Youth Diversion (NSW)
When a young person commits an offence in New South Wales, they can be prosecuted in the Children’s Court. Alternately, where it is appropriate, the matter can be diverted away from the formal justice system if the young person agrees to take part in a diversionary program. A young person can be referred to a diversionary program by the police or by the court. This page deals with youth diversion in New South Wales.
Legislation and youth diversion
In New South Wales, the Children (Criminal Proceedings) Act 1987 contains the processes for trying and sentencing children for criminal offences.
The Young Offenders Act 1997 sets out the alternative processes for dealing with children who admit offences and want to take responsibility for their actions but avoid going through the court system.
Why do youth diversion programs exist?
Diversion programs are designed to hold young people accountable for their actions in a way that helps them to learn from their mistakes. They allow a young person to avoid going through the formal justice system and getting a criminal record, while fostering an understanding of the consequences of actions and encouraging the youth to address any underlying issues that contributed to their offending.
A young person who has committed an offence that does not involve violence may be given a warning. A warning is given by the investigating officer on the spot and does not have any conditions attached.
A young person who has committed an eligible offence may be given a caution by police if they admit the offence and agree to be given a caution, and if the police officer considers it is appropriate. A court may also give a caution to a young person for certain offences and then dismiss the proceedings.
In deciding whether it is appropriate to give a caution, the following must be considered:
- The seriousness of the offence
- The degree of violence involved
- The harm caused
- The number of nature of offences that have been committed by the young person
- Any other matter they think relevant
A person who gives a caution must ensure that the young person understands the caution and if practicable, give the caution in the presence of a parent or another adult. A caution must not have conditions attached to it.
When a caution has been given, there are no further consequences for the young person.
Youth justice conferences
A young person who is charged with an offence and appears in court may be referred to participate in a youth justice conference by the magistrate. This may occur only if the young person admits the offence and the offence is one for which a conference can be held.
A youth justice conference involves the young person meeting with people who have been affected by their actions to discuss what happened and how it can be rectified. Participants try to agree on an outcome plan to avoid future offending by the young person. This may involve the young person apologising to the victim or taking part in programs.
If the participants cannot agree on an outcome plan or if the young person fails to complete the requirements of the plan, the matter will be referred back to the Children’s Court for the proceedings to continue.
If the young person successfully completes the requirements of the outcome plan, the matter will not come back before the court and there will be no further consequences for them.
Adult diversionary programs
New South Wales also has diversionary programs that are available to adults who have committed certain types of offences. These include the Magistrates Early Referral Into Treatment (MERIT) Program for adult offenders with drug or alcohol problems and the Traffic Offenders Intervention Program (TOIP), which provides offenders with skills and information to become safer drivers.
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