Diversion in South Australia
In South Australia, a young person who has committed minor offences may be dealt with by way of diversion rather than through the court system in some circumstances. There are two levels of pre-court diversion for young offenders in SA. These processes allow a young person to take responsibility for their offending without gaining a criminal record and without having to go through the criminal justice system. This article deals with youth diversion in South Australia.
Overview
Cautions | Family Conferences | Criminal Charges
When does a youth receive diversion in South Australia?
A young person between the age of 10 and 18 may be granted a diversion in a case where they have committed a minor offence or offences and have admitted their wrongdoing. A young person will not be granted a diversion in South Australia in a matter where very serious offences have been committed, or where the young person has an extensive history of offending. A diversion will also not be granted if the young person denies the offending.
What is the purpose of diversion in South Australia?
Youth diversion in South Australia exists so that a young person may be given a ‘second chance.’ The law recognises that young people often act impulsively and make mistakes. In some cases, where minor offences have been committed by a youth, it is preferable to have them take responsibility for their actions informally, rather than going through the court system.
A diversion means that a young person is held accountable for what they have done without having t go through the formal criminal process.
What is a minor offence?
Diversion can only be granted in relation to minor offences. An offence can be dealt with as a minor offence if, in the opinion of the police officer, it should be dealt with this way because of the following factors:
- the offence has caused limited harm;
- the youth’s character and antecedents;
- the youth is unlikely to re-offend;
- the attitude of the youth and their parents.
This definition means that the police officer conducting the investigation has a lot of discretion in deciding which matters to deal with as minor offences.
Cautions
Under the Young Offenders Act 1993, a young person who has committed a minor offence may be diverted by way of either an informal caution or a formal caution.
Informal cautions
When a police officer becomes aware that a young person has committed a minor offence, they may deal with the matter by giving the youth an informal caution. When this occurs, no further action is taken against the young person.
Formal cautions
When a police officer gives a youth a formal caution, they may also do any of the following:
- Require the youth to enter into an undertaking to pay compensation to the victim or to a person who suffered loss or damage as a result of the offence;
- Require the youth to enter into an undertaking to complete up to 75 hours of community service;
- Require the youth to enter into an undertaking to apologise to the victim or to a person who suffered loss or damage as a result of the offence;
- Require the youth to do anything else that is appropriate in the circumstances.
Family Conferences
When the police give a youth a formal caution, they may notify the Youth Justice Co-ordinator so that they can convene a Family Conference. This is a conference between the young person, their parents or guardians, the victim of the offence, police, anyone who has suffered loss or damage as a result and anyone else who is closely associated with the youth.
A Family Conference decides how the young person should be dealt with for the offence. It may result in the youth undertaking to pay compensation, perform community service, apologise to those affected by the offence, or do anything else that is appropriate. The young person and the police member present must both agree to the decision.
Criminal charges
If a youth does not successfully complete the requirements of their diversion in South Australia, the police may charge them with the offence. The young person will then be required to attend the Children’s Court and enter a plea. If the youth was previously given a formal caution, this may be used as evidence that they committed the offence.
If the young person is found guilty of the offence, the court will sentence them under the Young Offenders Act. They may receive a fine, good behaviour bond, community service order or a term of detention. It is also likely that a conviction will be recorded against them.
A criminal conviction obtained as a juvenile remains on a person’s record for life and will be taken into consideration as a prior offence if the person is dealt with by a criminal court as an adult. It may also need to be disclosed when the person applies for a police check or a working with children check.
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