may take away or suspend your driving licence.

For example, the court has the power to make the following driver licence orders (instead of giving you a fine):

  • if you are on your L or P plates, it may order that your L’s learner licence period or your P’s provisional licence period be extended for six months in addition to when it normally would have ended; or
  • if you are on your full licence, it may order that you not incur a certain amount of demerit points for a period of up to six months (otherwise, you will lose your licence). This will usually be 4 demerit points but it may be a different amount.

If you’re 18 or under and you’ve been accused of a crime and want to know what could happen, please contact us here and we can give you free advice and information. Everything you tell us will be kept confidential.

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