Contributed by ElanorFenge and current to 5 March 2018

In the Northern Territory, anyone over the age of 10 can be charged with a criminal offence. People aged between ten and 18 who are charged with a criminal offence are dealt with differently and in a different court to adult offenders charged with criminal offences. In criminal cases, age is generally an important factor but for young people age is relevant in relation to many things including the manner in which police conduct investigations, interview suspects, and obtain evidence from suspects. Age may also determine whether a matter will proceed to court and which court will deal with it. Age is also relevant when young people are found guilty of criminal conduct and are sentenced. The law grants young people some special rights and protections not extended to adults.

The main legislation governing young people and crime in the Northern Territory is the Youth Justice Act (YJA), The Criminal Code Act (CCA) and the Police Administration Act (PAA).

Criminal responsibility

Under ten years of age

Criminal responsibility is dealt with under sections 38 and 43AP of the Criminal Code. Depending on the offence, either section 38 or 43AP will apply. Section 38(1) stipulates that 'a person under the age of 10 years is excused from criminal responsibility for an act, omission or event.' Section 43AP states 'a child under 10 years old is not criminally responsible for an offence.'

The effect of these sections is that at law, a person of such immature age is not considered criminally responsible for their conduct, regardless of whether that conduct constitutes criminal conduct and regardless of the seriousness of that conduct. Police officers and prosecutors are well aware of this rule; however, on rare occasions, people under the age of ten may have a charge laid against them. If this happens, once the police or the court becomes aware of the error, the charges will either be withdrawn or dismissed.

If a person under the age of ten has been summonsed to appear in court, a lawyer should be consulted. The lawyer can assist the young person in having the charges dismissed.

Between ten and 14 years of age

A person between the age of ten and 14 years of age is presumed to lack the capacity to commit a criminal offence. Depending on the offence,this presumption is set out in sections 38(2) and 43AQ of the Criminal Code. Section 38(2) states: 'A person under the age of 14 years is excused from criminal responsibility for an act, omission or event unless it is proved that at the time of doing the act, making the omission or causing the event he had the capacity to know that he ought not to do the act, make the omission or cause the event.' Section 43AQ(1) states: 'A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.'

A person in this age group will only be found guilty of a criminal offence if the prosecution is able to rebut the presumption of incapacity and prove, beyond reasonable doubt, that the person did have the capacity to commit the offence complained of. This is known as the principle of doli incapax and requires the prosecution to prove that the young person had the capacity to know that what they were doing was seriously wrong.

This principle exists because the law recognises that a young person's level of understanding will vary according to, among other things, background, education and maturity. Thus, where two young people engage in identical conduct giving rise to criminal charges the outcomes for each may be very different. If the prosecution can prove the necessary capacity, the charges will proceed and the person may be found guilty of a criminal offence. If, however, the prosecution is unable to prove the necessary capacity the court will not permit the charges to proceed against the defendant. The magistrate or judge will dismiss the charges and the defendant will be discharged.

Police will generally not lay charges against a person in this age group unless they believe they can prove capacity. In court, it is the prosecutor's job to prove to the magistrate or judge that capacity can be established. The young person's lawyer may admit capacity or argue on behalf of their client that the prosecution cannot prove that they did have the capacity. It is the magistrate or judge's job to decide this issue. It is important to know that the young person's capacity must be determined as it was at the time of the alleged offending and not at the later time after they have been brought to court.

The question of capacity must be decided in each case. Where the matter is brought to court, the prosecution may rely on evidence about the background of the young person, including whether they have been spoken to by police for earlier offences. The level of sophistication shown by the young person in the way the offence was committed and the understanding of the offence shown during police interviews are also relevant to the question of capacity. The actual commission of the offence is often not enough to prove capacity. A young person may benefit from the testimony of their parents, school teachers or other people who can give evidence about their level of maturity.

Between 14 and 18 years of age

Young people between 14 and 18 years of age can be charged for criminal conduct; however, they are dealt with in the Youth Justice Court whereas adult defendants are dealt with in the Local Court. For the purposes of criminal law, a young person becomes an adult at the age of 18 years, and therefore is subject to the full range of adult processes and penalties. However, if the young person committed an offence before he or she turned 18 years old and had since become an adult, he or she will still be dealt with in the Youth Justice Court.

Where the offending complained of is serious enough which attracts a maximum penalty of life imprisonment such as arson or robbery in company, young defendants will then be dealt with by the Supreme Court.

Young people and police

It is well known that when police and young people come face to face there is often a clash of attitude. It is therefore important for young people to know that there are certain rules with which they must comply as members of society; however, there are also other rules or laws designed to protect their rights or interests within that society. These laws and rules are set out in the Youth Justice Act, the Police Administration Act and the Police General Orders.

There are rules for police to abide by when dealing with adults and young people in relation to things such as arrest, search, seizure, interrogation and obtaining identifying material such as fingerprints or DNA. In addition to these rules, young people are also provided with some additional rights because of their age.

Where a police officer is required to inform a young person of any matters relating to criminal offending the explanation must be made in a language and manner the youth is likely to understand having regard to their age, maturity, cultural background and English skills. They must also be informed of their ability to access legal advice and representation.

Arrest and interview

To question a young person about their activities, police generally ask the person to accompany them to a police station. Unless arrested, a young person doesn't have to go with police. The power to arrest without warrant is a very significant power and should be used sparingly and only as a last resort. There are strict guidelines in the Police General Orders setting out the circumstances where that power can be used. A person can only be arrested where police believe on reasonable grounds that they have committed an offence or are in the course of committing an offence or about to commit an offence.

On arrest, police are obliged to inform the young person of the offence(s) for which they have been arrested [PAA s.127]. As a general rule, at no time does a person have to answer any questions except those requesting name and address. However, where the young person has been arrested on traffic offences, they might also be required to provide the name and address of any driver alleged to have committed a traffic offence. If the young person does not give their true name and address, they can be charged with an offence. Anything said to police, at any time, whether recorded or not, might later be used in court as evidence.

Generally, police cannot interview a young person unless they believe on reasonable grounds that the person has committed an offence or been implicated in the commission of an offence. If the offence carries a maximum penalty of 12 months or more, at least one 'support person' must be with the young person during the interview [YJA ss.18, 35]. Who constitutes a 'support person' is set out in section 35 of the YJA and includes:

• a responsible adult in respect of the youth
• a person nominated by the youth
• a legal practitioner acting for the youth.

If a police officer has made reasonable attempts to have one of the above attend to be with the youth but it was not practicable for such a person to be present within two hours, the officer may call a person from the Register of Appropriate Support Persons [YJA ss.35, 14].

Certain people cannot be support persons for a youth. If police are of the opinion that a person is an accomplice of the youth in the alleged offending, that person cannot be a support person for the youth. Likewise, if police are of the opinion that a person is likely to lose, destroy or fabricate evidence relating to the offence then that person cannot be a support person either [YJA s.35(2)].

A support person cannot be under 18 years of age but a youth is entitled to have another particular youth present as well as a responsible adult if he chooses provided it is practicable to do so in circumstances where the officer does not consider the other youth to be an accomplice or likely to lose, destroy or fabricate evidence, for that other youth to attend within two hours and where it would not lead to undue delay in accommodating that request [YJA s.35(4), (6)].

The decision about whether to talk to police should be taken seriously. This is because police will want to talk to the youth about their suspected involvement in criminal activity. Through interview they will want to confirm these suspicions and obtain evidence admissible in court in order to prove the youth's involvement in alleged offending.

Under our system of criminal law a person cannot be compelled to answer police questions in relation to allegations of criminal conduct and as a general rule should never agree to participate in an interview without first speaking to a lawyer. Under the YJA, the police have an obligation to inform the youth before they are interviewed (or searched) that they have the ability to access legal advice and representation [YJA s.15(2)].

The NT Legal Aid Commission and the Aboriginal Legal Aid services can be contacted by phone from all police stations. The police are able to provide after-hours phone numbers for these services. A young person or their support person should ring for free legal advice over the phone before any police interview, regardless of whether it is recorded. If it is impossible to obtain legal advice while at the police station, the police should respect a request to defer doing a record of interview until legal advice is obtained.

While no young person is legally required to answer police questions or provide police with information about an offence they have been accused of committing, a youth may decide to cooperate and answer question in relation to alleged offending. In such circumstances it is the role of both the police and the support person to ensure that they are not affected by anything that could disadvantage them, such as alcohol, drugs, tiredness, hunger or injury. A young person can be assisted if it is thought they do not understand a question. It is important that the support person understands their own role and the right of the youth to remain silent. A support person is there to support the youth, not to answer questions and not to persuade the youth to answer questions.

Even when a youth has indicated that he does not wish to answer questions, the police may commence an interview any way. Once an interview begins it is often very difficult for a youth to remain silent when faced with a figure in authority asking questions. At all times, both the youth and the support person should know exactly what it is the youth is to be questioned about. The support person may later be asked to give evidence in court about what they heard and observed. Young people often feel out of their depth at police stations. In an effort to get out of a police station as quickly as possible, a young person will often admit to the commission of an offence even when they are unsure about their guilt. It is important that a young person fully understands, at all times, the subject of the interview.

A young person who speaks English as a second language or who is Aboriginal may require an interpreter as well as a support person to be present during the interview process. Any disadvantage or unfairness to the young person should be brought to the attention of the youth's legal representative.

Search

Except in situations of urgency, police can only search a person under 18 if a support person is present at the time. In urgent situations the police must conduct the search, so far as practical, in a fashion that maintains the dignity of the youth. As a general rule, a female officer must search a female youth and a male officer must search a male youth. A youth's privacy should be protected during searches. Clothing should not be removed unless police have reasonable grounds for believing that the clothing will provide evidence of offending and replacement clothing is provided [YJA ss.19, 20].

Forensic procedures

Strict rules govern the collection of identifying materials from young people. These rules are set out in Division 3 of the YJA. Certain preconditions must be met before any such material can be obtained. At all times a support person must be present with the youth when any forensic procedure is carried out [YJA s.29].

Division 3 sets out four categories of forensic procedures, namely:

• intimate procedures
• non-intimate procedures
• voluntary non-intimate procedures
• identifying procedures.

Intimate procedures

Intimate procedures are defined in section 7 of the YJA and include external or internal examinations of intimate parts of the body, internal examinations of non-intimate parts of the body, taking samples of substances from an intimate parts of the body, dental impressions, bite marks, photographs of intimate parts of the body, x-rays and the taking of blood, urine and pubic hair samples.

Intimate procedures can only be conducted with the written approval of a magistrate. If approval is granted, the samples must be taken by a medical practitioner or a dentist. The youth concerned must be given the opportunity to have their own medical practitioner or dentist present when the intimate sample is taken. Arrangements for this must be made unless it is impracticable to do so. A police officer is permitted to assist the doctor or dentist to carry out the procedure and may use reasonable force in order to do so [YJA s.30].

The rules do not operate to prevent a doctor or dentist from examining and treating a young person in custody where the young person has requested such treatment.

Non-intimate procedures

Non-intimate procedures are defined in section 8 of the YJA and include samples of saliva, buccal swabs, hair samples, photographs of non-intimate body parts or an impression or cast of a wound. It also includes an external examination of a non-intimate body part.

Non-intimate procedures can only be conducted in the circumstances set out in section 31 of the YJA, namely:

• the youth is suspected by a police officer, on reasonable grounds, of having committed a crime
• the youth has been charged with an offence punishable by imprisonment
• the youth has been summonsed to appear in proceeding against the youth for an offence punishable by imprisonment
• an authorised officer has consented to proceedings in respect of an offence punishable by imprisonment.

Where non-intimate procedures are to be carried out, there must be approval from either a magistrate or a senior police officer. A senior police officer can only authorise non-intimate procedures if they are satisfied the youth is over 14 years of age. Written approval must be obtained though applications for that approval may be made over the telephone. The police are permitted to use reasonable force when carrying out non-intimate procedures. A support person should also be present when a non-intimate procedure is carried out.

Voluntary non-intimate procedure

This section relates only to offences which if committed by an adult would be punishable by imprisonment for 14 years or more. If a youth and their responsible adult both voluntarily consent, in writing, to a non-intimate procedure, a senior police officer may carry out that procedure. If the procedure is carried out for the purpose of investigating an offence, any information obtained from the procedure must not be used for investigating any other offence other than offences which if committed by an adult would be punishable by imprisonment for 14 years or more.

Identifying procedure

An 'identifying procedure' is defined to include the taking of prints from the hands, fingers, feet or toes or the taking of photographs of non-intimate parts of the youth that are identifying in nature. An authorised officer or a police officer for the time being in charge of a police station may carry out identifying procedures on a youth in the same circumstances as those set out under non-intimate procedure, provided they are satisfied that the youth is 14 years of age or older. If the youth is under 14, a magistrate must approve the procedure before it is carried out. Approval must be in writing (though the sample can be taken if verbal approval has been given over the phone) and the police are permitted to use reasonable force when carrying out an identifying procedure.

Police Options

Once the police are satisfied that they can prove an offence against a young offender they must decide which path to take next. There are two options available: the police may elect to deal with the offender by way of diversion (also known as pre-court diversion) which means outside of the court system or they may decide to charge a youth with a criminal offence through the court system.

Under the YJA, police are required to divert young offenders rather than requiring them to appear at court. If the police decide diversion is not appropriate, then the youth will either be summonsed or bailed to appear at the Youth Justice Court to answer the charge(s) against them. The preference is for the younger offender to be summonsed rather than being put on bail.

Youth diversion

Police have always had the discretion to deal informally with young offenders outside of the court system, though that was generally done by way of a police caution in the form of a good telling off with next to no real guidelines and no real consistency as to how the discretion was applied. In 2000 the system of pre-court diversion was both expanded and given a legislative basis in the Police Administration Act [PAA ss.120F-120P]. Those provisions have since been repealed and the law relating to youth diversion is now set out in Part 3 of the YJA.

The aim of diversion is to deal with young offenders outside of the formal court process. Under section 39(2) of the YJA, instead of charging a youth with an offence, a police officer must: give a verbal warning, give a written warning, convene a Youth Justice Conference or refer the youth to a diversion program. A police officer is not required to refer a youth to diversion if the youth has left the Territory, has been charged with a serious offence, has completed diversion twice or has another circumstance that makes the youth unsuitable for diversion [section 39(3) YJA]. A youth is only eligible for diversion if they admit to the wrong doing. If the youth denies the allegation, it must be dealt with through the courts.

A young person cannot be sent to a diversion program unless they and their parents consent. If consent is not given, the police can opt to proceed with a criminal prosecution. Not every young offender will be given the opportunity to participate in diversion. Some offences are considered too serious for diversion or the prior history of the defendant may rule it out as an option. If the police decide not to divert a young person, the lawyer representing the young person can still ask the Youth Justice Court to adjourn the criminal charge to allow time for police to reconsider that decision. If the final answer is no, that decision cannot be appealed.

Diversion can take many forms. It can include a verbal warning, a written warning, referral to a Youth Justice Conference or diversionary programs. In practice, a youth who participates in diversion can be required to write letters of apology, attend victim-offender conferences, re-engage with school, undergo counselling or do certain hours of community work.

Youth diversion programs created under the scheme make it possible for young offenders to attend approved programs of training and/or work instead of going before the courts. Some of the programs on offer include counselling, anger management courses, alcohol and drug treatment, victim offender conferencing, family conferencing and self-esteem courses. If the young person successfully completes a diversion program, no prosecution can later be taken for that offence.

The Youth Justice Court

In the NT Youth Justice Courts are 'open' courts, meaning that any member of the public can be present at hearings [YJA s.49]. However, the magistrate may order the court 'closed' in the interests of justice and prohibit proceedings from being reported in the media.

If, at some stage of the proceedings, the magistrate becomes concerned about the welfare of a young person, they can order a welfare report [YJA s.51], which provides information about the young person's situation. A welfare report may for example be ordered if the magistrate becomes aware that the young person before them is living on the streets or being abused in some way.

The Youth Justice Court can hear a wide range of cases from minor or summary offences to serious offences. It cannot hear crimes that carry maximum penalties of life imprisonment, such as murder, manslaughter, rape, arson and aggravated robbery. These crimes are heard in the Supreme Court after a preliminary examination in the Youth Justice Court [YJA s.54A]. The crimes can also be dealt with by preliminary examination and then in the Supreme Court if the youth does not consent to having his or her matters dealt with in the Youth Justice Court. However, most young people would choose to have their matter heard in the Youth Justice Court because proceedings there are faster and cheaper and there is a limited range of penalties.

Even though a young person consents to having their case heard in the Youth Justice Court, complex or serious matters can still be referred by the magistrate to the Supreme Court.

If a young person is found guilty in the Supreme Court, judges have more extensive powers to sentence the young person. However, in the Supreme Court a plea of not guilty is tried before a judge and jury. A not guilty plea in the Youth Justice Court sees a judge alone decide the verdict.

Getting to court - summons or bail

Where police decide to prosecute a young person they must decide whether to place the defendant on bail or whether to summons the youth. A summons is a document setting out the time and place the charge will be mentioned at the Youth Justice Court. A young person who receives a summons to attend the Youth Justice Court must answer the summons. If the youth fails to appear the court may issue a warrant authorising the police to arrest the defendant in order to ensure their attendance at court.

A bail undertaking is the other way to compel a defendant's appearance at court. If a youth is placed on bail they must sign their bail undertaking. Bail may be conditional in that the police (or the court) may impose certain conditions restricting the liberty of the defendant. Conditions may relate to such things as residence, curfew, prohibition on alcohol or drugs, reporting to police, school attendance, certain people with whom they are not allowed to associate and certain places they are not allowed to attend. It is very important to understand the nature of a bail undertaking. If a young person does not comply with their bail undertaking by failing to appear at court, a warrant for their arrest will usually be issued. Also, if a defendant fails to comply with a condition of bail the prosecutor may apply to the court to have the bail revoked. In addition, the defendant may also be charged with a new offence of breaching bail. When a defendant breaches bail, the magistrate may decide not to grant bail again and revoke bail. Where bail is revoked, the defendant will be remanded in a youth detention facilitiy, until the charge is heard and finally determined.

Legal advice

A young person required to appear at the Youth Justice Court should obtain legal advice as soon as possible from:

• a private legal practitioner
• the NT Legal Aid Commission, which provides a duty lawyer at the Youth Justice Court to assist with minor matters and first mentions of more complex matters. If necessary, the duty lawyer will ask the youth to complete an application for legal aid in more complex or serious matters
• an Aboriginal Legal Aid Service (for young people of Aboriginal or Torres Strait Islander descent)
• Darwin Community Legal Service, which runs free legal advice sessions.

What happens at court

On reaching court, a young person should find and tell their name to a court orderly. An orderly will know which courtroom a young person must go to and when their case is due to be heard. Before court begins, an orderly calls the names of all those appearing that day. It is a good idea to show up about half an hour before the case is due to be heard. The summons or bail form should state what time the young person is due at court, which is usually, but not always, 10am. It is very important to attend court on every occasion required. If a young person does not attend court on the date and time required, the magistrate may issue a warrant for their arrest, which means they may be arrested at any time and brought to court in custody.

The following people are present at a hearing in the Youth Justice Court:

• the prosecutor who can be either a police officer or a lawyer
• the magistrate who sits at the front of the court and is called 'Your Honour'
• an officer from the Office of Corrections
• the young person
• the young person's parents or guardian or responsible adult
• the young person's lawyer.

The court must make sure that the young person before it understands the proceedings and has an opportunity to be heard and to participate.

In court the young person is referred to as the defendant. Most defendants appearing at the Youth Justice Court appear with a defence lawyer. The defence lawyer's role is to look at the evidence available and advise the defendant of their options. A young person does not have to take their lawyer's advice and may plead not guilty even when advised that they will most likely be found guilty. Likewise, a defendant may plead guilty even where the lawyer advises that the evidence is lacking. If the young person does plead guilty to the charge(s), the magistrate is normally more lenient with sentencing than it would be if the young person was found guilty after a hearing.

The parent or guardian of the young person must attend the Youth Justice Court hearing and can be summoned to attend if they don't come voluntarily. If the summons is not complied with the court may order a warrant be issued for the attendance of the parent or guardian.

Courts are solemn places. It is important that people who appear before the Youth Justice Court are respectful and courteous to the magistrate at all times.

Pleading

A young person charged with an offence must decide whether to plead guilty or not guilty to the charge.

Not guilty plea

A plea of not guilty results in a longer and more complicated procedure than does a plea of guilty. A plea of not guilty usually sees the hearing adjourned to a later date to allow the young person and their lawyer and the police to prepare cases. This means working out the evidence and how it will be presented.

Evidence can take many forms. A witness may state, under oath, what they saw. Certain documents might be tendered. Closed circuit TV images and photographs may form part of the case. Forensic evidence such as DNA and fingerprints are particularly useful prosecution evidence as are a defendant's own taped admissions made to police.

On the day of the hearing both the police and the young person are expected to have their witnesses available at court to give evidence.

The first evidence is given by the prosecution witnesses, who are often the victims of the crime or police officers. Witnesses sit at a desk in court called the witness box. Witnesses are required to take an oath or declare to tell the truth (an affirmation). Each witness is questioned by a prosecutor. The defendant should listen carefully to each witness and inform their lawyer if they disagree with anything said. When the prosecutor has finished, the defendant or their lawyer is also able to question the witness. The prosecutor may then ask further questions for clarification. The judge may also at any time question a witness giving evidence.

The prosecution must prove the charge(s) beyond reasonable doubt. After all the witnesses for the prosecution have been called, the magistrate may decide that the prosecution has not provided enough evidence and the young person therefore has no case to answer. The magistrate will then dismiss the case and the young person will be free to go.

If the prosecution in presenting their case provides enough evidence to show that an offence has been committed, the defendant can give evidence themselves and call their own witnesses to give evidence. If the young person decides to give evidence, they, and any other witnesses who give evidence, can be questioned by the prosecutor and the magistrate.

At the end of all the evidence from both sides, the magistrate must then decide whether he or she is satisfied beyond reasonable doubt that the young person committed the offence(s). If the magistrate is not satisfied, the charge is dismissed and the juvenile defendant is allowed to go. If the magistrate is satisfied beyond reasonable doubt that the young person committed the offence then they will proceed to sentence unless a defence has been raised.

Where a defendant is acquitted of an offence he can not be tried for that offence ever again.

Guilty plea

A defendant who pleads guilty to an offence must be found guilty of that offence before being sentenced in relation to it. In this situation it is not necessary for the prosecution to call evidence; a summary of the facts is simply read and the defendant admits those facts. It is important that the facts are agreed before the plea is entered. If the defendant disagrees with the police summary of the facts establishing the offence it is important that the defendant does not admit those facts.

It is often possible for charges to be finalised on the day the guilty plea is entered, but sometimes this is not possible, especially when the magistrate wants to find out more information about the young person. This will usually see the magistrate adjourn (postpone) the matter to a later date to allow a report about the young person to be compiled. Reports are prepared by the Office of Corrections. An employee of that office speaks to the young person, their parents and others before making their report, which is sent to the magistrate before the next court date. On this date the young person, their parents and their lawyer are provided with a copy of the report before the charges are dealt with by the magistrate. When a magistrate is considering imposing a sentence of detention or imprisonment, the law requires the magistrate to order a pre-sentence report.

A young person may be led to understand that an appearance in the Youth Justice Court is unlikely to lead to a harsh penalty. While this may be the experience of some young people, there have been many cases where the court has imposed periods of detention on young first offenders. All matters requiring court attendance should be taken seriously and this includes getting legal advice.

When sentencing a youth, the Youth Justice Court must have regard to the principles and objects of sentencing young people as set down in sections 3 and 4 of the YJA. One such principle is that a youth who commits an offence must be held accountable for that offending and must be encouraged to take responsibility of that offending.

In criminal courts though, especially in the Youth Justice Court, the court must have regard to the young offender's prospects of rehabilitation when sentencing and must generally structure a sentence that will promote that objective. The court is also required to impose a sentence that is proportionate to the seriousness of the offence for which the offender is being sentenced. In sentencing, the court is required to balance the competing interests of the youth, victims of crime and the wider community. Arriving at the right sentence can be a very difficult exercise. If the Youth Justice Court imposes a sentence that the youth or the prosecution considers too light or too harsh, either party can appeal to the Supreme Court. If the Supreme Court agrees, the sentence will be altered, but if the Supreme Court doesn't agree, the sentence will remain in place.

The judge's finding

Where a young person pleads or is found guilty of an offence/s by the judge, a record of any previous findings of guilt by courts are handed to the judge. The judge is not permitted to impose a heavy sentence because of any previous record, but they are entitled to impose a lighter sentence when the young person has no record or the record is still good. Once this record has been checked for accuracy and admitted to, the young person or their lawyer can raise any factors that may mitigate (lessen) the sentence, such as:

• any extenuating circumstances; for example, the young person may have played only a minor role in the offence or was heavily influenced by others involved
• whether the young person has had any problems at home or at school
• whether the young person is remorseful and has apologised or paid restitution to the victim of the offence
• any relevant health problems
• character references (see Sentencing options ).

Sentencing options

The sentencing options are set out in section 83 of the YJA:

• dismiss the charge for the offence
• discharge the youth without further penalty. This usually occurs when the crime is trivial or the offender is very young and was only involved in the offence in a minor way
• adjourn proceedings: the matter may be adjourned (put off) for up to six months. If the young person doesn't commit any other offences during that time, they will be discharged without penalty. This is commonly referred to as a 'no further trouble order'
• adjourn proceedings for up to 12 months and place the youth on bail. This can be done to assess the youth's capacity and prospects for rehabilitation, or to allow the youth to demonstrate that rehabilitation has taken place or for any other purpose the court considers appropriate in the circumstance
• participation in an approved program. If the youth completes this program then they will be discharged without penalty. If they do not complete the program then they will be sentenced to one or more of the other options available under section 83
• good behaviour bond: the young person must agree to be of good behaviour for a specified amount of time. The bond may include certain conditions, such as requiring the young person live in a certain place, obey their parents or guardians, avoid contact with certain people or report regularly to a juvenile justice officer and may be imposed for up to two years
• impose a fine
• impose a community work order: the young person may be ordered to perform up to 480 hours of unpaid community work in an approved project
• alternative detention: the court may impose a term of detention or imprisonment suspended on the condition that the defendant serves alternative detention at a place specified by the court. Where an alternative detention order is made the youth will not be permitted to leave that place without the prior permission of the Director or a surveillance officer of Correctional Services. The youth may be ordered to comply with various directions as a part of an alternative sentence order. They must also submit to tests for illicit substances or alcohol if requested to do so
• periodic detention order: the court may order the young person to serve his or her sentence in detention or prison at different periods of time
• detention and imprisonment: Under the YJA, a person over 15 can be sentenced to a maximum term of two years detention or imprisonment; a person under 15 can be sentenced to a maximum of 12 months. A youth under 15 can only be sentenced to detention, though in some cases a person over 15 may be sentenced to imprisonment rather than detention. Where the Supreme Court sentences a youth, it can sentence under either the Sentencing Act or the YJA. The Supreme Court would sentence under the Sentencing Act if the offending was very serious and warranted a period exceeding two years. A sentence of detention or gaol may be suspended totally or in part, in which case, the young person is released on a good behaviour bond. They are only required to serve time if they breach the bond conditions or by committing a jailable offence/s. Generally, a young person in detention must be transferred to an adult gaol within 28 days after their 18th birthday
• make any other order in respect of the youth it could were the youth an adult offender.

In addition to the above orders the court may also disqualify a young person from holding or obtaining a drivers licence [YJA s.88]. A young person may also be ordered to pay restitution [YJA s.89]. The payment would be passed on by the court to a victim who has suffered damage or loss as a result of a crime.

At the time of sentence it is a good idea to have character witnesses attend the hearing or write letters that can be handed to the magistrate. These character references should be addressed 'To the Presiding Judge' and include the following information:

• how long they have known the young person
• under what circumstances they have known the young person, for example, as a friend of the family or employee
• what they can say about the character of the young person. It is most important that such statements refer to the offence(s)
• anything else that they think might be relevant.

Reconsiderations and appeals

A young person who believes they have been wrongly found guilty or that the sentence imposed by the Youth Justice Court is too harsh can appeal to the Supreme Court [YJA s.144]. The appeal application must be made within 28 days of sentencing/finding of guilt and legal advice should be obtained (see Legal aid ).

A young person or their representatives can also apply to the court for reconsideration if their circumstances change after sentencing [YJA s.141]. All parties are notified of an application for reconsideration and a hearing date is set in the Youth Justice Court. Changes in circumstances relating to the young person will be considered where a sentence is reconsidered and may give rise to a reduction in penalty or a change in sentence generally. For example, a release date may also be reconsidered if a young person wants to attend an education course or take up employment. The views of parents or guardians may be sought as part of the review process. Office of Corrections policy states that any decision should promote the best interests of the detainee.

Appeals against a Supreme Court sentence use a different mechanism (see Sentencing ).

Breach of an order

A young person who doesn't abide by the conditions of a bond, probation, unpaid community work or suspended detention order can be forced to reappear in the court which imposed the original sentence, usually the Youth Justice Court. Legal representation is strongly advised.

If a young person disagrees in court with the prosecutor's statements regarding the breach, but the magistrate decides on evidence that a breach has occurred, another sentencing hearing is held. Information supporting the young person's case can then be put forward. The new sentence depends on the original order, the seriousness of the breach and the young person's current situation. Failing to report to correctional services is not, for example, as serious as committing another crime. A breach usually results in a sentence heavier than the original penalty and can include convictions where none were previously imposed.

Preliminary Examinations

A few cases involving young people don't fall within the Juvenile Court's jurisdiction, and sometimes a young person chooses to have their case heard in Supreme Court. These cases begin in the Youth Justice Court with a preliminary examination. A preliminary examination is a hearing at which the magistrate decides whether there is enough evidence to justify sending the matter to the Supreme Court for trial or guilty plea. If a young person pleads not guilty to the charge(s) in the Supreme Court, a trial is held. At a trial the evidence is heard again, but a jury, rather than a judge, decides the defendant's guilt or innocence. For information about pleading guilty in the Supreme Court (see Sentencing ).

Legal representation should be obtained prior to a preliminary examination. In a preliminary examination, usually the prosecution's evidence is tendered to the court in the form of written statements. A young person's lawyer will then be able to question prosecution witnesses. All the evidence in a preliminary examination is recorded and a typed copy can be obtained from the court.

Supreme Court trials of young people proceed in the same manner as in an adult case (see Going to court ).

Record of convictions and Impact

A young person's criminal record can be taken into account in future court cases, but there is a limit on the length of time a record remains valid. Where a young person has been found guilty but has not been convicted by the Youth Justice Court, no criminal record will exist once the juvenile turns 18.

In some cases, a young person's criminal history can become finished or spent. Where a court convicts a person under 18 years of age and sentences them to six months imprisonment or less, the conviction is spent at the completion of a waiting period.

For a conviction in the Youth Justice Court, the waiting period is five years. The waiting period begins on the date of the conviction, unless a sentence of detention has been imposed. If a sentence of detention has been imposed, the waiting period begins after the period of detention has been served.

Where a person is later convicted of another offence that is punishable by imprisonment, the waiting period must begin again and may be revived if other offences punishable by imprisonment are committed at any time in the future.

Some convictions cannot be spent, such as those for sexual offences or offences where more than six months imprisonment is imposed.

A criminal conviction can affect a young person in a number of ways, including impacting on the ability to get a job or travel to another country. For example, some employers require job applicants to declare any criminal convictions or the employer may carry out checks themselves. An employer might be reluctant to employ a young person with a criminal record, especially if the conviction was for a dishonesty offence.

(See also Sentencing )