skip to content
Banner image

The criminal jurisdiction of the Youth Court

Youth Court Rules

There are Youth Court Rules and Youth Court (Young Offenders) Rules and Youth Court Practice Directions relevant to the criminal jurisdiction of the Court - See the Courts SA website for the Rules, Practice Directions, and Forms.

Magistrates Court Rules 1992

The Youth Court (Young Offenders) Rules 2016 r 7 states that except as already provided for by these rules, and subject to any provision to the contrary in the Young Offenders Act 1993 (SA) or the Youth Court Act 1993 (SA), the Magistrates Court Rules 1992 will apply to the extent that they are relevant in the criminal jurisdiction of the Court.

Youth Court Practice Directions

From time to time the Senior Judge may issue Practice Directions governing procedural requirements and court etiquette.

There are practice directions for the criminal jurisdiction of the Youth Court - these can be found on the Courts SA website.

Practice Direction 1 of 2003 - Case Flow Management, is concerned with the listing and disposition of criminal matters under the Young Offenders Act 1993 (SA). Of particular note:

First court appearance

  • Upon the first appearance for a criminal matter, the Court shall advise unrepresented youth of their right to representation and provide any other relevant information to satisfy the requirements of Cooling v Steel[see Practice Direction 1 of 2003 para 3; Cooling v Steel (1971) 2 SASR 249].
  • Where the youth does not plead guilty at the first court appearance, the matter may be adjourned or remanded to enable the youth to obtain legal aid, advice and representation, but not for a period exceeding six weeks [see Practice Direction 1 of 2003 para 4].

Second court appearance

  • At the second court appearance, the youth must inform the Court as to whether they intend to plead guilty or not guilty [see Practice Direction 1 of 2003 para 5].
  • Where the youth informs the Court of their intention to plead guilty, the matter may be adjourned or remanded to enable the court and the youth to obtain information, evidence and reports required for consideration of the penalty [see Practice Direction 1 of 2003 para 6].
  • Where the youth informs the Court of their intention to plead not guilty, the Court may adjourn or remand the matter for a further eight weeks for a pre-trial conference. All parties must comply with rule 26 of the Magistrate Court Rules 1992.

Third court appearance

  • Where the matter was not finalised on the second court appearance, the Court should attempt to finalise the matter on the third court appearance [see Practice Direction 1 of 2003 para 7].
  • At the pre-trial conference, counsel is expected to make “realistic and achievable” estimates of the length of trials and remain available during the time allocated for the trial [see Practice Direction 1 of 2003 para 9].
ENSURE COMPLIANCE WITH PRACTICE DIRECTIONS
It is important that the duty solicitor know and observe these practice directions and ensure that their matters are prepared in compliance with them.

The Young Offenders Act 1993 (SA)

As already mentioned [see Applying for a suppression order] an objective of the Young Offenders Act 1993 (SA) 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’ [see Young Offenders Act 1993 s 3(1)]. This must be balanced against the need for youths to be aware of their obligations under the law and the consequences of breaching the law, and the need for the community to be protected against violence and wrongful acts [see s 3(2)].

The Young Offenders Act 1993 (SA) sets out a three-tiered system of juvenile justice. There are two tiers of pre-court diversion which apply where a youth admits to offending and is a first offender or a relatively low-level offender. These are formal and informal police cautions and family conferences [see ss 6, 7 and 9-12]. Offences dealt with by police caution or family conference are not formally charged and do not come before the Youth Court unless a youth fails to attend a family conference, or does not admit the offence, or subsequently fails to comply with an undertaking as to penalty.

Hearings conducted by the Youth Court are the third tier of the juvenile justice system. The Youth Court hears and determines matters for which charges have been formally laid and include:

  • any matters which are disputed, however minor in nature;
  • more serious offences which are set for trial or for guilty plea and sentence;

Breaches of undertakings given in the course of a formal police caution or a family conference may result in a charge or charges being laid and referred to the Youth Court. The Youth Court also has a discretion to refer matters to be dealt with by way of formal police caution or family conference where appropriate [see Young Offenders Act 1993 s 17(2)]. Examples of this are where a youth admits allegations of minor or first offending which had previously been disputed, or agrees to attend diversionary proceedings despite prior failure(s) to attend

THE ROLE OF DUTY SOLICITOR
Where the duty solicitor is instructed in relation to a disputed matter involving minor and/or first time offending, the youth should be advised that the matter may still be dealt with by way of diversion where theyinstruct that the facts in the allegations are admitted.

Negotiations with the police prosecutor at court are frequently successful in resolving disputes of fact to enable the matter to be referred back to a police caution or family conference with the youth admitting to the facts as agreed. The youth should be advised that matters which are admitted at a formal police caution or family conference are recorded as prior criminal offending and will be brought up in any further Youth Court proceedings, but they will not be alleged in adult matters. [see Young Offenders Act 1993 (SA) s 58 ].

The youth should be clearly advised about the availability of diversionary alternatives to court. However, you should avoid the appearance of inducing or pressuring the youth to admit to a disputed offence for the sake of convenience, bearing in mind that frequently he or she may be anxious to resolve matters this way.
SIGNED INSTRUCTIONS

It is a good idea for the duty solicitor to obtain signed instructions from the youth if they change instructions and wish to admit the offence for referral back to police caution or family conference.

Terminology used in the Young Offenders Act 1993

Youth

A youth is defined as a person of, or above the age of ten years but under the age of eighteen years on the date of the alleged offence [see Young Offenders Act 1993 s 4 for definition]. Where the Court does not have satisfactory evidence of the age of a youth against whom proceedings have been brought, the Court may make its own estimate of the age of the youth and act on the basis of that estimate [see s 57].

In accordance with the Young Offenders Act 1993 (SA), a person under the age of ten years cannot commit a criminal offence [see s 5].

In relation to Commonwealth offences, a child under ten years cannot be liable for an offence against a law of the Commonwealth [see Crimes Act 1914 (Cth) s 4M]. A child aged ten years or more but under fourteen years can only be liable for an offence against a law of the Commonwealth if the child knows that his or her conduct is wrong [see Crimes Act 1914 (SA) s 4N(1)]. Whether a child knows that his or her conduct is wrong is one of fact for which prosecution have the burden of proof [see s 4N(2)].

THE COMMON LAW DOCTRINE OF DOLI INCAPAX

The duty solicitor should be aware of the common law doctrine of doli incapax, whereby a minor between the ages of ten and fourteen is presumed incapable of criminal conduct. The presumption must be rebutted by prosecution evidence that the youth had guilty knowledge that he or she was doing wrong in committing the actus reus (physical element of the offence) [see R v JTB [2009] 3 All ER 1 as an example].

The doctrine arises relatively rarely in practice. However, it may be an issue where the youth’s upbringing of neglect or specific culturally-condoned behaviours suggests that the youth may lack knowledge of ordinary moral notions. Where there appears to be a possibility that the presumption may not be capable of rebuttal on the prosecution case, you should advise the youth to refrain from entering a plea of guilty until senior legal advice is sought. Rebuttal evidence could include, for example, admissible proof of prior convictions for similar offending or inferences capable of being drawn from statements made by the youth in a record of interview or elsewhere.

Youth Justice Administration Act 2016

The Youth Justice Administration Act 2016 (SA) commenced on 1 December 2016. The objects of the Act are to provide for the administration of the juvenile detention scheme and to ensure the safe, humane and secure management of youths held in training centres within South Australia.

The Youth Justice Administration Act 2016 (SA) and the Young Offenders Act 1993 (SA) are companion pieces of legislation and should be read together and construed as if they were a single Act [Youth Justice Administration Act 2016 (SA) s 5(1)]. Terms used in both Acts have the same meaning unless otherwise indicated [s 5(2)].

Under section 4 of the Youth Justice Administration Act 2016 (SA) the term ‘resident’ is used to refer to a youth detained in a youth training centre and this terminology is used in the following section.

Training Centre Visitor

The Act creates the position of Training Centre Visitor.

The role of the Training Centre Visitor encompasses the following responsibilities [s 11]:

  • to conduct visits to training centres;
  • to conduct inspections of training centres;
  • to promote the best interests of the residents of training centres;
  • to act as an advocate for the residents of a training centre in promoting the resolution of issues relating to their care, treatment or control;
  • to make inquiries and provide advice to the Minister in relation to any necessary systemic reforms;
  • to inquire into and investigate any matter referred to them by the Minister.

The Training Centre Visitor is required to give proper weight to the views of training centre residents and to have particular regard to the needs of residents who are under the guardianship of the Minister, Aboriginal or Torres Strait Islander youths or residents with a physical, psychological or intellectual disability.

A resident of a training centre; a guardian, relative or carer of a resident; or any other person providing support to a resident may make a request to contact the Training Centre Visitor. Any such request must be made to the Chief Executive who must advise the Training Centre Visitor of the request within 2 days of receipt of the request [s 17].

Charter of Rights

The Act also provides for the creation of a Charter of Rights for Youths Detained in Training Centres. Any person exercising functions or powers under the Act must have regard to the terms of the Charter in any dealings with a youth who is in detention. A copy of the Charter must be provided to a training centre resident on their arrival.

Assessment on admission to a training centre

In addition to being provided with a copy of the Charter, the following must take place on admission into a training centre:

  • a guardian, relative or carer of the youth must be notified that the youth has been admitted to the centre;
  • as soon as practicable after the initial admission, a screening must be done to assess the youth’s individual needs and circumstances preferably with the participation of the a guardian, relative or carer of the youth;

The assessment must take into account the following:

  • age;
  • gender or gender identity
  • sexuality or sexual identity;
  • cultural identity;
  • developmental and cognitive capacity, ability or disability;
  • any special needs;
  • social, medical, psychological and educational background;
  • needs in respect of education and training and medical, psychological or psychiatric treatment;
  • aptitude of the youth for any particular form of education, vocational training or work;
  • the nature of the offence(s) for which the youth has been detained and the length of the sentence;
  • the behaviour of the youth while in the training centre;
  • maintenance of the youth’s family and community ties;
  • any responsibilities the youth has a carer;
  • any proposed plans for release of the youth and his or her rehabilitation;
  • any representations made by the youth and any other person (e.g. a guardian, relative or carer);
  • any such other matters as the Chief Executive thinks relevant.

Assessments must occur at least once in each prescribed period whilst the youth is resident in a training centre [s 23(4)] and and if no period is prescribed then a period of no longer than 3 months.

Management and treatment of training centre residents

Under section 26 of the Act the Chief Executive may make rules relating to the management of a training centre and regulating the conduct of residents in training centres. Any such rules must be published for the benefit of residents and, where a resident is illiterate or non-English speaking, a reasonable attempt must be made to make the rules known to them.

Residents who are of compulsory school or education age are to be encouraged to continue their education [s 27].

Safe rooms

The use of safe rooms is regulated by the Act under section 28. A resident may only be detained if an employee of the centre believes on reasonable grounds that:

  • the resident is about to harm him/herself or another person; or
  • the resident is about to casue significant damage to property; or
  • it is necessary to detain the resident to maintain order or security in the centre.

Regardless of the above, a resident who is under the age of 12 years must not be detained in a safe room.

The manager of the centre must be informed as soon as is reasonably practicable if any resident is detained in a safe room.

For residents aged between 12 and 14 years detention must be for no longer than 24 hours.

If a resident is aged 15 years or over the detention can be for no longer than 48 hours.

Residents must be closely supervised whilst detained in a safe room and observed at intervals of not longer than 5 minutes. All observations must be recorded in writing and records are to kept. A written account of the incident that lead to the detention must also be provided by the youth. If the resident cannot write they can nominate their case manager or case worker, a lawyer, the Guardian for Children and Young People, the Training Centre Visitor, a cultural advisor, a parent, guardian or carer to write the account on their instructions.

Prohibited treatment

The Act prohibits the following forms of treatment [s 29]:

  • corporal punishment;
  • isolation or segregation from other residents (other than in a safe room or in prescribed circumstances) – for details see regulations 6 and 7 of the Youth Justice Administration Regulations 2016 (SA);
  • the use of any psychological intimidation or emotional abuse intended to intimidate or humiliate;
  • deprivation of medical attention;
  • deprivation of basic food or drink, clothing or other essential items;
  • deprivation of sleep;
  • restriction of free movement by the use of mechanical restraints (other than in prescribed circumstances – for details see regulation 8 of the Youth Justice Administration Regulations 2016 (SA);
  • unjustified deprivation of contact with persons outside of the centre;
  • any other treatment that is cruel, inhuman or degrading.
Circumstances in which prohibited actions allowed

Isolation

Regulation 6 of the Youth Justice Administration Regulations 2016 prescribes the circumstances under which a resident of a training centre may be isolated by being placed in a locked room, that is, where a training centre employee believes on reasonable grounds that:

  • the resident is in need of protection from other residents for their personal safety; or
  • the resident’s behaviour constitutes a threat to the safety of others and all reasonable de-escalation actions have failed; or
  • it is necessary to isolate the resident from other residents to maintain order or preserve security in the centre or to protect the health of other persons.

Isolation (within the resident’s room) may occur at the request of the resident themselves, or if they are ill. If isolation occurs under these circumstances, the resident must be released upon their request.

Isolation of a resident must not be used as a punishment measure and must not contravene the resident’s rights under the Charter of Rights for Youths Detained in Training Centres. It must also not act so as to limit the resident’s ability to communicate with employees of the centre at any time.

During the period of isolation the resident must be closely supervised and observed at intervals of not longer than 15 minutes. Observations must be recorded.

The manager of the training centre must ensure that a record is kept noting the name and age of the resident; the dates and times that the isolation began and ended; the reason for the isolation; the name of the employee who ordered the isolation and any action taken before the resident was isolated.

Length of isolation period

The manager of the centre must be information if isolation occurs for a period greater than 30 minutes.

Isolation must not continue for longer than is reasonably necessary under the circumstances or for longer than 3 hours unless the manager of the centre approves a longer period.

Where a resident is isolated for a period greater than 3 hours the isolation must not continue for longer than 24 hours unless the manager of the centre considers that the circumstances are exceptional and isolation for the longer period has been approved by the Chief Executive.

Segregation

Regulation 7 specifies that segregation may only occur on the following grounds:

  • the resident is in need of protection from other residents for their personal safety; or
  • the resident’s behaviour poses a threat to their own safety or the safety of others and all other reasonable de-escalation actions have failed; or
  • it is necessary to segregate the resident to maintain order in the centre or preserve the security of the centre.

As with isolation, segregation cannot be used to the punish the resident nor can it be used to limit the ability of the resident to communicate with employees of the centre at any time or limit access to exercise periods or contact with visitors (beyond what is normally allowed for the resident).

Contact with other residents cannot be restricted for more than 22 hours in any 24 hour period unless it would be detrimental to the wellbeing of the resident or other residents.

Where a resident is segregated a parent, guardian or carer must be informed as soon as reasonably practicable. Where a resident is under 12 years of age the Training Centre Visitor must be informed.

Use of mechanical restraints (reg. 8 of the Youth Administration Regulations 2016)

A resident may only be restricted by means of a mechanical restraint of a kind approved by the Chief Executive and where an employee of the centre believes on reasonable grounds that:

  • the resident is about to harm themselves or another; or
  • it is necessary to restrain the resident to preserve the security of the centre; to prevent the resident from escaping or to protect the community.

The use of a mechanical restraint is a last resort option and must not be used to punish a resident or to contravene the resident’s rights under the Charter of Rights for Youths Detained in Training Centres.

Use of force

Under section 33 an employee may only use such force as is reasonably necessary in the following instances:

  • to prevent the resident from harming him/herself or another person; or
  • to prevent the resident from causing significant damage to property; or
  • to maintain the order or preserve the security of the centre.

Where force is used a written report must be provided to the manager of the training centre from the employee as well as an account of the incident prepared by the resident.

Pre-court diversion for minor offences

Minor offence

A minor offence is an offence which should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of:

  • the limited extent of the harm caused through the commission of the offence; and
  • the character and antecedents of the alleged offender; and
  • the improbability the youth will re-offend; and
  • where relevant, the attitude of the youth’s parents or guardians.

[see Young Offenders Act 1993 (SA) s 4 for definition]

A minor offence is defined by reference to the subjective assessment of the police officer in charge of the investigation of the offence. That assessment effectively determines whether an admitted offence is diverted to an informal or formal police caution, a family conference, or whether charges for the offence(s) are laid and the matter referred to the Youth Court for determination. Such an assessment will depend on whether:

  • the youth has offended before;
  • the offence caused limited harm only (examples are shoplifting items of low value; dishonesty offending involving property of low value; property damage of low value or where restitution is offered; behavioural or 'street' offences which do not involve a specific victim; simple cannabis offences; minor offences related to public transport; consumption of liquor; and rarely, traffic offences which do not involve licence disqualification or detention by way of sanction);
  • the youth is likely to re-offend;
  • the youth’s parents or guardians support pre-court diversion.

Part 2 of the Young Offenders Act 1993 (SA) provides for pre-court diversion for minor offences by way of informal and formal police caution.

Informal police caution

Section 6(1) of the Young Offenders Act 1993 (SA) provides that where a youth admits the commission of a minor offence, and a police officer is of the opinion that the matter does not warrant any formal action, the police officer may informally caution the youth against further offending. Where an informal caution is given:

  • no further proceedings may be taken against the youth for the offence for which they received a caution [see s 6(2)]; and
  • any record of a formal caution does not constitute a criminal record and may not be referred to for the purposes of a criminal record check or in any judicial proceedings (without the youth’s consent) [see s 6(3)].

Formal police caution

Section 7 of the Young Offenders Act 1993 (SA) provides that where a youth admits the commission of a minor offence and the police officer is of the opinion that the matter warrants a formal action, such as a formal caution or family conference, the police officer must first explain to the youth:

  • the nature of the offence and the allegations [see s 7(2)(a)(i)]; and
  • the youth is entitled to obtain legal advice [see s 7(2)(a)(ii)]; and
  • the youth is entitled to have the matter dealt with by the Court rather than by the police [see s 7(2)(a)(iii)]; and
  • where the offence is admitted, and the youth does not wish to have the matter heard in court, the admission should be reduced to writing and signed by the youth [see s 7(2)(b)].

The explanation and signing of an admission by the youth should be undertaken, where practicable, in the presence of a guardian of the youth or an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth [see s 7(3)].

The nature of a formal police caution

In the exercise of a formal caution, the police officer must explain to the youth the nature of the caution and the fact that evidence of the caution may be treated as evidence of commission of the offence, if the youth is subsequently dealt with in court for the offence [see Young Offenders Act 1993 (SA) s 8(2)(a)]. In addition, the caution must be administered, where practicable, in the presence of a guardian of the youth or an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth [see s 8(2)(b)]. The caution must be put into writing and acknowledged by the youth in writing [see s 8(2)(c)].

The police officer must take all reasonable steps to give the guardians of the youth an opportunity to make representations with respect to the matter [see s 8(3)]. The police officer must consult with the victim as to whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with [see s 8(9)].

ADVICE RELATING TO FORMAL POLICE CAUTIONS
The duty solicitor may need to advise a youth or their guardian about the nature and consequences of a formal police caution to help them decide whether it is appropriate to use this “out-of-court” method to resolve the matter.

Powers and sanctions available in relation to a formal police caution

Section 8 of the Young Offenders Act 1993 (SA) provides the powers and sanctions available to a police officer in relation to a formal police caution. In addition to administering a formal caution against further offending, the police officer may also require the youth to enter into an undertaking to:

  • pay compensation to the victim of the offence [see s 8(1)(a)];
  • carry out a specified period of community service, but not exceeding seventy five hours [see s 8(1)(b)];
  • apologise to the victim of the offence [see s 8(1)(c)];
  • apologise to the person who has suffered loss or damage as a result of the offence [s 8(1)(d)]; or
  • do anything else that may be appropriate in the circumstances of the case [s 8(1)(e)].

    Any apology by a youth to a victim or person who has suffered loss or damage must be made in the presence of an adult person approved by the police officer [see s 8(5)].

Any undertaking must be signed by the youth, a representative of the Commissioner of Police, and if practicable, the youth’s parents or guardians [see s 8(6)(a)]. An undertaking has a maximum duration of three months [see s 8(6)(b)].

If a youth is cautioned, and there are no further requirements, or all requirements made are complied with, the youth is not liable for prosecution for the offence [see s 8(8)].

As a matter of practice, a formal police caution is delivered by a senior police officer in uniform in the presence of the youth’s guardian or an adult person associated with the youth. It need not be given at a police station and may take place, for example, at the youth’s home, school, or where a matter has proceeded at the Court but then been referred back to a formal police caution under section 17(2) of the the Young Offenders Act 1993 (SA), in the precincts of the Court itself. Before a caution can be delivered, the allegations must be admitted by the youth and he or she must acknowledge the caution in writing.

OFFICIAL RECORD OF FORMAL CAUTION
An official record of police cautions is kept. In this way, the youth’s admission of the offence and receipt of a formal police caution can be subsequently alleged as prior offending should the youth re-offend and come before the Youth Court at a later date. Cautions are not alleged as prior offending past the age of eighteen, although records are maintained. [see Young Offenders Act 1993 (SA) s 58].

Failure to comply with a formal police caution

Section 8 of the Young Offenders Act 1993 (SA) provides that where a youth fails to comply with a requirement of a police officer, or an undertaking, the police officer may:

  • refer the matter to a Youth Justice Co-ordinator so that a family conference may be convened to deal with the offence [see s 8(7)(a)]; or
  • where the youth requires the matter be dealt with by the Court, lay a charge for the offence before the Court [see s 8(7)(b)].
CONFLICTING INSTRUCTIONS

A situation may arise where a youth maintains the assertion of innocence to the duty solicitor in confidence but instructs that they wish to admit the charge and accept a formal caution to ‘get it over and done with’. While this is a decision the youth is entitled to make, they duty solicitor cannot ethically continue to act on the basis of those instructions.

The proper course is for the duty solicitor to advise the youth that acceptance of a caution constitutes admission of the offence and provide the youth with information about the range of penalties which can be imposed following a caution. The duty solicitor should also advise the youth that they have a right to take the matter to trial and decline to act further on the youth's behalf.

This means that where the youth’s confidential instructions do not represent an unambiguous admission of liability the duty solicitor should not be physically present when the caution is delivered, nor continue to negotiate agreed facts with prosecution which conflict with the youth’s confidential instructions. In practice, solicitors would not normally attend during the cautioning process anyway.

SIGNED INSTRUCTIONS

In cases where the duty solicitor has been involved in negotiating disputed issues with prosecution with the result that the youth now instructs that they admit the offence on a basis of agreed facts, and wishes to accept the caution, the duty solicitor must obtain signed instructions to that effect.

Family conference

The object of the family conference is to establish a forum for offender/victim mediation aimed at making non-recidivist young offenders aware of the consequences of and accepting responsibility for 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 particular offence in the hope of dissuading the youth from further offending.

A family conference may be convened by a Youth Justice Coordinator on notification by a police officer pursuant to section 7 of the Young Offenders Act 1993 (SA) where the youth:

  • admits the offence as reduced to writing; and
  • does not require the matter to come before the court; and
  • has had an opportunity to obtain legal advice.

[see Young Offenders Act 1993 s 7(1)(b) for referral to family conference; s 8(7)(a) for referral upon failure to comply with a police caution requirement or undertaking]

A family conference may not be convened where the youth disputes the offence and/or particular allegations. Where a matter is contested the youth must be charged and the matter must come before the Court for determination [see Young Offenders Act 1993 s 7(4)].

ADVICE RELATING TO A FAMILY CONFERENCE
As with a formal police caution, a youth must have the opportunity to seek legal advice prior to such a referral. The duty solicitor may on occasion be required to advise a youth and/or their parent or guardian of the nature and consequences of family conference proceedings, the youth’s rights and obligations if they agree to attend a family conference, and the advantages or otherwise of exercising the right to have the matter dealt with by the Court rather than by family conference.

The nature of a family conference

Sections 9 - 12 of the Young Offenders Act 1993 (SA) provide for referral to a family conference. Section 10 outlines the arrangements to be made by a Youth Justice Coordinator upon notification by a police officer for a matter to be convened for a family conference [see s 10 for the persons to be notified]. The date, time and place of the family conference are arranged by the Youth Justice Coordinator in consultation with all intended participants who should then be notified in writing. The family conference consists of:

  • a Youth Justice Coordinator (who chairs the conference) [see s 11(1)(a)];
  • the youth [see s 11(1)(b)];
  • such persons invited to attend the conference, including any of the youth’s parents, guardians, relatives or support persons [see s 11(1)(c); s 10(1) for persons who may attend];
  • the victim if they wish to attend, and his or her support person [see s 11(1)(c); s 10(1) for persons who may attend; s 10(2)(c)];
  • a representative of the Commissioner of Police [see s 11(1)(d)]; and
  • the youth’s legal representative if required [see s 11(4)].

A family conference should act if possible by consensus of the youth and such of the persons invited to attend the conference as attend [see s 11(2)]. If a family conference fails to reach a decision, the matter must be referred to the Court, and the Court may decide any question, and exercise any power, that could have been decided or exercised by the family conference [see s 11(5)].

A decision by a family conference is not validly made unless the youth and the representative of the Commissioner of Police concur in the decision [see s 11(3)]. The police officer present at the family conference in effect has power to veto any agreement or decision reached by the family conference. Where such veto is exercised, the youth must be formally charged and the matter brought before the Court. The youth may refuse to sign an undertaking as to penalty, in which case the youth is formally charged and the matter brought before the Court.

The Youth Justice Coordinator must consult with the victim or the person who has suffered loss or damage as to whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with [see ss 12(11)-(12)].

LEGAL REPRESENTATION AT A FAMILY CONFERENCE

A youth is entitled to have a legal representative present at a family conference and be advised by them. However, the legal representative may not make submissions or representations on behalf of the youth. The solicitor’s role is confined to that of advice only [see Young Offenders Act 1993 (SA) s 11(4)].

Time constraints prevent duty solicitors attending family conferences except on rare occasions. However, a request by a youth to attend may occur where the duty solicitor has had an ongoing solicitor/client relationship with the youth, such as where a matter has been referred back to family conference from the Youth Court under section 17(2) of the Young Offenders Act 1993 (SA).

Powers and sanctions available to a family conference

Section 12 of the Young Offenders Act 1993 (SA) sets out the powers and sanctions available to a family conference. The family conference has power to administer a formal caution against further offending and/or to require the youth to enter into an undertaking for a period not exceeding twelve months [see ss 12(1)(a) and 12(4)]. In exercising its powers, the family conference must have regard to sentences imposed for comparable offences by the Court [see s 12(2)].

Where a formal caution is administered, the caution must be in writing and acknowledged by the youth [see s 12(3)].

An undertaking may require the youth to:

  • pay compensation to the victim of the offence or person who has suffered loss or damage [see s 12(1)(b); s12(1)(ba); and s 12(5) for filing undertaking with the Registrar];
  • perform community service work not exceeding 300 hours [see s 12(1)(c); s 12(6) for filing undertaking with the Registrar];
  • apologise to the victim of the offence or person who has suffered loss or damage [see ss 12(1)(d)-(e)]; or
  • do anything else that may be appropriate [see s 12(1)(f)].

Any apology to a victim or to the person who has suffered loss or damage must be made in the presence of an adult person approved by the family conference or Youth Justice Coordinator [see s 12(7)].

Where a youth is cautioned and no further requirements are made of the youth or all the requirements made of the youth (including obligations arising from an undertaking) are complied with, the youth is not liable for prosecution for the offence [see s 12(10)].

Failure to comply with a family conference

Where a youth fails to attend a family conference, or does not comply with a requirement or undertaking from a family conference, a police officer may lay a charge before the Court for the offence in relation to which the conference was convened [see Young Offenders Act 1993 (SA) s 12(8)]. Charges may be laid within 12 months of the expiration of the relevant statutory period of limitation [see s 12(9)].

ADVICE RELATING TO A FAMILY CONFERENCE
Where the duty solicitor is called upon to advise a youth in relation to a matter in which family conference proceedings have failed for whatever reason, the duty solicitor should seek detailed instructions from the youth as to the reasons for non-attendance or for the breakdown of any agreement reached. Where the problem is able to be remedied it may be possible to facilitate a referral back to a family conference pursuant to section 17(2) of the Young Offenders Act 1993 (SA).

Where the youth has attended at the family conference, but has in the course of discussions denied the offence itself or particular allegations, and the matter is brought back before the Court, it should be further adjourned for negotiations to take place between the youth's solicitor and prosecution. If the disputed issues cannot be resolved the matter will ultimately need to be set for trial or for a disputed facts hearing.

Criminal investigation and arrest

Other state laws relating to criminal investigation, arrest, bail, remand and custody apply to youth criminal proceedings, except where modified by the Young Offenders Act 1993 and related regulations [see s 14(1)]. Where a youth is arrested on suspicion of having committed an offence, and the youth is dealt with in accordance with the Young Offenders Act 1993, the police officer responsible for the arrest and custody of the youth must as soon as practicable after the arrest:

  • explain to the youth the nature of the allegations against them [see s 14(2)(a)]
  • inform the youth of their right to seek legal representation [ see s 14(2)(b)]
  • take all reasonable steps to inform the guardian of the youth, or where the guardian is not available, an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth, of the arrest and invite him or her to be present during any interrogation or investigation [see s 14(2)(c)]

The provisions in the Summary Offences Act 1953 governing police powers to search, seize, investigate offences, arrest and interrogate suspects apply to youth. In particular, section 79A(1a) requires an investigating police officer to ensure that a youth is not subjected to an interrogation or investigation until they have secured the presence of an independent adult to attend at the interview to represent the youth’s interests [see Summary Offences Act 1953 s 79A(1a); s 79A(1b) for exception].

Bail

The Bail Act 1985 applies to bail applications made in the Youth Court, with the availability of stable accommodation and residential placement assuming particular importance. Specific references to youth in the Bail Act 1985 include:

  • definition of a child [see s 3]
  • eligibility for bail [see s 4(1)(a)(ii)]
  • nature of a bail agreement [see s 6(1a)]
  • application for bail [see s 8(2a)]
  • procedure upon arrest [see ss 13(1)(a) and 13(2)]
  • bail reviews [see ss 14(2), 15A and 15(1)(c)]

Detailed information in relation to bail and applying for bail is available in the Bail chapter.

BAIL APPLICATIONS
Youths in custody will have been arrested and refused police bail following overnight or weekend arrest on a new matter or on a first instance warrant, or both. The present practice in the Youth Court is for the duty solicitor to be provided each morning with a daily custody list giving details of morning and afternoon custodies. Generally first instance warrants are dealt with in the morning and new offences in the afternoon.

Before seeking instructions from a youth client, the duty solicitor should first check the nature of the charges, the allegations, and any grounds of opposition to bail with the prosecutor.

If possible, confirm with Department for Child Protection personnel at or before court whether suitable accommodation is available for the youth, whether in his or her own family home, in foster placement or within any of the Department for Child Protection residential assessment units. At the same time it may be useful to check with Department for Child Protection personnel whether there is any current problem with the youth’s complying with court orders for supervision by Department for Child Protection staff or complying with any other obligation whilst on bail.

Youth Court bail instructions

When taking instructions from a youth for the purpose of a bail application it is important to seek instructions regarding:

  • family ties
  • his or her current address (how long? who with?)
  • school attendance and other educational courses
  • current employment (part time job? apprenticeship?)
  • current income
  • whether any guarantor is available (children under guardianship orders don’t need guarantors)
  • any medical and/or mental health problems
  • whether the youth is now or has recently been under the supervision of a Department for Child Protection officer and whether he or she is complying with any reporting, or other conditions in that order
  • whether the youth has denied the charges in the police interview
  • whether any police interview was conducted with an independent adult person present
  • the reasons for any previous non-appearance at court where the youth has been arrested on a first instance warrant

The objectives and statutory policies of the Young Offenders Act 1993 apply equally to bail as to sentencing [see s 3(3)]. Where appropriate, submissions should be directed to section 3(3), to the effect that a refusal of bail and remand in custody would:

  • be detrimental to the youth’s family relationships (this only applies if the youth lives with his or her family)
  • interrupt his or her education or employment commitments, including current training courses (however the youth may well not be at school, in training or employed)
  • be an unnecessary withdrawal from the family environment
  • impair the youth’s sense of racial, ethnic or cultural identity

The role of a Department of Child Protection officer

The role of the officer from the Department of Child Protection is similar but by no means identical to the role of a Correctional Services officer in the adult court. Department for Child Protection personnel will be familiar with the Department’s past contact with the youth and dealings with the youth’s family and will be required by the Court to furnish information relevant to the Court’s determination of bail. These officers can be of great assistance by providing succinct background information.

CHECK ACCURACY OF INFORMATION
The duty solicitor should always check the accuracy of any information provided by the Department for Child Protection officer with the client and remember they act on the client’s instructions rather than those of Department for Child Protection.

Placement into suitable accommodation

Where a youth cannot or will not reside with a parent, guardian or other suitable person during the period of a remand on bail, the Court as a matter of practice requires assurance that the youth will be placed in suitable accommodation pending finalisation of the charges. Where such placement is available the Court will generally, if bail is granted, require that it be a condition of a bail agreement that the youth be under the supervision of an officer of Department for Child Protection and obey his or her directions as to residence.

Youths under the guardianship of the Minister or Director General are owed a duty of care by the Minister who is guardian and is required to provide accommodation and supervision.

BAIL ASSESSMENT REPORT
Where there are no other matters which should displace the presumption in favour of bail, but the officer from the Department for Child Protection states that no departmentally-arranged accommodation is available for a youth who otherwise has no fixed place of abode, they duty solicitor should submit that it is inappropriate that the youth be detained in custody with more serious offenders for the sole reason that the department is unable to provide suitable accommodation. In practice, where accommodation is unavailable, the Magistrate or Judge will be aware of the need to minimise time spent in custody unnecessarily, and will normally order an urgent bail assessment report be prepared by the Department for Child Protection to address the issue of accommodation. There is a turnaround time of about two days for this report, although it can be quicker.

Conditions of Youth Court bail agreements

Conditions of bail agreements in the Youth Court may include provisions such as that youth:

  • comply with a curfew
  • attend drug and/or alcohol counselling as directed by the supervising Department for Child Protection officer
  • obey house rules at the accommodation where the youth is required to reside
  • not enter specified geographical locales such as the Adelaide City square mile
  • attend school as directed by the supervising Department for Child Protection officer

A copy of the bail conditions can be furnished to relevant local police officers for monitoring of compliance with the bail agreement.

ALLEGATIONS OF BREACHING BAIL CONDITIONS
Where it is alleged that the youth has breached a condition of bail, for example, by non-compliance with house rules or a Department for Child Protection officer’s directions, the duty solicitor should seek the youth’s instructions as to their understanding of what the direction required them to do. Where the direction may be characterised as ambiguous or unreasonable, such as to complete homework, it may be arguable that the direction itself is not lawful.

Home detention bail applies in Youth Court applications for release on bail. Where the youth instructs that they would comply with home detention bail conditions and where there is a suitable residence the duty solicitor should ask the Court to order a home detention bail assessment report.

Court proceedings

Commencement of prosecution

Charges that bring a youth to the Court may only be laid where the youth requires the matter to be dealt with by the Court or where the police officer is of the opinion that the matter should be dealt with by the Court because of the youth’s repeated offending or some other circumstances of aggravation [see Young Offenders Act 1993 (SA) ss 7(4)(a), 8(7)(b) and 7(4)(b)]. In addition, where a youth fails to attend a family conference, or fails to comply with a requirement or undertaking from a family conference a police officer may lay a charge before the Court for the offence in relation to which the family conference was convened [see s 12(8); s 12(9) for exception to statute of limitations].

In the case of a major indictable offence, the DPP may instead of laying a charge against a youth before the Youth Court, lay the charge before the Magistrates Court where the DPP is of the opinion that the youth poses an appreciable risk to the safety of the community and should be dealt with as an adult [see Young Offenders Act 1993 ss 16(2) and 17A; Criminal Procedure Act 1921].

Section 16(2) came into effect on 3 February 2008, and applies to offences committed on or after that date [see Statutes Amendment (Young Offenders) Act 2007] although it is rarely invoked.

In deciding whether a youth poses an appreciable risk to the safety of the community, the DPP or the Magistrates Court (as the case requires), must take into consideration the following matters:

  • the gravity of the alleged offence [see s 15A(a)];
  • whether the offence is part of a pattern of repeat offending (that fact and the circumstances surrounding the alleged offence) [see s 15A(b)];
  • the degree to which the youth has previously complied with any undertaking, requirement or obligation imposed on the youth or with any bail agreement [see s 15A(c)];
  • if the youth has previously been detained, the behaviour and any rehabilitation while detained [see s 15A(d)];
  • where previously released on licence, the degree to which the youth complied with conditions of the licence [see s.15A(e)];
  • any other matter the DPP or the Magistrates Court (as the case may be) thinks fit in the circumstances [see s 15A(f)].

Jurisdiction to hear and determine criminal matters

The Youth Court has jurisdiction to hear and determine offences committed by youth [see Young Offenders Act 1993 (SA) s 16(1)]. It deals with charges in the same way as the Magistrates Court deals with a charge of a summary offence, and in doing so, has the powers of the Magistrates Court [see s 17(1)]. In essence, the Youth Court deals with summary and indictable charges laid before it in the same way as the Magistrates Court deals with summary offences but with the following exceptions:

Referral back for a formal caution or referral to a family conference

The Court may refer a matter back to be dealt with by formal police caution or by family conference where the charge is found proved (either by the youth’s admission of guilt or by a finding of the Court at trial) [see Young Offenders Act 1993 (SA) s 17(2)].

Matters which may or must be referred to a higher court

Homicide, or an offence consisting of an attempt to commit, or assault with intent to commit homicide, must be dealt with in the Supreme Court following preliminary examination and committal procedures in the Youth Court [see Young Offenders Act 1993 (SA) s 17(3)(a); s 19 for preliminary examination; s 29(3) for sentencing as an adult].

ASSISTANCE RELATED TO HOMICIDE MATTERS
The duty solicitor should not take instructions on homicide matters and should immediately assist the youth to obtain senior legal advice and representation. These matters attract media attention and it is prudent to advise the youth in custody to defer any application for bail until senior representation is available.
Where the youth asks to be dealt with as an adult

A youth charged with an indictable offence may ask to be dealt with in the same way as an adult in the District Court [see Young Offenders Act 1993 (SA) s 17(3)(b); s 19 for preliminary examination; s 29(3) for sentencing as an adult; s 36 for detention].

Where the DPP or prosecutor asks for the youth to be treated as an adult

The DPP or a police prosecutor may apply to the Youth Court or the Supreme Court for a determination that the youth should be dealt with as an adult due to the gravity of the offence or because the offence is part of a pattern of repeat offending [see Young Offenders Act 1993 (SA) s 17(3)(c); s 19 for preliminary examination; s 29 for sentencing youth as an adult; s 36 for detention].

Sentencing considerations

The Youth Court has the same powers to sentence a youth for a summary offence as the Magistrates Court, and the same powers in respect an indictable offence as the District Court [see Young Offenders Act 1993 (SA) s 22]. Generally, young offenders are treated more leniently than adults. The Sentencing Act 2017 (SA) is generally applicable, except to the extent that the provisions of that Act conflict with specific provisions of the Young Offenders Act 1993. Section 3 of the Young Offenders Act 1993 (SA)places a different emphasis on the aims of sentencing as compared to sentencing an adult [see R v QTV (2003) 87 SASR 378; [2003] SASC 424]. In sentencing, effect should be given to the following statutory policies:

  • a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law [see s 3(2)(a)]
  • the community, and individual members of it, must be adequately protected against violent or wrongful acts [see s 3(2)(c)]
  • when imposing sanctions on a youth for illegal conduct regard should be had to the deterrent effect any proposed sanction may have on the youth [see s 3(2a)(a)]
  • compensation and restitution should be provided, where appropriate, for victims of offences committed by youths [see s 3(3)(a)]
  • family relationships between the youth, the youth’s parents and other family members should be preserved and strengthened [see s 3(3)(b)]
  • a youth should not be withdrawn unnecessarily from his or her family home environment [see s 3(3)(c)]
  • there should be no interruption to their education of employment [see s 3(3)(d)]
  • a youth’s sense of racial, ethnic or cultural identity should not be impaired [see s 3(3)(e)]

Social Background Report

Before sentencing, the Court may request from the Department for Child Protection a social background report on the personal circumstances of the youth [see Young Offenders Act 1993 (SA) s 32].

CONSIDERATIONS FOR BAIL AND SENTENCING SUBMISSIONS

The duty solicitor’s submissions in applications for release on bail and in mitigation of penalty should address the statutory policies expressed in section 3(3) of the Young Offenders Act 1993. Detailed instructions should be obtained regarding the youth’s personal antecedents including:

  • family circumstances and support
  • medical and psychological concerns
  • school, training or employment commitments and opportunities
  • any relevant racial, ethnic or cultural considerations

Frequently, the youth is known to the Department for Child Protection and you should consult with them and then take instructions about any information provided. Someone from the Department for Child Protection may be in the Court and may be invited to make submissions in relation to an application for bail.

When making submissions, remember that the Young Offenders Act 1993 (SA) places emphasis on the individual youth, and directs the Court to have regard to ensuring the proper realisation of the youth’s potential in accordance with section 3(1).

Penalties

Under the Young Offenders Act 1993 there is no power to take into account the secondary sentencing purpose of ensuring general deterrence as outlined in the Sentencing Act 2017 (SA) section 4(1)(d) when sentencing a young offender, except where the youth is being dealt with as an adult in the Supreme or District Court.

The Court is required to have regard only to the deterrent effect of punishment on a young offender personally [see Schulze v S (1995) 180 LSJS 371;[1995] SASC 5005].

When imposing sanctions on a youth for illegal conduct the sentencing court must have regard to the deterrent effect a proposed sanction may have on the youth [see Young Offenders Act s 3(2a)(a)].

Where a youth is being dealt with as an adult regard should be had to the deterrent effect any proposed sanction may have on other youths and the balance between the protection of the community and the need to rehabilitate the youth [see s 3(2a)(b)].

Power to impose a custodial sentence

Under the Youth Court Act 1993 the Court can make an order for imprisonment or detention and may issue a warrant for a person’s apprehension and imprisonment or detention [see s 29]. However, section 23(1) of the Young Offenders Act 1993 provides (subject to section 23(6)) that the Court cannot sentence a youth to imprisonment. A custodial sentence is viewed as a sentence of last resort as reflected in section 23(4) which provides that a sentence of detention must not be imposed for an offence unless the offender is a recidivist offender, or where the Court is satisfied that a sentence of a non-custodial nature would be inadequate because of the gravity of the circumstances of the offence or because the offence is part of a pattern of repeat offending.

If an offence for which a youth is convicted or found guilty is punishable by imprisonment where committed by an adult, the Court may sentence the youth to:

  • detention in a training centre for a period not exceeding three years [see s 23(2)(a)]; or
  • home detention for a period not exceeding six months, or for periods not exceeding six months in aggregate over one year or less [see s 23(2)(b)]; or
  • detention in a training centre for a period not exceeding two years to be followed by home detention for a period not exceeding six months, or for periods not exceeding six months in aggregate over one year or less [see s 23(2)(c)].

Where the maximum term of imprisonment for the offence is less than three years, the period of detention cannot exceed the maximum [see s 23(3)].

Training Centres

Adelaide Youth Training Centre (previously known as Cavan Training Centre)

The Adelaide Youth Training Centre has two campuses and the age of the youth and their gender will determine on which campus they are placed. The Centre provides safe and secure detention for children between the ages of 10-18 years who have been arrested and refused bail or remanded or sentenced to detention.

Goldsborough Road Campus

26-46 Goldsborough Road

Cavan SA 5095

Phone: 8169 1444

Jonal Drive Campus

1 Jonal Drive

Cavan SA 5095

Phone: 8169 1444

A sentence of home detention

A sentence of home detention as distinct from detention within an institution may be ordered pursuant tosection 37A of the Young Offenders Act 1993. A sentence of home detention imposed on a youth is subject to the following conditions:

  • to remain at and not leave a specified residence except for renumerated employment, urgent medical or dental treatment, or attendance at a course of education, training or instruction, or any other activity as required by the Court or by the home detention officer, or for any other purpose as approved by the home detention officer [see s 37A(1)(a)]
  • to be of good behaviour [see s 37A(1)(b)]
  • to obey the lawful directions of the home detention officer [see s 37A(1)(c)]
  • any other conditions as the Court may specify [see s 37A(1)(d)]

A youth is not in breach of home detention conditions if they leave the residence for the purpose of averting or minimising a serious threat of risk or injury [see s 37C(3)].

A sentence of home detention must not be imposed unless the Court is satisfied of the availability of suitable residence, that the youth will be properly maintained and cared for, and adequate resources exist for the proper monitoring of home detention conditions [see s 23(5)]. There is no power to backdate a sentence of detention [see Edwards v South Australian Police (1995) 180 LSJS 215; [1995] SASC 4987(Unreported, Prior J, 27 February 1995)].

The Court may vary an order for home detention if satisfied the residence is no longer suitable for home detention and there is some other suitable residence available [see s 37C(1)]. An order can be revoked where the Court is satisfied that the youth has breached a condition of home detention or the residence is no longer suitable and there is no other residence available [see s 37C(2)]. Where the Court revokes an order for home detention, it may impose some other sentence on the youth, but must take into account the period served by the youth under the order [see s 37C(4)]. Where an order is revoked on the ground of breach of condition, the Court may sentence the youth to detention for a term not exceeding the balance of the period of unexpired home detention as at the date on which the breach occurred, but a sentence of detention may not be imposed in the case of revocation on any other ground [see s 37C(5)]. The Court may issue a warrant for the apprehension of the youth pending determination of the breach [see s 37C(6)].

Upon breaching the condition requiring the youth to remain at his or her residence, that youth is unlawfully at large [see s 37D(1)].

Suspending a custodial sentence

Section 96 of the Sentencing Act 2017 (SA) applies when considering the suspension of a custodial sentence [see Bechara v SA Police [1995] SASC 5013 (Unreported, Lander J, 9 and 31 March 1995) for application of section 38 of the previous Criminal Law (Sentencing) Act 1988 (SA)].

Further information in relation to suspended sentences is available in the Sentencing chapter.

Power to impose an obligation

The Court does not have the power to require a youth to enter into a bond [see Young Offenders Act 1993 (SA) s 26(1)]. However, the Court may order a youth to be placed under an obligation of the kind that would otherwise have been imposed under a bond [see Sentencing Act 2017 (SA) s 97(1)] and this may include (for example) an obligation to:

  • submit to supervision [see Young Offenders Act 1993 (SA) s 26(3)(a)]
  • participate in a specified program, or attend a specified activity centre [see s 26(3)(b)]
  • carry out specified work [see s 26(3)(ba)]
  • reside where directed [see s 26(3)(c)]

Failure to comply with an obligation is an offence. The maximum penalty is a fine of $2,500 or detention for six months, or both [see s 26(4)].

Undertaking from guardians

Although rarely invoked, the Court may release a youth on an undertaking, on condition that the guardians of the youth enter into a supplementary undertaking [see Young Offenders Act 1993 s 27] to:

  • guarantee the youth’s compliance with the conditions of the youth’s undertaking,
  • to take specific action to assist the youth’s development, and guard against further offending, and
  • to report at intervals on the youth’s progress.

Community Service

A court may not require a youth to carry out community service if the aggregate requirement exceeds 500 hours [see Young Offenders Act 1993 s 25(1)]. The period over which community service is to be performed may not exceed eighteen months [see s 25(2); s 49 for placement requirement; s 49A for restrictions; s 51 for work orders limited to certain kinds of work].

Power to disqualify from holding or obtaining a driver’s licence

Section 28 of the Young Offenders Act 1993 gives the Youth Court the power to order that a youth who is found guilty of an offence may not hold or obtain a driver’s licence if it is of the opinion that the child is not a fit and proper person to have a driver’s licence, or to impose a licence disqualification where such a penalty is appropriate for the offence [see s 28(1)]. Where this order is imposed, a youth is not entitled to apply to the Magistrates Court for an order removing a disqualification under section 172 of the Road Traffic Act 1961 until they attain the age of eighteen years [see Young Offenders Act 1993 s 28(3)].

Remittance or reduction of court fees

The Court may not impose a fine exceeding $2,500 for an offence [see Young Offenders Act 1993 s 24]. The Court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason [see Youth Court Act 1993 s 33].

Record of appearance kept

A youth’s appearance in the Youth Court will be recorded and kept, so that if they later appear in the adult jurisdiction, a record of prior offences for which they appeared in the Youth Court will be before the Court.

Detention provisions

Conditional release from a training centre

A youth sentenced to a period of detention in a training centre may be granted conditional release by the Training Centre Review Board at any time after the youth has completed at least two-thirds of the period of detention, where it is satisfied that the youth’s behaviour during the period of detention has been satisfactory and that there is no undue risk that the youth would re-offend if conditionally released [see Young Offenders Act 1993 ss 41A(1), 41A(2)(a) and 41A(2)(b)(i)]. Consideration must be given to the impact the release of the youth will have on a registered victim and the victim’s family [see s 41A(2)(b)(ii)].

Conditional release does not apply where the sentence of detention is less than two months [see s 41(1)(c)]. Nor does it apply where the youth has been sentenced as an adult [see s 41(1)(a)].

In addition, on application by the Chief Executive or on the initiative of the Training Centre Review Board a youth may be released onto home detention conditions for the remainder of the unexpired balance of the term of detention or such shorter period as determined by the Training Centre Review Board [see s 41B].

Specific provisions apply relating to the release of young offenders who are also considered terror suspects (as defined in section 4(1) of the Young Offenders Act 1993 (SA)) - see section 43 of the Young Offenders Act 1993 (SA).

Transfer to prison from a youth detention centre

Under section 63 of the Young Offenders Act 1993 a youth sentenced to a period of detention in or remanded to a youth detention centre may be transferred to a prison for the remainder of the period of detention where:

  • the person is now above the age of eighteen years [see s 63(2)]; and
  • the youth or the Chief Executive of the Department makes an application to a Judge of the Youth Court for such a transfer [see s 63(2)]; and
  • the Court is satisfied that a prison would be an appropriate place for the person to be held for the remainder of the period of detention [see s 63(3)].

Section 63(4) provides for transfer of a youth of, or above, the age of 17 to a prison on the application of the Chief Executive where the youth:

  • cannot be properly controlled in the training centre;
  • has been found guilty of assaulting an employee of the training centre within the preceding 14 days;
  • has persistently incited disturbance in the training centre; or
  • has escaped or attempted to escape from the training centre.
APPLICATION FOR TRANSFER TO PRISON
The duty solicitor does not normally appear to oppose an application under section 63(4) of the Young Offenders Act 1993. However, if the duty solicitor does become aware of a youth in custody who wishes to oppose such an application they should arrange to brief senior counsel as a matter of urgency.

Youth Court Treatment Intervention Court

The Treatment Intervention Court operates within the Youth Court and supervises eligible defendants whose offending is relating to mental impairment and/or substance dependence.

The Youth Court Treatment Intervention Program commenced in 2011 and replaced the former Youth Court Assessment and Referral Drug Scheme (Youth CARDS) and the former Youth Court Diversion Program (YCDP).

Eligible defendants appearing in the Youth Court are able to access the 6 month Treatment Intervention stream. Young people who may not be eligible for a referral for a Family Conference due to the nature of their offending are targeted for referral to this stream. Treatment services are usually provided by private psychologists.

For more information on the practices and procedures of the Treatment Intervention Court, see the Duty Solicitor Handbook section on Treatment Intervention Court.

The criminal jurisdiction of the Youth Court  :  Last Revised: Mon May 21st 2012