Young Offenders Act 1997

This Act is the Young Offenders Act 1997.

This Act commences on a day or days to be appointed by proclamation.

The objects of this Act are—

to establish a scheme that provides an alternative process to court proceedings for dealing with children who commit certain offences through the use of youth justice conferences, cautions and warnings, and

to establish a scheme for the purpose of providing an efficient and direct response to the commission by children of certain offences, and

to establish and use youth justice conferences to deal with alleged offenders in a way that—

enables a community based negotiated response to offences involving all the affected parties, and

emphasizes restitution by the offender and the acceptance of responsibility by the offender for his or her behaviour, and

meets the needs of victims and offenders, and

to address the over representation of Aboriginal and Torres Strait Islander children in the criminal justice system through the use of youth justice conferences, cautions and warnings.

In this Act—

adult means a person who is of or over the age of 18 years.

broadcast includes broadcast by radio, television or any on-line service.

caution means a formal police caution relating to an offence given under Part 4.

child means a person who is of or over the age of 10 years and under the age of 18 years.

conference means a youth justice conference convened or proposed to be convened under Part 5.

conference administrator means a person appointed as a conference administrator as referred to in section 61.

conference convenor means a person appointed as a conference convenor under section 60.

exercise a function includes perform a duty.

function includes a power, authority or duty.

investigating official means—

a police officer, or

a person appointed by or under an Act and whose functions include functions in respect of the prevention or investigation of offences, prescribed by the regulations for the purposes of this definition.

member of staff of Youth Justice NSW means a person employed in the Youth Justice NSW branch of the Department of Communities and Justice.

non-denial statement—see section 10.

on-line service means a service provided by or through the facilities of a computer communication system and accessed through a telecommunications network that allows for—

the input, output or examination of computer data or computer programs, or

the transmission of computer data.

parent of a child includes—

a guardian of the child, and

a person who has the lawful custody of the child,

but does not include the father or mother of the child if the father or mother, as the case may be, has neither guardianship nor custody of the child.

person responsible for a child means—

a parent of the child, or

a person who has the care of the child (whether or not the person has the custody of the child).

personal violence offence means an offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, section 4, other than an offence against that Act, section 14.

personally attends includes the following—

physical attendance,

attendance via audio visual link,

attendance by other electronic means approved by the Secretary under section 62B.

relevant conference administrator, in relation to a conference, means the conference administrator who appointed the conference convenor for the conference.

Secretary means the Secretary of the Department of Communities and Justice.

specialist youth officer means a member of the NSW Police Force appointed as a specialist youth officer for the purposes of this Act by the Commissioner of Police.

traffic offence has the same meaning as it has in the Children (Criminal Proceedings) Act 1987.

victim has the meaning given by section 5.

youth liaison officer means a member of the NSW Police Force appointed as a youth liaison officer for the purposes of this Act by the Commissioner of Police.

For the following provisions, the time that a child is dealt with by caution in relation to an offence is the time the caution is given under section 29 or 31—

section 20(7),

section 23(5),

section 31(5),

section 37(6),

section 38(5),

section 41(9),

section 44(5).

For the purposes of this Act, a victim means a person who suffers harm as a direct result of an act committed, or apparently committed, by a child in the course of a criminal offence.

A person suffers harm if, as a result of such an act—

the person suffers physical harm or suffers mental illness, nervous shock or other psychological harm (including fear, humiliation, shame or stress), or

the person’s property is deliberately taken, destroyed or damaged or the person suffers financial loss.

For the purposes of this Act, a victim that is an organisation or a Government authority may be represented by an officer of, or other person nominated by, the organisation or authority.

Notes in the text of this Act do not form part of this Act.

The principles that are to guide the operation of this Act, and persons exercising functions under this Act, are as follows—

The principle that the least restrictive form of sanction is to be applied against a child who is alleged to have committed an offence, having regard to matters required to be considered under this Act.

The principle that children who are alleged to have committed an offence are entitled to be informed about their right to obtain legal advice and to have an opportunity to obtain that advice.

The principle that criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter.

The principle that criminal proceedings are not to be instituted against a child solely in order to provide any assistance or services needed to advance the welfare of the child or his or her family or family group.

The principle that, if it is appropriate in the circumstances, children who are alleged to have committed an offence should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties.

The principle that parents are to be recognised and included in justice processes involving children and that parents are to be recognised as being primarily responsible for the development of children.

The principle that victims are entitled to receive information about their potential involvement in, and the progress of, action taken under this Act.

The principle that the over representation of Aboriginal and Torres Strait Islander children in the criminal justice system should be addressed by the use of youth justice conferences, cautions and warnings.

The principle that children have rights and freedoms before the law equal to the rights and freedoms enjoyed by adults and, in particular, a right to be heard and a right to participate in the processes that lead to decisions that affect them.

The principle that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance.

This Act applies in relation to a person who—

is or was a child when an offence covered by this Act is or was committed or alleged to have been committed, and

is under the age of 21 years when being dealt with under this Act.

Subject to subsection (3), if a person in relation to whom this Act applies is no longer a child when he or she is being dealt with under this Act, a reference to a child in another provision of this Act concerning how a child is to be, or may be, dealt with is to be read as including, where appropriate, a reference to an individual who is of or under the person’s age.

The following provisions of this Act do not apply to a person in relation to whom this Act applies if the person is no longer a child—

section 10(2), which relates to who must be present with a child when the child makes a non-denial statement for this Act,

section 22 (2) (which relates to who is to be present with a child when an explanation concerning a caution is given),

section 29 (3) (which relates to who is to be present with a child when a caution is given),

section 39 (2) (which relates to who is to be present with a child when an explanation concerning a conference is given),

any other provision that requires the presence or consent of, or consultation with, a person responsible for a child,

any provision (or any provision belonging to a class of provisions) prescribed by the regulations.

The offences covered by this Act are, except as provided by this Act—

summary offences, and

indictable offences that may be dealt with summarily under Chapter 5 of the Criminal Procedure Act 1986 or another prescribed law,

committed, or alleged to have been committed, by children.

Despite subsection (1), an offence is not covered by this Act if—

the principal person who investigates the offence is not an investigating official within the meaning of this Act, or

the offence is a traffic offence committed by a child who was, when the alleged offence occurred, old enough to obtain a learner licence under the Road Transport Act 2013 to drive the motor vehicle to which the offence relates, or

the offence results in the death of any person, or

the offence is an offence under section 61E, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O (1), (1A) or (2), 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 80, 81A or 81B of the Crimes Act 1900, or

the offence is an offence under the Crimes (Domestic and Personal Violence) Act 2007, other than an offence under section 13 or 14, or

the offence is an offence under Division 1 of Part 2 of the Drug Misuse and Trafficking Act 1985 other than an offence to which subsection (2A) applies, or

the offence is an offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985 other than—

an offence under section 23 (1) (a) or (c) of that Act to which subsection (3) applies, or

an offence under section 27 or 28 of that Act of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence under section 23 (1) (a) or (c) to which subsection (3) applies, or

the offence is prescribed by the regulations for the purposes of this section.

An offence under the Drug Misuse and Trafficking Act 1985, Part 2, Division 1 is covered by this Act if, in the opinion of the investigating official or prosecuting authority—

for an offence relating to a prohibited drug within the meaning of that Act—the offence involves not more than the small quantity applicable to the drug under that Act, or

it is an offence against that Act, section 11 or 12.

An offence under section 23 (1) (a) or (c) of the Drug Misuse and Trafficking Act 1985 is covered by this Act if in the opinion of the investigating official or prosecuting authority—

the offence involves not more than half the small quantity applicable to the prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, or

there are exceptional circumstances in that—

the offence involves more than half, but not more than the total, small quantity applicable to the prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, and

it would be in the interests of rehabilitation, and appropriate in all the circumstances, to deal with the matter under this Act.

Despite subsections (1) and (2)(e), an offence under the Crimes (Domestic and Personal Violence) Act 2007, section 14 that involves the commission of a personal violence offence is not covered by this Act, other than for the following provisions—

section 31,

Part 5, in relation to a matter referred or to be referred under section 40(1) or (1A).

The procedures available for dealing with children who have committed, or are alleged to have committed, offences covered by this Act are as follows—

a warning may be given, including a warning in accordance with Part 3,

a caution may be given, but only if it is a caution given in accordance with Part 4,

a conference may be held, but only if it is a youth justice conference held in accordance with Part 5.

An investigating official dealing with a child who has committed, or is alleged to have committed, an offence must, before issuing a summons or attendance notice or otherwise commencing criminal proceedings against the child, determine—

whether the offence is one covered by this Act, and

in the case of such an offence, whether the child should be dealt with under Part 3 or 4 or the matter should be referred to a specialist youth officer under Part 5 to determine whether a youth justice conference should be held.

In the case of an offence prescribed by the regulations, an investigating official must also determine the matters referred to in subsection (2) (a) and (b) before issuing a penalty notice for the offence.

In determining whether a child should be dealt with under Part 3 or 4 or referred to a specialist youth officer under Part 5, an investigating official is (if the official considers it practicable) to make that determination within the period of 14 days after the official becomes aware of the offence or alleged offence.

A failure of an investigating official to comply with subsection (2B)—

does not prevent action being taken under this Act, or

invalidate any action taken under this Act.

An investigating official may, at any time after commencing proceedings and before the proceedings are heard, decide to deal with a child alleged to have committed an offence under Part 4 or consider whether the matter should be referred to a specialist youth officer under Part 5, if the investigating official forms the opinion that the child is entitled to be dealt with under Part 4 or Part 5.

A non-denial statement, in relation to an offence, is a statement made by a child that the child does not deny or admits the following allegations against the child about the offence—

the elements of the offence,

the time and place of the commission of the offence.

A non-denial statement is not valid unless it is made by a child in the presence of—

a person responsible for the child, or

an adult, other than an investigating official, who is present with the consent of a person responsible for the child, or

if the child is 14 years of age or more—an adult chosen by the child, or

an Australian legal practitioner chosen by the child.

The Secretary must approve a standard written form of a non-denial statement.

A non-denial statement must, if practicable, be made in the standard written form approved by the Secretary.

A formal guilty plea made by a child before a court in relation to an offence is taken for this Act to be a non-denial statement made in relation to the offence.

To avoid doubt, for subsection (1)(a), the reference to the elements of the offence does not include that the child knew, at the time of the offence, that it was seriously wrong to engage in the conduct constituting the offence.

This Act does not affect any jurisdiction conferred on the Children’s Court under the Children (Criminal Proceedings) Act 1987 or on any other court under any other law.

This Act is in addition to, and does not limit, the requirements of any law relating to evidence.