Proposed ‘Three Strikes’ Youth Justice Law (SA)
The South Australian government is proposing to introduce a ‘three strikes’ system for dealing with young people who repeatedly commit serious offences. This page outlines the proposed changes and how they will affect both bail and sentencing, if passed.
Legislation
The draft legislation is contained in the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009. The legislation, which would make changes to the Bail Act 1985 and the Criminal Law (Sentencing) Act 1988, is likely to pass later this year.
What is a serious offence?
Under the draft legislation, serious offences include the following:
- rape
- indecent assault
- child exploitation
- commercial drug trafficking
- arson
- violent offences causing serious harm.
Recidivist offender declaration
A young person who is convicted of three serious offences may be declared a recidivist offender by a court.
A young person may also be declared a recidivist offender if they are convicted of two serious sexual offences against a person under 14.
A court must make a recidivist offender declaration if it is of the opinion that the youth’s history of offending warrants a particularly severe sentence in order to protect the community.
Sentencing recidivist offenders
A court will be required to sentence a young person who has been declared a recidivist offender to a custodial term, and the sentence must be structured so that they serve at least 80% of that term. This means that the person will not be eligible to apply for parole until they have served at least 80% of their sentence.
Presumption against bail
The proposed laws will also establish a presumption against bail for recidivist offenders. This means that the young person will not be granted bail unless they can show the court that there are special circumstances that justify their release on bail.
What is changing?
Under current South Australian law, a court has a discretion to declare a person to be a recidivist offender when they have committed multiple serious offences.
However, under the proposed laws, a court will be required to do so where it considers the person’s history of offending warrants this.
The change, if passed, will limit the court’s discretion and mean that harsher sentences are handed down to young repeat offenders.
The change will also mean that it is harder for young repeat offenders to obtain bail.
Reasons for the changes
The proposed changes to South Australia’s sentencing laws are part of a broader plan to tackle youth crime in the state. This plan is called the Young Offender Plan 2025.
The South Australian government has said that it is concerned that the pattern of repeat offending among young people is different from the pattern seen in adults who reoffend. In the 2023-4 period, 11% of youth crime in South Australia was reportedly committed by 20 individual young people.
The government has announced that it is seeking to implement measures to address the small number of serious young repeat offenders in South Australia.
It claims that the current sentencing scheme has been ineffective at ensuring that young repeat offenders are sentenced more harshly by courts, with only two youths designated as recidivist offenders since the scheme was introduced in 2009.
Responses to the proposed changes
The proposal has been condemned by the National Network of Formerly Incarcerated Women and Girls. The Network has called the changes ‘lack(ing) in imagination, courage, and care’ and as seeking to further criminalise children and young people who are victims of systemic disadvantage.
Other voices in the community and legal sectors have also criticised the proposals as likely to further entrench disadvantage and contribute to further raising the rates of youth incarceration, particularly among impoverished and marginalised communities.
Youth justice changes in other states
The proposal to bring in tougher youth justice laws for repeat offenders in South Australia comes at a time when many states and territories are overhauling their youth justice laws.
Queensland has recently introduced a mandatory sentencing regime dubbed ‘adult crime, adult time’ under which a young person found guilty of a serious violence offence will face the same mandatory minimum sentence as an adult found guilty of the same offence.
The Northern Territory has recently made changes to its youth justice laws that include abolishing the principle that detention is a last resort, both when making decisions about bail and at sentencing.
The ACT and Victoria have recently raised their minimum ages of criminal responsibility (to 12 and 14, respectively).
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Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.